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;
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.
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