HC Deb 26 October 1956 vol 558 cc946-1038

11.7 a.m.

Mr. J. E. S. Simon (Middlesbrough, West)

My first duty is to express my own thanks and, I am sure, those of all right hon. and hon. Members to the Government for having given us time to debate the important topic of Crown privilege for documents and oral evidence. A number of my right hon. and hon. Friends and I tabled an Amendment to the Restrictive Trade Practices Act, 1956, in order to raise this matter so far as it applies to the Court set up under that Act ; but it would, of course, have been highly inconvenient to debate the matter within such a narrow ambit. Therefore, I am extremely grateful that the Government have instead given time for us to debate the matter for a full day—particularly because it seems to me that by doing so they have given recognition to the importance of the topic.

It is, indeed, an aspect of a matter which we all have deeply at heart, the maintenance of the rule of law. The great exponent of the concept of the rule of law in our constitution, Professor Dicey, emphasised in particular two matters. The first was the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. He said that it excludes the existence of arbitrariness, or prerogative and even of wide discretionary authority on the part of the Government. It is not that aspect with which we are primarily concerned today, although we are to some extent concerned with it. There has been great misgiving in many quarters—it has by no means been confined to one party—at the growth of the discretionary powers given to Government Departments, many of them inevitable with the growth of State intervention in the lives of the ordinary citizen to promote his welfare or, as certain people think should be the case, to control economic forces. I know that hon. Members have very much in mind the necessity of regulating our system to take cognisance of that fact.

But it is the second of the main considerations relating to the rule of law with which we are concerned today. It is, of course, an absolutely fundamental one—the concept of equality before the law, excluding, as Professor Dicey said, the idea of any exemption of officials from obedience to the law which governs other citizens or the jurisdiction of the ordinary tribunals. Closely allied with that is that no one shall be judge in his own cause—something quite fundamental to our idea of justice.

The English legal system depends, in order to do justice, on the parties before it themselves producing the evidence on which it can form a judgment. It gives them ordinarily equal rights to produce the evidence which is needed. Obviously, it cannot do equal justice unless the parties have equal rights, particularly in producing evidence. Equally, all relevant evidence must be produced before an English court. This is a matter of very great importance.

Injustice is something which can do immense damage, not only to the individual, but to a whole social and political system. Yet if one party is placed at a disadvantage, or if not all the relevant evidence can be produced for any reason before a court of law, injustice may be done. It is a serious matter to contemplate that today, owing to the exercise of the doctrine of Crown privilege and owing to its more extensive exercise with the growth in State intervention in the affairs of the ordinary citizen, that is the situation we are in.

Today the Crown can certify that it is against the public interest that certain documents should be disclosed or that oral evidence of certain facts should be given. That claim is exercised very widely indeed. Nor is it only on those matters which would operate against the national security or good diplomatic relations. It extends to the widest considerations of public interest, as viewed from a departmental angle ; and in particular it extends to the practice of keeping a whole class of documents secret and privileged on the ground that to do so is necessary for the proper functioning of the public service. As that has been interpreted by the Executive, it means that for all communications by or to civil servants, using "civil servants" in the widest sense, extending to members of county agricultural committees, for example, privilege is claimed.

What is more, the claim of the Executive is conclusive. It overrides every other single constitutional organ. The court before whom the claim is made cannot itself inquire whether the public interest is really prejudiced, or whether such prejudice may be quite insubstantial compared with the injury which is suffered by the litigant in the withholding of the evidence.

I should like to give the House some examples of the way this has operated. They are only a few out of the very great many which can be repeated by anyone who has had anything to do with the law, and I am sure too that right hon. and hon. Members have come across this problem in connection with the wrongs suffered by their constituents.

My first example is that of a farmer who claimed that he had been libelled by the chairman of a war agricultural committee. His farm had been purchased by someone who had recently been Minister of Agriculture. It was the sort of case where all the resources of the bureaucracy were mobilised against him. To vindicate his character, he wanted, in order to show that he had farmed properly, to get hold of the communications about his farm which had passed between the war agricultural committee and the Minister of Agriculture. The Crown claimed privilege. It was claimed, not by the Minister himself, but by his Permanent Secretary—quite wrongly ; and it was said that that was done because the Minister was not available at that moment—again quite wrong. In particular, the farmer wanted to know how his farm had been rated, whether it had been rated A, B or C, because he was quite certain that it had been rated A. The Government themselves in a circular had recommended that, in order to promote efficient farming by an element of competition, the rating of farms should be published. Nevertheless, the Executive claimed privilege ; and the first question is, why did the Government claim privilege for that information and what public interest could possibly have been affected in telling the court how the farm had been rated. The case I have in mind is known to the Government.

In point of fact, in that case the plaintiff won in spite of the fact that documents were withheld. The judge who tried it, a judge of unexampled experience, said that his task would have been much facilitated if the documents which had been withheld had been produced to the court. Knowing how very narrowly a judicial decision frequently is balanced, the fact that documents were withheld might have had the most serious consequences and might have resulted in the most serious miscarriage of justice. That is a matter which none of us can contemplate with equanimity.

Another case is that of a prisoner in one of Her Majesty's prisons who was assaulted by a fellow prisoner and who suffered severe injuries. He claimed that those responsible for the prison discipline and prison security knew or should have known that his fellow prisoner was dangerous or liable to attack him. He called for the medical and official reports on that man, matters which in the normal course of litigation, had the defendant not been part of the Executive, would have been produced. Privilege was claimed and the reports were withheld. The man failed in his action, and one of the most eminent of Her Majesty's judges who tried the case concluded by saying that, owing to the withholding of the documents, he was left with an uneasy feeling that justice had not been done and a more than uneasy feeling that justice could not have been seen to have been done. It is a very serious thing for a judge, pronouncing judgment on the rights of somebody who had suffered serious injury, one of the class of the population least able to help themselves, to say that.

I want to give a third example, and then I will finish with examples. I give it so that the House may see how wide ranging is this claim on the part of the Executive. It was a matrimonial case which turned on the circumstances in which a wife had been received by a serving soldier at his station at Hong Kong. There had been a local representative of the Soldiers', Sailors and Airmen's Families Association who, as we know, do such valuable service in that connection. A S.S.A.F.A. officer had been at Hong Kong and had rendered reports to her head office. She had also had personal interviews with husband and wife.

The first thing that happened was that privilege was claimed for all the documents which she had brought into existence. I ask my right hon. and learned Friend to say when he deals with this case why those documents came into the hands of the War Office before that hearing and did not remain in the hands of their proper custodian, the Soldiers', Sailors' and Airmen's Families Association. Was that in order to defeat the litigation, or was there some other reason for that procedure?

The claim of the Crown went much further. The Crown claimed to prevent that witness from going into the witness box at all and giving evidence as to her knowledge of the circumstances. Most fortunately from the point of view of justice, the claim of the Crown was put forward in a technically insufficient form. Purely on a technicality it failed, and so the S.S.A.F.A. representative went into the witness box and give evidence which the judge held had been of the utmost value in enabling him to arrive at a decision. He said, and this point was conceded by counsel for the Crown, the Treasury junior who appeared in the case, that the public interest had not been adversely affected by the adduction of that evidence. If the claim had been put forward in a technically correct form, a serious injustice might have been perpetrated.

I venture to remind the House that this doctrine of the public interest extends far beyond the concept of national security or any harm that might be done by individual documents. It is interpreted by the Executor to cover any communication by or to a civil servant. There is no reason why the Executor should be the sole judge of the public interest here. I would refer to a speech made in the House of Lords in its judicial capacity by a constitutional lawyer in whom the Government has shown particular confidence, Lord Radcliffe. In the course of his speech which he made in a case called City of Glasgow v. Central Land Board, he put quite clearly the distinction that can easily be drawn between national security and other considerations of public interest. As was said by the judge in one of these cases, "Those who are responsible for the national security must be the sole judges of what national security requires". Few of us would dissent from that. But the doctrine goes far beyond questions of national security or diplomatic relations. What Lord Radcliffe said was : The interests of Government, for which the Minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the courts of law, not least between the citizen and the Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper representation by anything less than a weighty public reason. It does not seem to me to be unreasonable to expect that the court would be better qualified than the Minister to measure the importance of such principles in their application to the particular case before it. I do not suppose that any hon. Member dissents for a moment from the idea that departmental convenience may well conflict with that other public interest—that justice should be done not only between citizen and citizen but between citizen and the State. That is a public interest which should be second to none in the commonwealth. I ask my right hon. and learned Friend if he does not assent to that. If he does assent, I shall ask him to draw the consequences.

This doctrine of Crown privilege as now interpreted is really the legal manifestation of the idea that the gentleman in Whitehall necessarily knows best where the public interest lies. That is not a doctrine to which we on these benches are prepared to assent without question.

The legal profession has naturally been particularly conscious of the miscarriages of justice which these claims of privilege bring about. In these circumstances the Bar Council and the Law Society have unanimously put forward proposals for the reform of this branch of the law. The Bar Council is not composed of a set of wild visionaries.

Mr. Emrys Hughes (South Ayrshire)

We accept that.

Mr. Simon

Indeed we tend to be conservative as a profession. The Bar Council is representative of both political parties, including very distinguished lawyers from the party opposite, although at the moment neither of the two hon. and learned Gentlemen now sitting on the Front Opposition Bench, the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) and the hon. and learned Member for Kettering (Mr. Mitchison) is a member. There is hardly a member of the Bar Council who has not on many occasions represented the Crown and fully understands the needs of the Crown and the proper functioning of the government machine. The same, I suppose, can be said for the council of the Law Society, containing the eminent men of affairs in that branch of the legal world. The proposals those two have put forward are not revolutionary nor subversive. I think they were anxious to meet every reasonable need of the Executive.

What they proposed, in the first place, was that it is quite wrong that a Department should be judge in its own interest. Where there is a conflict of public interest—the Department putting forward its own view of the public interest that this document should be withheld and the litigant putting forward his view of the public interest that the document and the evidence should be adduced—it is wrong to give the decision to one of the parties. The Bar Council has said that the question ought to go to an independent tribunal, preferably to a judge of the High Court, who should determine, as Lord Radcliffe suggested, where the balance of public interest lies, weighing one consideration against the other. One would expect him to give very great weight to the Departmental view. It is hardly likely, for example, that he would call for such matters as confidential reports on officers or magistrates. But he would have the right in the end to say : "The detriment to the public interest from the governmental angle, as it has been explained to me, is unsubstantial. There is nothing really in it. On the other hand, if these documents were withheld, it might result in the most serious miscarriage of justice. They must therefore be adduced." I venture humbly to support the recommendation of the Bar Council that that should be the position. The result of that would be that this pernicious doctrine of the "class document" would disappear.

Secondly, the Bar Council and the Law Society urged that the present system is far too rigid. We know nothing between the complete withholding of a document on the conclusive certificate of an executive officer on the one hand, and the production of the document or evidence in open court, shown to all the world, on the other. That is quite unnecessarily rigid. We have our own system already of hearings in closed courts in proper cases. Matters like the custody of infants, for example, where there would be a detriment to the children if the cases were heard in open court. Cases of trade secrets are heard in closed court, because otherwise justice could not be done. Again, cases under the Official Secrets Acts are heard in closed court. The Bar Council and the Law Society recommended—and I would ask my right hon. and learned Friend to deal expressly with this—that this existing system should be extended to cover cases of Crown privilege where the executive is able to certify that evidence ought not to be given in open court, but it could be given in closed court under a pledge of secrecy. There would be no difficulty about that. It is already the continental system of dealing with this. It is already our own system under the Official Secrets Acts and with regard to trade secrets. Why not extend it to this sphere so that justice may be done?

Those were proposals of the Bar Council and of the Law Society, given after great discussion, as one would imagine, and serious consideration, and relying not only on the members of the Bar Council themselves, but also, I think I can properly say, on the advice of some of the most eminent academic lawyers in the land.

The Government did not see fit to accede to any of those suggestions. But my noble and learned Friend the Lord Chancellor on 6th June indicated some proposed modifications in the present system. I think it would not be unfair to say that these modifications are marginal only. The Lord Chancellor was not prepared, on behalf of the Government, to concede that this matter should be taken out of the judgment of one of the interested parties and the decision placed in the hands of an independent tribunal. Nor did he deal with the suggestion that the rigidity of the present system should be relaxed by a hearing in a closed court in a proper case. But what he did say was that in certain cases, by Executive concession, privilege would not be claimed.

There is one further matter which I would ask my right hon. and learned Friend expressly to clear up. The Lord Chancellor is reported in HANSARD as saying this : We also propose that, if medical documents, or indeed other documents, are relevant to the defence in criminal proceedings, Crown privilege should not be claimed."—[OFFICIAL REPORT, House of Lords, 6th June, 1956; Vol. 197, col. 745.] I ask my right hon. and learned Friend expressly to make this clear : is it the intention in criminal proceedings that Crown privilege shall in no circumstances be claimed? If so, it would go a substantial way—half-way—towards meeting our views on this matter. It is true that this only applies in criminal proceedings, but it would be a substantial concession.

I need not go through the modifications made, because, as I say, they are marginal only. It is true that in the second example which I gave—an assault on a prisoner—a miscarriage would no longer occur owing to the claim of Crown privilege. But in the first and third cases which I mentioned—the war agricultural committee and the matrimonial dispute—privilege would still, as I understand it, be claimed.

These proposals, it is fair to say, had a pretty poor Press. The Observer, I noticed, headed its note "Whitehall knows best". And the Economist ended an adverse note in this way : Anyone acquainted with Whitehall will understand the pressures that have led to this decision. They are pressures of a thoroughly undesirable kind. The Government ought to lean over backwards to assist the judicial process ; in order to save civil servants' faces it is instead leaning over as far as it dare—and much further than it ought—in precisely the opposite direction. The main argument of my noble and learned Friend in the House of Lords for not acceding to the view put forward by Bar Council and the Law Society is an argument put forward very frequently in defence of the present system. "If you once allow communications by civil servants to be disclosed in a court of law, you cannot expect frank advice from them." Let us examine that for a moment. A bank manager has to report frankly to his head office. Is it going to be said that because a bank manager, or the bank, cannot claim privilege for the communication, he is any less frank and any less honest? I hope that we shall hear what my right hon. and learned Friend has to say about that. What about an area manager of the National Coal Board? He reports on the National Coal Board, presumably with complete frankness. He says whatever has to be said ; and no one suggests that he has to be protected by Crown privilege or else his report will be pusillanimous and uncandid. Of course not. What difference really is there? And even within the Civil Service itself, this system is not found necessary in America, where they have a clear distinction between matters of national security, including diplomatic relations, and other considerations of public interest.

In Australia the judge can look at the document in order to decide whether the claim is properly made. In Scotland—the other side of the Border—there is power to look at the document ; and, as was said in the case which I have ventured to quote, that is a real power. That was said by one of the Scottish Law Lords. Perhaps I might quote his words : It is not a phantom power, and in the resort it is a real although imperfect safeguard of justice. What is there about English judges and the English Civil Service to make them different from the Scottish, to make them such feeble stuff, such unreliable stuff? Why cannot the two systems be brought into line on the Scottish model rather than by adhering to this rigid line we have in this country? In the same speech from which I have quoted Lord Radcliffe said : I should have supposed that the Crown servant would be made of stouter stuff. Finally, let us examine this in the light of the concession of my noble and learned Friend, because, if I understood him rightly—I am sure my right hon. and learned Friend will clear this up—Crown privilege is not now to be claimed in criminal cases. What then becomes of the idea that if the document can once be seen in court the civil servant might be pusillanimous and uncandid? The whole case has gone. If it can be done in criminal cases with impunity, why cannot it be done to ensure justice between citizen and citizen and the citizen and the State in civil cases?

It would be interesting to hear what hon. and learned Gentlemen on the opposite benches have to say, because they referred to this matter in a pamphlet, Personal Freedom, which was published very shortly after my noble Friend made his announcement. They said : There is reason for believing that the right of refusal to produce documents in court is not always reasonably exercised. Certainly the rights of litigants can be undermined by this practice. I hope that we are going to hear some elucidation of that, and that we shall hear from the Front Bench opposite what this document, which had a pretty poor Press, really means in that connection. What reforms can we expect from the party opposite? I cannot forebear quoting what was said of that document by one who is by far the most eminent Socialist worker in this field, Professor Robson. He said of that document and of the committee which produced it : What is surprising is the present committee's naive and undiscriminating acceptance of the existing court system. He went on to say : Their attitude is far behind that of the opinions of the Inns of Court Conservative and Unionist Association. Do not let us forget that that pamphlet which aroused the derision of practically every publicist in the Kingdom when it was brought out, seemed to Mr. Dingle Foot like a beacon of liberty lighting his footsteps into the party opposite. Well, let us see the standard of liberty and justice raised by hon. and right hon. Members opposite.

I am glad that my right hon. Friend the Minister of Pensions and National Insurance is to reply to this debate, because in the past he has been in the forefront of this struggle for justice for the individual. I remember a most inspiring speech of his at the Blackpool Conference in 1950, in which he proposed a motion which said : The time has come to ensure that whenever the individual comes into conflict with any Ministry or other public authority his right shall be protected by an appeal to the courts or other independent safeguards. Does he stand by that in the realm of Crown privilege? Or does he stand on the right of the Department to judge in its own interests?

I gather that we are to have the benefit of an intervention by my right hon. and learned Friend, the Attorney-General. We know quite well that he is serious about these matters. He has the interests of justice deeply at heart. I ask him to take back a message to the Government. This is a matter of high constitutional importance. It is a question of the Executive once again claiming constitutional autonomy. They are willing to make concessions, but the concessions stop short of the investigation of their actions by an independent judiciary. The Party to which we on these benches are proud to belong has always considered that the proper balance of the constitution is the real safeguard of the liberties of the people. Over and over again we have in recent times seen that balance upset in the interests of the Executive. Here again is an example of the claim of constitutional autonomy. I ask my right hon. and learned Friend to take back what I believe to be the overwhelming feeling of this House—that the rule of law should be maintained, that the proper place of the judiciary in the protection of the rights of the individual should be maintained, that the proper person to determine where a balance of public interest lies between the Department and the litigant claiming the production of evidence is the judge, and that the concessions which have been made—although we are grateful for them—do not go far enough in the protection of the rule of law.

