Justice and Security Bill [Lords]

Debate between Mark Field and Lord Clarke of Nottingham

Tuesday 18th December 2012 Commons Chamber

[Mr Clarke]

My hon. Friend is nodding; he will be presenting our reactions.

“Norwich Pharmacal” is the phrase used by lawyers to describe a process that grew up in the sphere of intellectual property law, in which someone is enabled to apply for the disclosure of evidence—documents, usually—relevant to a claim that they are making. It is used to force a third party who is mixed up, however innocently, in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing in some other jurisdiction, usually abroad.

In 2008, as a result of ingenious arguments, the Norwich Pharmacal principle was extended to national security law. The purpose of proceedings under the principle now is for people involved in a legal process of some kind, usually overseas, seeking to obtain disclosure of intelligence material in the hands of the British Government.

As the purpose of the proceedings is only disclosure—no other judgment is being sought—the Government do not have the option to withdraw from or settle proceedings; if the judge orders disclosure, there is no option but for the Government to release the secret intelligence. That has given rise to understandable fears that if a person shares information with the British Government’s agencies, British judges have the power to order the release of some of it and that person cannot be certain of being able to resist that.

There is no point in my setting out obvious platitudes about the nature of intelligence work. If intelligence agencies are not able to guarantee to their sources, be they friendly overseas Governments or agents, that they can keep secrets, people will not share so much information with them. Lives will literally be at risk in some cases as will international co-operation on such vital issues as torture prevention and human rights.

[Mark Field (Cities of London and Westminster) (Con)]

rose—

[Mr Clarke]

I will give way and then seek to persuade the House that those fears are not fanciful or false; the problem is happening now.

[Mark Field]

I thank my right hon. and learned Friend for giving way. I entirely agree; he has admirably put forward the concerns about Norwich Pharmacal and the historical accident that has arisen as far as national security cases are concerned. Was he not tempted, therefore, simply to exclude Norwich Pharmacal matters from national security—in other words, make it absolutely clear through Parliament that the Norwich Pharmacal arrangements should be regarded narrowly as being available only in intellectual property cases and should not apply to national security matters? Is he not taking us down a rather more convoluted route in the Bill?

[Mr Clarke]

The practical effect of the Bill is exactly as my hon. Friend recommends, although it may have been drafted with a few too many provisos and provisions because of the deep suspicion with which these things are regarded. Essentially, however, we do not think that Norwich Pharmacal should apply to intelligence material provided in confidence to the British security services.

I will not take too long on this because the argument is perfectly straightforward, but I want to tell the House that these are not false fears. Over the past year, we have picked up concerns from human agents. They have always been concerned about the degree to which their relationships can be protected, of course, but they are now becoming really concerned about disclosure to the British courts. Sir Daniel Bethlehem, a former legal adviser to the Foreign Office, told the Joint Committee on Human Rights that the flow of intelligence from the United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.[Official Report, 8 January 2013, Vol. 556, c. 3MC.]

Arguments tend to break out as to whether agents have any reason to be fearful, but that is not totally the point. As long as, as a result of hearing about the extraordinary process called Norwich Pharmacal, other intelligence agencies and our agents think that there is always a risk of disclosure by the British courts, the damage is done. To follow the point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), what on earth are we running that risk for?