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Cambridge Law Journal, 42(1), April 1983,pp. 118-149
Printed in Great Britain.
PUBLIC INTEREST IMMUNITY AND

STATUTORY PRIVILEGE
IAN EAGLES*
THE rules governing the exclusion of evidence in the public interest

are usually discussed as if they were wholly the creation of the
common law. Nothing could be further from the truth. There is a
submerged statutory underside to Crown privilege, an underside
which is no less important for being hitherto largely invisible to the
judicial eye. More than 100 Acts and statutory instruments restrict
the use which government departments and other public bodies may
make of the information they acquire. Each such Act or instrument
is a potential barrier to the use of the information in the courtroom.
Just why this vast mass of legislation should have remained for so
long forensically invisible is not immediately apparent. It is true that
most of it was drafted to regulate disclosure outside the courtroom
and its evidentiary provisions are often tucked away in obscure
subsections whose import may be unclear to those administering the
Acts. It may be, too, that officials do not invoke these statutes to
resist demands by citizens for access to official information because
they imagine that the information is already protected by the
common law, a supposition which may remain embedded in the
departmental subconscious from the long years when Duncan v.
Cammell Laird & Co.' remained supreme. As the area in which the
Crown can be confident of evidentiary protection at common law
steadily shrinks, so the temptation to take forensic refuge in the
secrecy statutes must grow. It is perhaps time therefore to examine
the nature and extent of the protection thus offered to see whether
this exuberant statutory undergrowth requires pruning or even
uprooting. The sparseness of the judicial comment which these
statutes have attracted makes it difficult to devise a satisfactory
conceptual framework within which to discuss them and the task is
made no easier by the bewildering diversity of drafting styles they
display.
* Senior Lecturer in Commercial Law, University of Auckland.
[1942] A.C. 624.
C.L.J. Public Interest Immunity and Statutory Privilege 119
It is to some extent possible to compensate for the paucity of

authority (one seldom cited decision of the House of Lords2 and a
handful of other cases) by reference to Commonwealth decisions.
(The relative abundance of Commonwealth case law on the subject
is probably due to a preference for express statutory privileges in
those jurisdictions.) Granted that it is sometimes risky to use judicial
expositions of the statute law of one jurisdiction to illuminate
legislation in another, its use is surely preferable to scrabbling for
guidance among the hopelessly tangled entrails of the statutes
themselves with only the cryptic formulae of Craies or Maxwell for
guidance. (It is not of course possible to avoid the role of haruspex
completely, and there is more than a little divination in what
follows.) A more cogent criticism of thus casting the net of authority
more widely is that the judicial attitudes thereby revealed are
anything but consistent, veering widely between the stricter canons
of statutory interpretation and judicial activism at its freest. At one
extreme there is a manifest desire on the part of some judges to
require a crystal-clear expression of legislative intent before they will
allow themselves to be robbed of potential evidence by statutory
command. 3 At the other extreme there are those judges who see in
every statutory ban on disclosure a potential privilege, even when
the statute makes no mention of legal proceedings. Matters are
further complicated by the fact that judges (English and Common-
wealth alike) do not always make it clear whether they view the
statute itself as creating a privilege or whether they regard it as a
kind of legislative hint as to where the public interest lies in a
particular case, a hint which the courts are, in the last resort, free to
disregard.
A. STATUTORY PRIVILEGES PROPER

Most evidentiary rules are designed to ensure that the information
on which the court acts is reliable. Some have a different emphasis
and are directed towards ensuring that the needs of the litigants do
not conflict with wider social aims outside the courtroom. The courts
have evolved two quite distinct methods of coping with the intrusion
of such extrinsic policy factors into the trial process:
(i) They can assess the social consequences of admission or
exclusion in the case actually before them by weighing the potential
harm to the community if the evidence is received against the court's
2 Rowell v. Pratt [19381 A.C. 101.
Some New Zealand cases go so far as to say that there is a presumption of interpretation
against the existence of a statutory privilege: R. v. Benyon [1963] N.Z.L.R. 635; R. v. Richards
11968] N.Z.L.R. 950, 958; Bonner v. Karamea Shipping Co. 119731 2 N.Z.L.R. 376, 378. Lord
Maugham, however, in Rowell v. Pratt 119381 A.C. at pp. 108, 113, refused to recognise that
any such presumption existed.
The Cambridge Law Journal [1983]
need to have before it all the relevant information. Claims of public
interest immunity are now routinely decided by this case-by-case
balancing of competing social interests. Statutes occasionally
explicitly enjoin such balancing,' and every secrecy provision is
potentially part of the balancing process, but in neither case does
this amount to a statutory privilege proper.
(ii) They can exclude all evidence of a particular type because
of the potential social harm, irrespective of the effect of admission
in the case currently before the court. This is the approach adopted
by the courts when dealing with legal professional privilege. A judge
faced with a claim of legal professional privilege will not normally
reject it because another party's need for the evidence is great6 or
because the communication between lawyer and client is trivial.
Once and for all rules of this kind may conveniently be termed "true
privileges." This is the form that a statutory barrier to the use of
official information in the courtroom is most likely to take. They
may be subject to exceptions based on policy considerations, but the
exceptions are as rigid as the privilege. There is no case-by-case
balancing.
1. Express Statutory Privilege

The simplest and most direct means of ensuring that public officials
are protected against unwanted demands for information for use in
legal proceedings would be to enact legislation which clearly and
unequivocally provided that such information could not be given in
evidence. Parliament, for reasons best known to itself, has generally
eschewed the obvious, and express statutory privileges for official
information are rare. The enactment of an express privilege is no
guide either to the importance of the information it protects or the
status of those who hold it. Ranging from section 29 of the Foreign
Enlistment Act 1870 which enables the Foreign Secretary to avoid
being questioned as to the circumstances leading to the issue of a
warrant under that Act to section 133(b) of the Employment
Protection (Consolidation) Act 19787 which renders communications
to conciliation officers inadmissible in proceedings before industrial
tribunals, the express privileges are truly eclectic. The only thematic
unity is provided by the series of enactments which prevent the
Indeed it is this same balancing which has led to the decline in judicial popularity of the term
"crown privilege."
5 Infra, p. 141.
But see R. v. Barton [1972] 2 All E.R. 1192.
See also Race Relations Act 1976, s.55(4).
various ombudsmen from being called to give evidence as to matters

coming to their notice during their investigations.'
2. Implied Statutory Privilege

Most statutory privileges arise by necessary implication, mere after-
thoughts tacked on to sections whose main object is to regulate the
disclosure of official information outside the courtroom. As befits
such legislative by-products they contain more than their fair share
of ambiguities and obscurities, not least of which is whether they
give rise to a privilege at all.
(a) The doubtful privileges

Any statute which baldly forbids disclosure in general terms
without mentioning forensic disclosure could be construed as con-
taining within itself an implied prohibition against disclosure for the
purposes of legal proceedings. Such an interpretation would be both
literal and alarming since it would mean that every secrecy section
gave rise to an absolute statutory privilege. So inscrutable are such
general bans on disclosure that the courts, in their understandable
eagerness to deny them any evidentiary effect at all, have been
driven to seize upon words and phrases which cannot really bear the
weight of exegesis so hopefully placed upon them.
(i) Is the court a person?