11.46 a.m.

Sir Lynn Ungoed-Thomas (Leicester, North-East)

The hon. and learned Member for Middlesbrough, West (Mr. Simon) has put his case with the moderation and, at the same time, with the force we all expect of him. He has approached the whole matter extremely fairly.

The first thing which anybody concerned with this case immediately realises is the difficulty of the problem. It is a difficult problem which, as Lord Jowitt said elsewhere, has caused him deep concern and has given successive Lord Chancellors deep concern. I am sure that everyone concerned with the law has felt deep concern over this matter, also. The fundamental difficulty is that we are not really dealing with a matter of black and white, of clear right on one side and clear wrong on the other. We are concerned here with a balance of advantage in the interests of the public as a whole which includes on the one side the proper formation of Governmental policy and includes on the other side the proper administration of justice. It is due to that conflict between rights that one meets with difficulty.

The matter has become more acute and has attracted more public attention because of the Act of Parliament which a Socialist Government passed—the Crown Proceedings Act—which made the Crown liable to the ordinary procedure in the courts. We on this side of the House recognise very fully and sensitively that with the extension of State activity which is now taking place—whether a Conservative Government or a Labour Government are in power the general trend is in that direction—with that inevitable extension there is a corresponding requirement that the citizen should have freer, fuller and perfectly guaranteed access to justice and remedies against the State whose activities are being extended. That is vital and we fully recognise it on this side of the House, as of course hon. and right hon. Members opposite do, also.

When we come to a conflict of rights and difficulties of this kind we find different views, different assessments of balance of advantage, varying from person to person right through this House, and on different sides of the House. This is certainly not a party matter ; all one can do is to put forward personal views upon it, and all I wish to do this morning is to indicate, very briefly, the main considerations which affect my own mind in approaching it.

Let us be perfectly clear, in the first place, that the real hub of the problem is in what is classed in the Bar Council's Memorandum as the fourth consideration ; that is, where the claim to Crown privilege is based on grounds of public interest other than national security. Let us also recognise, right at the start, that this claim for Crown privilege is not, despite certain passages in the hon. and learned Gentleman's speech, a thing that has been manufactured by the Civil Service. It is not manufactured by the Civil Service at all. It is not manufactured by Ministers. It is not manufactured by statutes. It is not the creature of this House of Commons or of Parliament.

This arises from a decision of judges in the highest court of the land, the House of Lords, in a judgment which has, of course, become classical and with which we are very familiar—the speech of Lord Simon in the Duncan v. Cammell Laird case : Lord Simon—a Liberal and, as we all know, extremely astute for the protection of the subject. It is from that court that there emanates this declaration of privilege in cases other than those of national security. In approaching this problem we start, therefore, with the fact that this concession of a privilege emanates from a judicial decision of the highest court in the land.

Another thing which I should like to make perfectly clear at the outset is, as all those who have appeared for the Crown know perfectly well, that this claim for privilege is made irrespective of whether or not it is to the advantage of the Crown to do so in the particular case. There is hardly a lawyer who has appeared for the Crown to any appreciable extent who has not, at some time or other, had to stand up to a somewhat rough passage from a judge in order to prevent disclosure, to resist disclosure, of a document which, as far as that particular case was concerned, he would most gladly see produced. Let us not, therefore, let the idea get about that the privilege is somehow used by the Crown for the purpose of shielding itself, or to its own advantage in a particular case. We all know that that is not so, nor, indeed, has the hon. and learned Gentleman suggested anything of the kind.

I recognise, as, of course, we all do, that when there are conflicts of rights of this kind there are inevitably bound to be hard cases, and the problem that arises is how, to the umost possible extent, to limit these hard cases of which the hon. and learned Gentleman has given some examples this morning. Obviously, the opportunity for these cases to arise should be as limited as possible.

My own personal approach to this problem is along these lines. I think that it is desirable that, in general—and there will be exceptions, of course—matters of pure fact should be disclosed. I say "in general" because there are bound to be cases where the disclosure of matters even of pure fact would be contrary to public interest. The hon. and learned Gentleman referred to the case of the prisoner and the medical report, but let us take the rather stronger case, from the Crown point of view, of the soldier and the medical report.

The hon. and learned Gentleman and I may differ on this, but I should have thought that it would not be in the public interest to disclose, in civil proceedings, the medical report of a soldier. The report may, for instance, be disclosing venereal disease. It might be most relevant to the action, but surely it is strongly in the public interest that soldiers should be kept healthy, that they should report immediately to their medical officers and have complete confidence in their medical officers. They are in the Army as part of the State organisation, and I should have thought that in such a case the report should not be disclosed.

Mr. Simon

I do not doubt the importance and interest of the point which the hon. and learned Member makes, but do not all the considerations which he puts forward apply equally to communications between a civilian and his own doctor?

Sir L. Ungoed-Thomas

I am not at all surprised that that point should be raised—it occurs to one immediately—but this, again, illustrates the difficulty of drawing a line on balance of advantage.

I would immediately concede that the hon. and learned Gentleman could quite reasonably differ from me on this matter, but, personally, I would draw the line between the soldier and the civilian simply on the grounds that the soldier is there serving the country, in the Army, giving his life to the Army—in the public interest—where the utmost efficiency and the highest standard of health are necessary and where, in the public interest, such information should not be disclosed. I think that that is entirely different from the case of the civilian and his doctor.

Mr. Simon

I do not wish to interrupt unduly, but may I put this further point to the hon. and learned Gentleman? Under the present system, even the soldier cannot waive that privilege ; even he cannot call for the document in order to clear himself.

Sir L. Ungoed-Thomas

No, and I think it quite right that he should not be able to do so, because it is in the public interest that these documents should not be disclosed—and it should be generally recognised that they are not to be disclosed at all. I shall not, however, enter into argument on detail with the hon. and learned Member. I want to be absolutely fair about this. I recognise at once that right hon. and hon. Members could hold a view different from my own on this.

The only point I make is that where we are coming to questions where it is quite possible to hold different views, where there is a conflict of advantage, a conflict of public interest, and to matters which are, indeed, extremely difficult to decide, we come to borderline cases where one person might draw the line at one place and another person might draw it at another place, and I say that the hon. and learned Gentleman cannot draw the line at one particular place and say that all these matters of fact should, of necessity, be disclosed. I was covering myself against any such suggestion.

I come to matters of opinion and advice. My view is that those matters should not be disclosed—and I shall tell the House why I hold that view. Matters of opinion and advice given by civil servants appear to me to be matters which are part of the process of the formation of Ministerial policy. Once one comes to that conclusion, what matters in giving opinion and advice is that Ministerial policy should have every single facility and every single possibility of advice available in order to come to a proper conclusion in the formation of policy.

When that policy is formed, unlike any matters in private industry, unlike the National Coal Board, to which the hon. and learned Gentleman referred, and the banks, the Minister is responsible to the House of Commons and to Parliament. He can be called to account for the decision which he makes. Surely, there is here involved a somewhat important constitutional principle—the constitutional principle that the Minister is responsible, not for the process of the formation of policy but for his conclusion on policy ; that the civil servants should not be responsible for anything contributing to the formation of policy, which is a Ministerial responsibility.

Ministers should in no sense or in any way cloak themselves behind the advice or the opinions of civil servants. The formation of that advice should, in fact, be something that takes place, as it were, within the Minister's mind of which the civil servants and their opinions form a part. When that opinion is formed and that decision is taken by the Minister, that is his responsibility and he is responsible to Parliament alone.

My personal inclination is to think that any suggestion that opinions and advice given to the Minister should be subject to judicial inquiry and to civil process is something which would impinge upon that constitutional principle which makes the decision of policy the thing that matters and the responsibility for policy the responsibility of the Minister, not in courts of law but in Parliament.

Mr. Simon

The hon. and learned Gentleman puts the point most persuasively, but what he is dealing with are questions of high policy. There may be a question of an administrative decision taken by the Minister which is attacked in a court of law on the grounds of lack of bona fides. If it were a municipality or a body like the Central Land Board it would be possible to go behind and get discovery. Why should not this be so in the case of a Minister? It is not a matter on which he is responsible to Parliament. Parliament cannot take cognisance of that sort of thing.

Sir L. Ungoed-Thomas

I am coming to the approach to this problem. Much of what the hon. and learned Gentleman said in his speech certainly covered the same considerations. I am coming to the distinction between matters of policy and other matters, and the way in which these difficulties of Crown privilege should be treated.

I want to deal with one other difficulty first of all. and that is the proposal made by the hon. and learned Gentleman that the judge should decide, on balance, whether, on the whole, the Crown privilege should be conceded or not. In deciding whether, on balance, that should be conceded, he has to take into consideration two factors : first, the advantage to the administration of justice, and, secondly, the need for the efficient formation of Ministerial policy. He is, of course, in an unrivalled position to come to a conclusion on the first, namely, the importance of the document in the administration of justice. What is his qualification for coming to a decision on the second?

Further, when he is coming to a decision on the second heading he is involving himself in a matter of Governmental importance concerning perhaps, and certainly in a large number of cases, delicate questions of party policy and party views into which it is most undesirable to draw the judiciary. In other words, one cannot delegate to a judge the decision whether or not Crown privilege should be given without involving him in matters of public policy which are outside his ambit and in which it is most undesirable to involve him.

Take one other aspect of the judicial decision. Take, for example, the minutes which are so common in the Civil Service. If the judge is dealing with that matter he decides in a particular case that privilege should not be conceded to the minute. The danger that arises is that in making a decision in a particular case it might well involve the establishment of a general principle applicable to minutes. It is difficult to see that a judicial decision on matters of Crown privilege could not lead from precedent to precedent to the establishment of general principles, landing ourselves in class document decisions emerging from the judicial instead of from Ministerial decision. That would be the difference. That, of course, is a very real and significant danger.

In the document "Personal Freedom", to which the hon. and learned Gentleman made such characteristic allusions, we have recognised that some improvement in the procedure is desirable. I will quote the document so as to get it accurate. It says : Some improvement in procedure is clearly desirable. One possible remedy would be for the Lord Chancellor to decide whether Crown privilege should apply to official documents which a Minister wished to withhold from the court. There is this to be said for that proposal. We would have an independent person, with the confidence of all, making a decision, and we would have in the Lord Chancellor the one person with judicial and political experience who could really take into account considerations of justice as well as of high policy and Governmental importance.

I recognise at once—and I am speaking only for myself—the great administrative difficulties that would be involved in that possible remedy. It only refers to it as a possible remedy. It may well be said that that would not be a practicable suggestion. It is merely put forward as a possible remedy because we recognise the conflict of considerations affecting the public interest arising, on the one hand, through the need to have full and proper administration of justice to the utmost possible extent and, on the other hand, the free and unfettered formation of Governmental decision with its Ministerial responsibility to Parliament.

I think that in all these circumstances the right approach is that of the Lord Chancellor himself, if I may say so with respect. What he has done here is to limit, as far as he reasonably can, the ambit within which privilege may be claimed—I will quote his words— … by excluding from it "— that is, from Crown privilege— those categories of documents which appear to be particularly relevant to litigation and for which the highest degree of confidentiality is not required in the public interest."—[OFFICIAL REPORT. House of Lords, 6th June, 1956; Vol. 197, c. 743.] I think that that as a statement of principle is the best approach to this extremely difficult problem. He has excluded a number of matters which are important in litigation but which do not affect the formation of high policy, as the hon. and learned Gentleman put it so properly in his intervention. I do not think that it is desirable to have decisions on individual cases by judges. What is desirable is to limit by definition as far as one possibly can the category of documents in respect of which privilege is claimed, and that that category should be ascertained, first, by endeavouring to make matters of fact as far as possible available ; secondly, by making matters of minor importance in policy available ; and, thirdly, by preserving by privilege the process of formation of higher decisions of policy.

As I said earlier, this is a very difficult question, and I should be the last to say that the particular considerations which I have put forward are necessarily those which, in the long run, must be right—of course not. All one can do in a matter of this kind is to put before hon. and right hon. Members one's own opinions, with a view to having contributions from different sides of the House, so that, eventually, in our Parliamentary process there might emerge a decision which could reconcile, as far as it is humanly possible so to do, the demands of the administration of justice and the formation of policy.

12.11 p.m.

The Attorney-General (Sir Reginald Manningham-Buller)

I should like to begin my speech by congratulating my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon), on his good fortune in securing this opportunity for expressing his views on this subject. Today is a much better occasion for debating this complicated subject than the Committee or Report stage of a Bill.

It is a subject in which I know my hon. and learned Friend has for a long time taken a very great interest. He has been good enough to acquaint me before today with his views, for he kindly sent me a copy of his article in the Cambridge Law Journal, an article which I may say, bears a truly paternal resemblance to the views adopted by the Bar Council in its memorandum. I have also read an article in the Press by him on the same subject. I am very glad to have this opportunity of replying. It is an important subject, though a technical one. I wish to reply to him fully, if I can, so I hope the House will forgive me if I take some time in doing so.

The first point I want to make is that the expression "Crown privilege" is something of a misnomer. The word "privilege" is often apt to arouse hostility in certain quarters. What we call Crown privilege is really part of the law of evidence. It does not depend on any Statute, but on a series of judicial decisions over the years. It is no new thing. In fact, it is part of the rule of law, although the first part of my hon. and learned Friend's speech appeared to be based on the contention that these claims of Crown privilege were entirely inconsistent with the rule of law in this country. Crown privilege is, as I say, no new thing, though, for reasons to which I shall refer later, it has in recent years secured a new prominence. It is not an invention of the Executive, but it is part of the common law of England, based, as I have said, on decisions of judges who, one may safely conclude, would not without good reason decide that documents relevant to the issues being tried should be withheld from production in evidence.

It has long been the law that secrets of State and State papers cannot be produced in evidence in the courts. My hon. and learned Friend does not suggest that in future they should be. He recognises that if the publication of documents would injure the public interest by endangering national defence, or affecting diplomatic relations, they should not be produced. He supports the Bar Council in recognising that the Executive can best judge whether production of a document will adversely affect national security or diplomatic relations. My hon. and learned Friend thus recognises that in certain cases that aspect of the public interest which lies in the administration of justice between litigants, although of great importance, has to take second place.

The non-production of such documents might, in certain cases, lead to a judge having an uneasy feeling that justice might not have been done because the material before him was not complete, and something more than an uneasy feeling that, whether justice was done or not, it certainly might not appear to have been done. But my hon. and learned Friend recognises that, in relation to these documents, the public interest in national security is greater than that in the perfect administration of justice.

This is by no means the only case in which this aspect of the public interest takes second place under our law. A judge of the superior courts can refuse to give evidence as to judicial proceedings which have taken place before him. Suppose counsel for the parties have seen a judge, and, with his assistance, have come to a settlement, and suppose that, later, there is a disagreement between counsel as to the terms of the settlement, and litigation ensues. That judge's evidence of the terms of the settlement would be of the utmost value and importance in the further litigation.

Without his evidence, justice may not be done, and may not be seen to be done. Yet, under our law, he cannot be compelled to give evidence. That is well established. I suggest that the reason may be that it is undesirable, in the public interest, that judges of the superior courts should be compellable at the instance of litigants to give evidence as to judicial proceedings before them. But, whatever the reason may be, the law is clear, and in this instance too the public interest in the administration of justice does not take priority.

There are other instances where it does not do so. Communications between husband and wife during marriage, and communications between a client and his solicitor are privileged. A witness can refuse to answer a question the answer to which would tend to incriminate him. Yet the withholding of such communications or the refusal to answer such questions may lead to the withholding from the court of evidence material to the issues before it and may lead to the task of the judge in deciding correctly becoming more difficult.

I mention these matters for my hon. and learned Friend began his speech With an eloquent passage on the basis that, under the rule of law, parties must have equal rights, and if, he said, one party is placed at an advantage and all relevant evidence cannot be placed before the court, that principle cannot be fulfilled. But, as I have indicated, there are those instances. I mention them because, in my submission, it must be recognised that a litigant has no absolute right to the production of all relevant evidence.

Mr. Simon


The Attorney-General

I did not interrupt my hon. and learned Friend, and, if he would allow me. I should like to carry through without interruption. I will deal with all the points which my hon. and learned Friend has made. In a number of cases, that aspect of the public interest which lies in the administration of justice takes second place.

It has long been the law that documents belonging to a class which it would be contrary to the public interest to produce in evidence, cannot be produced. It is this aspect of the doctrine of Crown privilege that my hon. and learned Friend criticises, and, of course, he is, as he has said, not alone in his criticisms.

Lord Lyndhurst, as long ago as 1841, in Smith v. the East India Company, said that in that case public policy required that the most unreserved communication should take place. He said that in that case it was quite obvious that if at the suit of a particular individual, those communications should be subject to be produced in a court of justice, the effect of that would be to render them more cautious, guarded and reserved. He said, in that case, that the communications came within the class of official communications which were privileged, and he held that the public interest in free and unreserved communications was such as to make it necessary to withhold them from production, though, of course, the interests of the litigant might suffer. That has to be recognised. I should perhaps point out that the Crown was not a party to that litigation.

I have cited that passage from the judgment of Lord Lyndhurst in that case because I think it shows that this class rule, as we call it, is no new thing at all, despite the many suggestions to the contrary. The House of Lords, in Duncan v. Cammell Laird, held that documents in a class which on the grounds of public interest should not be disclosed were protected. That decision was in 1942. In 1947, the Crown Proceedings Act was passed. Before 1947, discovery could not in England be ordered against the Crown, and a claim for Crown privilege was only made in answer to a subpoena in proceedings, usually between third parties, or perhaps in instances when some other party or person who was in possession of documents to which Crown privilege attached was seeking to produce them.

In cases before 1947, where the Crown was a party, documents were produced as a matter of grace and there was no need for the Crown to set out in an affidavit of documents those which were not being produced. It was then the invariable rule to withhold all minutes and most other documents passing between Government servants and this was accepted as a matter of course. Since the Crown Proceedings Act, however, orders for discovery have, in England, regularly been made against the Crown. Thus it has been necessary to claim privilege on a class basis in affidavits and lists of documents. This has given the legal world the quite erroneous impression that Crown Privilege has been extended in scope in recent years and is being claimed more frequently than before.

