Commentary on Sections Part 2: Disclosure of sensitive material Section 17: Disclosure proceedings
122.Section 17 prevents the court in certain circumstances from exercising its residual disclosure jurisdiction (the classic example of which is known as the Norwich Pharmacal jurisdiction) so as to order the disclosure of specified types of sensitive Government-held information. Even though there is no equivalent of the Norwich Pharmacal jurisdiction in Scotland, the section extends there to prevent such a form of relief arising there in the future in relation to these types of sensitive information.
123.Subsection (1) describes the situation in which a Norwich Pharmacal order may be sought, reflecting recent case law. This case law is discussed in the background section above.
124.Subsection (2) restricts the ability to make such an order in cases where sensitive information is in issue, by providing that the court may not exercise its “residual disclosure jurisdiction” (as defined in subsection (6)) to order disclosure of sensitive information, whether the disclosure would be to the claimant or to another person on whose behalf the information is sought (the claimant’s spouse, for example).
125.Subsection (3) defines what is meant by “sensitive information” for these purposes. This includes any information, or alleged information, that is held by or for, or obtained from, an “intelligence service” (as defined in subsection (6)), or which is derived from such information or relates to an intelligence service (collectively referred to in these explanatory notes as “intelligence service information”). Information may be obtained from, or held on behalf of, an intelligence service where, for example, reporting from an intelligence service’s covert human intelligence source has been shared with the Home Office to enable that department to prepare a deportation case. Information may be derived from information obtained from, or held on behalf of, an intelligence service where, for example, an all-source intelligence assessment, produced by a government department, has been compiled using intelligence shared by a foreign intelligence partner with one of the intelligence services. And information relating to an intelligence service may include, for example, the fact of an intelligence sharing relationship with another country’s intelligence service. “Sensitive information” is also defined as information specified or described in a certificate issued by the Secretary of State for the purposes of the proceedings.
126.Subsections (4) and (5) set out the grounds upon which the Secretary of State may issue such a certificate. The Secretary of State may issue a certificate only if the Secretary of State considers it would be contrary to the interests of national security or the international relations of the United Kingdom to disclose the information, whether the information exists, or whether the person said to hold the information is in fact in possession of the information. The person said to hold the information may be the Secretary of State or may be another person (see subsection (7)(a)). The reference in subsection (4) to whether the information exists or whether the person from whom the information is sought has it is to deal with a situation where not only disclosure of the information but also confirmation or otherwise of the existence or possession of that information would be contrary to the interests of national security or international relations (this is known as the principle of “neither confirm nor deny”).
127.Subsection (6) defines various terms used in section 17. The definition of “intelligence service” comprises the Agencies and those parts of Her Majesty’s forces or Ministry of Defence (“MoD”) which engage in intelligence activities. The main parts of the MoD and Her Majesty’s forces which engage in such activities are the Special Forces and those parts of the MoD and Her Majesty’s forces which are collectively referred to as Defence Intelligence or which otherwise come under the authority of the holder of the MoD post of Chief of Defence Intelligence. The role of Defence Intelligence is the collection, assessment and management of intelligence as part of the national intelligence capability in both defence and wider government.
128.The definition of the “residual disclosure jurisdiction” in subsection (6) encompasses any jurisdiction to order the disclosure of information which is not conferred on the court by or under an enactment as a jurisdiction to order the disclosure of information. For example, the jurisdiction to order pre-action or third-party disclosure under sections 33 and 34 of the Senior Courts Act 1981 is a jurisdiction to order disclosure which is specifically conferred as such a jurisdiction by the 1981 Act, and so that jurisdiction is not within the residual disclosure jurisdiction and not affected by section 17. Neither, similarly, is the jurisdiction to order disclosure covered by the Civil Procedure Rules.
129.Subsection (7) clarifies that section 17 applies whether the information is being sought from the Secretary of State or from another. So the Secretary of State may issue a certificate in relation to information the disclosure of which would be damaging to national security or international relations, whether that information is being sought from him or her or, for example, from the police. Subsection (7) also provides that the Secretary of State retains all and any other rights or privileges that may be claimed to resist an application for disclosure of information – for example, public interest immunity.
130.The restrictions on disclosure in section 17 apply only in relation to “sensitive information” as defined in that section. The courts’ jurisdiction to order disclosure of non-sensitive information under Norwich Pharmacal relief remains unaffected. So if, for example, a person sought various pieces of information from the Secretary of State in the context of a Norwich Pharmacal application, some of which was intelligence service information, some of which was other “sensitive information” and some of which was not sensitive, the following might happen. The Secretary of State may issue a certificate in relation to the sensitive information that was not intelligence service information. Unless that certificate was set aside (see section 18), the court could not order the disclosure of the intelligence service information or the information covered by the certificate, but it could order the disclosure of the other (non-sensitive) information provided the Norwich Pharmacal criteria were met.