Most of these general secrecy sections forbid disclosure to any
person.9 A court, it is sometimes said, is neither a natural nor a
legal person and as such is not within the scope of the section. This
particular tautology has been embraced with enthusiam in several
Australian jurisdictions (both state'" and federal"), where it now
has the status of a received orthodoxy. "The court is not a person"
argument is not, however, as stunningly obvious as such judicial
enthusiasm would suggest. It would, if accepted, endow with unwar-
ranted evidentiary significance those few, and otherwise unremark-
able, secrecy provisions which prohibit disclosure simpliciter, without
any mention of persons.' 2 The omission would automatically create
8 Parliamentary Commissioner Act 1967, s.l; National Health Service Reorganisation Act 1973,
s.36; Local Government Act 1974, s.32.
Census Act 1920, s.8(2); Water Act 1945, s.48; Civil Defence Act 1948, s.4(4); Factories Act
1961, s.154; Town and Country Planning Act 1962, s.212; Water Resources Act 1963, s.112;
Weights and Measures Act 1963, s.48; Agriculture and Horticulture Act 1964, s.13; Trade
Descriptions Act 1968, s.28; Transport (London) Act 1969, s.36; Agriculture Act 1970, s.83;
Highways Act 1980, s.292.
"o Geraghty v. Woodforth and Stewart [1951] Q.W.N. 41; Cowan v. Stanhill Estates (Pty.) Ltd.
[19661 V.R. 604; Irwin v. Whitford 11978] O.R. 137.
Canadian Pacific Tobacco Co. v. Stapleton (1956) 86 C.L.R. 1.
12 Atomic Energy Act 1946, s.13; Nuclear Installations Act 1965, s.24(5); Control of Pollution
Act 1974, s.94; Biological Standards Act 1975, s.5.
a privilege. Again, as has been rightly pointed out, disclosure in

open court of necessity involves disclosure to persons other than the
court itself'3 ; and it is in the highest degree unlikely that a secrecy
section would be intended to restrict forensic disclosure to judges
and court officials only. (Indeed in none of the Australian cases have
they been so interpreted.)
Judges who seek to frighten a putative statutory privilege to
death by solemnly intoning "the court is not a person" may find that
they have provided themselves with a double-edged weapon which
can just as easily be used to create a statutory privilege as to destroy
one--or so it would appear from judicial efforts to unravel section
14(1) of the now repealed 4 Legal Aid and Advice Act 1940, which
provided that information furnished to legal aid committees by
applicants should not be disclosed except: ". . . for the purpose of
facilitating the proper performance by any person or body of persons
of functions under this Part of this Act." In Whipman v. Whipman"5
it was held that when deciding whether or not to revoke a legal aid
certificate a court was not a "person" carrying out a statutory
function and that legal aid files were accordingly immune from
subpoena even in such proceedings. Sachs J. in Neill v. Glacier Metal
Co. Ltd.,16 on the other hand, cheerfully stood this argument on its
head, saying:
On a broad view it seems to me that anyone who may have to
perform functions under Part I must be included in the word
"person." "Function" is itself a word which according to Stroud's
Judicial Dictionary is normally defined as including "powers and
duties" . . . Thus if by a regulation made under the Act the
court is given powers, the court when exercising them is per-
forming a function under the Act. The fact that a particular
power has been allocated to a judge (as opposed to some other
individual, tribunal, or committee) does not to my mind prevent
his being a "person" within section 14(1)(a).
If nothing else, these two cases demonstrate that the court is not a
person argument is anything but self-evident.
(ii) Is information evidence?

There are New Zealand cases which suggest that a prohibition
against the disclosure of information does not include the giving of
testimony to a court 17 or the production of documents in legal
13 Auckland Hotel and Restaurant Employees Industrial Union v. Pagni (1915) 12 N.Z.L.R. 311;
Mobil Oil Australia (Pty.) Ltd. v. F.C.T. (1962) 13 C.L.R. 475,500.
14 See now Legal Aid Act 1974, s.22(1).
15 [195112 All E.R. 228.
16[1965] 1 Q.B. 16, 27.
'7 R. v. Benyon [19631 N.Z.L.R. 635, 638, 639; R. v. Richards [1968] N.Z.L.R. 950, 952.
proceedings. 18 The logic is palpably circular, and even if it were not,

it fails to explain why several of the express statutory privileges
should use the word information to encompass the giving of
evidence.1 9
(iii) Is there a testimonial duty to disclose?

Some Acts forbid the release of information by a public employee
"except in the performance of his duty."2 Are such officials under
a duty to assist the courts by giving evidence? Or is the duty simply
to obey the instructions of their superiors in that regard? If duty
does imply a forensic obligation, is it imposed in all proceedings or
only in those having some connection with the Act in question? No
doubt the courts would prefer the first construction, a construction
which is plausible enough where the proviso refers to duty simpliciter
but less so where that term is qualified in some way. Section 5 of the
Biological Standards Act 1975, for example, allows a person to
disclose in the performance of the duties of his office or employment.
Other sections make it clear that duty is confined to activities
sanctioned by the statute itself. 21 Duties thus limited are less easily
transmuted into testimonial obligations.
(iv) Can disclosure to a court be unlawful or improper?

Among the most question-begging statutes are those which forbid
disclosure "except in such cases as may be required by law." 22 In R.
v. Snider,23 the seminal Canadian crown privilege case which antici-
pated Conway v. Rimmer by more than a decade, the Canadian
Supreme Court brushed aside without a qualm a revenue Act which
prohibited disclosure to persons "not legally entitled thereto," and
we might confidently expect judges in this country to be equally
dismissive of attempts to shape statutory privileges from such crum-
bling clay. Where, however, there are two secrecy provisions in the
same Act, only one of which uses this form of words, does this mean
that the other creates a statutory privilege? Subsection (3) of section
53 of the Representation of the People Act 1949 forbids outright the
11Bonner v. Karamea Shipping Co. Ltd. [19731 2 N.Z.L.R. 375, 376.
19See statutes noted at n. 6, supra.
is Telegraph Act 1868, s.20; Water Act 1945, s.48; Water (Scotland) Act 1946, s.72(6); Factories
Act 1961, s.154; Water Resources Act 1963; s.112; Weights and Measures Act 1963, s.48;
Agriculture and Horticulture Act 1964, s.13; Medicines Act 1968, s.118(2); Control of
Pollution Act 1974, s.94; British Telecommunication Act 1981, s.50.
21 Town and Country Planning Act 1962, s.212; Land Commission Act 1967, s.89; Highways Act
1980, s.292.
I Post Office Act 1969, s.65; Census Act 1920, s.8(2); Representation of the People Act 1949,
s.53(1); British Telecommunications Act 1981, s.50; Taxes Management Act 1970, Sched. 2.
[195414 D.L.R. 483, 486, 493, 499. See also Ship v. The King (1949) 95 Can.C.C. 143, 155; R.
v. Benyon [1963] N.Z.L.R. 635, 639, 640.
communication by persons present in a polling station of information

