Report No. 69
X. Other Countries
The present position in Australia would seem to be that the ultimate decision to the claim of privilege rests with the court. Secondly, the power of the court to carry out inspection of the document is also recognised. The Court may, if it thinks fit disclose the documents to the parties.
It seems that in France the Conseil d' Etat., can, on behalf of the parties, demand production of a document against the Government,1 and the ultimate decision is vested in the Conseil d' Etat.
1. Hood Phillips Constitutional Law, (1967), p. 692.
A Scottish case1shows that the position in Scotland may be more favourable to the subject than the law of England as it was understood before 1968. It also throws new light upon what is the extent of the "public interest".2 In that case, the Glasgow Corporation was seeking to establish that the Central Land Board, which, by statute, acts by and on behalf of the Crown, should disclose certain documents in litigation which challenged the vires of the Board's method of assessing development charges. The documents included, (inter alia), letters and minutes passing between the Board and District Valuers, which related to the methods whereby such charges should be calculated and determined; in other words, they were inter-departmental communications, and accordingly the Secretary of State for Scotland had certified that they ought not to be produced, because they belonged to a class of documents which it was necessary to withhold for the proper functioning of the public service.
The Courts in Edinburgh, with one dissentient in the First Division on Appeal, held that they were precluded by the decision of the House of Lords in the English case of Duncan v. Carnmell, Laird & Co. Ltd. from questioning the ruling by the Minister. On appeal to the Lords, the House, consisting of five Law Lords including two from Scotland, were unanimously of opinion, to quote Lord Radcliffe, that in Scottish Law "The power reserved to the court is the power to order production, even though the public interest is to some extent affected prejudicially The interest of Government which the Minister should speak with full authority do not exhaust the public interest . It is open to the court to dispute with the Minister whether his view is well founded."
There may, in other words, be wider considerations of public policy which are incidental to the administration of justice. This view was mentioned by Morris L.J. in Ellis v. Home Office, (1953) 2 QB 147. Of such considerations, in Scotland the court may be the Judge and may thus overrule the Minister. In the present case it exercised its discretion by upholding the Minister.
1. Glasgow Corporation v. Central Land Board, 1956 SLT 41.
2. Summary of the case is taken from Note by E.C.S. Wade, in (1956) Cambridge LI 133, 136, 137.
65.78. Kenya.- The Kenya Evidence Act has an elaborate provision1 on the subject in these terms:
131. Privilege relating to official records.-Whenever it is stated on oath (whether by affidavit or otherwise) by a Minister, or by the Secretary-General of the Organisation, that he has examined the contents of any document forming part of any unpublished official records, the production of which document has been called for in any proceedings, and that he is of the opinion that such production would be prejudicial to the public service,2 either by reason of the content thereof or of the fact that it belongs to a class which, on grounds of public policy, should be withheld from such production, the document shall not be admissible."
This provision codifies the view taken by the House of Lords in Duncan's case-since repudiated in Conways' case.
1. Section 131, Kenya Evidence Act.
2. Emphasis added.
In Sweden, every citizen, whether a party to litigation or not, has a general right of free access to official documents, with certain specific exceptions such as foreign policy, defence and police.1
1. Nils Herlitz Publicity of Official Documents in Sweden, (1958) Public Law 50, cited in Hood Philips Constitutional Law, (1967), p. 692.
XI. Result of the Comparison
65.80. The above comparison of the salient features of the law on the subject under the Act, with the law in England and in the United States and certain other countries, is not a matter of mere academic interest; it is intended to bring out certain important characteristics of our own provision. Without meaning to be exhaustive, one may state that the Indian Act, taken literally, is more stringent in its effect on the citizen's right to summon evidence than the law in England and the U.S.A.-at least in one respect, namely, that the decision of the head of the department is, so far as the text of the section goes final-which is not the position in England and in the United States.
It may also be stated that in India, the implication of section 162-again, taken literally-is that even the Judge in his chambers is not entitled to see the very document in respect of which the privilege is claimed-a matter in regard to which the present English practice seems to be different. In both these respects, thus, the law in India is stringent, on the text of the relevant provisions.