CROWN PRIVILEGE FOR DOCUMENTS AND ORAL EVIDENCE (Hansard, 6 June 1956)

§ EARL JOWITT
My Lords, I beg to ask the Question which stands in my name on the Order Paper.

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, Her Majesty's Government have had under consideration for some time the whole problem of Crown privilege for documents and oral evidence. It is not a new problem, but has come into some prominence in recent years. This is not due to any extension of the principles on which privilege is claimed, but because since the Crown Proceedings Act, 1947, the Crown has been liable in tort or in delict and can be sued in the same way as private persons, and that has thrown into relief its privileged position with regard to the production of documents and other evidence.
I shall deal first with the position with regard to documents, which is the most important part of the subject, and then with oral evidence. The law in England, as laid down in the House of Lords case of Duncan v. Callumell Laird, enables Crown privilege to he claimed for a document on two alternative grounds. The first ground is that the disclosure of the contents of the particular document would injure the public interest: for example, by endangering public security or prejudicing diplomatic relations. The 742 second ground is that the document falls within a class which the public interest requires to be withheld from production, and Lord Simon particularised this head of public interest as "the proper functioning of the public service". The Minister's certificate or affidavit setting out the ground of the claim must in England be accepted by the court.
In Scotland Crown privilege can be claimed on either of the two grounds that I have mentioned, but it is now clear, by virtue of the recent case of the Glasgow Corporation v. the Central Land Board, that the court in Scotland has an inherent power to override the Minister's certificate or affidavit, This power has long been claimed by Scottish courts, but as Lord Normand said in the Glasgow Corporation case, The power has seldom been exercised and the courts have emphatically said that it must be used with the greatest caution and only in very special circumstances. As far as I know, it has been exercised only on two occasions in the last hundred years. The position in Scotland, therefore, although substantially different in principle, may not be very different in practice.
The claiming of Crown privilege on the first ground that I have mentioned has always been acceptable to the courts and public opinion. Where, however, the claim has been made on the ground that the document belongs to a class, especially in proceedings where the Crown's position seems very like that of an ordinary litigant, it has been criticised on the ground that the administration of justice is itself a maser of public interest and should be weighed against the other head of public interest, that is, "the proper functioning of the public service".
The reason why the law sanctions the claiming of Crown privilege on the "class" ground is the need to secure freedom and candour of communication with and within the public service, so that Government decisions can be taken on the best advice and with the fullest information. In order to secure this it is necessary that the class of documents to which privilege applies should be clearly settled, so that the person giving advice or information should know that he is doing so in confidence. Any system whereby a document falling within the class might, as a result of a later decision, be required 743 to be produced in evidence, would destroy that confidence and undermine the whole basis of class privilege, because there would be no certainty at the time of writing that the document would not be disclosed.
It is sometimes suggested that a claim for privilege on the class basis should be referred to and decided by a judge. This suggestion goes much further than the position in Scotland, where the power of the judge is exercisable only "in very special circumstances" and does not permit any examination of the ground of the claim. This ground, namely, "the proper functioning of the public service," must in our view be a matter for a 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 of the disclosure of the class of documents to which it belongs. The result would be that the same kind of document would sometimes be protected and sometimes disclosed, which would, as I have said, be destructive of the whole basis of the class privilege.
I would emphasise that claims of Crown privilege are made in respect of all documents falling within the class, irrespective of whether their production would be favourable or unfavourable to the Crown's Interests. All Crown lawyers are familiar with cases in which the Crown's interests have in fact been prejudiced by the application of the rule.
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.
A very large part of present-day Crown litigation consists of actions arising out 744 of road accidents and other accidents involving Government employees, and accidents on Government premises. Where such an action is brought against a Government Department, the most relevant documents are the reports of the employees involved and of other eye witnesses, and also subsequent reports made by the foreman, superintendent or other official as to such matters as the state of the machinery, premises or vehicle involved in the accident. In our opinion Crown privilege ought not to be claimed for these documents, and we propose not to do so in the future.
I ought perhaps to make it clear that I am not referring to the report of a. Government inspector, such as a factory inspector or mines inspector investigating an industrial or mining accident. In the case of such a report the Department is not concerned as an employer or an owner of property, but is exercising governmental functions, and different considerations arise. We think that in this case the report should be privileged, but that the inspector should be allowed to give evidence on matters of fact.
Secondly, we have considered medical reports and records. In the recent case of Ellis v. the Home Office, judicial criticism was directed at a claim for privilege for reports made by a prison doctor which might have been relevant to the claim for negligence against the Crown. Here we have two proposals to make. The first is that ordinary medical records kept by Departments in respect of the health of civilian employees should not be the subject of Crown privilege. In the case of medical reports and records in the Fighting Services we consider that privilege should still be claimed, so far as proceedings between private litigants, usually matrimonial proceedings, are concerned. Service doctors owe a special duty to the commanding officer, and frank reports are essential. It is also important in the Services that a man should report readily to the medical officer, who is a doctor not of his choice but in whom he must have confidence; this is especially so in the case of venereal disease. Some of these considerations apply to prison doctors who owe a special duty to the prison governor, and their reports and records should still be privileged in proceedings between private litigants.
745 Where, however, the Crown or the doctor employed by the Crown is being sued for negligence, we propose that privilege should not be claimed. I should add, with regard to both proposals, that there may be reports of a specially confidential character which ought still to be privileged. 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. At present many of these documents are made available only in the case of the more serious crimes, such as murder, manslaughter and rape.
In the Ellis case criticism was also made of a claim of privilege for a statement made to the police. Since that case a procedure has been established under which statements made by witnesses to the police are produced in court on subpoena in civil cases and may be furnished earlier with the consent or at the request of the witnesses themselves. This would prevent a recurrence of what occurred in the Ellis case. The only exception, made for obvious reasons, is for statements by "informers"—that is, by persons volunteering information about the commission of crimes.
In contract cases, the documents passing between parties are the most relevant and are always disclosed. Other documents which affect the legal position—for example, an authority to an agent—are also disclosed. Moreover, reports on matters of fact, as distinct from comment and advice, may be relevant to the issues in Government contract cases, and we propose that, where such a distinction can be clearly drawn, factual reports should be excluded from the privileged class. It may be that in other fields, in addition to accident and contract proceedings, it will be possible to evolve new categories of documents of a factual nature, which, without prejudice to the public interest, can also be excluded.
We believe that our proposals will eliminate many of the grounds of complaint that have arisen in the past. I am assured by those responsible for Crown litigation that they will apply to the majority of cases coming before the courts. In the Glasgow Corporation case three earlier cases were criticised, and two of these would not have arisen under our present proposals—Ellis v. the Home 746 Office and Smith v. The Lord Advocate, which concerned a lorry driver's report. The third case, Broome v. Broome, concerned reconciliation work carried out by welfare officers acting for the Service authorities. This work is of the highest importance, especially where men are serving abroad, and in the Government's view it would be very unfortunate if it ceased to be protected by Crown privilege.
I come now to the category of departmental and inter-departmental minutes and memoranda containing advice and comment, and recording decisions—the documents by which the administrative machine thinks and works. Here we consider that Crown privilege must be maintained. An important type of case in which documents of this kind may be relevant is where the vires or legality of a Minister's decision is challenged and the plaintiff may seek to show that the Minister proceeded on wrong principles. In such a case, it is right that a Minister should be prepared to defend his decision, but if it became possible to challenge Government action, by reference to the opinions expressed by individual civil servants in the necessary process of discussion and advice prior to decision, the efficiency of Government administration would be gravely prejudiced.
Minutes may also be relevant to proceedings because they may contain comments upon the issues in the case and the question of liability. They are not of high evidential value, although admittedly they may be used effectively in cross-examination. It can hardly be said that their non-disclosure prejudices the administration of justice, and their disclosure would in our opinion prejudice government administration. 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 if it were subject to discovery in the subsequent proceedings.
It is often said that a big commercial company is in much the same position I as a Government Department. In so far as this resemblance exists, our proposals recognise it. In many fields, however, the 747 Minister's responsibility to Parliament and the governmental nature of his functions inevitably results in very different methods from those of a commercial company. As Sir Ernest Gowers has said, in a somewhat different context, 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 hoard eager for the shareholders' authority to take their place. The systems are quite different and are bound to produce different methods. I now turn briefly to oral evidence. It is plainly established and accepted that oral evidence of the contents of privileged documents cannot be admitted. As regards evidence of oral communications, Crown privilege is claimed, much more rarely, on the same principles as in the case of written communications. It would be absurd, for example, if privilege could be claimed for a confidential minute passing from one official to another but not for a confidential conversation between them. The proposals that we are making for reducing the scope of privilege for documents would apply to oral communications of the same kind.
I must apologise for trespassing so much on your Lordships' time, but this matter is important to the administration of justice, and your Lordships have always been kind when I have had proposals of this kind to put forward.