as to the candidate for whom a person has voted or is about to vote,
or the number on the back of the ballot paper. Subsection (4) of
that section forbids the communication of the number on the back
of postal ballots, "except for some purpose authorised by law."
There is no convincing reason why the former subsection should
constitute a statutory privilege while the latter does not, and yet we
must assume that the draftsman intended some distinction to be
drawn between the two.
Statutes which forbid "improper" disclosure are more easily
dismissed as sources of evidentiary protection. It is in the highest
degree unlikely that a court would supinely hold that disclosure to
itself was improper. Thus the several statutes which seek to prevent
employees and agents of the Post Office from "improperly divulging
the purport of any telegram"24 have been held not to create a
privilege.25
(v) Do exceptions demolish or enhance a privilege?

It has been suggested by the New Zealand Court of Appeal26
that where the secrecy provision itself allows disclosure to a named
class of persons (other than a court) or in stated circumstances, or
permits the Minister to specify who shall have access to information
in individual cases, there can be no statutory privilege since the
statute itself indicates that the requirements of secrecy are not
absolute.26 In a later New Zealand case the court stood this argument
on its head by holding that a statute (and there are several such27 )
in which no one was authorised to consent to disclosure must create
a privilege.28 This reasoning is not without flaws. One could just as
easily say that since parliament has taken pains to authorise some
forms of disclosure then it may be assumed that all other disclosure,
including forensic disclosure, is forbidden. This was Lord Denning's
view in Re D. (Infants),29 a case which concerned attempts to compel
the production in care proceedings of children's case records com-
I Telegraph Act 1863, s.45;Post Office Protection Act 1884, s.l1.
I Harwich Election Case (1880) 3 O'Mal. & H. 61, 62; Re Smith (1881), 7 L.R. Ir. 286. Sir
Robert Megarry V.-C. in Malone v. Commr. of Police (No. 2) [19791 2 All E.R. 620, 641
thought that "improperly" in these statutes meant only "otherwise than in accordance with the
instructions of one's superiors." This leaves unanswered the question whether those superiors
can in law forbid disclosure to a court.
26 R. v. Benyon [1963] N.Z.L.R. 635, 639. The same point was made by Browne-Williamson J.
in London and County Securities v. Nicholson [19801 1 W.L.R. 948, 955. No statutory privilege
proper was contended for in that case, however.
27 See Offices Act 1960, s.9; Factories Act 1961, s.154; Weights and Measures Act 1963, s.48;
Horticulture Act 1964, s.13; Nuclear Installations Act 1965, s.24(5); Land Commission Act
1967, s.89; Trade Descriptions Act 1968, s.28; Highways Act 1980, s.292.
2sEggars v. Wilson Construction [1964] N.Z.L.R. 901, 903.
[119701 1 W.L.R. 600.
piled under regulation 10 of the Boarding Out of Children Regula-

tions 1955. The same regulation, while containing no direct ban on
disclosure, provides that case records "shall be open to inspection
by any person duly authorised in that behalf by the Secretary of
State for Social Services." Lord Denning construed this as meaning:
If a person wants to see them he has got to be duly authorised
by the Secretary of State. Otherwise he cannot be allowed to
see them. In view of that regulation, I think that these case
records should be regarded as privileged: just as are the records
kept by a legal adviser. The child care officers should not be
compelled to produce them, any more than legal advisers are
compelled to produce their notes.
He seems to be referring here to a true privilege by regulation and
not a mere use of the regulation as an aid to common law balancing.
He goes on to cloud the issue, however, by suggesting that there
may be exceptional cases in which the court can overrule the
privilege. Statutory privileges proper are never subject to the court's
discretion. He also suggests that if the child care officers had used
the records to refresh their memory then they would become
admissible which, again, is inconsistent with a true statutory privi-
lege. His brother judges were content to rest their decision on the
common law alone, without any mention of the regulation.
In Norwich Pharmacalv. Customs and Excise3 ° the Law Lords
delicately skirt the edges of this problem. None of the Acts under
which the Commissioners of Customs and Excise operated contained
a direct ban on disclosure, inside or outside the courtroom, of the
information acquired in the course of administering those Acts.3"
Section 3 of the Finance Act 1967,32 however, did provide that the
Commissioners could disclose the origin, description and maker of
imported goods provided that the relevant Minister had first notified
them that disclosure to a stated person was in the national interest.
It was expressly stated that the Minister had no power to authorise
the disclosure of importers' names. (This was of course the very
information sought to be extracted in Norwich Pharmacal.) Counsel
for the Commissioners argued that disclosure of an importer's
identity to a court was therefore impliedly prohibited.33 This conten-
tion was rejected by all the members of the House of Lords who
made it clear that this particular form of words did not create a
statutory privilege.34 If section 3 had positively banned disclosure
o [1974] A.C. 133.

31 Some information in the hands of the Customs and Excise may be the subject of a statutory
privilege. See infra, n. 63.
312See now Customs and Excise Management Act 1979, s.10.
33 [19741 A.C. 133, 169.
1 Ibid., at pp. 182, 190, 198, 206.
they might perhaps have viewed it differently.35 Unfortunately none

of the Law Lords was prepared to stray from the wholly atypical
words of section 3.
(b) The Rowell v. Pratt statutes