It may be being claimed more frequently than before if the Crown is now engaged in more cases than before, but my hon. and learned Friend himself suggested that there was a more extensive exercise of claims of Crown privilege today than in the past. I assure him that that impression which he has, if it is intended to mean that Crown privilege is claimed now in relation to matters where it would not have been claimed before, is erroneous. It simply is not the case.

I see that it has been suggested by a learned professor at one of our universities—not, I myself would say, the best one, although it sometimes wins the boat race—that since Duncan's case. which was in 1942, there has been a monotonous claim of privilege in respect of most unlikely documents. That is, I am sorry to have to say, quite inaccurate. It is not since 1942, but since 1947 that claims of privilege have had to be made in affidavits in cases to which the Crown was a party. Those claims have not been extended in consequence of the decision in Duncan v. Cammell Laird. The claims are made in respect of the documents withheld before the 1947 Act.

There are about 200 actions a year in the High Court alone involving the Crown—say, 1,800 actions since 1947. So far as I am aware, there have been only four cases in the English courts which have attracted any judicial criticism on the ground that the claim of privilege was wrongly made or thought to be wrongly made. Of those four cases, my hon. and learned Friend has referred to three.

I am not, of course, saying that if something wrong appeared in just those four cases, it ought not to be remedied, but, at the same time, it is right to dispel, if I can, the illusion, if it exists, that the doctrine of Crown privilege is under constant criticism in the courts. It is not. The main attack comes from outside, and it would appear to be based on the view, which, as I say, is entirely erroneous, that the Executive are constantly claiming privilege in respect of more and more classes of documents.

It has been suggested that this tendency is part of a general extension of the privileges of the Crown. It has been suggested that the tendency has been encouraged by the courts themselves. It has even been suggested in a recent article by a lawyer, who, I feel, should know better, that the decision in the House of Lords in the case of Smith v. East Elloe Rural District Council constitutes an extension of the privileges of the Crown in that, so he said, that case decided that allegations of fraud, corruption and bad faith could not be investigated if alleged more than six weeks after a confirming order had been made. If anyone takes the trouble to read that case, he will see that it decided no such thing.

My hon. and learned Friend does not challenge the necessity of withholding documents when national security or diplomatic relations might be affected if they were produced. He does not challenge that it must be left to the Executive to decide what documents come within this category. He does not suggest that it should be left to the judge to decide whether the documents should or should not be produced, but in the case of documents belonging to a class which it would not be in the public interest to disclose he suggests that a different procedure should be followed. Privilege can be claimed in respect of documents coming within such a class, and it has been possible to claim it for a long time, for that has been the law.

My hon. and learned Friend would like to see the class rule abolished. Indeed, he commended his solution to the problem that he posed by saying that if it were adopted, it would be the end of the class rule. But I think there are classes of documents which should be withheld from production. I should like to give the House a few instances—they are not the only ones—of a class of documents which should be protected.

One clear instance, in my view, of such a class are medical reports, to which the hon. and learned Gentleman the Member for Leicester, North-East (Sir L. Ungoed-Thomas) referred, of members of the Armed Forces. I should have thought, apart from my hon. and learned Friend's intervention, that all Members of the House who have served in the Armed Forces knew that it is necessary that those reports should be treated with absolute confidence.

In some instances it may be that the content of the report might be very valuable and very important evidence in matrimonial proceedings, but none the less it is right that such reports should not be available, for, if they were available, or if any of them were made available, then it might well happen that those members of the Forces who should submit themselves for treatment at the earliest possible moment, because of the possible effects on other members of the Forces with whom they are serving, will refrain from so doing. I hope that my hon. and learned Friend will, on reflection, agree that this is clear instance of a class of documents which should be protected from production.

I am sure my hon. and learned Friend will agree that it is very important that matrimonial misunderstandings should if possible be eliminated and marriages saved from breaking up. Probation officers do very valuable work about that. It is right that what is said to them by husband and wife in confidence should not be available for use in evidence if matrimonial proceedings subsequently ensue. S.S.A.F.A., to which he referred, performs much the same services as probation officers in relation to those in the Armed Forces. In the ordinary case the privilege is the privilege of the parties and can be waived by them, but if one of the parties is a member of the Armed Forces, the public, too, has an interest in preserving such confidences.

I now want to say a word about the case of Broome v. Broome, one of the three cases to which my hon. and learned Friend referred. In Broome v. Broome a claim for Crown privilege was made on that ground, namely, that the public had an interest in preserving such confidences in relation to the marriage of a serving soldier. I want just to say this about that case. It was sought to produce in evidence reports made by a S.S.A.F.A. welfare officer. Privilege was claimed for these reports, and that claim was upheld. It was also sought to call the S.S.A.F.A. officer as a witness. It was supposed that she would be asked to testify as to the efforts at reconciliation, and the Crown, to prevent that, sought to get the subpoena served upon her set. aside.

That attempt failed. Of course, it would have been a waste of time her going to give evidence if her evidence was confined to matters for which privilege could and should rightly be claimed. In fact—a fact to which my hon. and learned Friend did not refer—she gave evidence as to matters which occurred before she had begun to act as conciliator, and she did not give evidence as to what happened when she had begun to act as conciliator.

Mr. Simon

Since my right hon. and learned Friend has expressly referred to me in this connection, I hope he will make clear to the House that if the Crown had succeeded she would have been able to give no evidence at all.

The Attorney-General

If the claim to set aside the subpoena had succeeded then, quite obviously, she would have given no evidence at all, but that does not detract from the point I am making. That claim was put forward to seek to prevent evidence from being given by a S.S.A.F.A. officer as to what had happened during the effort at reconciliation, and, in fact, when she gave evidence she did not give evidence of those matters. That was withheld, and that was the important point.

I am not seeking now to justify the attempt to get the subpoena set aside. What I do say is this, that that case really is a slender basis for an attack on what is called the class rule. The claim for privilege for the officer's reports was upheld. No criticism was directed to that claim. No oral evidence was given by her as to what occurred when she was trying to effect a reconciliation.

My hon. and learned Friend has asked a question in relation to the case : why did the documents come into the hands of the War Office?—as though there was something sinister about that. The answer is quite simple. Privilege, of course, can be claimed by the Crown wherever the documents are and in the custody of whomsoever they are.

So there was no significance whatsoever in the documents coming to the War Office from the point of view of claiming privilege, but they were just sent there, so that the Secretary of State could decide whether a claim ought to be made. [An HON. MEMBER : "And they remained there."] They remained there, but that is quite irrelevant. Why not? Why should they not remain there? If they had been returned, the claim for privilege would have been made in just the same way. It would not have had any effect on that. Those reports were held to be privileged. Nothing turned in the case about those reports at all. So there is no sinister significance in that.

Let me give another instance of a class of documents which, in my submission, ought to be protected. Companies and business firms give a good deal of information to the Board of Trade on a strictly confidential basis. Would that information, no doubt of great value and use to the Board of Trade, be forthcoming if at any time, though given confidentially, it could be made public in court at the instance of any litigant? The answer is obviously, no.

I have given now some instances of classes of documents for which Crown privilege is properly claimed, and those instances show, I think, the true principle underlying the class rule. It is the principle of confidentiality, the same principle as underlies the legal privilege of a lawyer's client. It would indeed be a serious breach of faith for a Government Department to make public information given to it in the strictest confidence. There is a very real public interest in the good administration of Government. I do not suppose that anyone would dispute that, and it is essential, if good administration is to be secured, that those responsible should receive frank and full information and advice. If, as Lord Lyndhurst said, such communications are liable to be produced in court the effect will be to render them more cautious, guarded and reserved It is sometimes suggested that this privacy leads to the kind of reports which were so much criticised in the Crichel Down Inquiry. One has to admit that there is always a risk that some information, or a report, or an opinion expressed will be inaccurate, unjustified, but the injury to the public service—and I do mean to the service of the public—would be substantial if claims of privilege for such documents were not allowed. Indeed, my hon. and learned Friend the Member for Middlesbrough, West admits that some such documents should be privileged for he says, "Let the judge decide."

I want to deal with that point, but, first, I want to make a point which was made by the hon. and learned Member for Leicester, North-East perfectly accurately. If the document comes within a class disclosure of which would be contrary to the public interest, it is privileged. Whether it is privileged or not depends not upon the content of the document but on whether it falls within that class. It is very important that that should be borne in mind. If it is privileged, then, as Lord Simon laid down in Duncan's case, the claim must be made and the privilege cannot be waived. As I have said, privilege is really an unsuitable word—for the fact that the Crown claims privilege for a document as forming one of a class, as the hon. and learned Member for Leicester, North-East said, in some cases results in the Crown not being able to use a document which would be very useful to it in litigation.

Sometimes it is hinted that the Crown is selective in the documents for which it claims privilege, that it discloses those that will help the Crown's case and hides behind this claim those that will hurt the Crown's case. That is simply not the case. In one article in the Press, and in his article in the Cambridge Law Journal, my hon. and learned Friend the Member for Middlesbrough, West commented in relation to the case of Odium v. Stratton, to which he referred, that while privilege was claimed for all the records and reports made by the war agricultural committee, … curiously enough, two documents out of the series were exempted from the ban. I would think that that comment clearly suggests that there was some selective discrimination.

Mr. Simon

Since my right hon. and learned Friend is making a personal reflection, it is only right to point out that all I was doing was to repeat what the learned judge said in that case, which was that he himself had little doubt why those documents had been put forward.

The Attorney-General

If my hon. and learned Friend had read the evidence given in that case he would have seen that evidence was given that the two letters in question were not written by officials in their official capacity and that was why privilege was not claimed for them. He would also have seen that the plaintiff put those two letters in evidence himself. My hon. and learned Friend wrote that those two letters told against the plaintiff. If that were so, I should regard it as very odd that very experienced counsel for the plaintiff should have put them in.

My hon. and learned Friend asked me what public interest was affected. I would reply that these communications, for which the claim of privilege was made, came clearly within the general class for which privilege has long been claimed—communications between public officials. It may well be that so far as the case itself is concerned no harm and indeed some advantage would result through disclosure. I will come to that in a moment. Suggestions, which, I now gather, my hon. and learned Friend does not make, have been made that the Crown is selective. It is not. If a document comes within the class, it is privileged, whether it tells for or against the Crown.

The next question is, who is to decide, first, whether a particular class should be privileged and, secondly, whether a document falls within that class. My hon. and learned Friend's contention is that that should be decided by the judge, that he should decide whether the claim for non-disclosure, on the ground that the disclosure will injure the public's interest, should be balanced against such other considerations of public interest as are urged by those seeking disclosure.

I entirely agree that a judge is best fitted to decide as to the value of a particular document in a particular case. That is a comparatively easy matter to determine. My hon. and learned Friend referred to the Scottish system, but it is to be observed that under the Scottish system it has been decided that where a claim for privilege is made in relation to a document the court does not look at the document. It has its power of over-ruling that claim, but without reference to the contents of the document. It would be a comparatively easy matter for a judge to determine the value of a document in a particular litigation, but it would not be easy to assess the injury to the public service which would flow from disclosure.

The certificate cannot be challenged. That has always been held. The certificate would have to be accepted and the certificate being accepted, on my hon. and learned Friend's proposal, the court would then have to assess what would be the extent of the injury to the public service if the certificate was over-ruled. I must confess that I do not know what criterion the judge would have to apply to determine whether the injury to the public service by disclosure is greater or less than the injury to the litigant from non-disclosure.

I would ask the House to consider the results that would flow from the adoption of my hon. and learned Friend's suggestion. First, the mere possibility of disclosure would destroy all confidence in the confidentiality of the reports which it is the duty of civil servants to make. If one document in the confidential class is disclosed under this procedure, no one will know whether his or her report may not be made public the next week. Secondly, there will not be any consistency. In one case the judge will admit the document. In another the judge will withhold a document falling within the same class. The result, in my belief, will be that if that procedure is adopted we shall get neither good administration nor good justice. I do not believe that it will work satisfactorily.

The suggestion is put forward because my hon. and learned Friend objects most strongly to a Minister certifying that a document comes within a class which should not be produced. He has suggested on more than one occasion, and indeed today, that a Minister, in deciding to claim privilege, is acting as a judge in his own cause or, putting it in another way, that the Minister, who is an interested party, is called upon to choose between two facets of public interest—on the one side the administration of justice, and on the other the public administration.

The first thing I should like to say about that is that, very often, a Minister has to make a decision in respect of proceedings to which the Crown is not a party. In those cases it is certainly not true to say that he can be regarded as a judge in his own cause. But the second, and I think conclusive, answer to this criticism is that the Minister simply is not balancing the need of the Government against the need of litigants. He is not answering the question, "Is it more in the public interest that justice should be served or that the interest of my Department should be advanced?" That is not the question at all. The questions he has to answer, and they follow from the fact that the claim is based on the principle of confidence to which I have referred, are these.

In the first place, "Is it essential in the public interest that I should get this information or advice, or whatever it may be, that the document contains?" If the answer to that question is "Yes," the second question is, "Should I be certain of getting this information if the man giving it to me could not rely on my treating it as confidential?" If the answer to that question is "No," the claim should be made and the Minister in reaching that conclusion has not considered, and has not had to consider, the effect of the decision on the particular legal proceedings involved.

Under the law as laid down, which has been in existence for a long time, if the claim is made by the Minister, that is decisive on that point. As I say, that law has been established in the courts. It has sometimes been said that the class rule constitutes a slur on our judges because it enables Ministers and sometimes officials to decide questions about legal proceedings which, it is said, ought in principle to be left to the justiciary. But the Minister is not usurping any of the judge's functions. He is deciding a question which relates solely to the administration of his Department, and the decision he reaches, like every other administrative decision, is open to challenge in this House.

I think the House would agree that it really would be impossible to put on judges the burden of deciding the correct principles for the administration of Government Departments. Indeed, I see that in his speech on the Glasgow Corporation case Lord Normand said : It is conceded that the courts do not know the exigencies and conditions of the public service and cannot be in a position to say that the Minister, to whom the exigencies and conditions are known, was, wrong in certifying that the public interest would be injured by the publication of documents called for by a party to the litigation. I do not know whether the English judges would welcome the burden which my hon. and learned Friend thinks should be put upon them. I very much doubt whether they would like his solution of this problem, for it requires them to decide questions which seem to me really not justiciable. Then my hon. and learned Friend asked why Government Departments should be in a different position from banks or the area manager of the Coal Board, or, indeed, in a different position from private firms and any nationalised industry. But, as the hon. and learned Member for Leicester, North-East said, there really is a very valid distinction between Government Departments and the functions of trade and industry.

My noble Friend, in the House of Lords, reminded the House of what Sir Ernest Gowers said which is, perhaps, pertinent to this subject.

Mr. Simon

In a different connection.

The Attorney-General

I quite agree that it was in a different connection, but it was still relevant to this subject.

Mr. Simon


The Attorney-General

My hon. and learned Friend says "doubtful." However, it seems to me to be relevant. Sir Ernest Gowers said : Civil Service methods are often contrasted unfavourably with those of business. But to do this is to forget that no board of directors of a business concern have to meet a committee of their shareholders every afternoon to submit themselves daily to an hour's questioning on their conduct of the business, to get the consent of that committee by a laborious process to every important step they take, or to conduct their affairs with the constant knowledge that there is a shadow board eager for the shareholders' authority to take their place. The systems are quite different and are bound to produce different methods. I would also remind the House in this connection that one of the principal objects of the changes announced by my noble Friend last June was to put Government Departments on the same basis as commercial firms where they are exercising the same functions.

For the reasons I have given, and which my noble Friend has given, we are not in favour of the procedure which my hon. and learned Friend has so persuasively and consistently put forward. What we have done is to conduct a very careful examination of the classes of documents for which privilege has customarily been claimed. The result of this examination has been, as my noble Friend announced, that the classes have been narrowed. As my noble Friend indicated, as things go on we may find it possible—I would hope that we can—to narrow them still further. I agree with the hon. and learned Member for Leicester, North-East that that really is the right way of approaching this problem.

My hon. and learned Friend asked me about the meaning to be attached to the sentence used by my noble Friend on 6th June, 1956, when he said : We also propose that if medical documents, or indeed other documents, are relevant to the defence in criminal proceedings, Crown privilege should not be claimed."—[OFFICIAL REPORT, House of Lords. 6th June, 1956; Vol. 197. c. 745.] That means exactly what it says. If documents are relevant to the defence in criminal proceedings privilege will not be claimed for them.

It will have to be considered, of course, whether, supposing there is a relevant document the publication of which would involve national security or diplomatic relations, in all the circumstances that prosecution should be brought. That would have to be balanced. But my hon. and learned Friend asked me to indicate that that sentence has not got a qualification.

I do not wish to add to what I must confess I regard, and I expect many others do, too, as already too long a speech by repeating what my noble Friend said in the House of Lords, but I believe that we shall find that, as a result of the changes then announced, in the vast majority of cases, if not in all, litigants will not now be prevented from putting in evidence documents of the character that are normally available when Crown privilege is not claimed in a litigation between individuals.

As I say, those changes were announced on 6th June. It is, perhaps, too early to express any opinion on their effect, but I would say, before we decide on any further changes, let us see how these operate, and I hope that the result of their operation will satisfy my hon. and learned Friend.

1.0 p.m.

Mr. David Weitzman (Stoke Newington and Hackney, North)

I am sure the House is indebted to the hon. and learned Member for Middlesbrough, West (Mr. Simon), not only for raising this very important matter, but for the excellent speech which he made putting forward all the relevant considerations.

I support entirely and as strongly as I can the arguments put forward by the hon. and learned Member. It is clear that this is not a party issue, as indicated by the speeches made on one side by the Attorney-General and on the other by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas). I thought the hon. and learned Member for Middlesbrough, West was a little ungenerous in not recognising the support given to him, one might say "officially," by the Labour Party and in venturing to criticise in the way he did the very document in which that support is given. The words are worth repeating. The document very clearly says : It is clear that Ministries must be protected from the frivolous exposure of official documents. At the same time there is reason for believing that the right of refusal to produce documents in court is not always reasonably exercised. Certainly the rights of litigants can be undermined by this practice. I should have thought that the hon. and learned Member would have welcomed that support.

