Information supplied under a legal duty had to be disclosed), economic-

ally or commercially sensitive material, the protection of children, and

relationships with foreign governments. It has also been said that

preventing ‘ill-informed or premature criticism of the government’ is in

the public interest, thus justifying a refusal to disclose high-level policy

documents such as cabinet minutes (Conway v. Rimmer [1968] AC 910

at 952). There is no automatic immunity for such documents but a

specially strong case would have to be made for their disclosure (see

Burmah Oil Co. Ltd. v. Bank of England (1980) and Air Canada v.

Secretary of State for Trade (1981)). On the other hand the desire to

protect candour and frankness within the public service is probably

not a sufficient justification (Conway v. Rimmer (above) at 957, 976,

993–4, 995); R. v. West Midlands Chief Constable (above); Williams v.

Home Office (No. 2) [1981] 1 All ER 1151 at 1155; Science Research

Council v. Nasse [1980] AC 1028 at 1970, 108 – candour a ‘private’

interest; but see Burmah Oil Co. Ltd. v. Bank of England [1980] AC

1090 at 1132). The courts also consider the purpose for which the

information was given. Information given in confidence for a particu-

lar purpose will not be disclosed for another purpose unless the donor

consents in circumstances where disclosure would not be harmful to the

public interest (R. v. West Midlands Chief Constable (1994); Lonrho v.

Fayed (No. 4) (1994); cf. Peach v. Metropolitan Police Commissioner

(1986) – nothing to lose).

A distinction is often made between ‘class’ claims and ‘contents’

claims. A class claim means that, even if the contents of a document are

564 General Principles of Constitutional and Administrative Law

innocuous, it should still be protected, because it is a member of a

class of document of which disclosure would prevent the efficient work-

ing of government. In R. v. Horseferry Rd Magistrates Court ex parte

Bennett (1993), a class claim was upheld in principle but the court

emphasised the need for flexibility. The claim was for the confidenti-

ality of communications betwen UK and overseas law enforcement

agencies. Class immunity was justifiable in order to encourage inter-

national co-operation and to protect criminal investigations. However,

the court held that the Crown Prosecution Service should consider

whether to make a voluntary disclosure particularly where this would

help the defence. The consent in writing and recorded of the Treasury

Solicitor would be necessary. This process would enable the court to

monitor class claims. In R. v. West Midlands Chief Constable (above)

it was claimed that evidence given to the police complaints author-

ity was protected by class immunity. The House of Lords rejected

this blanket claim, holding that immunity depended on whether the

contents of the particular document raised a public interest, which on

the facts they did not. Lord Templeman remarked (at 424) that the

distinction between a class and a contents claim loses ‘much of its sig-

nificance’. The alleged public interest in preventing premature criticism

of the government might, however, protect classes of document such

as policy advice given by civil servants or diplomatic communications.

After the Scott Report (1996) into the ‘Arms for Iran Affair’ the then

government undertook not to make class claims as such and to claim

Public Interest Immunity only where disclosure would cause ‘real

damage or harm’ to the public interest. It also conceded not to claim

immunity for high-level policy documents as such but has never resiled

from the position that frankness can be a matter appropriate for

protection (see HC Deb. vol. 287 col. 949; HL Deb. vol. 576 col. 1507;

Ganz, 1997). These concessions are not legally binding and do not cover

other bodies such as the police who may claim public interest immunity.

22.6 Security and Covert Surveillance

State secrecy is at its strongest in national security cases. National

security issues put traditional notions of constitutionalism to the test.

They reflect the Hobbesian value that the safeguarding of order and

the state itself is the highest duty of the state to which other values

including democracy must give way. According to Simon Brown LJ

(1994), ‘the very words ‘national security’ have acquired over the years

an almost mystical significance. The mere incantation of the phrase of

565

State Secrecy

itself instantly discourages the court from satisfactorily fulfilling its

normal role of deciding where the balance of public interest lies’. The

UK courts have traditionally been reluctant to review national security

decisions. In The Zamora (1916) it was held that those responsible

for national security must be the sole judge of what national security

requires. The high watermark is represented by the majority of the

House of Lords in the wartime case of Liversidge and Anderson (1942).

They held that the Home Secretary need not objectively justify a deci-

sion to intern an alien even though the statute required him to have

‘reasonable cause’. Lord Atkin famously dissented, deploring judges

‘who when face to face with claims involving the liberty of the subject

show themselves more executive minded than the executive’. He was

subsequently ostracised by his colleagues.

Lord Atkin is now widely recognised as having been right (see Lord

Diplock in IRC v. Rossminster [1980] AC 952, 1011). Nevertheless

review in national security cases is still restrained. In Council of Civil

Service Unions (CCSU) v. Minister for the Civil Service (1985) the

House of Lords held that the court can require evidence that the

matter is genuinely one of national security but, subject to that, the

question whether the action taken, in that case denial of a right to be

consulted, was necessary, was not for the court to decide and no further

reasons have to be given (see also R. v. Secretary of State for the Home

Department ex parte Hosenball (1977); R. v. Secretary of State for the

Home Department ex parte McQuillan (1995); R. v. Secretary of State

for the Home Department ex parte Adams (1995)). The court could

perhaps interfere on the ground of irrationality or bad faith although

these would be difficult to establish because reasons do not have to be

given (see R. v. Secretary of State for the Home Department ex parte

Cheblak (1991)).

Secrecy is justified under the European Convention on Human

Rights particularly on the ground of national security and the pre-