Where disclosure to a court is expressly authorised in a stated
type of case then it may safely be assumed that this is all parliament
has to say on the subject, and that disclosure is intended to be
forbidden in all other proceedings. The great majority of secrecy
statutes are of this kind.36
Although this particular canon of construction is unexceptionable
enough,37 it has received the imprimatur of the House of Lords only
twice, first in Rowell v. Pratt38 and later (very fleetingly) in Norwich
Pharmacalitself.39 Rowell v. Pratt was a case which had its unlikely
genesis in a quarrel over potatoes. The defendant alleged that the
plaintiff had sold to other buyers the potatoes he had engaged to sell
the defendant and had substituted for them other, inferior, potatoes.
The case eventually resolved itself into a dispute as to whether the
plaintiff had planted any of the inferior potatoes in a particular field.
In order to demonstrate that the plaintiff had done just this, the
defendant wished to have produced a return which the plaintiff was
required to make annually to the Potato Marketing Board under the
Agricultural Marketing Act 1931. An official of the Board attended
court with the return but claimed it was privileged from production
3' They did after all recognise the evidentiary effect of the Rowell v. Prattstatutes. See infra, n.
42.
36 Essential Commodity Reserves Act 1938, s.1(3); Population Statistics Act 1938, s.4(2); Ministry
of Supply Act 1939, s.17; War Damage Act 1943, s.118; Coal Industry Nationalisation Act
1946, s.56; Agriculture Act 1947, s.80; Cotton (Centralised Buying) Act 1947, s.23; Industrial
Organisation and Development Act 1947, s.5; Statistics of Trade Act 1947, s.9; Cotton
Spinning (Re-equipment Subsidy) Act 1948, s.4; Radioactive Substances Act 1948, s.7; Food
and Drugs Act 1955, s.5(3); Clean Air Act 1956, s.26; Restrictive Trade Practices Act 1956,
s.33; Cinematograph Films Act 1957, s.5; Agricultural Marketing Act 1958, s.47; Radioactive
Substances Act 1960, s.13; Covent Garden Market Act 1961, s.32; Public Health Act 1961,
s.68; Rivers (Prevention of Pollution) Act 1961, s. 12; Industrial Training Act 1964, s.6; Cereals
Marketing Act 1965, s.17; Highlands and Islands Development (Scotland) Act 1965, s.12;
Rivers (Prevention of Pollution) (Scotland) Act 1965, s.11; Prices and Incomes Act 1966,
Sched. 1, para. 16; Abortion Regulations 1968, reg. 15; Agriculture Act 1967, ss.24, 55;
Companies Act 1967, s.111; Iron and Steel Act 1967, s.43; Sewerage (Scotland) Act 1968,
s.50; Trade Descriptions Act 1968, s.28; Post Office Act 1969, s.65; Transport (London) Act
1969, s.36; Agriculture Act 1970, ss.21, 108; Sea Fish Industry Act 1970, s. 14(2); Civil Aviation
Act 1971, s.36; Fair Trading Act 1973, s.133; Prices Act 1974, Sched., para. 12; Merchant
Shipping Act 1974, s.3(5); Consumer Credit Act 1974, s.174; Industry Act 1975, s.33; Iron
and Steel Act 1975, s.33; Energy Act 1976, Sched.2, para.7; Aircraft and Shipbuilding Act
1977, s.52; Consumer Safety Act 1978, s.4(3); Agricultural Statistics Act 1979, s.3; Estate
Agents Act 1979, s.9; Competition Act 1980, s.19; Deep Sea Mining (Temporary Provisions)
Act 1981, s.13; Film Levy Finance Act 1981, s.8.
17 Since repealed. Its current successor is the Agricultural Marketing Act 1958, s.47 of which is
framed in similar terms.
38 [1938] A.C. 101 See also Coonan v. Richardson [19471 Q.W.N. 19; Webb v. Standard Oil Co.,
319 P.621 (1957).
39 [1974] A.C. 133.
under section 17(2) of the Act. This improbable progenitor of a vast

tribe of privileges still serves as a model for parliamentary draftsmen
and for that reason deserves to be set out in extenso:
Any person who discloses any information obtained by him in
the exercise of any power conferred on him by or under the
provisions of this Act relating to Polls, or in the exercise of any
power conferred by or under this Act on any board, consumers'
committee, committee of investigation, or Agricultural Market-
ing Reorganisation Commission, shall be liable on conviction
on indictment to imprisonment for a term not exceeding two
years or a fine not exceeding one hundred pounds or to both
such imprisonment and fine, or on summary conviction to
imprisonment for a term not exceeding three months or to a
fine not exceeding fifty pounds or to both such imprisonment
and fine:
Provided that nothing in this section shall apply to the
disclosure of any information in so far as it is required to be
disclosed for the purposes of legal proceedings (including arbi-
trations) under this Act or any scheme made thereunder, or for
the purpose of any report of such proceedings, or in so far as
the disclosure is required or authorised by this Act, or any
scheme made thereunder.
Lords Wright' and Maugham, 4' who alone delivered reasoned
speeches, both agreed that the proviso to the subsection was suffi-
cient to enable the Board to resist the production of the returns in
all proceedings other than those brought under the Act. Although
they expressed some surprise that section 17(2) contained no express
prohibition against giving evidence (a hint to which subsequent
generations of draftsmen have been impervious), they thought that
the intention to create a privilege was clear and unambiguous. Since
their views were cited with approval in Norwich Pharmacal, 42
they
may therefore be taken to reflect current judicial consensus on the
subject.
3. The Limits of Statutory Protection
Although statutory privileges may be directed towards the same
ends as the common law principles of public interest immunity, they
arrive there by totally dissimilar means. A true statutory privilege
will ignore the interests of those who supplied the information to the
state in the first place, the nature of the proceedings and the
importance of the information sought to those proceedings, unless
the draftsman has been able to anticipate these issues and built a
4 Ibid., at p. 105.
41 Ibid., at p. 114. He also based his decision on the fact that the return was compulsory and that
under s.17(1) its contents could not even be disclosed in the Board's annual report to
parliament. The legislature could hardly be presumed to have intended to allow a court what
it has denied to itself.
42 [1974] A.C. at pp. 182, 206.
response to them into the statute. Legislative attempts to predict

and provide for policy choices in this way do not, indeed cannot,
display the same flexibility as the common law. The boundaries of
statutory protection are thus less appropriately, albeit more pre-
cisely, drawn than are those of crown privilege.
(a) Waiving the statute

Crown privilege, it is usually said, cannot be waived.4 3 This is to
state the position too baldly. The wishes of both those from whom
information is derived and those to whom it is entrusted are given
some weight in the balancing process, even if that weight is never
decisive. Most statutory privileges, too, make some provision for
consensual disclosure or waiver.
(i) Disclosure with the consent of interested persons

