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—
- a
an Act of the Scottish Parliament,
- b
Northern Ireland legislation, or
- c
a Measure or Act of the National Assembly for Wales,
- a
“Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006,
“information” includes—
- a
information contained in any form of document or stored in any other way, and
- b
alleged information,
- a
“intelligence service” means—
- a
the Security Service,
- b
the Secret Intelligence Service,
- c
the Government Communications Headquarters, or
- d
any part of Her Majesty’s forces, or of the Ministry of Defence, which engages in intelligence activities,
- a
“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.