The problem is not a new one, and it has often raised difficulties, but since the Crown Proceedings Act, 1947, it is surely obvious that an injustice is done when one party to a suit is able to claim absolute privilege merely by saying so. It may well be, as the Attorney-General and my hon. and learned Friend have said, that when the claim is made, it is made whether it is in favour of the Crown or not in favour of the Crown, but the fact remains that there is a temptation to use that claim on the part of the side in whose favour it is. It is obviously right, first of all, that where a Government is a party to a suit privilege should not be claimed.

I am glad to note that the position will now be that in accident cases involving Government employees or premises or in the case of reports by employees as to accidents or machinery or premises or anything of that kind, privilege will not be claimed. I am also glad to see that in cases like the one referred to, Ellis v. the Home Office, the reports of prison doctors and the like will, broadly speaking, now be disclosed.

These are a number of very useful concessions—they appear to be concessions made directly as a result of judicial criticism—but one is bound to ask : Do they go far enough? No one disputes that it is proper to claim privilege where the production of the document or the evidence to be given would affect national security, and I have no doubt that a strong case can be made out that the affidavit sworn to that effect by the Minister should be conclusive. However, in this connection—I do not think this has yet been pointed out—it is important to remember some of the things that were said by the judges in the Court of Appeal in the case of Ellis v. the Home Office.

It was pointed out how important it was that, before privilege was claimed, each document should be carefully scrutinised, and that with regard to each document the consideration should be as follows—I would emphasise this point particularly in view of what the Attorney-General has just said ; and the Court in that case said that in scrutinising each document one should have regard to this consideration—whether the harm done to the public interest by disclosure outweighed the hampering or impeding of the litigant's case if that evidence was not available.

Further, a very important point made by one of the judges was that where there is a large number of relevant documents within the ambit of the privilege which might in the course of the case become of materiality, somebody with authority ought to be there during the hearing ready to waive the privilege if it could be waived.

Whatever the Attorney-General may say with regard to this matter, I am sure he would be the first to agree that the criticisms by the judges in the Ellis case were most disturbing. We always pride ourselves that under our legal system justice should not only be done but should also be seen to be done, and at the risk of tedious repetition in this House I would venture to repeat some words used by the trial judge in that case which were quoted by my hon. and learned Friend and the Attorney-General. The judge said : But before I leave this case I must express, as I have expressed during the hearing of the case, my uneasy feeling that justice may not have been done because the material before me was not complete, and something more than an uneasy feeling that, whether justice has been done or not, it certainly will not appear to have been done. Those words bear repetition. They are extremely strong words from a judge.

Furthermore, it must be remembered that, in that very case, when a document was produced in the Court of Appeal for which privilege had been claimed in the lower court (and for which reason it had not been produced there), it was found to be one, to quote one of the judges in the Appeal Court : … where there was nothing which could affect the public interest.

The Attorney-General

I am quoting from memory, but I think that what was said in the Court of Appeal was that the document was of no value whatsoever.

Mr. Weitzman

That is true. That is an additional reason for the criticism which I am making. Just imagine the court below solemnly withholding on the grounds of privilege a document which, in the words of a judge in the Court of Appeal, did not affect the public interest in any way and was really of no value at all! This illustrates the fatuous way in which the claim is sometimes made. In the Iwi case, privilege was claimed for, among other documents, what had appeared in HANSARD and was there to be read by anyone.

As I understand it, a claim for privilege is made by the Crown on two grounds. First, there is the more important one that disclosure would affect the public interest. Secondly, there is what has been referred to as the "class case", where documents are withheld, to use the words which were used by Lord Simon in the case of Duncan v. Cammell Laird : … because they are necessary for the proper functioning of the public service. Surely there is another consideration which must always be borne in mind and which is expressed far better than I can in the words of Lord Justice Morris in the Ellis case, when he said : When considering the public interest, and when considering what might be 'injurious to the public interest,' it seems to me that it has to be remembered that one feature and one facet of the public interest is that justice should always be done and should be seen to be done. It is, indeed, unfortunate in any case—unless considerations of public interest when weighed in the balance demand it—if it should appear that any document which might conceivably have assisted a party to the litigation should not be available. A Minister has the anxious and arduous and responsible task of deciding whether disclosure would be against the public interest. When he decides, his decision is final. But it is, I think, one element of the public interest that regard should be had to the due administration of justice in such manner that it should always be done, and should be seen to be done. Where the claim is made on either ground, is it right that the Minister should simply declare that a document ought not to be disclosed because it is against national security or public interest, and that his decision is final and that the court cannot inquire into it?

After all, as has been pointed out, the position in other countries is not the same. The position in Scotland is not the same. In Scotland there is an inherent right of the court to override the Minister's certificate or his affidavit. It is true that that power is seldom exercised. It is true that it is exercised only in special circumstances. Why should not that power be exercised in England? It is not suggested that any harm has been done in Scotland by the exercise of that power. Why not here?

Surely the judge is able to deal with the case in such a way as to say whether there are special circumstances where the Minister's certificate or affidavit should be overridden. In any case, is not the suggestion made by the Committee of the Bar Council an eminently sensible and practical one? Let the Minister or the Departmental head state—and it is perfectly open to him to do it—whether the evidence is prejudicial to national security, or whether it is prejudicial on some other ground of public interest. Let him specify the ground of public interest and, at the same time, let him state whether it would still be prejudicial if the evidence were given in closed court.

If it is not prejudicial when given in closed court, and if power is given to the learned judge, as it is in other cases, to order that the hearing be given in closed court, then surely the matter is dealt with on the satisfactory basis that both public interests are satisfied, the public interest, on the ground on which privilege was claimed, and the due administration of justice.

Perhaps I may now turn to consideration of the second class of documents where the protection is claimed on the ground of administrative consideration and where it is said that privilege is claimed as "necessary for the proper functioning of the public service." It is said, and it was repeated today by the Attorney-General, that if a civil servant knew that what he wrote or what he said might be used in evidence in court, proper administration might be difficult. However, as Lord Radcliffe said in the Glasgow Corporation case, the phrase "necessary for the proper functioning of the public service" may become all too familiar and may be used to cover everything, however commonplace, which passes between one civil servant and another.

I do not think that the concessions go far enough. I note, for example, that privilege may still be claimed for the reports of Government inspectors, factory or mining inspectors, who are investigating some accident, merely because at the time of their investigation it was not the subject matter of some action and might become the subject matter thereafter. Privilege may still be claimed for medical reports and records in the Fighting Services. I do not agree with the Attorney-General's case that the medical reports of soldiers should be protected in the way he indicated. I can conceive of many cases where they should be produced. Again, apparently privilege will still be claimed for the records or reports of prison doctors and in addition to that we have that large class to which the Attorney-General referred, Departmental minutes or memoranda containing advice and recording decisions.

The concessions do not go far enough. The claim for privilege is far too wide. Let us take the case of Broome v. Broome. As I understand it, in that sort of case privilege will still be claimed in respect of the documents proposed to be used in such a case and in respect of the evidence that might have been given in such a case. It is true that when the evidence was given by the witness in the Broome v. Broome case it referred to other matters, but it must be remembered that if the claim made by the Crown for privilege in that case had succeeded—and after all it failed because of some technical matter—the whole of the evidence of that witness would not have been admitted. Here again it is rather important to see what the judge in that case said.

In his judgment he said : It is of obvious importance to ensure generally that claims of Crown privilege are not used unnecessarily to the detriment of the vital need of the courts to have the truth put before them. How easily it can be sought—albeit in the utmost good faith—to make such a claim unnecessarily is well illustrated by the facts of the present case. He dealt with the evidence given by the lady in question and went on to say : On all those points her evidence was of assistance to the court ; on none of them was there any apparent cause for any intervention in the name of Crown privilege. That evidence would have, been entirely denied to the assistance of the Court, if the claim for Crown privilege had succeeded.

I understand that privilege will still be claimed in such a case. It is one thing saying that privilege should be claimed in that sort of case just as it is claimed for consultations by the parties with probation officers and matters of that kind. One can well understand that ; but that it should be claimed on the ground that it is essential for the due administration of public service on the face of it is obviously absurd. Clearly, the second class of document, the class "necessary for the proper functioning of the public service," should be on a footing entirely different from that of a claim made because of the prejudice to national security.

Remembering the conflict between the public interest under the head of "necessary for the proper functioning of public service "and the public interest which demands that justice should be done and should be seen to be done and considering—an important consideration—whether the harm done is outweighed by the hampering or impeding of the litigant's case as against the production of a document, surely the question whether the document of that class, the second class, should be disclosed is a matter that should not be left to an interested party. Where the Crown is a party to a suit it is an interested party. Even in other cases the Crown may be interested. Certainly it is not independent in the full sense of the term.

I suggest that the proper course in cases of that kind is that the document should be examinable by the court and that the learned judge should make the decision whether the document should be admitted or not. I know it is said, "What does a judge know about matters of State? What a terrible thing it would be to put before him things of that kind. He can only deal with the circumstances of the case." We are not talking about matters of security now but claims of administrative convenience. Surely it is within the competence of someone representing the Crown to put before the court matters that will help the judge to a decision. He is an independent person capable of weighing up conflicting interests and coming to a proper decision.

Everyone recognises that this is a difficult problem and desires that the best course should be adopted both in the interests of the public service and of the due administration of justice. I respectfully suggest to the Attorney-General that the matter should be looked into again in the light of the criticisms and suggestions that have been made.

1.21 p.m.

Sir Lionel Heald (Chertsey)

It would be impertinent of me to attempt to praise the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman), but he has put the view of lawyers in these matters very clearly, moderately, and convincingly. I am sure the House is very grateful to the Attorney-General for the obvious care he has given to the matter and the close attention he has paid to the arguments.

Perhaps he will not think it unkind of me if I say that he has rather attributed to my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) a personal point of view and has overlooked the fact that my hon. and learned Friend was speaking not only for himself but for the overwhelming body of legal opinion in the country. It would be wrong, unfair and improper of me to suggest that the Attorney-General has rather a bee in his bonnet the other way round. I do not suggest it for a moment.

We are debating a very serious matter, and perhaps I shall not be thought unkind if I say that I could not help detecting a certain atmosphere of complacency in the speech of the Attorney-General. I hope that when the reply is given to the debate the Government will make it clear that they recognise the strength of public opinion in this matter. The question of individual rights and liberties has come to the front very much in the last few years. It is not a party matter at all. I was very glad to pay a tribute of respect to the hon. Member for Stoke Newington and Hackney, North.

Let us see what the rank and file point of view is on these matters. We have had a statement made officially on behalf of the Labour Party, and I will read one sentence of it : It is most unsatisfactory that Ministers whose Departments may be involved in the dispute should retain the absolute discretion they now have. After the last Election and after the debate on the Gracious Speech in 1955, some of us in the Conservative Party, of whom I was one, raised the question of civil and individual liberty. At that time the response was not very warm, but we were glad to find that there was a mention of individual and civil rights in the Election Manifesto. Certain questions of that kind have been referred to the Franks Committee, but I have myself received a number of queries on the subject of Crown privilege being excluded from the terms of reference.

The idea that there is not a strong feeling on this question in the country is a mistake. My right hon. Friend the Attorney-General rather minimised the judicial views that have been expressed. Perhaps his attention has not been drawn to an expression of view by Mr. Justice Devlin to the Bentham Society.

There is a point which should be corrected. It was stated that there had been only four cases involving Crown privilege, but I have been given three more since my right hon. and learned Friend spoke. I will not refer to them now, except to one which deals with the point raised by the hon. Member for Stoke Newington and Hackney, North. It relates to reports of accidents. This is what the judge said somewhere at the end of June, and after the Lord Chancellor's statement : It is part of the stupidity we have got into these days that anything that is done in Government offices has to be kept secret, and the public, who pay, know nothing about it. We cannot, in this House, brush that aside as something which does not count.

This question of individual rights, and such matters as Crown privilege, have come to the front partly as a result of political education which has been undertaken by both parties, the B.B.C. and television. When people hear these matters discussed on television, the ordinary member of the public begins to sit up and say, "We are told all this is being done, but is it right?" In some of these matters, the general public are rather like the people in the Hans Andersen story who imagined that the emperor was driving about in beautiful clothes and admired them very much until a small boy said, "He is not wearing any clothes at all."

At the risk of being thought speaking out of turn or improperly, which I do not want to do, I would refer to the fact that my right hon. Friend seemed to attach great importance to this principle having been approved by the House of Lords in the Thetis case, but a great many people do not agree with it. They think that the House of Lords was not right. We have to face some of the things that people are beginning to think, and they have begun to think about many of the matters which we consider well established.

For example, the suggestions that a civil servant will not give an honest opinion if he thinks that someone is going to read a document afterwards is something which the ordinary man or woman in the street just will not accept. I should like to say in that connection that it is entirely wrong to treat these discussions by the Bar Council and the Law Society as in any way an attack upon civil servants. After all, there is nothing wrong in the civil servant defending the privilege of the executive and the administration. That is what he is there for. What would be wrong would be if his view were to be taken without it being sifted or considered. I personally would never blame for one moment any civil servant who has pointed out to the Minister whom he served that it would be more to his interest or easier for him or more convenient if he did this that or the other. That is his job. What is wrong is that the decision should be taken by the Minister in such cases as have been given today by way of examples.

It may be said : What do we suggest as a really practical approach, recognising, as we must, that there are difficult cases and that provision must be made for the proper interests of the Executive and its functioning? How do we suggest it should be done? May I for one moment refer to the proposal which is contained in the Labour Party's pamphlet "Personal Freedom." It is their suggestion that the matter should be dealt with by the Lord Chancellor.

I myself, with great respect, do not think that that is quite fair on the Lord Chancellor because he will still be in the position of having to consider what he would do if he were the Minister concerned ; whereas what we want to do is to keep him out of that position and keep him in the position where he would decide as an impartial arbiter. I think that it would be unfair on the Lord Chancellor. With the greatest respect, I venture to think that this difficulty, if I may put it that way, is shown by the way in which he dealt with this subject when he made his statement about it. If one looks at c. 743 of the OFFICIAL REPORT, one will find there that my noble Friend dealt with the matter and pointed out that there were two rival considerations. One was the administration of justice and the advantage to the litigant, and the other one was the public interest. This is what he said : The proper functioning of the public service must in our view be a matter for the Minister to decide, with his knowledge of government and responsibility to Parliament, rather than for a judge. A judge assesses the importance of a particular document in the case that he is hearing, and his inclination would be to allow or to disallow a claim for privilege according to the contents and the relevance of the document, rather than to consider the effect on the public service."—[OFFICIAL REPORT, House of Lords : 6th June. 1956; Vol. 197, c. 743.] Therefore, it follows in the view of the Lord Chancellor, as a member of the executive speaking there, that the matter must be left to the other party to decide—the Minister. It seems a very strange thing that where there are two interests concerned we must not leave it to the judge because he might decide in favour of the legal aspect, but we must leave it to the Minister because we must be sure that the public side of it has a good show. That may be a crude way of putting it. It shows the result of looking at this matter from the point of view of the executive.

I wonder whether there may not be another alternative that has not so far been considered. If it is really desired to get an impartial and informed decision on a point of this kind, why should it not be done by making a slight addition to the proposal which has been made by the Bar Council and the Law Society? They propose, as we know, that the matter should be decided by the judge. The judge presumably in most cases would be the judge before the trial sitting in Chambers who would consider the matter and decide it. Casting one's mind back for a moment, that would be obviously a very unsatisfactory position in which to put the Lord Chancellor, because the Lord Chancellor would have an additional and new function if one imagines him hearing counsel in argument on that. But suppose the judge is going to do it. It may be said that a judge may be very well-qualified to decide the legal matter but he will not know sufficient about the public service aspect. If that is really what is wanted, why should not the judge be assisted by an assessor in the shape of a distinguished, retired civil servant who would be able to sit with him and decide the matter if it were raised? I believe that is a way in which this difficulty could be got over. Certainly if there is a desire to deal with it, I believe that it can be dealt with.

I am afraid we have been left by the speech of my right hon. and learned Friend rather with the feeling that the Government are determined to maintain this right, and that is a matter which must cause us concern in this House. After all, the Executive is always concerned to look after itself, and it is only by prodding by back benchers that the rights of the individual can be looked after. With great respect, I certainly think that nothing which has been said so far today would justify us in relaxing our prodding and I hope that other hon. Members will follow me to the same effect.

1.38 p.m.

Mr. A. J. Irvine (Liverpool, Edge Hill)

The right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald) is, of course, perfectly right in pointing out that this is not a party matter. There is, however, the point that we on this side take the view that there should be a greater and not a lesser degree of intervention by the State in the administration of the country, and it becomes, therefore, a matter of special concern to us on this side that no unreasonable privilege should be granted to the Executive and that every step should be taken to preserve the liberty of the subject.

It seems to me that this is a subject which is of very special importance to us on this side of the House. Indeed, in the answer which the Labour Party gives to the problems raised in this debate very great historical importance will in due course be found to he. I venture to say that it seems to me that there is a fatal confusion in the mind of anyone who argues for an extension of the scope of questions which can be addressed to a Minister in this Chamber and, at the same time, argues that the present rigid rules governing Crown privilege should continue in application.

My hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) pointed out that this was the kind of matter on which a whole variety of personal opinions could be held. I entirely agree with that. What I venture to do is to put before the House my own view of this matter, approaching the problem in the context which I have described. It seems to me that in the first instance we must recognise, as the Bar Council has recognised, the desirability of drawing a distinction between considerations of national security and other considerations of national interest. I believe that that attempt must be made.

I accept the proposition that, where the adduction of evidence would be prejudicial to the national security, that evidence must be excluded and that the Executive must determine the point. It might occur—we cannot ignore this possibility—that the Executive decision, the Departmental decision, even on that issue could be unreasonable and arbitrary. The question one asks oneself is whether there is any step which can be taken to provide a safeguard against that when one has admitted the principle that the issue of national security is all-important and must be determined by the Executive.