Although official information statutes mostly concern information
obtained from outside sources and are designed to protect the
interests of the supplier, they do not always expressly provide for
disclosure at the supplier's option.' Whether the courts will imply
a right of waiver where none is stated is obscure. The question is left
open in Rowell v. Pratt, it not being clear, in that case whether the
defendant had in fact waived.45 In the Queensland case Geraghty v.
Woodforth and Stewart' the court took the common-sense view that
parliament could never have intended that a statute designed to
protect the suppliers be used against them. (They were even prepared
to extend this implied right to waive to trustees under the supplier's
will.)
When a statutory privilege does expressly provide for disclosure
with the supplier's consent, it usually also insists that such consent
be in writing.47 Such statutes do not on their face give the supplier
a right to waive, but merely a veto over disclosure.48 Paradoxically
suppliers may retain greater control over the information when the
statute makes no mention of them. Again, statutes which allow
consensual disclosure seldom recognise a joint interest in information
4 R. v. Lewes Justices, ex p. Home Secretary [1973] A.C. 388, 407, Science Research Council v.
Nass9 [1980] A.C. 1028, 1066, 1074, 1081 and 1087.
See statutes cited n. 27, supra. See also Abortion Regulations 1968, reg. 5; Population
Statistics Act 1938, s.4(2); Consumer Safety Act 1978, s.4.
4 [1938] A.C. 101, 106, 110.
(1957] Q.W.N. 41. See also Re Lincoln Election Petition (1878) 4 O.A.R. 206; Buchibai v.
Nagpur University [1946] A.I.R.(N.) 377. Cf. Crest Catering Co. v. Superior Court, 398 P.
(2nd) 150 (1965).
47 Oral consent is sufficient under Essential Commodities Reserves Act 1938, s.1(3); Ministry of
Supply Act 1939, s.17. It is not clear whether or not these sections also permit consent to be
implied from conduct. See also Consumer Credit Act 1974, s.174.
,' P.146, infra.
and require only that a single person be consulted. This is not always
the person with the best claim to be heard.49
Source or intermediary? Where the information passes through
several hands before reaching the public agency only the person who
actually forwards it to the agency need give his consent under most
statutes."' The original supplier is ignored.5 1 To take but one example
employers who take on industrial trainees can permit the production
of returns about those trainees furnished under the Industrial Train-
ing Act 1964, but the trainees themselves can neither compel nor
consent to the production of those returns.
Subject or supplier? The common law has never accepted that
parties on whom the state holds information acquire from that fact
alone a right to be consulted about its use. Some statutes, rather
surprisingly, are more liberal about subject consultation. Section 174
of the Consumer Credit Act 1974 allows information obtained under
the Act "about any individual" to be disclosed with that individual's
consent. A similar provision is to be found in section 10 of the Estate
Agents Act 1979.
A more restricted form of subject veto is provided in section 12
of the Rivers (Prevention of Pollution) Act 1961 which allows
dischargers of effluent from which samples have been taken (even
when the sample is taken off their premises and without their
knowledge) to consent to disclosure.52
Principalor agent? The now defunct Southern Rhodesia (United
Nations Sanctions) Order 1968"3 provided that information obtained
from servants or agents about their principal's business could not be
disclosed without the principal's consent. Most statutory privileges
lack this safeguard. Where the principal is a company then the
company is the supplier, but where the business is unincorporated
it is arguable that it is only the individual employee or partner who
actually furnishes the information who may authorise disclosure54
4 But see Control of Pollution Act 1974, s.94(2) which allows waiver by "any person having a
right to disclose the information." See also Agriculture Act 1947, s.80 which allows the
Minister to decide whose interests are so affected by disclosure that they should be allowed to
waive.
0 Cinematograph Films Act 1957, s.5; Horticulture Act 1960, s.12(3); Covent Garden Market
Act 1961, s.32; Public Health Act 1961, s.68; Rivers (Prevention of Pollution) Act 1961, s.12;
Prices and Incomes Act 1966, Sched. 1, para. 16; Agriculture Act 1970, ss.21, 108; Civil
Aviation Act 1971, s.36, Prices Act 1974, Sched., para. 12; Merchant Shipping Act 1974,
s.3(5); Industry Act 1975, s.33.
51 The only statutes which do appear to allow disclosure with the consent of the ultimate source
of the information are Civil Aviation Act 1971, s.36 and Consumer Credit Act 1974, s.174.
52 See also Highlands and Islands Development (Scotland) Act 1965, s.12 under which Inspectors
who use their statutory powers to enter premises cannot testify as to what they have seen
there except with the consent of the owners of those premises.
11 S.I. 1968 No. 885.
5' Rangaswami v. Raju [1942] A.I.R.(M.) 276.
C.L.J.-5
130 The Cambridge Law Journal [1983]
unless this right is expressly vested in the owner of the business for
the time being. 5
Supplier or successor? Some Acts allow disclosure with the consent
of the person carrying on the business or occupying the premises from
which the information was obtained at the time the privilege is claimed.56
In the absence of such express provision the inheritors or purchasers
of a business (otherwise than by the acquisition of control of a
company57 ) acquire no statutory veto over disclosure.
(ii) Ministerial waiver permitted by statute

Several Acts58 give Ministers an apparently unrestricted power to
disclose protected information. This power may be exercised in any
proceedings, not simply those connected with the Act in question.
Since these Acts do not seek to protect the government's own secrets
but merely those of which it is the custodian, Ministerial waiver is
hard to justify, unless he thinks that the original supplier is unrea-
sonably withholding his consent to disclosure.
One of the few attempts to control Ministerial waiver is to be
found in section 36(1) of the Civil Aviation Act 1971, which attempts
to temper Ministerial waiver by allowing the Minister to order
disclosure of information concerning a particular person which has
been furnished to the Civil Aviation Authority or himself under Part
II of the Act, only if the Minister ". . . after affording that person
an opportunity to make representations about the information and
considering any representation then made by that person, determines
that information may be disclosed."
Once the determination is made it applies to all similar infor-
mation about the person concerned, there being no need for a
further hearing. The section provides no guidance as to the grounds
55 As it is in the statutes cited n. 56, infra.
51 Ministry of Supply Act 1939, s.17; War Damage Act 1943, s.118; Coal Industry Nationalisation
Act 1946, s.56; Cotton (Centralised Buying) Act 1947, s.23(2); Industrial Organisation and
Development Act 1947, s.5; Clean Air Act 1956, s.26; Radioactive Substances Act 1960,
s.13(3); Fair Trading Act 1973, s.133; Consumer Credit Act 1974, s.174; Rent (Agriculture)
Act 1976, s.30(4); Competition Act 1980, s.19; Film Levy Finance Act 1981, s.8.
57 A shareholder cannot consent on behalf of a company, but a liquidator can. For the position
at common law see Huron Steel Fabricators Ltd. v. Minister of National Revenue (1973) 31
D.L.R. (3rd) 110, Gagnon v. Quebec Securities Commission (1965) 50 D.L.R. (2nd) 329;
Minister of National Revenue v. Die Plast(1952) 2 D.L.R. 808; Re Grace (1898) 9 Bank. Cases
(N.S.W.) 11.
58 Atomic Energy Act 1946, s.11; Radioactive Substances Act 1960, s.13(3); Nuclear Installations
Act 1965, s.24(5); A regulation which purports to allow waiver by the Minister runs the risk
of being struck down as ultra vires. In the Canadian case Re Clark and Attorney-General
(1978) 17 O.R. (2nd) 593 it was held that this offended the maxim delegatus non potest delegare
and that the regulations themselves should state the exempt categories rather than leave them
to the Minister to fix. No such point was raised in relation to the Boarding Out of Children
Regulations 1965 in Re D. (Infants), supra, n.29. S.14(2) of the Children Act 1948 refers
simply to a power to make regulations concerning the "welfare" of children boarded out and
the "recording" of information about persons with whom they are so boarded.
on which the Minister is to exercise the power it confers, although

it seems clear that the original supplier can attack the Minister's
decision in the courts if the essentially procedural safeguards of
section 36 are not observed or (the inevitable problems of proof
permitting) the waiver is exercised unreasonably or is tainted by
improper notice. If he does mount such an attack, the court will be
reviewing the Minister's decision, not deciding admissibility de novo.
Only the original supplier can seek to override the Ministerial
waiver; other litigants must abide by it. The other statutes which
allow disclosure at the executive's option lack even this minimal
safeguard.
Statutes which allow the Minister to waive also allow selective
claims of privilege. He may instruct his subordinates which questions
to answer, once in the witness box. 5 9 He may produce some docu-
ments while keeping back others relating to the same event or
persons.' ° He may even edit a single document. Cross-examining
from privileged documents is also permissible under these statutes.
It is highly unlikely that the courts would allow a claim of public
interest immunity to be manipulated in this way. 6'
(b) Secondary evidence and the statute

