Part 2Disclosure of sensitive material

“Norwich Pharmacal” and similar jurisdictions

17Disclosure proceedings

1

This section applies where, by way of civil proceedings, a person (“A”) seeks the disclosure of information by another person (“B”) on the grounds that—

a

wrongdoing by another person (“C”) has, or may have, occurred,

b

B was involved with the carrying out of the wrongdoing (whether innocently or not), and

c

the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing.

2

A court may not, in exercise of its residual disclosure jurisdiction, order the disclosure of information sought (whether that disclosure would be to A or to another person) if the information is sensitive information.

3

“Sensitive information” means information—

a

held by an intelligence service,

b

obtained from, or held on behalf of, an intelligence service,

c

derived in whole or part from information obtained from, or held on behalf of, an intelligence service,

d

relating to an intelligence service, or

e

specified or described in a certificate issued by the Secretary of State, in relation to the proceedings, as information which B should not be ordered to disclose.

4

The Secretary of State may issue a certificate under subsection (3)(e) only if the Secretary of State considers that it would be contrary to the public interest for B to disclose—

a

the information,

b

whether the information exists, or

c

whether B has the information.

5

For the purposes of subsection (4) a disclosure is contrary to the public interest if it would cause damage—

a

to the interests of national security, or

b

to the interests of the international relations of the United Kingdom.

6

In this section—

  • “enactment” means an enactment whenever passed or made and includes an enactment contained in—

    1. a

      an Act of the Scottish Parliament,

    2. b

      Northern Ireland legislation, or

    3. c

      a Measure or Act of the National Assembly for Wales,

  • “Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006,

  • “information” includes—

    1. a

      information contained in any form of document or stored in any other way, and

    2. b

      alleged information,

  • “intelligence service” means—

    1. a

      the Security Service,

    2. b

      the Secret Intelligence Service,

    3. c

      the Government Communications Headquarters, or

    4. d

      any part of Her Majesty’s forces, or of the Ministry of Defence, which engages in intelligence activities,

  • “obtained” means obtained directly or indirectly,

  • “residual disclosure jurisdiction” means any jurisdiction to order the disclosure of information which is not specifically conferred as such a jurisdiction by or under an enactment.

7

This section—

a

enables the Secretary of State to issue a certificate under subsection (3)(e) where the Secretary of State is B as it enables the Secretary of State to issue such a certificate where another person is B, and

b

does not restrict any other right or privilege that the Secretary of State can claim in order to resist an application for the disclosure of information.