I should have thought that the answer was to be found in the office of the Lord Chancellor. Here is the office in which we find precisely the combination of the cognisance of Executive requirements and of the interests of justice which is required to arrive at a satisfactory decision on an issue of this kind. My main anxiety would be whether, with great respect, it would not be putting too much on the Lord Chancellor to refer all these matters to him. There may be administrative difficulties arising from that, but I should hope—and, quite frankly, expect that the right hon. and learned Member for Chertsey would agree that, under our Constitution, in the office of Lord Chancellor we have a really ideally constituted office to which this type of issue can be referred when a conflict arises between alleged considerations of national interest and the rights of litigants.

Sir L. Heald

Does the hon. Member really think that the Lord Chancellor could hear these cases and go into each of them separately?

Mr. Irvine

What one has in mind is that the claim for privilege will ordinarily arise on affidavit sworn by the head of a Government Department. All I am asking is that it should become a matter of form and practice that on the affidavit the Minister should be in a position to depone that the claim of privilege has been referred to the Lord Chancellor and received his concurrence.

It would not be a question of putting arguments before the Lord Chancellor, but the safeguard we should have achieved, which would be satisfactory to many of us on this side of the House would be the knowledge we would have that this point had been raised by the Departmental head, not only on his own, but after reference to the Lord Chancellor. I think that that view of the matter, that basis of dealing with it, would be acceptable on this side of the House and would be a proper safeguard.

I have dealt thus far with the separate matter of national security. I turn now to the question of the claim for privilege in cases where the national interest is said to be affected but where the injury which is feared is something other than injury to national security. On that point I agree wholeheartedly with my hon. and learned Friend the Member for Leicester, North-East. I think the governing factor there should be that facts should be disclosed whereas opinion, recommendation and the processes of policy formation should be privileged.

I suggest that where—as will often be the case—a document contains both statements of fact and of opinion it should not be beyond the bounds of our administrative capabilities to secure that what is factual in the document can be excerpted and disclosed. That should be the governing principle. I also agree that there should be certain limitations to it. On this point, with great respect. I would accept the proposition of the Attorney-General that there are certain classes of document in respect of which privilege should be claimed. They should be limited classes of document, but it seems to me that they must be recognised even though the consequence may be, in a particular case, that a document which could without injury to the national interest be produced is not produced.

On the last analysis I believe the reason this matter of privilege for a class of document must be retained is the need for complete candour of communication in Government and departmental practice. It is upon that footing that the case to which my hon. and learned Friend referred, the case of the medical report on an officer in the services, is one which he rightly regards as a matter giving rise to a proper claim for privilege. The argument in that instance is to be founded on the class of document argument.

I see sitting on the Front Bench opposite the Minister of Pensions and National Insurance. I recollect that he and I have had some experience together in dealing with confidential reports on officers in the Services. I would hope on this matter to have his agreement that beyond all question it would derogate from the value and importance of these reports if the claim for privilege did not attach to them. The need for dealing with this on the class of document basis is, in my opinion, best illustrated by considering what would occur if the matter were dealt with on any other footing. If within a class certain documents are disclosed and others are not it then becomes possible to draw inferences as to the contents of those not disclosed. That might well be a factor giving rise to a treatment of cases which would run counter to the interests of justice.

I think that the statement made in another place on 6th June marked a very important step forward in the direction we want to see followed in this matter. For my part, I would wish to see emphasis placed now on points the objection to which, if it can be made at all, can probably be most strongly made on administrative grounds. I should like to see explored the prospect of extending the part which the Lord Chancellor plays in determining issues which arise in this field on the grounds I have put forward. I would also like further study to be made of the practicability of ensuring that, where we have a document containing partly statements of fact and partly statements of opinion, privilege may be confined to those parts of the document dealing with opinion so that the factual excerpts may be available to the court.

1.50 p.m.

Mr. Kenneth Pickthorn (Carlton)

Clemenceau thought that war was too important to be left to the generals, and perhaps I may be forgiven for thinking that this subject is too serious to be left to the lawyers. The lawyers have already had nearly three-fifths of the time available, although I do not complain of that, and they will probably have more, but the fact is that this is not merely a legal question, though I quite understand that it must be discussed mainly in legal terms and that I should be more fit to deal with it if I were more familiar with the legal technicalities. But the legal technicalities are really the circumstances, not the essence, of this matter. I hope that the House will look at it not mainly from the legal point of view, and will forgive one who is not really learned in that—or nowadays even in any other sense—for intervening.

If I may I will make a few comments on the preceding speeches and then I want to ask a few questions, and in case at the end it may be uncertain which side am I on, I would begin by announcing that. It seems to me that my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) is really several goals up, if one counts this on a football match basis, so far. I do not know whether his suggested remedies are the best—I am inclined to think that they may be—but, at any rate, I do feel very strongly that the House would not be justified in going away confident that all is for the best in the best of all possible worlds or even going away with what, I believe, philosophically is the more respectable feeling that everything in this life is a misfortune and that that is the best of all possible worlds.

I do not myself take the view of the right hon. Gentleman opposite about inevitabilities. I do not know that increased State action is an inevitability. We should be gods if we knew what trends are going on—going on in that sense of going to continue. None of us knows, and the one thing we know of our ancestors is that wherever one generation assumed to know the master tendency of the future it was always wrong. Secondly, I do not think that it would be good argument for anyone to say that anything is inevitable. I do not think that the Almighty would have allowed brick walls to be built if He had not meant people to run their heads against them. That is part of the answer to several of the hon. and learned Gentlemen who have said that this is or is not a party matter—one way or the other. There is a very profound sense in which it is a party matter, and if I may, without impertinence, I would compliment the hon. Member for Edge Hill (Mr. A. J. Irvine) on taking what seemed to me to be exactly the right attitude about that ; that is to say, if one really wants it to be believed that one is sincere in desiring a liberal socialism, and not merely accepting some nonsense about inevitable trends, and that human will and effort ought to push the thing that way but simultaneously one guarantees that one will not diminish but will increase liberty—if that is the line one takes, there is a duty upon one to be more scrupulous in examining the claims of the Crown in this connection than there is on those of us who start with the opposite prejudice. When some people said that they thought General Wolfe was mad, George III said he hoped he would go and bite the rest of his generals. I hope that the hon. Member for Edge Hill has good teeth and will bite all those around him.

With every respect to my right hon. and learned Friend who spoke from the Front Bench—and he has been for very many years my friend, even more than the generality of my hon. and right hon. Friends—I do not think it very helpful to talk about Crown privilege not, first of all, being the right word, and secondly, not being a new thing. It does not matter to the rats when one calls a rat catcher a rodent operative. If six months ago my right hon. and learned Friend could have persuaded us all to call this the King's Prerogative instead of Crown privilege, I do not know that he would have found it necessarily more conciliatory to Parliamentary opinion. Nor did I think it altogether wise to explain to us that there are already parts of public action where justice is not an absolute priority. Surely there are, roughly speaking, only two arguments in politics : one is that we must not do this or that because it is the thin end of the wedge, and the other is that we must do that or this because it is in the van of progress. But surely the worst of all possible uses of the thin end of the wedge argument is that used today. To tell us that there are anyway several cases where justice does not come first is not a very good argument for asking us to accept the present position of the wedge.

Again, I thought that he made a mistake—although I admit that the lawyers may prove me wrong—when he quoted the East India case, which I did know about and thought of quoting myself, to show us that what is called the class rule, better, the category rule—outside the security rule, where the individual document is protected by a Minister—he told us that the East India case showed that that is no new thing ; but the other thing it showed is, it seems to me—I do not know, but I would put in this connection also the Soldiers', Sailors' and Airmen's Families Association case—that the Crown can spread wider and wider beyond its subordinate departments, apparently, because there Lord Lyndhurst held—and there were one or two other cases, I think, of a similar nature—that not only communications between the East India Company and authority here but communications inside the East India Company—I hope I have it aright—it was held came within this privilege. If so, I do not see how—and here we come back to the inevitability-mongers and the liberal socialists—I do not see how every new State intervention does not risk going very much to increase this.

I do not quite understand, and it may be explained to us, because those of us who are not lawyers should understand this matter and not take everything upon the nod—I do not quite understand why the nationalised industries cannot claim this privilege—or rather, why the privilege cannot be claimed for them. In many cases, if another judicial remark is right, it is not a question that this privilege may be claimed, but must be claimed. If it must be claimed it must be claimed, and even it might be the duty of the court to see that it was granted, claimed or not claimed.

I thought that my right hon. and learned Friend was insufficiently aware of the onus of proof upon his shoulders. Here we are, free-born Englishmen and all that. I would be the last man in the world to criticise my noble Friend, both on public and on personal grounds, but I was a little surprised, I am bound to say, some years ago now, when he was a great champion of what are called human rights. Personally, I am not much of a one for human rights. I think that humanity gets far more rights, and rights more enforceable, if they are upon the basis of nationality in the legal sense, and allegiance.

But it is a little odd to tell the free-born English at this stage in the world's history that those of us who are not Ministers of the Crown must, from this point of view of disclosure of documents, be left in a worse position than any other of Her Majesty's subjects overseas. There is no Dominion where the subject is not in a better position, including Her Majesty's Scottish subjects. Incidentally, when Lord Simon made his remarks in connection with the Cammell Laird case, I think it can be shown that the House of Lords was not aware of the difference between English and Scots law in this matter.

Here we are, all Her Majesty's other subjects, including the Scots—this is what I find quite intolerable—who are put in a better position than the free-born English ; and the French—those wooden-shoed Papistical serfs whom our ancestors always despised—which is one of the main reason why our ancestors beat them—have much more liberty in this respect than we have.

I do not say that to state those things settles this question, but I do say—if right hon. and hon. Members on the Front Bench can bear to listen to me. and in fact I will say it whether they can or cannot—that it puts upon their shoulders a burden of proof of a quite different order from anything that has yet been discharged. That seems to me entirely true.

In that connection I should like to ask another question. This again is too legal perhaps for one who, though a student in the Inner Temple for the last 40-odd years, has not yet passed his final. I put this question with some diffidence. I am told that if we could have got the Crichel Down case on its feet in a court of law in which that matter could have been inquired into, it would not have been possible to produce any of the decisive documents which were produced. If I am right about that—and I do not temerariously assert it ; I offer it for consideration with some confidence—and if we could get that into the heads of the British public, although we are most of us busy with other things, we should be able to say, as my right hon. and learned Friend the Attorney-General said of my hon. Friend the Member for Middlesbrough, West that he was speaking for the whole legal orthodoxy. I think that if we can get the point that I have been making into the heads of the British public, one would be quite sure that one was speaking for the whole of the British public as well, at any rate all of those who are liberal with a small "1", as I hope everybody in this House is.

It surely will not do to say that if there was the mere possibility of a document in the at present excluded category becoming published, the mere possibility of the words used, one would destroy confidentiality and as a result one would get neither good administration nor good justice. That seems to me to be putting it far too high. It does not happen in Scotland. I admit that the possibility of the Scots law making a difference is a bare one. It does not happen in France, the United States or in any of Her Majesty's other Dominions. That argument seemed to me to be going too far.

Also I think it is going too far to say that the only questions that a Minister has to decide are two, the first being, "Should I get the information that this document contains? "When we are dealing with the category case—and I take it we are all willing to give the Government the other case, the individual document on security grounds—the Minister never does ask that question. Some other Minister before may have, and now it appears some Sanhedrin whom we know nothing of—the Home Affairs Committee of the Cabinet, for example—writes rules about that and the Lord Chancellor announces them in the House of Lords. But no Minister does.

When my right hon. and learned Friend the Attorney-General moved from his last cure to his present blessed—

Lieut.-Colonel Marcus Upton (Brixton)


Mr. Pickthorn

—pasture, he did not say to himself, "I cannot look at all the documents in all our files but what I must do is to look most fully at the filing system and look at a sample from every category in the filing system and then I must make up my mind whether I can or not certify that .00001 per cent. of any of them coming to be disclosed would destroy the confidentiality between me and my civil servants." He did not do that. I do not suppose any Minister has done it. I am sure that no Minister has done it and, indeed, the Lord Chancellor has made it quite plain that Ministers do not do it. Ministers are legislated for in this matter by pronouncements made—I am not criticising the Lord Chancellor about this. I say with no intention of irony and with full truth that there is nobody here whom I respect more and whom I would be less likely to criticise, but I am trying to put the points which do not seem clear to one who is not legally trained and who has tried to understand this subject.

The Attorney-General told us that it is possible to narrow them still further. That is the same point again. I ask this question quite seriously—although I have been serious all along, but I know that if one once slips into facetiousness one always risks dismissal as frivolous. First of all, have the Lord Chancellor's remarks in the House of Lords any legal effect? I should have thought the answer was no. It seems odd that we have had so much legal discussion today and yet there has been no reference to that point. Secondly, what, if anything, does have any legal effect? What effect does what the Lord Chancellor said in the House of Lords have in the courts, speaking in his Ministerial capacity and not in the course of litigation? My guess would be none at all. Is that so, and if so what do the Government think about that?

But if that is so, what becomes of the duty of Ministers about class documents under the Thetis, case? Hon Members will know that all the commentators on it proceeded upon the assumption that the Minister himself, in his capacity as head of the Ministry, personally looks at these things before he certifies them. But what happens if one makes nonsense of that and if one shows that the Cabinet or the Home Affairs Committee or the Lord Chancellor with the assistance of I do not know whom—S.S.A.F.A. perhaps—is going from time to time to alter the list? Is that binding on Ministers? I should think that it would not be binding on the courts. I should wish to inquire in what sense it is binding on Ministers. If it is not binding in the courts, I suppose it is not binding on the Ministers in any sense which could conceivably become justiciable.

I had some comments to make on other speakers who have preceded me but I have been too long commenting on the Lord Chancellor, so that perhaps I may be allowed to ask one or two personal questions which had occurred to me before I came into the House. First of all, how personal must the Minister's judgment be (a) in the individual security cases, and (b) in the category cases? How much is it a judgment as given, for instance, by Lord Simon? How much do the Government think that the Minister is in such cases bound to turn his personal mind to the matter? There is a good deal of importance there, I think, because the commentators have argued—this is one example—that the real safeguard is that the Minister must himself, personally, testify ; although the same learned commentator says somewhere else that the Home Secretary can lay down "once for all," whereas, if what I should hope were the correct view is so, because no Home Secretary could ever lay down "once for all," but could only lay down for the period of his incumbency and, presumably, another Home Secretary would have to look at the question again.

The next thing I would like to ask about is this. Has the Government fully considered—and here I am going back to what was said by the hon. Member for Edge Hill, who has just gone out, of which I do not in the least complain, about it being a party matter—has the Government considered this very difficult question about whether the conditions necessary for one hundred per cent. candour are something which have a right overriding everything else in Government offices, a right of a different order, a different magnitude, a right, so to speak, absolutely and always superior to the right which must be desirable to everyone who has anything to do with a limited liability company, the management of a regiment, or whatever it may be?

It seems to me that is too easy an assumption, and I think myself the Government are making too easy an assumption and have in their pronouncements in both Houses made too easy an assumption, that a Government Department's right to have it made possible and easy for the timidest civil servant to be wholly candid in his communications, not only inside the Department but with other people, I do not believe the Government have nearly sufficiently considered whether that right—I am quite willing to concede that Government offices must have that right as much as and more than the other instances given us of banks, trade unions, regiments and limited liability companies, more but not ever so much more. It ought not to be a matter of infinity, the proportion between those two rights. There has been no evidence yet, as it seems to me, that the Government have done any hard thinking about that.

This assumption that the public interest is somehow of a different kind and a superior kind to any number of private interests, even though all the private interests are kept within the laws and rules made by the public interest and keep themselves within them—this assumption is, in my judgment, a fatal heresy, and I do not think it is merely academic to say that we have seen the cloven hoof—I do not know whether assumptions have cloven hooves, but at any rate we have seen some recognisable feature of that assumption peeping out more than once in these discussions.

Then I did not quite see the advantage, and I should like to be told about this argument used by the Attorney-General and the Lord Chancellor, that sometimes this rule actually causes the Crown to get less than justice. That does not seem to me to be a good argument in favour of this rule. It is obviously a good argument against the rule that it sometimes causes private individuals to get less than justice, but why it should be thought that one puts that right by saying that the Crown is sometimes caused to get less than justice, which in the earlier part of one's argument one has argued to be of infinitely more importance in its interests than private individuals, that the Crown may sometimes as a result of this get less than justice is something, I think, we ought to have rather more fully explained.

Lastly, the Lord Chancellor said no legislation is necessary. I am perfectly prepared to believe that the Lord Chancellor is right. I am sure no man would have taken more trouble to be technically informed or would have taken more trouble to be politically and morally justified. But if so, it is a very odd situation that the law, which was not made by Lord Simon, although I think the Attorney-General came very near to telling us that it was—no, I beg his pardon ; it was not he, but it was the equally learned hon. Gentleman the Member for Leicester, North-East (Sir L. Ungoed-Thomas), I think, who seemed to think that we ought to like all this because it actually came from a judicial creature, that is, the late Lord Simon—but Lord Simon was declaring the law ; he may have developed it a bit, and if he did develop it a bit, then all the weaker the Government's case that there is nothing new in principle about this.

This seems to me a quite new kind of legislation. We do not know how it was arrived at. We none of us could move Amendments. There was no Second Reading or Third Reading. It has been assumed by lawyers that it has already come into force, although there have not yet been any oases on it. But why has it come into force, and when will all the rest of us know that it is in force, and why it is in what force?

2.15 p.m.

Mr. E. C. Redhead (Walthamstow, West)

I share with the hon. Member for Carlton (Mr. Pickthorn) the feeling that, unlike all others who have so far taken part in this debate, I can lay no claim to expert knowledge of the legal aspects of this very vexed problem. But without dismissing those legal considerations as being unimportant—and I should be the last to do that—I am concerned with what I would describe as the administrative aspect, which I believe to be equally important, but which, I think, has tended to be dismissed in this debate somewhat too lightly. To discuss that aspect for a few moments is the sole reason for my brief intervention now.

There is involved in this question, apart altogether from the unquestionably important considerations of justice and the rights of individual citizens, the question of the constitutional position of the civil servant in relation to his Minister and the public. I venture to suggest that in our discussion of this matter we cannot dismiss the importance of that without involving serious considerations with regard to the whole system of government in this country.