Secondary evidence cannot be given of documents which can be
or have been the subject of a successful Crown privilege claim. 62
Few secrecy statutes address themselves to this problem directly, an
omission which can sometimes lead to bizarre results.
(i) No statutory protection at source

The statutes do not purport to protect the information while it is
still in the hands of the supplier. In several Australian cases persons
have been required to produce copies of returns, the original of
which would have been privileged by statute once they reached the
department in question.63 Where a return was not forthcoming, the
courts have permitted the supplier to be questioned about its
contents 64 (a course which might have been followed with profit in
5 O'Flaheriy v. McBride (1920) 28 C.L.R. 283; National Discounts Ltd. v. Jacques (1955) 93
C.L.R. 449; Canadian Pacific Co. Ltd. v. Stapleton (1956) 86 C.L.R. 1.
o R. v. St. Merat [1958] N.Z.L.R. 1147.
61 Ex pane Brown, Re Tunstall (1966) 67 S.R.(N.S.W.) 770; fsakson v. Jacobson [19461 1 D.L.R.
612.
62 Asiatic Petroleum Co. Ltd. v. Persian Oil Co. Ltd. [1916] 1 K.B. 822; Ankin v. London and
North Eastern Ry. Co. [1930] 1 K.B. 527; Gain v. Gain [19621 1 All E.R. 630; R. v. Home
Secretary, ex p. Lewes Justices [19731 A.C. 388.
63 Smout v. Walker [1968] O.W.N. 13; contra Honeychurch v. Honeychurch [1943] S.A.S.R. 31;
Bridges v. Bridges [1954] O.W.N. 24. The same logic would also presumably allow litigants to
intercept the originals with a subpoena before they came into the department's hands.
Oudman v. Warren (1963) 4 F.L.R. 69; Re Goretzki [1970] A.L.R. 805; Mobil Oil Australia
(Pty.) Ltd. v. F.C.T. (1962) 113 C.L.R. 475, 495.
Rowell v. Pratt, where the defendant claimed he had kept no copy

of his return). Such fractured protection is largely meaningless.
(ii) Protection at second hand

Some statutes expressly protect information even after it leaves
the department which first acquired it. Data which is passed on to
other departments from the collecting department is protected under
section 4(4) of the Civil Defence Act 1948.65 Section 8(2) of the
Census Act 1920 forbids further disclosure by persons who obtained
census information from those employed in taking the census and
who know that the information has been given to them in contra-
vention of the Act. Other statutes, perversely, protect the informa-
tion only at second hand. Section 164(2) of the Social Security Act
1975 even goes so far as to create a special privilege for information
disclosed to the D.H.S.S. by the Inland Revenue, even though there
is no equivalent statutory privilege for that information while it is in
the hands of the Inland Revenue.' Secrecy provisions such as
section 292 of the Highways Act 1980 forbid only the disclosure by
a named class of persons, usually those in whom the statutory power
of entry or inspection is vested.67 In the New Zealand case R. v.
Hassal 68 it was held that this type of statute cannot prevent disclo-
sure by persons outside that class, whether they have obtained their
information lawfully or unlawfully, and whether or not they them-
selves hold a public office.69 The court distinguished these statutes
from those which baldly forbid the disclosure of information and do
not state by whom (as is the case with all current 7° Rowell v. Pratt
statutes). In the latter case no express ban on second-hand disclosure
is necessary; it is implied.
See also Employment and Trading Act 1973, s.4(5); Development of Rural Wales Act 1976,
s.17(2).
See also Finance Act 1972, s.127(2) by which information passing between the Customs and
Excise and the Inland Revenue is privileged in the hands of the recipient department even
though it is unprotected from court process while in the hands of the supplying department.
In Norwich Pharmacal v. Customs & Excise [19741 A.C. 133, although s.127 was raised by
counsel for the Commissioners, none of the Law Lords thought it necessary to express an
opinion as to its evidentiary effect (although several mention it), because none of the
information sought was within its terms. Since s.127 is a Rowell v. Pratt statute, and since all
members of the House of Lords in Norwich Pharmacal approved of Rowell v. Pratt, this
reticence is perhaps surprising.
61 Statutes noted n. 9, supra. See also Weights and Measures Act 1979, s.12.
- (1904) 23 N.Z.L.R. 776. See also R. v. Osman 119421 A.I.R.(B.) 289.
69 (1904) 23 N.Z.L.R. 780. See also Venkataramana v. Vaiahalu 119421 A.I.R.(M.) 377. In
Hassall the document in question had been handed to the police by a clerk in whose custody
it was, in the mistaken belief that he was obliged to do so. The court held that a statute
forbidding disclosure by the clerk could not be used to prevent the police from producing the
document in evidence.
o S.17 of the original Agricultural Marketing Act 1931 ironically enough was confined in its
operation to a defined, albeit very wide, class of persons. See supra, p.127.
(c) The duration of statutory privileges

Crown privilege cannot be claimed where the information sought
is already widely known,7' or where sufficient time has elapsed for
it to be no longer worth concealing.7" Statutory privileges on the
other hand live until repealed, even if the information they protect
is thoroughly out of date and harmless.7 3 (One of the few74 exceptions
is s.133 of the Fair Trading Act 1973, which permits the disclosure
of information about a particular business after that business ceases
to be carried on.) Again, prior publication of the protected infor-
mation does not derogate from a statutory privilege unless the
statute expressly so provides. 75 Very few do. 76
(d) Proceedings exempt from the statutory privilege

