'Cyphers and Secret Documents: Safe Custody Reports and Handing Over Certificates for Secret Documents' [‎88r] (180/523)

those intended for publication, consent should certainly be sought before such
communications are produced. Where the communication was made direct,
e.g., to a British consul in a foreign country, and he is asked to produce it in the
local courts or to furnish copies of it to litigants, he may be instructed to seek
consent direct (see Annex IV, Case No. 2). But usually consent will be sought
through the Secretary of State for the Colonies. Moreover, the case differs from
that of foreign or Dominion Governments, in that the Secretary of State for the
Colonies can override the local Colonial Government and will presumably do
so in all cases where production would not, in fact, be injurious to the public
interest.
(C) By whom the Validity of the Claim of Privilege is determined.
7. According to the practice of the English courts regarding the production
of documents by Government departments in England, a claim, if made in proper
form (see paragraph 9 below), stating that the production of a given document
^ would be contrary to the public interest is in practice accepted as conclusive, and
the court does not go behind the statement or itself enquire into the justifiability
of the claim. Thus, Robertson, in his standard work on Civil Proceedings by and
against the Crown, says: '' When the head of the Department has decided, it
is not for the judge to say whether the production of any particular document is
injurious to the public service or not.'^ 11 ) The principle was reaffirmed in
Ankin v. the London and North Eastern Railway Company,^ 1 ) in which Lord
Justice Scrutton expressed the view that " It is the practice of the English courts
to accept the statement of one of His Majesty's Ministers that production of a
particular document would be against the public interest, even though the court
may doubt whether any harm would be done by producing it. I have been
informed on verv high authority that the practice in Scotland is different; that
there the judge looks at the document and orders it to be produced if he does not
agree with the Minister's reasons for considering its production to be against the
public interest.( 13 ) No harm seems to have resulted from this practice. But that
is not the law in England. Here if the Minister says that it would be against the
public interest to produce a particular document the court accepts his statement
upon his responsibility." In those cases where the court appears to have departed
from this practice and to have scrutinised and perhaps rejected the claim, it will
probably be found that the ground of such action was either that in the opinion
of the court the claim did not amount to a claim of privilege based on the
public interest, or else that it was not made in proper form (e.g., was only made
by a subordinate official on his own responsibility). The case of Duncan v.
Cammell Laird and Co. (see Annex VI) now shows that a claim for non-production
-^on the ground of public interest properly made on behalf of the Crown should be
'"accepted as conclusive according to the practice in England and Scotland.
8. Not only is the claim, if properly made, accepted as conclusive, but it is
also established that no reasons need be given for the view that production would
be contrary to the public interest (but see below, paragraph 12). Thus, in Ankin's
case {supra, at p. 537 of the Report), Lord Justice Slesser said : With regard
to the reason given by the Minister of Transport for concluding that production
of the report would be contrary to the public interest, in my view of the authorities
he was not bound to give any reasons for his conclusion. In the present case he
has condescended to do so. He has said, &c. . . .
(D) Manner in which Privilege is claimed.
9. The correct practice for claiming the privilege of non-production is set
out by the Lord Chancellor in Duncan v. Cammell Laird and Co. (see Annex VI,
paragraphs 5 and 6). This statement applies both to England and Scotland.
[ 10. This paragraph has been cancelled.]
( n ) 1908 Edn., p. 606. In support he cites the cases of Bcnison v. Skene (1860, 5 H. and
N. 838); H.M.S. Bellerophon (1874, 44 L.J.Adm. 5); Hughes v. Vargas (1893, 9 R. 661);
Williams v. Star Newspaper Company (1908, 24 T.L.R. 297).
( 12 ) Ubi supra, last part of note ( 9 ), at p. 533 of the Report.
( 13 ) See Annex II and Annex VI. The House of Lords have now said that the practice in
England and Scotland is the same and these remarks of Scrutton L.J. were mistaken.
[23898] . D*