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Protection of National Security Information

Written By: - Date published: 8:48 am, December 15th, 2015 - 10 comments
Categories: Abuse of power, accountability, Deep stuff, democracy under attack, democratic participation, national/act government, political education, uncategorized, war - Tags:

Law Commission has completed its review on the use of national security information in legal proceedings. What should happen when information is relevant to legal proceedings, but disclosing it might prejudice national security? This is the question at the heart of the Law Commission’s review of the use and protection of national security information.

You can read the report here

Chair of the Commission Sir Grant Hammond says

“At the heart of the project is the tension between national interests and individual rights. Questions about how to balance these interests are not new, but they have been brought into sharp focus by recent international events.”

It’s also about 800 years since the signing of the Magna Carta.

In 1215, after King John of England violated a number of ancient laws and customs by which England had been governed, his subjects forced him to sign the Magna Carta, which enumerates what later came to be thought of as human rights. Among them was the right of the church to be free from governmental interference, the rights of all free citizens to own and inherit property and to be protected from excessive taxes. It established the right of widows who owned property to choose not to remarry, and established principles of due process and equality before the law. It also contained provisions forbidding bribery and official misconduct.

It’s a balancing act and one we should each care very deeply about. Given the apparentl practice of  withholding and in one Minister’s case, ignoring, information, we need to tread carefully.

It is worth noting that in late November the High Court stated it could not make Tim Groser hand over TPP documentation quickly despite it earlier holding that Groser was breaching the Official Information Act. Its hands are tied in terms of quicker release. Groser currently suggests releasing information on a date which coincidentally, would occur immediately after the TPP signing date. Delay as a weapon.

We need to be very careful about the power we vest in the Crown and therefore our politically elected representatives. We know the Cabinet Manual means nothing, now, neither does the OIA or, now, a Court’s procnoucnements on it.

Most importantly the Commission is recommending the power to determine needs to lie with the Courts. This is part of our seperation of powers (Executive/Legislative/Judicial). Currently the Crown can withhold information on national security grounds from a legal proceedings by issuing a Certificate declaring public interest immunity. The Commission recommends this be changed to be vested in the Court through closed proceedings. Other recommendations include;

  1. special advocates for closed procedures;
  2. any information withheld must be provided in summary form;
  3. anyone affected by the whithholding of such information must e told if they have a right to complain to the Inspector General of Intelligence and Security

The slippery slope starts somewhere. We are in dange rof thinking we are not even on the slippery slope, let alone someway along it. I contedn we are indeed on it. We are not a facist state or even clsoe to that. I am not suggesting we are heading that way. I am saying we need clear seperation between elected, plitically motivated people and our judiciary. Who  guards the guards.

There is a famous quote from the Shakespeare play Henry VI Part II

“The first thing we do, let’s kill all the lawyers”

Leaving aside the debate over whether the quote is for or against lawyers (another post entirely), lawyers and judges who work in our constitutional system are crucial components of a free society. A Government (Executive) that can thumb its nose at laws is a danger, whether we choose to see it until it is too late is up to us.

10 comments on “Protection of National Security Information ”

  1. Ad 1

    Very Zaoui redux.

    V important Certification to withhold be shifted to judges. A constitutional separation of powers point.

  2. Wayne 2

    Good to see you liked the overall approach of the report. The sexual offences report was also released the same day.

    • tracey 2.1

      I liked the recommendations yes. Thanks for the heads up on the sexual offences report.

      I still see no place for former Ministers or MPs on such a crucial body (and that includes ALL parties). Being seen to be impartial and all that


      • One Anonymous Bloke 2.1.1

        Not to mention Blabbermouth Lusk’s revelations about the cynical way the National Party corrupts the process.

  3. RedLogix 3

    A simple way to address this tension between the rights of the state and the individual is to ask … ‘would I be happy with my political opponents having this power?’

    • tracey 3.1

      Except National know they will always have the most time in Government. Of interest to me will be;

      How long this will sit with Government;
      Will and changes to legislation be passed under urgency
      Who will speak to it, John Key (former Minister responsible for IS and GSCB) or Chris Finlayson

  4. Hanswurst 4

    There is a famous quote from the Shakespeare play Henry II […].

    You might be able to make quite a name for yourself if you’ve discovered a Shakespeare play with that title, although the quote is also suspiciously reminiscent of a line from Henry VI, Part II.

  5. tracey 5

    This is also why this is important and why we need to watch this government’s response tot he recommendations


  6. Rolf 6

    Very convenient, anything they don’t want the public to know is classified as “national security”, as corruption, mismanagement, embezzlement, or being a lackey to foreign states, and so on.

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