Lord Reid in Conway v. Rimmer recognised that the public
interest in disclosure will vary according to . . . whether the result
of withholding a document is merely to deprive a litigant of some
evidence on a minor issue in a case of little importance or, on the
other hand, is to make it impossible to do justice at all in a case of
the greatest importance.77
Even the most skilled parliamentary draftsman would blanch at
the thought of producing a statutory formula which could assess the
importance of the information sought in the proceedings. The task
of weighing the importance of the proceedings might on the face of
it seem more susceptible to the draftsman's art. A list of proceedings
in which statutory protection is to be unavailable is easy enough to
produce even though such a list must proceed by way of crude
categorisation and cannot, as the common law can, judge the social
significance of the case in which the privilege is actually being
claimed. Some statutes avoid the problem altogether by conferring
an all embracing protection which is available in every type of case,
be it serious or trivial. 78 These are rare. Most statutory privileges
exempt some proceedings from their operation. Less often, and less
satisfactorily, the exemption must be implied.
71 Robinson v. South Australia [1931] A.C. 704, 718; Sankey v. Whitman (1979) 21 A.L.R. 505,
531, 547.
72 Burmah Oil Co. v. Bank of England [1979] 3 W.L.R. 722, 549.
7 They are even exempted from the 30-year rule. See Public Records Act 1958, s.5(3).
7 See also Consumer Credit Act 1974, s.174.
15 Cf. R. v. Homestake [1977] 3 W.W.R. 629, 634.
76 See Consumer Safety Act 1978, s.4(3) which allows the disclosure of "publicised" information.
See also Fair Trading Act 1973, s.133, which allows the disclosure of matters contained in
published reports of the Monopolies Commission.
7' [1968] A.C. 910, 943.
71 Foreign Enlistment Act 1870, s.29; Atomic Energy Act 1946, s.13; Parliamentary Commissioner
Act 1967, s.11(1); Nuclear Installations Act 1965, s.24.
(i) Criminal cases

It is generally conceded that, all other policy factors being equal,
Crown privilege claims are much more likely to succeed in civil
actions than in criminal proceedings of a grave character.79 In some
of the statutory privileges this relatively fluid distinction has frozen
into a rigid division between civil and criminal" which would deny
to a paraplegic plaintiff in an action for damages information which
it requires to be made available in parking prosecutions.
Where no express exemption in favour of criminal cases exists,
the courts will not imply one; or so it was held in the New Zealand
case R. v. Saint Merat,8t a case in which the judge felt himself unable
to circumvent a statutory privilege claimed by the Inland Revenue,
despite his profound misgivings as to the Revenue's motives and the
heavy penalties facing the accused.
(ii) E.E.C. obligations

Effective enforcement of E.E.C. law would sometimes be impos-
sible if public agencies in the Member States were able to hide
behind national secrecy statutes. It has usually been assumed that
the E.E.C. Commission is (or can be) armed with investigative
powers which will override such statutes. Sometimes, however, the
secrecy statute itself will attempt to grapple with the problem. Thus
information acquired by the Director-General of Fair Trading and
the Monopolies and Merger Commission may be disclosed "in
pursuance of a Community obligation." 82 To interpret this as requir-
ing disclosure only where an E.E.C. Regulation or Directive83
expressly so required would be both restrictive and otiose. Restrictive
because when in other contexts parliament has meant this it has said
so. 84 Otiose because the Commission of the European Communities
already has the power to extract information from the Director-
Norwich Pharmacal v. Customs and Excise [1974] A.C. 133, 206, per Lord Kilbrandon. See
also Marks v. Beyfus (1890) 25 Q.B.D. 494; Duncan v. Cammell Laird & Co. [1942] A.C.
624, 634; Sankey v.Whitlam (1979) 21 A.L.R. 505, 549, 575.
0 Coal Industry Nationalisation Act 1946, s.56; Cotton (Centralised Buying) Act 1947, s.23(2);
Covent Garden Market Act 1961, s.32; Public Health Act 1961, s.68; Rivers (Prevention of
Pollution) Act 1961, s.12; Highlands and Islands Development (Scotland) Act 1965, s.12;
Rivers (Prevention of Pollution) (Scotland) Act 1965, s.ll; Agriculture Act 1967, ss.24, 55;
Sea Fish Industry Act 1970, s.14(2); Industry Act 1975, s.33; Race Relations Act 1976, s.52(1);
Rent (Agriculture) Act 1976, s.30(4); Consumer Safety Act 1978, s.4; Competition Act 1980,
s.19(2).
6111958] N.Z.L.R. 1147, 1149.
8 Fair Trading Act 1973, s.133; Restrictive Practices Act 1976, s.41; Competition Act 1980, s.19.
11The definition of community obligation in Sched. 1 to the European Communities Act 1972
includes obligations which are not directly applicable in member countries, a definition which
embraces Directives as well as Regulations. See also Van Duyn v. Home Office [19741 E.C.R.
1337.
1 As in Energy Act 1976, Sched. 2, para. 7.
General of Fair Trading.85 ) The effect of the proviso is in fact far

wider. Permitted disclosure is not confined to E.E.C. institutions,86
but is allowed in proceedings before United Kingdom courts to
enforce any E.E.C. obligation (not just those concerned with com-
petition), whether brought by private persons" or public agencies.
What is not clear is whether the proviso applies only when the
Community obligation is itself the subject of the proceedings or
whether it is sufficient if it is raised collaterally (where, for example,
it is alleged that a statutory power has been exercised without due
regard to Community objectives)8" or the enforcement of intellectual
property rights is resisted as infringing Articles 85 and 86 of the
Treaty of Rome. The vast majority of secrecy statutes ignore the
existence of the E.E.C. (This is true even of those concerning the
production and marketing of primary produce, an omission which is
remarkable when one considers the statutory pervasiveness of the
Common Agricultural Policy.) This leaves forensic disclosure to be
regulated by Community law. Whether the latter is an appropriate
vehicle for controlling disclosure in English courts may be doubted.
(iii) Cases connected with the secrecy statute itself