That constitutional position of the civil servant stems from the fundamental doctrine of ministerial responsibility, a principle which underlies our whole system, and which has been frequently upheld very strenuously by Ministers of both parties, some, if I may say so, to their own personal sacrifice in their political careers. It is a principle which cannot be abrogated or weakened without very considerable harmful effects upon the public interest in the widest sense of that term. The generally accepted view hitherto has been that a civil servant is responsible only to his Minister for the action and advice he gives in the fulfilment and in the course of his official duties, and it is the Minister himself who is answerable to Parliament for the full consequences of those actions and the advice which is received.

It has been said with emphasis today, though I imagine that those who are not intimately acquainted with the workings of Government Departments have not themselves a full appreciation of how true it is, that there is today in the conduct of Government business a tremendous range of discretionary powers which have to be exercised by Ministers. Here, let me say in passing that if there necessarily devolves upon the civil servants upon whom they depend a wide measure of discretionary power as well, it is not the responsibility of the civil servants, who, after all, have no more functions and no more responsibilities than those bestowed upon them by this House.

Much of this, of course, is derived from delegated legislation. While I do not for a moment wish to discuss now the issue of delegated legislation, that has, in the result, meant for the Minister a widening of his discretionary powers. One has only to mention a few instances. Ministers today are empowered, subject to general principles laid down in legislation, to grant licences, permits, to give approvals, to make concessions, to entertain applications of a vast and bewildering array, in addition to the responsibility of determining issues of public policy, and to do these things on their own personal judgment

I think it follows that no Minister, however well qualified, however illustrious, can possibly exercise discretion over this very wide range except by a very heavy dependence upon the advice of his public officials. Indeed, I think that the constant prayer of every Minister of State, night after night, should be, "Thank God for the finest Civil Service in the world."

A Minister's area of discretion is large. The level of the operative decision will obviously vary according to the magnitude and importance of the subject, decisions of major importance being taken at higher levels and the supremely important decisions taken by the Minister himself. It is clear that the Minister or his senior officers to whom he may delegate responsibility in certain instances must be dependent upon the fullest possible information and advice from below.

In practice, in the chain of submission upwards in the hierarchy of the Civil Service, the civil servant at each stage is required as a matter of duty not only to submit in the form of Departmental minutes and memoranda the fullest possible information, but also to accompany that information with his reasoned recommendations, which will ultimately reach the Minister in the form of advice.

Mr. Geoffrey Hirst (Shipley)

I follow the hon. Member's argument, but surely he must agree that it is the extent of delegated legislation and the discretionary powers which follow from it which make the very danger today in Crown privilege all the greater by reason of that very fact. It is because of that that we are raising this matter today.

Mr. Redhead

If the hon. Member will bear with me, I am coming to that point. I do not for one moment minimise the importance which he and others attach to that fact.

The point I want to make clear is that of necessity, in the exercise of the Minister's power, there must be at all stages a great deal of internal discussion on matters which, in the very nature of their submission, are of a borderline kind. Much of that discussion will be in the form of documentary submissions by memoranda and minutes which constitute parts of official files. In such discussion and in whatever advice the civil servant at each stage may tender for the ultimate guidance of his Minister, he must have in mind other relevant considerations beyond those of pure equity and technical merit. He would be failing in his duty if he did not embark upon information and advice upon a number of very important considerations in the determination of the vast responsibilities that now rest upon Ministers.

There are questions of political expediency—and I use that term in its proper sense and not in a derogatory sense—questions of the qualities and character of an individual applicant to a Ministry for whatever is being sought from that Ministry and information about the past record, the reliability and the relationships of the individual to that particular Government Department which it is neither desirable nor expedient from the broad public interest should be publicised without adequate and proper safeguards being ensured for those whose duty it is to report.

I suggest that without such relevant information a Minister would find it impossible to do his job and to exercise the discretion that is his in a wise and objective fashion. It is thus the duty of the civil servant to advise at every stage with complete candour, with complete fearlessness and with complete freedom.

Mr. Philip Bell (Bolton, East)

And complete fairness.

Mr. Redhead

And complete fairness—I acknowledge that at once.

But if he is to perform that duty, he is entitled to look for the essential assurance that in carrying out that duty he shall be protected from the risks of unjustified public disclosure that would put him in a position of unfair public criticism, in which circumstances he has seldom the power or the opportunity to defend himself.

The Minister is responsible. The Minister's responsibility is to this House and, as I have already said, Ministers have repeatedly upheld that principle and, to their own cost in some cases, have refused to involve in questions of public criticism the civil servants upon whom they have relied, but have relied upon their disciplinary powers inside the Department. I submit with all earnestness that if the civil servant cannot rely upon the confidential basis of the advice that he tenders to his Minister, if he is to be beset constantly by the risk of ultimate disclosure of that which he submits in all fairness and in all objectivity in the form of advice to his Minister, being human he will take steps to protect himself against those risks.

The hon. and learned Member for Middlesbrough, West (Mr. Simon), who opened the debate, and who has been echoed by other hon. Members, expressed the view that our average civil servant would be tough enough to be able to offer free and candid advice even if he were not assured of the exercise of the present practice of Crown privilege in the revelation of State documents. I assure the hon. and learned Member that the average civil servant is, in truth, tough enough.

On the other hand, however, the average civil servant is a human being and he would do precisely what any other member of any other profession would do in like circumstances. That is to say, he would seek to protect himself in a process of excessive caution and of withholding information when, perhaps, it would be regarded as strictly relevant to the proper exercise of a Minister's discretion ; and the ultimate result could only be to weaken the capacity of the Minister himself to do that which it is his responsibility to do.

I am aware, and I frankly acknowledge, that this power, vested as it is in practice in the hands of civil servants, is a very heavy responsibility. I admit that it is one that must be used and exercised with the utmost impartiality and with the most scrupulous care, but it is the responsibility of the Minister to ensure that those powers are exercised with scrupulous care by his subordinate officers. If, at any time, as the result of the vigilance he should exercise, he discovers any degree of abuse, he has a duty to perform in the strongest and most drastic disciplinary action which he can take. In such circumstances, no Minister need have fear that he would not be supported wholeheartedly by the whole body of the Civil Service, which is as jealous of its good name and probity as any other profession in the land.

My plea in intervening in this debate is not by way of dismissal of the important consideration of the rights of the public or of the private individual. My plea is that whatever may be conceived as necessary by way of modification of the practice, if any modification is thought to be necessary, in the claim of Crown privilege in the revelation of State documents, should not be undertaken without due consideration for the importance of preserving the conditions of confidence which are the very basis of our present system of Government and which cannot be tampered with without serious harm to the whole of the public administration.

I would add this further word. While I do not dispute for a moment that there is in all probability adequate reason for keeping this matter under constant review, I would express the hope, with the greatest respect to the members of the Bar Council, that if the Government at any time contemplate further changes of this character they will pay, as they will to the Bar Council, equal deference to the representative organisations of the Civil Service, who, as I have said, are as keen about the reputation and probity of their profession even as lawyers themselves.

2.30 p.m.

Mr. Knox Cunningham (Antrim, South)

I do not think it would be helpful at this stage to give any further examples of injustice which may arise in the courts. We have in this debate reached general agreement, I think, certainly on two points. One is that injustices do occur owing to Crown privilege between subject and subject and between subject and the Crown. Secondly, I think we will all agree that matters of security are matters for the Minister, and when he claims privilege on grounds of security I personally do not raise a voice in protest.

However, there is another claim, the claim of a class of documents, a claim which descends like an Iron Curtain and protects the Crown from the disclosure of documents because they belong to a class. It has been argued that that is necessary for the proper functioning of the public service. But is it so?

In America is it so? I think it would be helpful if, quite shortly, I referred to the position in the United States of America, a country which has a judicial system very similar to our own, a country which values individual liberty, a country which has a strong Executive. I think it is fair to say that the American courts do now show an increasing reluctance to accept any departmental claim for privilege.

I should like to quote from a textbook writer of eminence, Dean John Wigmore. In his book on evidence of 1950 there occurs the following passage : Privilege, when recognised, should be subject to the following limitation : (1) Any Executive or Administrative Regulation purporting in general terms to authorize refusal to disclose official records in a particular department when duly requested as evidence in a Court of Justice should be deemed void (2) Any statute declaring in general terms that official records are confidential should be liberally construed to have an implied exception for disclosure when needed in a Court of Justice. (3) The procedure in such cases should be : a letter of request from the head of the Court to the head of the department stating the circumstances of the litigation creating the need for the document ; followed by a reply from the departmental head stating the circumstances deemed to justify the refusal ; and then a ruling by the Court, this ruling to be appealable and determinative of the privilege. It may be said that this is theoretical, and it may be asked, what in practice happens? That is a perfectly justifiable criticism, but, in practice, certain of the States do provide by statute for exactly that to happen. The State of Colorado provides by statute that A public officer shall not be examined as to communications made to him in official confidence, when the public interests, in the judgment of the Court, would suffer by the disclosure. So, in the State of Colorado, by statute the court is to determine the question.

I would also quote from a recent case before the Supreme Court of the United States of America, from the judgment of Chief Justice Vinson, in the case of the United States v. Reynolds, in 1953. In that case the privilege claimed was on the ground that the aeroplane which was involved in the accident was engaged on a highly secret mission. That is different from the class of privilege which we are discussing here and which is the bone of contention in this House at the moment. I quote from the judgment : Judicial experience with the privilege which protects military and state secrets has been limited in this country. English experience has been more extensive, but still relatively slight compared with other evidentiary privileges. Nevertheless, the principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the government and must be asserted by it ; it can neither be claimed or waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. The latter requirement is the only one which presents real difficulty. As to it, we find it helpful to draw upon judicial experience in dealing with an analogous privilege, the privilege against self-incrimination. I quote one further sentence in that judgment : Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. That was the position in 1953, and since then the other Federal courts have enlarged very greatly the scope of the principle in the Reynolds decision. So here is an example of the United States of America treating this matter in a way different from the way in which we treat it, and facing no break down in the Executive authority, facing the necessity of justice being done in the courts, and facing that in a way which many of us on both sides of this House ask the Government here to follow.

This House has always been jealous of the individual, his rights, his liberties, against those of the Executive. In the seventeenth century it was particularly jealous of those rights. In the years of this twentieth century there is also an encroachment, gradual but increasing, on the rights of the individual when he comes up against the Executive. I remember—and my right hon. and learned Friend will know this much better than I—that before 1947, when a Petition of Right was brought in the courts, the Crown gave its fiat in the words, "Let right be done." I have always thrilled to those words, and I still do so. Let right be done.

One of the greatest glories of this nation is its belief in the theory of justice between the poor and the lowly against the wealthy and the highly placed, between the weak against the strong, and I ask the Government carefully to consider this whole question of Crown privilege and to take steps so that in the courts right may be done.

2.40 p.m.

Mr. Douglas L. S. Nairn (Central Ayrshire)

As I suspected, this debate has been largely a contest between gentlemen of the law, though it has surprised me that nearly all of them seem to have been fighting on the same side. It is perhaps only right that a Scottish Member should join the hon. Member for Carlton (Mr. Pickthorn) in this legal cockpit. I shall keep to the very simplest issues and shall not attempt in any way to become involved in the legal argument.

If it had been our misfortune to be brought up and live under a dictatorship we should have accepted without question the Government's right to withhold documents without giving any reason. I am sure that we should have been very surprised if such a Government had given us a document which thereafter we should have been able to use against them. But when we have been brought up in a free country which has been a pioneer in evolving a form of government which guarantees freedom for men and women and organisations, I am sure that we should not be doing our duty if we failed to keep a close watch on this question of Crown privilege and the effect it has on the power to withhold documentary or oral evidence.

This is particularly so because the withholding of this sort of evidence is likely to affect only scattered individuals or organisations at scattered times in scattered places, those who have no powerful organisations to take up their case. The result is that when any one of them suffers a hardship it is unlikely to arouse any large amount of public interest or excitement. But I am sure that there is nothing more likely to sow the seeds of suspicion in people's minds, nothing so demoralising and frustrating as to know that one has had right on one's side all the time but has been unable to obtain justice because the democratic machine has not made available some evidence which was necessary for the proper presentation of one's case.

Over and over again today it has been recognised that Crown privilege must exist, and we all agree that we have to sink our individual rights when those are in conflict with the interests of the State and State security. I do not think that anyone has questioned that in those cases the Minister must be the sole judge, but I do not think that we should be asked to go beyond that.

Although there have been repeated efforts recently to bring about a real change in the rules and regulations governing the production of documents under Crown privilege, I think that we are still being asked to accept something which is really not yet quite fair or reasonable. Under Crown privilege, documents the production of which might be prejudicial to the working of the Government or Departmental machine can also be withheld. Even that we are willing to accept in certain circumstances, but what I feel we cannot suffer, and what we should not be asked to suffer, is that a Minister with whose Department we are in dispute should be the sole and final judge in those cases.

Is there any man who is really capable of clearing his mind of all prejudice, who is really capable of setting himself free of dictates of convenience? Is there any man who could make himself so disinterested in his own Department that he could act as an unprejudiced judge in this sort of case? There may be such a man, but if there is he is not the sort of man who should be in charge of a Department.

In every Department there must be a two-way loyalty. There must be loyalty from the Minister to his subordinates and loyalty from the civil servants to the Minister. No Department can work smoothly unless that loyalty exists and there is complete confidence in it. But where that loyalty exists and is strong, is it reasonable to expect a Minister to be completely impartial in his judgment? I should have thought that it was quite an unreasonable expectation and that loyalty and expediency together would always play an important part in coming to a decision.

Because of that, I do not think that there is any sort of guarantee of justice until that decision is taken away from Departmental Ministers, although I do not feel qualified to say what should take its place, whether court, tribunal or High Court judge. I should have thought that my right hon. and learned Friend the Attorney-General would have been anxious to find a way of relieving Ministers of an obligation to make decisions which must nearly always bring about some conflict between loyalty and justice.

I was disappointed in my right hon. and learned Friend's speech. He started by congratulating my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon), but his congratulations did not ring quite true to me and I feel that his speech afterwards was also a little hollow, because he was looking round for seeds which had already been cracked open and their contents consumed. I hope that we shall have a reassurance, when the debate is wound up, that the public can expect to get an independent decision on what document can be withheld.

2.47 p.m.

Mr. Philip Bell (Bolton, East)

Time was, the young curate sang, "When love and I were well acquainted." I suppose that there must have been a time when the Attorney-General and, as he is a member of the Bar, the Minister of Pensions and National Insurance, must have been well acquainted with the feeling for freedom which infects all English lawyers and for watching very carefully and protecting against any encroachment of the Executive on the liberty of the subject.

It seems perhaps a long time since they were so well acquainted, as they are still obstinately rather determined to put the position of the Executive in a very high light. They must be rather sad secretly that they do not stand in the great tradition of Coke, Mr. Justice Devlin, Lord Justice Singleton and Lord Justice Morris, who have all pointed out that the claim of class privilege goes too far.

The issue between us really is only this question of class documents. Everybody realises that there must be some document and some evidence which national security says must not be disclosed in any litigation. Indeed, sometimes it cannot possibly be disclosed to the House, but there is a claim of privilege of quite a different nature for a file, a bunch of documents, and that is made irrespective of the merits of the contents. Nobody knows whether it is for or against the Government and whether it is really much use at all, but as a matter of principle the Minister, when the point is raised, goes through the solemn farce of certifying that he has read this document and does not really think that it is necessary for him to waive any privilege and that he must retain it merely on the ground not of the individual document but on the ground that it is part of the practice of protecting communications passing between civil servants that, whatever the issue, they must not be produced to the court. It is said, "If we produce one we must produce all, and if we allow some and disallow others there will be grave suspicion of our impartiality. Therefore, we must keep everything back."

This claim for class documents has only crept on us. It started with Henessey and Wright and Smith against the East India Company. Indeed, the case of Smith and the East India Company is the one that the Lord Chancellor, then Lord Simon, relied upon in his judgment. As to the case of Henessey and Wright, it is the first time I have been able to find that this sort of claim was even suggested. It was then said by Mr. Justice Field that there would be an end to all freedom in their official communications if they knew that any suitor, as in this case one of their own body, could legally insist that any official communication, no matter of how secret a character, could be produced openly in a court of justice.

Of course, that goes too far. No one suggested that a person should be entitled to have a document, of however secret a character, produced. The case of Smith and the East India Company is rather an exceptional one because it was really a commercial dispute depending on an interpretation of an Act of Parliament. It was one dealing with the company and its position in relation to the Board of Control. It had some political or Governmental angle. That was the case where it was claimed that the correspondence between the company and the Board of Control could not be subject to production, because, if it was, the effect would be to restrain the freedom of communication and make them more cautious, guarded and reserved.

It was out of these two cases, particularly the latter case, that arose this practice of claiming privilege for a whole class of documents. Let us see how it was applied. It was applied without any justification at all in the Ellis case. It was not suggested that if the medical report, the notes of the doctor, in that case had been produced there was a danger to the State. It was not suggested, as in some of the old cases, that the doctor did not want his report produced. The only argument used for non-production in that case was that it was the policy not to produce it.

Take the Scottish case of Glasgow and McKay where the question was a simple one of seeing a police report. McKay was not allowed to see the police report. Take the case of the Glasgow Corporation against the Central Land Board. There the litigant tried to see the official instructions given to valuers concerned with assessing development charge. In those three cases no one suggested that, on the merits, the documents should not be produced. No one suggested that the persons who had made the reports were frightened of their being produced. It was done because it was not the policy of the Department.

The criticism which the House has already heard of what happened in the Ellis case despite the House of Lords decision by Lord Justice Singleton was that the document in question should have been considered on its merits and should not, in fact, have been just thrown out on the grounds that it was thought part of a series of documents. Lord Justice Jenkins said that it was the decision of the responsible Minister in respect of any particular document to be found.

Indeed, it is interesting to see in the Crown Proceedings Act, 1947, a reference to the exception to preserving Crown privilege. The proviso of Section 28 refers to the disclosure of the document as being injurious to the public interest. It does not suggest that there should be a group of documents which because of some custom or objection to producing them should not be produced.

