ADMINISTRATIVE CONTROL OF JUDICIAL ACTION: THE AUTHORITY OF DUNCAN V. CAMMELL LAIRD

DOIhttp://doi.org/10.1111/j.1468-2230.1967.tb01156.x
Publication Date01 September 1967
AuthorD. H. Clark
THE
MODERN
LAW
REVIEW
Volume
30
September
1967
No.
5
ADMINISTRATIVE CONTROL
OF
JUDICIAL
ACTION: THE AUTHORITY
OF
DUNCAN
v.
CAMMELL
LAIRD
‘‘
THERE is
no
droit administratif
in this country,” proclaimed
Salmon
L.J.
in
Re Grosvenor Hotel
(No.
2),l
evoking shades of
Diceyan insularity. The irony of this boast in its context will
appear presently, but certainly there
is
no
counterpart in the
juris-
prudence
of the Conseil d’Etat to the decision of the House of Lords
in
1942
embodying the doctrine
of
Crown privilege.2 Recently,
however, an iconoclastic triumvirate in the Court of Appeal has
sought to demolish
Duncan
v.
Cammell Laird.%
To
change to a
metaphor favoured by the judges concerned, the quotation cited
above purported to trumpet the end of an era
of
judicial dancing to
a familiar administrative tune.l The ensuing uncertainty
on
so
fundamental a question
as
whether
or
not Ministers of the Crown can
unchallengeably deprive the courts
of
any documentary
or
oral
evidence in the name of the public interest has prompted the Lord
Chancellor to refer the whole topic of Crown privilege to the Law
Reform Conimittee for their consideration as a matter of priorityY5
1
[1964] 3
W.L.R.
992
at p.
1028
(C.A.).
2
For an extreme,, instance in which, in the words
of
the Commissaire du
Gouvernement, the Section
du
Contentieux judged it to be necessary to
require the Secretary
of
State to produce within eight days the files upon the
inspection
of
which the decisions in question were
.
. .
alleged to have
been
taken,” see Professor Hamson’s account
of
the remarkable
Affaire de Z’Ecole
Nationale
in hie Hamlyn Lectures.
Ezecutive Discretion and Judicial Control.
A
direct comparison between the French and English positions is not possible
because
of
important procedural differences
;
the inquisitorial &pproach
of
the
French administrative courts together with the privacy attending the produc-
tion of documents (available only to the parties and to the court) contrasts
with the publicity surrounding the adversary procedure
of
the High Court.
*
[1942]
A.C.
624.
4
Cf.
the comments
of
Lord Denning M.R. in
Wednesbury
Gorp.
v.
Minister
of
Housing and Local GoQernment
[1965]
1
W.L.R.
261
at p.
270.
Harman
L.J.’s imagery in
MeTricks
v.
Nott-Bower
119641 2
W.L.R.
702
at
p.
711
wan
no
less evocative.
5
H.L.Deb.,
Vol.
261,
col.
423
(November
12, 1964).
489
VOL.
30 17
990
TEE
MODERN
LAW
REVIEW
VOL.
80
and its report is awaited. Meanwhile, attention has once more been
focused
on
Duncana
by the decision of the Court of Appeal in
Conway
v.
Rimmer,8
restating the full extent of its binding force.
An
appeal to the House of Lords is pending. This is therefore an
opportune moment
to
reconsider the laws and flaws of the
Thetis
case,8 which still remains
(*
central to any assessment
’)
of the
subject, and
a
careful examination
of
which must precede any
reform. In turn, such an analysis will itself be more meaningful
if
an indication is first given of the case’s setting in the broader
constitutional structure.
Crown privilege
is
an unhappy expression, masking the
universality and true nature of the problem that
it
signifies. Any
state whose courts openly and even-handedly administer justice
must somehow resolve the conflict that inevitably arises, and
increases with the growth of state activity, between the need to
ensure that all relevant evidence is made available in litigation
and the need to prevent injury to the community as a whole by
unrestricted disclosure
of
information.
An
Irish judge aptly said
of Crown privilege in
1926
in answer to a claim that in the new
Irish Free State there could be
no
privilege because there was
no
Crown:
‘(
[It]
has roots in the general conception of state interests
and the tunctions of Courts of Justice, which make
it
independent of
the particular type of constitution under which the body of law
which recognises the principle is administered.’,
IJ
This is
an
area
of
potential friction between the executive and the judiciary, hence
Viscount Simon’s description of the problem, in
Duncan
v.
Cammell
Laird,O
as one of
(‘
high constitutional importance.”
In
the United
Kingdom the legislature has remained aloof while judge-made law
has been developed pragmatically to resolve the dilemma, the crux
of
which is whether Ministers
or
judges have ultimate control over
the admission of evidence. One of the clauses of the abortive Crown
Proceedings Bill drawn up in
1927
by Lord Birkenhead’s Committee
provided that a certified objection to production by
a
Minister of
the Crown
‘(
shall be final and conclusive.”
lo
But when, twenty
years later, a Crown Proceedings Bill was enacted, the opportunity
was not taken to put the law of Crown privilege
on
a statutory
basis; section
28
(1)
merely preserved
‘(any
rule
of
law
which
authorises
or
requires
the withholding of any document
on
the
ground that its disclosure would be injurious to the public interest.”
Some uncertainty as to the exact nature of the rule at common law
is suggested by the words emphasised, but the Government was in
8
1967
1
W
L.R.
1031.
7
bavid
Williams,
Not
in the Public Interest
at
p.
194; the concluffon there
a
potent reached at
D.
206 is that the
law
enshrined in the
Thetis
decision is
means
of
enforcing executive secrecy.
**
8
Per
Meredith
J.
in
Leen
v.
President
of
the Executive Council
[1926] 1r.R.
4.56.
0
[1942]
A.C.
624 at
p.
629.
10
cl.
20
(7).
For the
full
text of the Bill, see
App.
II
to the Committee’s Report.
Cmd.
2842
(1927).

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