§ EARL JOWITT
My Lords, we are grateful to the noble and learned Viscount the Lord Chancellor for having made that statement. He is right in saying that it is no new problem. I can testify that it certainly caused a great deal of anxiety to one of his predecessors, and I suspect to many of them. I would not comment on the statement to-day more than to say that I realise, from what he has said, that a great deal of care and thought has been given to this matter, and for that we are all grateful to him. We want to cut down so far as we can, in the interests of private litigants, any exclusion of documents from them. On the other hand, we want to do nothing to imperil the efficiency of 748 the public service. The noble and learned Viscount will certainly agree that his Department could not possibly be efficiently run unless there was some considerable measure of privilege. While thanking him for his statement, I should like to ask the noble and learned Viscount this question: Are we to understand that the enforcement of the principles which he has enunciated to-day will involve either legislation or perhaps the promulgation of Rules, or can it be done simply by instructions to the various Government Departments concerned?

§ THE LORD CHANCELLOR
My Lords, I am grateful to the noble and learned Earl for what he has said. The answer to his question is that no legislation is necessary. The improvements which I have mentioned will come into force as from now.

§ LORD SILKIN
My Lords, I should like to ask the noble and learned Viscount whether these improvements—and they are very great improvements—have been the subject of discussions with the Bar Council or the Law Society, and whether these bodies will have an opportunity of making any comments on them before they actually come into operation?

§ THE LORD CHANCELLOR
My Lords, I have had the advantage of the views of these bodies. I do not pretend that my proposals meet their views in toto. The Bar Council were anxious for a judicial decision on the matter, and it was in deference to these views that I dealt somewhat fully with that aspect of the matter. I should like to assure the noble Lord that they have been taken into account fully by all who have examined this problem before we came to our decision.

§ THE LORD CHANCELLOR
My Lords, I think that is an excellent suggestion. I have not in mind at the moment how it can best be done, but I assure the noble Lord that I will gladly consider it to see what is the best way of giving effect to what he suggests.