It is a criticism from learned lord justices—Lord Justice Morris and Lord Justice Singleton—as we all know, in a court of first instance. In the Ellis case it was also criticised. The value of the document is that it checks evidence. That was made abundantly clear in the Ellis case. No one minds what the person said, but they want to compare what he said then with what he says now. In the field of Civil Service there are interviews. There are records made, not by the handicapped civilians, but careful reports made of what he said at the interview. Then the case comes on and what he said is disputed. There is the record which can be checked against what witnesses are saying in the box.

We know that in the Lord Chancellor's statement recently certain concessions were made. It is interesting to see another of the concessions, what he calls exceptions or widening the ambit. Civil servants may be nervous about their reports, but there are occasions when it is admitted that the reports must be allowed notwithstanding that nervousness. Reports of employees and other eye witnesses of accidents on Government premises are now to be produced. It is curious that they should ever have been kept back. An eye witness on Government premises made a report knowing it was not going to be produced because otherwise it would upset the freedom and candour of his communication. But now it is decided that such reports can be safely produced.

The Government now are not only going to claim privilege for the report of a mining inspector reporting an accident. Now the inspector will have to be careful what he says in his report. He will not be able to act in a happy-go-lucky way in making the report. He will have to direct his mind to it because reports of officials about machinery, premises or vehicles must be put in. I must correct myself. The report of the factory inspector investigating an accident cannot be put in, but he can be called to give evidence of the facts. So here we have the inspector giving evidence of what he saw on the occasion, but the report which he made to the Minister before he got into the witness box cannot be produced. That is a very odd thing. He goes into the witness box to say that he investigated the accident and found this, that and the other, but the report which he gave to the Government cannot be used to check what he said in the witness box.

The other exception is the medical report in respect of the health of civilian employees. They are going to claim it for the fighting Services. I will leave that out.

Is it not odd that in this century we should have the Lord Chancellor, with all his dignity, going to the House of Lords and saying that a medical report in respect of the health of a civilian employee can now be given and that privilege will be waived in that case. Why was privilege ever claimed for it?

Then there are statements made by witnesses to the police in civil cases and factual reports in Government contract cases. They are going to be admissible.

We now have at any rate an instalment of freedom. Four types of documents, notwithstanding that they may be made by civil servants, are to be allowed to be produced. At the moment that seems to be an end to the matter, though the Attorney-General says that it is under active consideration. What that really shows is that the confidential relationship which "must be maintained by the civil servants themselves" is not impregnable and that there is some hope of breaking it down.

The Lord Chancellor went on to deal specifically with that in his statement. After giving the four concessions he dealt with the question of what he called "departmental and interdepartmental minutes". The first observation that he made about it was that in such a case—this is the ultra vires case—it is right that a Minister should be prepared to defend his position, but if it became possible to challenge Government action by reference to the opinions expressed by individual servants in the necessary process of discussion in a Department, the efficiency of Government administration would be gravely prejudiced.

We must stop there for a moment. There is an ultra vires action. Somebody may have said that the Minister is wrong. An opinion expressed by an individual civil servant can have about as much to do with whether it was ultra vires or not, as far as I can see, as the State of Denmark. What an individual civil servant thinks about the action can have no bearing upon an ultra vires act. I invite my right hon. Friend to tell me the sort of case in which an ultra vires issue was raised in which it would be important to keep a confidential memorandum quiet.

The other matter the Lord Chancellor mentioned seems to be even more damaging. It concerns the question of minutes, which he conceives are not of high evidential value, though they might be used effectively in cross-examination. He goes on to say, For example, such actions as wrongful imprisonment, malicious prosecution or defamation, may easily be concerned with events of public interest which give rise to comment in the Press and questions in Parliament. It is necessary and right that advice should be given at a high level in such cases, and that the advice should be entirely frank. It could not easily be given … I like the word "easily". … if it were subject to discovery in the subsequent proceedings."—[OFFICIAL REPORT, House of Lords. 6th June, 1956; Vol. 197. c. 746.] If the advice was given by the Attorney-General, nobody at all would see it. It would not be legal advice. If it were a matter of high political discussion, it is alarming to think that in an action against a Government Department or Government service or in which one was involved dealing with wrongful imprisonment, malicious prosecution or defamation such information should not be produced if it might lead to comment in the Press or Questions in Parliament. That is the very point. The Press and Parliament are the custodians of liberty. Yet it is because they might raise the question of liberty that the Government Departments say, "That is the one thing we do not want if we are involved in an action which deals with wrongful imprisonment or malicious prosecution."

The danger, it seems to me, though I appreciate the difficulties about it, has been grossly exaggerated. I would suggest a compromise. I believe that in matters like this we should start with a healthy prejudice and from a fixed point. In our type of civilisation, not being behind the Iron Curtain, we start with the premise that the rights of the individual are paramount ; that is to say, the State serves the individual and not the individual the State. Therefore, we start by saying that in the administration of justice there should be a right as between the parties to full disclosure, whether the Government is concerned or not.

Then we start picking the exceptions. We pick State security. We say that is a necessary exception. Then we say, apparently, that some matters, relating, for instance, to sources of information, informers and spies, may have to be kept back. Then we look round to see what else there is. It is a possibility that some types of Army medical reports might have to be excepted, and we pick them out.

I suggest that that is the way it should be done in a free country. One should not start by saying, "We will hold everything back and let you have bits as we think fit." I welcome the so-called exception which the Lord Chancellor has made, but he has gone about it the wrong way. He should say to all the Government Departments, "Remember now, privilege is not going to be claimed for your files unless you can give me a particular reason why for your Department in this transaction privilege should be claimed. If it has some particular reason, then I shall indicate that it is in fact a matter of privilege."

It might be a matter of aircraft construction and the Minister could claim privilege for it. Privilege might be claimed for anything to do with atomic research, but we should not give privilege to the requisitioning of premises or land, because we want to know whether it has been done honestly on true information. We want to know whether the price is really fair and whether the civil servant's private view of its value is the same as his public view at the inquiry.

I do not wholly accept what my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) suggested as a solution. I say that we should start by saying that when security is not involved, the Crown will be on an equal footing with other persons and then have that position cut down by the Lord Chancellor when it is really necessary and when it is really likely that a civil servant might feel nervous that what he said might be misconstrued.

I am sorry that the debate has not been well attended. The lawyers of England have always been leaders of the revolts against the over-preening powers of the Executive. I wish that more people were here. I welcome those who are not lawyers, but I can say that I have never been more proud that we should, as through the centuries, be the first people to put a check on the claim for the privilege of a document, or the other privileges of which the Mace reminds us so well.

3.6 p.m.

Mr. G. R. Mitchison (Kettering)

I agree entirely with the hon. and learned Member for Bolton, East (Mr. Philip Bell) that we have had a most interesting debate and that undoubtedly those who practise the law in this country have always taken a leading part in asserting the liberties of the subject.

Mr. Pickthorn

Can the hon. and learned Member explain, if that is so, why this House so frequently passed resolutions that lawyers were not to sit in it, least of all Law Officers?

Mr. Mitchison

That seems to be a criticism of the House rather than a criticism of the legal profession and the part it has played in maintaining liberties in this country. I take leave to defer consideration of that matter until another and perhaps more appropriate occasion.

The question that we have to consider affects not only lawyers but the public, and it also affects the proper functioning of the public service, to take the phrase which has been used in this connection. We have had a claim by many lawyers, and apparently by the Bar Council, that in all cases, except those of national security—and the distinction between national security and other matters might not always be clear to draw—the last word on the production or non-production of a document on grounds of Crown privilege should rest with the judiciary.

I am bound to say that I think that that is going too far. I have listened very carefully to all the speeches and with the possible exception of the hon. and learned Member for Middlesbrough, West (Mr. Simon), to whose views I always listen with the greatest respect, I doubt if anyone has really gone as far as that. Practically all the criticism has been confined to classes of documents rather than individual documents. That is narrowing the field considerably.

The party document to which reference has been made, and which was issued by my party, bears the date "June, 1956." Printers do not move as rapidly as all that, and it is, therefore, clear that that document was issued before the statement was made in the same month by the Lord Chancellor in the House of Lords. What he said has gone some way to justify the criticism made in that pamphlet. It appears from the reported cases that there have been cases where Crown privilege ought not to have been claimed and where the claim has either interfered, or it looks as though it interfered, with what may have been the right course of justice. The fact that these concessions were made justifies the complaint that there had been cases of this sort.

> On the other hand, I entirely agree with the right hon. and learned Gentleman, who pointed out that the cases had been few in number, and that even if one did add the few more that might not have come out one did not get more than a very small proportion of cases, where there had been serious ground for complaint ; I accept all that. The next question is : what is to be done about it?

As I said just now, the idea that, except in cases of national security, the judiciary should have the last word, is profoundly unsatisfying. In these cases it is not a question of the relevance of the documents but purely a question whether, in the cause of proper functioning of the public service the document should be withheld or, on the other hand, in the cause of full administration of justice and the placing of evidence before the court, it should not be withheld. That is the conflict. To put upon the judiciary the burden of deciding questions about the proper functioning of the public service is completely wrong. The judiciary is in no position to make those decisions. I am sure it would not want to if it was asked. If the decision were put upon it in that way it would soon find that the field in which it had to make decisions tended to increase rather than to decrease.

The law has played a prominent part in the assertion of liberty in England. It is well to remember that the law has done it largely by making a claim on its own account. I do not say that in any captious spirit. It has been to some extent a conflict of interests, as it is on this question between those who serve the law and are concerned with administering it in one form or another and those who perform other functions, nowadays those performed by the civil servants.

We come back to the question. Here are two conflicting matters, one of which we would not wish to put upon the judiciary and the other of which we do not wish to put upon the Civil Service. It is for that reason that the suggestion about the Lord Chancellor was made in the pamphlet. It was put forward only in very tentative form as an instance of what might be considered. An equally tentative suggestion came from the right hon. and learned Member for Chertsey (Sir L. Heald) today, about an assessor. Both suggestions recognise the difficulty of putting upon either of the groups who are parties to the conflict the decision about documents and particularly about classes of document.

I therefore feel that it is right that the matter should be considered, and to that extent—although I am speaking only for myself—I am sure that many of my hon. Friends on this side of the House would be glad if it could be considered.

On the other hand, I believe that the Lord Chancellor's concessions have gone a very long way in practice. It is easy to find cases which they will not cover, but he pointed out that they do, in fact, cover, I think it was, two out of three of the particular cases he mentioned or two out of four. He expressed the opinion—and I think that one may take it that the matter is fairly put in cases of this sort—that they would cover most of the cases that were likely to occur in practice, and the very considerable concessions about questions of fact seem to me at any rate to go a very long way.

I think there was very great force in what was urged on us today by the right hon. and learned Gentleman. Here is what is on any showing a quite considerable concession in practice, and surely the right thing to do in these circumstances is to give it a trial and see how it works. I feel sure that does not dispense us in this House from the need for vigilance about it. There is a case for that, just as there is a case for further consideration of some form of person or body which would be in a better position to consider the conflicting claims of the public service and of full disclosure of documents than either one side or the other in the transaction.

I want to make a final point and to do so certainly with conviction and, I hope, with some force. I regard the suggestion that memoranda, minutes, etc., on questions of policy involving advice to a Minister should be disclosed in a court of law as a really dangerous suggestion. It seems to me to cut straight across the equally important principle that civil servants are not accountable here for what advice they may give, but that the Minister is fully accountable.

Mr. Simon

Does the hon. and learned Gentleman oppose the concession which has been announced by the Lord Chancellor that they shall be disclosable in criminal cases, since no privilege at all will be claimed in any criminal case?

Mr. Mitchison

I should have thought that the answer to that was that cases of that kind would be exceedingly rare. I am not at all certain that that is, in fact, what the Lord Chancellor said.

The Attorney-General

I referred to words which the Lord Chancellor used which were related to documents. I did not say that no privilege at all would be claimed. I referred to documents. I should like to make this quite clear. What my noble Friend and what I said, does not, of course, mean that in future the names of informants to the police would be revealed.

Mr. Simon

We must have this absolutely clear. I hope that the Attorney-General will make it clear that civil servants' memoranda so far as relevant to the defence of criminal proceedings will be forthcoming.

Mr. Mitchison

I will leave the matter, because I want to give the Minister plenty of time to reply to that and other points. I am sure that the hon. and learned Member who put it forward just now will agree with me that whatever value may attach to that particular matter in principle, the practical effect is not likely to be very large.

What I am concerned with is that in civil matters at any rate, if I may so confine it, memoranda, minutes, correspondence, whatever form it takes, on advice and questions of policy should be completely protected. I am certain that what was said by my hon. Friend the Member for Walthamstow, West (Mr. Redhead) about this represented not only his own view, but the views of a very large number of people who render invaluable service to this country.

It may be perfectly true, and we do not hesitate to make these claims, that our legal system is the finest in the world. It is equally true that our Civil Service is the finest in the world. I am certain that its effective functioning depends on the complete responsibility of the Minister, on his accountability to Parliament for these decisions, and on the fact that those two matters preclude the dragging of Civil Service individuals and Civil Service advice into discussion here and preserve the anonymity of the Civil Service. It is quite as important a part of our Constitution, in my view, as many of the matters which have been raised today.

Therefore, I conclude by saying that I am glad these concessions have been made by the Lord Chancellor. I think there was some occasion for them, quite a good occasion. I feel they ought to be given a trial. I feel that the further point which ought to be examined is the question of who is to decide in the last resort, whether there is any third body to decide, between the claims of what is loosely called the Civil Service on the one side and full disclosure on the other. Broadly speaking, I feel that the criticisms that have been made of the concessions now offered by the Government go rather too far and would do considerable damage to the proper functioning of the public service.

3.21 p.m.

The Minister of Pensions and National Service (Mr. John Boyd-Carpenter)

I have heard every speech in the course of this most interesting debate and I think that I am only the third hon. Member to take part in it who is not entitled to the prefix "learned." As my two "unlearned" predecessors pointed out—somewhat entertainingly in the case of my hon. Friend the Member for Carlton (Mr. Pickthorn)—both in admirable speeches, this subject should not be confined to the "union" to which I happen to belong and of which my right hon. and learned Friend is the convener of shop stewards.

This debate has been interesting and valuable from many points of view. It has enabled the combined understanding and knowledge of this House to be focussed in a wholly uncontroversial way—in the party sense at least—on what I think all who have taken part in this debate have conceded is both a complex and a very difficult matter, involving a very difficult balance of clearly conflicting considerations. I may say at once that the debate has been most valuable to us and it has been extremely useful to have the views which have been expressed with such sincerity, clarity and force, as has been the case in speeches from both sides of the House.

If my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) thought he detected in the speech of the Attorney-General any indication that Her Majesty's Government were complacent about the matter my right hon. and learned Friend the Member for Chertsey is for once—this must be very rare indeed—in error because Her Majesty's Government have been giving most careful thought and consideration to this highly complex matter. That is evidenced by the long, full and careful statement which was made as recently as last June by the Lord Chancellor in another place.

That, I hope, will reassure the House that this is not a matter on which there can be any complacency at all. It is, on the other hand, a matter on which the Government have themselves taken an initiative which, as I shall hope to show in a few minutes, should provide at any rate a considerable degree of reassurance to those hon. Members who are still not wholly happy about this difficult and important subject.

The debate has also revealed, I think—despite the acute controversy on a number of points—that there is really a very wide general measure of agreement, and that the controversy confines itself to a comparatively restricted sphere. As I understand, and, as I have said, I have listened throughout the debate, there is no question in any right hon. or hon. Member's mind that there must be occasions on which evidence, which would be relevant evidence, is not made available, and properly not made available, to the court.

There is the case, to which my right hon. and learned Friend referred, of professional privilege, and so far as Crown privilege is concerned I think that it was accepted universally throughout the debate that in cases involving the security of the State, or in cases in which diplomatic complications would be involved, there must be a withholding of documents on the certificate of the Minister responsible.

The whole debate has really centred itself on the other issue : the issue as to whether or not it is right to exclude, and to exclude on the certificate of the Minister responsible, documents of a particular class or category. It is within that important, difficult, but, taking the whole wide scope of the matter, relatively limited sphere that the whole of this most interesting debate has centred, and it is on the issues raised in that sphere that, as I understand, it is my duty to say a few words at this stage in reply.

As I have said, this is a matter on which the Government have themselves taken the initiative, and I do not think that the way in which we are approaching the matter can be better summarised than in the words which my noble Friend used in announcing the statement of policy in another place. He then said : The proper way to strike a balance between the needs of litigants and those of Government administration is, in our opinion, to narrow the class as much as possible by excluding from it those categories of documents which appear to be particularly relevant to litigation and for which the highest degree of confidentiality is not required in the public interest. We have carried out an extensive survey of the field and have certain proposals to make along these lines.—[OFFICIAL REPORT, House of Lords, 6th June, 1956; Vol. 197, c. 743.]

Mr. Pickthorn

Surely this point of the law as stated in the Cammell Laird case and subsequently is the duty of each individual Minister personally. What I do not understand is how, if that is so, it can be done in advance for Ministers by a general ukase issued by the Lord Chancellor.

Mr. Boyd-Carpenter

I hope that my hon. Friend will allow me to reply to the various points in the order which seems to me to be the most logical at this stage, and that I may deal with that point when I come to deal with my hon. Friend's observations. I have got his point but, at the moment, I am on the point of the attitude of the Government, with, perhaps, particular reference to the comments of my right hon. and learned Friend the Member for Chertsey and, indeed, one or two other hon. Members. It was for that reason that, at this stage, I was venturing to invite the attention of the House to the declaration of our attitude to the matter which was given with his usual clarity and force by my noble Friend in another place.

If I might come to a further stage of the position as we see it, I would pick up what was said a moment ago by the hon. and learned Member for Kettering (Mr. Mitchison). As he said, changes have been announced. They have only in the matter of the last few months come into effect. It really is too early to judge whether or not they have gone far enough to deal with the causes which have disturbed hon. Members and persons outside. I would suggest to the House that it is probably in accordance with the practical way in which this House normally deals with these affairs that we should suspend judgment on this matter at least until we have had time to see whether or not these, as I say, comprehensive changes have met the difficulties which have arisen.

In this context I do not place much reliance on figures, but I would remind the House that my right hon. and learned Friend the Attorney-General did point out that cases involving the Crown in the High Court since the passing of the Crown Proceedings Act have numbered about 200 a year; that is, about 1,800 since the passage of the Act, and that out of those cases as my right hon. and learned Friend said four, or, as my right hon. and learned Friend the Member for Chertsey said, seven, cases had arisen in which criticism has been made of the claiming of Crown privilege.

It is clear from the Lord Chancellor's statement that we hope and believe that the changes being introduced will deal with, at any rate, some of the types of case in which difficulty has arisen in the past or has been thought to have arisen. In those circumstances, I think it is not unreasonable to ask the House to give the new proposals a trial to see whether the substance of the matter has not been met by the changes which have been announced.

I would venture—although I am conscious that people have been awarded decorations for acts of less valour—to join issue with my hon. Friend the Member for Carlton on a question of wording. My hon. Friend put no weight at all on what had been said by one or two of the preceding speakers to the effect that this issue was clouded a little by the description of this matter as a matter of Crown privilege. I would not suggest that any hon. Member had his mind clouded on this or on any issue, but it is undoubtedly the case that outside this House the words "Crown privilege" conjure up a rather sombre apparition of medieval tyranny and oppression, and that they are really not a very accurate description of the animal whose proportions and performances we have been discussing this afternoon.

Let me take one quite specific example. Crown privilege, as has been made clear in this sense, is claimed in cases in which the Crown is not a litigant itself at all, in which privilege is claimed, quite irrespective of the issue of the litigation between two subjects, because it is felt that a disclosure of certain documents, for reasons which I will go into in a moment, will be damaging to the administration of the Queen's Government. To describe that by the words "Crown privilege" has a somewhat misleading effect outside.

If I may give examples of what I have in mind, it fell to me in my own Department to claim Crown privilege in respect of certain documents a few months ago. The documents in respect of which I claimed it were documents in the National Insurance records giving personal particulars of a certain individual. That was claimed in proceedings to which the Crown was not a party. I may have been right or wrong in claiming Crown privilege in that case, but the point that I want to put is that, in so claiming it, I was not asserting a claim which conferred or could conceivably confer any benefit upon either my Department or the Government, but I claimed it in protection of the confidentiality—I apologise for the word, which is a horrible one—of the personal particulars furnished to my Department under Statute by the individual concerned to whom the particulars related.

I do not want to enlarge on this issue, but it has been the practice of Governments since 1913 to give a very high degree, though not a complete degree, of protection to the confidentiality of the social or National Insurance records. That has been done because it has been felt by successive Governments that where personal particulars and information are furnished to a Government Department with, indeed, compulsory powers, at least in the background, that Department owes a duty to the person furnishing those particulars not to disclose them to other persons in general who may have, for one reason or another, a desire to take action.

That is an example, I think, of the fact that in many cases where Crown privilege is claimed it is really not a case, as one or two hon. Members have said, of the Minister being a judge in his own cause. In these cases, at least, it is not his own cause which is involved. It is his view—fallible though it may be—that his duty to those who have supplied information to his Department about themselves outweighs his duty to assist in this way in the administration of justice in a case to which he is not a party.

Lieut.-Colonel Lipton

Will the Minister make it clear that the point he is now putting forward applies only to civil actions, not to cases where criminal proceedings may be involved?

Mr. Boyd-Carpenter

As I think the hon. and gallant Member understood, I was at that moment discussing civil actions between subjects ; and I quoted this because it was an example of an actual claim of Crown privilege by a Departmental Minister and an example of the actual circumstances in which, so far as I was concerned, it was done a few months ago.

Mr. Simon

Would my right hon. Friend say where the distinction is in that case between the civil and the criminal proceeding? If it is right to grant it in the criminal case so that justice may be done, why is it wrong to do so in the civil case?

Mr. Boyd-Carpenter

I know my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) is anxious to raise that point, and he has done so several times already. I shall come to it in due course. My hon. and learned Friend has had a good run, and I think it would assist the House if I were allowed to develop my argument. I hope my hon. and learned Friend knows me well enough to realise that I am not running away from the point ; I shall develop the argument in my own way, and for the moment I will tell him that I have noted the point.

There will be put against me at once the argument that, although what I have said is true in a case such as I have instanced, where the Crown is not a party, it is, shall we say, less obviously true in cases in which the Department is the defendant or is involved in one way or another. I concede at once that it can look as if in those cases the Minister is being the judge in his own cause. I can only repeat to the House, however, what my right hon. and learned Friend the Attorney-General said with far greater force and effect earlier, that in those cases it is not the duty or the practice of the Minister to apply his mind to the effect upon the chances of success or failure of his Department in the litigation concerned when he decides whether privilege should be claimed or not.

The point to which he has to apply his mind is whether or not the general effective working of his Department will be prejudiced by the disclosure of documents of that particular class. As my right hon. and learned Friend has said, the effect of his decision to claim privilege in a particular case may well be, and indeed, I think my right hon. and learned Friend told the House, has been in certain instances, to weaken the case of his Department when it comes before the court.

Therefore, when we come to the second type of case, the case where the Department is, in fact, a party, I would say to the House that the danger that in this respect a Minister may be a judge in his own cause is not a real one, because the issue to which he has to apply his mind is a quite different one and one which, whether all sides of the House accept it as right and wise or not, really has nothing to do with any attempt to prejudice the rights of the citizen with whom he may be in dispute, but is directed, rightly or wrongly, to quite different issues, namely, the effect of disclosure of those documents upon the administration of the Department of which he is head.

Mr. Hirst

Where is the guarantee of that?

Mr. Boyd-Carpenter

My hon. Friend asks where is the guarantee, and I will answer the point at once.

The guarantee is this : if the Minister abuses his power in this respect, this is a matter on which he is answerable to the House. The action of a Minister in giving a certificate claiming Crown privilege is one for which he is answerable at this Box. In at least two—it may be three, but certainly in two of the cases quoted this afternoon as illustrations of a claim for privilege which ought not to have been made—the Minister concerned had to answer Questions at this Box about them. That is a safeguard which, at least in this House, ought not to be underrated.

Mr. Hirst

Will my right hon. Friend give way?

Mr. Boyd-Carpenter

I am at a rather important part of my argument and I have given way four times already.

Mr. Hirst

My right hon. Friend is bouncing off it.

Mr. Boyd-Carpenter

The position can be illustrated by examples. One example was given by the hon. Member for Edge Hill (Mr. A. J. Irvine) out of our common experience in dealing with confidential reports made in the Military Secretary's Department of the Army concerning officers. It is quite clear that if those who made those reports contemplated the possibility that their confidentiality might be infringed, they would find it much more difficult to give the full, frank reports which are so particularly important when dealing with matters of that kind. I was interested that the hon. and learned Gentleman should recall that example—he and I at one time worked together on these very matters—which is very relevant in the House this afternoon.

Let us, however, take the broader question, on which a good deal was said : that of minutes, and particularly minutes expressing opinions and comments during the process of the formation of policy. It is extremely important, I am sure hon. Members on both sides will agree, that that process, which results in announcements of policy for which Ministers take responsibility at this Box, should be arrived at with complete frankness and that it should be possible for those advising Ministers, in the course of their duty, to express their views, right or wrong, absolutely frankly and fully. That, I would suggest, is a very real and important public interest.

Several hon. Members have said that the Civil Service is sufficiently robust not to be deterred from expressing its views on these matters by the possibility of publication. I share the view expressed so eloquently by the hon. Member for Walthamstow, West (Mr. Redhead) about the quality and courage of our Civil Service ; but it must be common experience of hon. and right hon. Members that one does express oneself somewhat differently when preparing a statement for publication from the way one expresses oneself when no firm views have yet been formed, when one is feeling one's way towards a decision or an opinion and is doing so in the knowledge that the views one expresses will not be quoted outside. That must be the experience of all of us in our own affairs as it must be in public affairs.

There is a further disadvantage which the House should face and which was touched on by the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas). Statements of policy are made and justified from this Box by Ministers. It would be an intolerable situation if views expressed by officials in the course of formation of policy, and which may well be views not completely consistent with the policy as it finally emerges, were to be given publicity in the course of litigation and to be available for quotation in this House or outside in controversy. That really would not be fair, certainly to the Minister or, I would suggest, to the officials whose business it had been to tender that advice.

That is a matter that the House must face, because here we reach, as an earlier speaker reminded us, a point at which we get very close to the position of this House and of its right to hold Ministers accountable for the policy statements which they make and for the actions they take.

I think it must be conceded that there is, therefore, a class of documents in respect of which, as a class, it would be extremely prejudicial to the efficient working of government that they should be laid under the possibility that they may have subsequently to be disclosed. That is where one reaches the real difficulty of the proposal, which was so eloquently put by my hon. and learned Friend the Member for Middlesbrough. West, of providing for judicial determination of the claim to privilege, or, indeed, of the very interesting point which he put forward, which he indicated was also the view of the Bar Council, that judicial decision on the discovery of these documents should, at least in marginal cases, be permitted though with the court sitting in camera.

The difficulty—and it is a difficulty the House, I think, must face—is this. That does mean that if, in those circumstances, documents could be produced then, when the process of formation of policy is going on, either by way of minutes or in the parallel case to which the hon. Member for Edge Hill referred, those engaged in that job will be so engaged in the knowledge that it is uncertain whether in the ultimate resort, in some litigation perhaps not even contemplated then, those views may not be published and those documents may not be given to the public.

That is a consideration which the House must face. This is not a matter on which I want to be dogmatic, but that is a point which, perhaps, has not yet received full weight and full consideration in this debate. Even if some hon. Members feel that it does not counterbalance the desirability of securing that the widest possible interests of justice are served by the fullest possible disclosure of documents, I think it must be conceded that it is a point which cannot be wholly disregarded and must be given a certain degree of weight in our consideration of these matters.

The other suggestion was that this matter should be decided not in the ordinary way by the judge dealing with the case or by the judge dealing with an interlocutory application but by the Lord Chancellor, in view of the fact that the Lord Chancellor embodies in his office many aspects of our constitutional system, but I am afraid that there is a very real practical difficulty. The number of cases in which the Crown is itself involved, as I have already mentioned, is about 200 a year in the High Court, with, perhaps, a similar number in the county courts. There are also the classes of cases, to which I referred earlier, where the Crown is not a party, but in which discovery is sought of documents in respect of which a claim for privilege is made by the Crown.

The present Lord Chancellor is, as hon. Members who knew him in this House know, and as many of his predecessors have been, a man of immense capacity for work, but I think it is unrealistic to suggest that in his case, or in the case of any of his successors or predecessors, it would be really possible fruitfully to impose this additional burden on one whose widespread responsibilities are at present heavy enough.

Mr. A. J. Irvine

Can the right hon. Gentleman say what is the number of claims of privilege that arise year by year? The object which some of us have in mind is that when the Departmental head makes his claim he would refer it and the facts of it to the Lord Chancellor. About how many such claims are made by Departmental heads in the course of a year?

Mr. Boyd-Carpenter

I have not got the figures. They arise, of course, separately in the Departments concerned.

However, I think it is clear from the scale of the proceedings in which the Crown is necessarily involved that this proposal would place a really excessive burden upon the noble Lord concerned. Therefore, for that reason, apart from the other difficulties that may arise, that suggestion is not a feasible one, though I will admit at once that it is one which, when one first hears it. is not without superficial attraction.

My hon. and learned Friend, throughout the day, has been at pains to make the point that the announcement made by the Lord Chancellor with respect to evidence asked for by the defence in criminal cases really ought to be expanded so as to cover all cases. It is important that the House should have in mind exactly What my noble Friend did, in fact, say. He said : We also propose that, if medical documents, or indeed other documents, are relevant to the defence in criminal proceedings, Crown privilege should not be claimed."'—[OFFICIAL REPORT, House of Lords, 6th June, 1956; Vol. 197, c. 745.] It would be an impertinence on my part to seek to add to or to put a gloss upon those perfectly clear words, but it really does not seem to me that the fact that we propose to do this with reference to documents clearly relevant to the defence—and it is suggested that medical reports are the obvious ones—would really involve in practice this whole question of Departmental minutes, or, of course, would necessarily involve Crown privilege never being claimed in criminal proceedings.

Therefore, I really think that though my hon. and learned Friend the Member for Middlesbrough, West with his habitual persistence, has found a logical and effective argument, it is not an argument which really bears on the substance of the matter, because this is not a sphere in which these cases of Departmental minutes and reports, with which we were concerned a moment ago, would, in practice, arise.

Mr. Mitchison

Does "other documents" include communications to or from the Inland Revenue?

Mr. Boyd-Carpenter

I should prefer not to answer about the Inland Revenue. I did that for three years when I was Financial Secretary and I think that that is sufficient stint.

My hon. Friend the Member for Carlton asked a number of questions which I will endeavour to answer in the time available. I agree with him that extensions of Government activity are not, as he described them, inevitable. I share the view that nothing is inevitable, except death and taxation, and that by taking competent professional advice it is sometimes possible to postpone both. My hon. Friend took the view that the onus of proof lay with those who would assert Crown privilege. As he is one of the few "non-learned" Members who have taken part in the debate, I was interested that he developed the argument in that way.

If we were discussing the matter in the abstract or were setting up a new constitution, that is a proposition with which I would not wish to quarrel, but the actual situation we are in is that Crown privilege, as my right hon. and learned Friend the Attorney-General told us, has been part of the law for a considerable time, and the Government, by their own act, are seeking to reduce its scope. That is perhaps an indication that we are not as a matter of philosophy wholly out of sympathy with the view which my hon. Friend the Member for Carlton expressed.

My hon. Friend asked whether the issue of a certificate in these cases was a personal decision by the Minister. Lord Simon, in the Cammell Laird case, expressed the view that it should be, and, as far as I know, in general it is. That necessity is enforced by the fact that it is generally given by affidavit. My own practice on the two occasions when I had to do it has been to deal with it personally by affidavit.

Mr. Philip Bell

That is part of the Minister's policy, because it is a Departmental minute.

Mr. Boyd-Carpenter

I was not on that point. I was asked whether this was the personal decision of the Minister, and I pointed out that the procedure by way of affidavit reinforced the general practice that, except in unavoidable circumstances, the Minister takes the decision personally.

Mr. Pickthorn

We are out of the strategic necessity and talking of the category business, and this is the defining of the category. Is that personally done by each Minister?

Mr. Boyd-Carpenter

The claim is made by each Minister in the category cases—we are not discussing the security cases. The Minister has to consider whether these documents come within that category and whether that is a category which, as a matter of policy, should not be disclosed.

My hon. Friend the Member for Carlton asked about the effect of my noble Friend's statement in another place. It is not for me to seek to advise the House on law, but I understand that the effect was to declare the policy to be followed by Her Majesty's Government in making these claims of privilege. It does not affect the existing law, as I see it, but the circumstances and the type of cases in which, from now onwards, these claims will be made by my noble Friend's colleagues. That is the position which is, I think, easily understood in the House, where statements of policy are made from the Dispatch Box, which, without having effect on the law, indicate the line of policy which, as a matter of administration, will be taken by the Government.

Finally, may I seek to address myself to another point made by my hon. Friend the Member for Carlton which again, I think, aroused general sympathy in the House? He asked why the attitude was adopted that the Crown or the Government are so infinitely more important than any other organisation that they have the right to establish this claim for privilege which is denied to other organisations which may be, or may think themselves to be, equally important. That, I think, is a summary of my hon. Friend's point.

I am not suggesting, and neither do the Government, that it is a question of the relative importance of the Government or of the outside body concerned. That, I think, would be an arrogant and perhaps insolent claim. But I am suggesting that the Government operate in a different medium and in different circumstances from other bodies. There is, for example—and here I would hark back to the point I was seeking to make—the fact that Government decisions are subject to day-to-day challenge in this House and that, in the nature of things, they sometimes, rightly or wrongly, raise direct political controversy and attract Parliamentary criticism.

The Government, for better or worse, operate in a quite different medium from those outside bodies. My hon. Friend asked, in that context, whether this claim of privilege was made on behalf of the nationalised industries. Internal communications of the nationalised industries are not privileged. They are treated as matters of commercial concern.

I have sought in the time available to me to deal with at any rate a number of the points raised though, of course, on the law affecting this matter I am sure that the House will have paid close attention to what was said by my right hon. and learned Friend the Attorney-General during his very full and comprehensive speech at an earlier stage of the debate. I and the Government appreciate that this is a matter on which, to use the words of my right hon. and learned Friend the Member for Chertsey, a number of hon. Members will wish to indulge in what he called a certain amount of prodding. Indeed, the very fact that that is a matter which has interested and given concern to the Bar Council and to distinguished legal figures would of itself make it desirable that all of us should pay close attention to it. But, as I said in my opening remarks, I hope that I have succeeded in making clear that this is a matter to which the Government have in recent months been applying their minds and for which they have been seeking a solution which will reconcile as fully as possible the conflicting interests which can arise in this connection.

I suggest to the House that now that these changes, these improvements as I think all hon. Members will agree, have been put into effect, it would be wise to give some consideration to the way in which they work. The Government will certainly closely follow the working of the system as so adapted and adopted, and I am quite certain that a number of hon. and learned Members will do the same. I think that this debate has probably had the very valuable effect of making it quite clear, both to hon. Members and to people outside this House, that this is not as easy a topic as might at first sight be thought, and, equally, is not a topic on which anyone would wish to indicate that he had a closed mind, by adhering to any theory or dogma.

I believe in the spirit of the Lord Chancellor's statement in another place. This is the practical approach of narrowing down the classes so as to make sure that privilege is not claimed except where it is really important to the working of the Administration and of trying to confine oneself to classes which are less likely to be relevant to the issues in the cases coming before the courts. We shall endeavour to move empirically towards the main objective which opinion in this House desires to see, that is, the objective of reconciling conflicting claims at the best and most practical point, and in following this practice to watch how it develops so that in the months ahead we may see whether the purpose of the Lord Chancellor's statement has been fully achieved.

Mr. Mitchison

Could the right hon. Gentleman elucidate one point? How do the Lords of Session in Scotland decide questions of Crown privilege without seeing the documents?

Mr. Boyd-Carpenter

It is not for me, in the presence of the Lord Advocate, to speculate on such a matter.

It being Four o'clock, the Motion for the Adjournment of the House lapsed, without Question put.

  1. ADJOURNMENT 16 words
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