Statutory powers to obtain information would serve no purpose
if a department or agency was unable to use that information in
administering the Act which conferred them. Some statutes address
themselves to this problem directly by excluding proceedings con-
nected with the administration of the Act from the ambit of their
statutory privilege.89 Others make no mention of proceedings, but
content themselves with a general proviso that disclosure is to be
allowed in carrying out statutory purposes,9° functions, 91 or duties.92
Yet others achieve much the same result by 'permitting disclosure
before the courts and tribunals in which the Act is most commonly
E.E.C. Reg. 17, Art. 5, which requires government and "competent authorities" of Member
States to provide the Commission of the European Communities with all necessary information
to carry out its duties under the competition provisions of the Treaty of Rome. Whether the
Monopolies Commission is a "competent authority" is uncertain, given its mix of investigative
and judicial powers.
8 For statutes which allow disclosure only "to an institution of the European Communities" see
Energy Act 1976, Sched. 2, para. 7; European Communities Act 1972, s.12; Agricultural
Statistics Act 1979, s.3(2).
8 E.g. H. P. Bulmer Ltd. v. J. Bollinger S.A. 119741 Ch. 401.
a As required by European Communities Act 1972, s.2(2).
9 All the Rowell v. Pratt statutes contain such an exemption: n. 36, supra.
9 Coal Industry Nationalisation Act 1946, s.57; Agriculture Act 1970, s.83; Employment and
Training Act 1973, s.4.
91 Agriculture Act 1970, s.83; Trade Descriptions Act 1968, s.28; Energy Conservation Act 1981,
s.17.
9, See statutes cited nn. 20, 21, supra. S.292 of the Highways Act 1980 is a hybrid, permitting
disclosure in the course of "performing a duty in connection with statutory purposes."
136 The Cambridge Law Journal [1983]
litigated.93 The exact depth of the inroad thus made into the statutory
privilege is often difficult to measure, so imprecise is the language
used. Must the proceedings be brought by the administering agency,
or is it sufficient that the Act in question recognises private initia-
tives?94 Can private prosecutors compel the disclosure of informa-
tion, or is this a matter of grace on behalf of the administering
agency?95 Does the case have to take the form of a prosecution, 96 or
is an action in tort for breach of statutory duty an exempt proceeding
also?' Is disclosure permitted in ancillary proceedings such as the
hearing of a bankruptcy petition consequent upon judgment,98 an
action brought to enforce an undertaking given during statutory
proceedings," or references to an arbitrator or referee?' Can disclo-
sure be made in actions for judicial review brought against the
9 Fair Trading Act 1973, s.133; Trade Union and Labour Relations Act 1974, Sched. 1, para.
26(5); Restrictive Trade Practices Act 1976, s.41.
9 In the New Zealand case of Auckland Hotel and Restaurant Employees Union v. Pagni (1915)
17 N.Z.G.L.R. 311, 312 it was held that industrial safety legislation which allowed disclosure
by a factories inspector "in the exercise of functions" under that legislation precluded an
inspector from giving evidence in proceedings brought by a trade union, even though the Act
in question expressly authorised the union to bring such proceedings. "Duty" would probably
be similarly interpreted. (But see the South African cases: Greenspan v. R. [19441 S.R. 149,
155; R. v. Kassim [1950] 4 S.A. 522; Union Government v. Shiu 11955] 1 S.A. 298.) Disclosure
for statutory purposes, on the other hand, would seem to permit disclosure to assist private
initiatives under the Act.
9 Disclosure for statutory purposes does not mean automatic enforced disclosure against the will
of the department, even in proceedings commenced by the department. The party seeking
disclosure in such a case probably has to prove that his need for the information answers some
statutory purpose (O'Flaherty v. McBride (1920) 28 C.L.R. 283). A party's wish to use the
information to cross-examine the agency's witnesses would not so answer. (Ibid. Sometimes
this is made explicit. S.27(4) of the Health and Safety at Work Act 1974 provides that the
information shall not be used for a purpose other than a purpose of the Health and Safety
Commission or Executive.) Where the agency wishes to disclose, however, wish and statutory
purpose are assumed to coincide (O'Flaherty v. McBride, supra), thus giving the agency the
right of waiver in proceedings under the Act although not in other cases. By contrast, a
reference to duty orfunction does not distinguish between voluntary and compulsory disclosure.
An official who is called to give evidence on behalf of the agency is fulfilling a statutory
function and that function does not cease at the end of his evidence-in-chief. A document
tendered by the agency as part of its statutory duty would seem to presuppose an identical
duty to release related documents.
6 Some Acts do require this, e.g., Ministry of Supply Act 1939, s.17; Agriculture Act 1947, s.80;
Agricultural Statistics Act 1979, s.3(2); Estate Agents Act 1979, s.10(3); Deep Sea Mining
(Temporary Provisions) Act 1981, s.13.
97 Probably not. The case should have its origins in the statute. An action for negligence does not
display the necessary nexus with the Act simply by showing that the action complained of also
amounts to breach of the statute. Hiroa Mariu v. Hutt Timber Hardware Co. Ltd. [1950]
N.Z.L.R. 458; Eggers v. E. D. Wilson Construction (Nelson) Ltd. 11964] N.Z.L.R. 901. A
civil action involving both common law and breach of statutory duty might find the court
admitting evidence to support the latter cause of action while excluding it for the purposes of
the former.
9 National Discounts Ltd. v. Jacques (1955) 39 C.L.R. 449; Union Government v. Shiu [1955] 1
S.A. 298.
9 Canadian Pacific Tobacco Co. Ltd. v. Stapleton (1952) 86 C.L.R. 1.
Some statutes do expressly define exempt proceedings to include arbitrations: Ministry of Supply
Act 1939, s.17; War Damage Act 1943, s.118; Cotton (Centralised Buying) Act 1947, s.23;
Cinematograph Films Act 1957, s.5; Agricultural Marketing Act 1958, s.47; Covent Garden
Market Act 1961, s.32; Gas Act 1965, Sched. 6, para. 9; Land Commission Act 1967, s.89;
Sea Fish Industry Act 1970, s.14(2); Fire Precautions Act 1971, s.21; Film Levy Finance Act
1981, s.8.
agency in connection with its administration of the Act?2 A search

for direct answers to such questions in the statutes themselves is
seldom fruitful, and those distilled from the statutes' obscure phra-
seology are likely to be the product of drafting whims rather than
considered policy choices.
(e) The subject-matter of statutory privileges

In construing a secrecy statute it is necessary for the court to ask
itself "At what sort of information is this section directed?" With a
few exceptions,' statutory privileges concern themselves only with
information derived from sources outside local and central govern-
ment. They do not protect the government's own secrets from
forensic disclosure. Beyond this there is little common ground as to
the nature of the material protected.
(i) Compulsorily obtained or freely given?

Secrecy sections are usually designed to complement a statutory
power to acquire information by compulsion, whether this be a right
to enter and inspect premises, to peruse documents already in
existence, to interrogate persons orally or in writing or to require
that the information be embodied in a statutory form by the supplier.
Sometimes these powers must actually be used in order to bring the
secrecy provision into play.4 Other statutes protect information
2 Statutes which allow the giving of evidence in proceedings brought under the Act (Ministry of
Supply Act 1939, s.17; Agriculture Act 1947, s.80; Statistics of Trade Act 1947, s.9; Radioactive
Substances Act 1948, s.7; Agricultural Marketing Act 1958, s.47; Restrictive Trade Practices
Act 1976, s.41(l)) do not allow it to be given in ancillary or review proceedings (unless judicial
review is part of the statutory scheme of things). By contrast, when Acts speak of disclosure
in cases arising out of (Clean Air Act 1956, s.26; Horticulture Act 1960, s.12(3); Prices and
Incomes Act 1966, Sched. 1, para. 16; Civil Aviation Act 1971, s.36; Prices Act 1974, Sched.,
para. 12; Aircraft and Shipbuilding Act 1977, s.52) or in connection with the execution of (War
Damage Act 1943, s.188; Coal Industry Nationalisation Act 1946, s.56; Cotton (Centralised
Buying) Act 1947, s.23; Cotton Spinning (Re-equipment Subsidy) Act 1948, s.4; Radioactive
Substances Act 1948, s.7; Rivers (Prevention of Pollution) Act 1961, s.12; Rivers (Prevention
of Pollution) (Scotland) Act 1965, s.l; Highlands and Islands Development (Scotland) Act
1965, s.12; Sea Fish Industry Act 1970, s.14(2)) or in consequence of (Essential Commodities
Reserves Act 1938, s.1(3)) the Act, the words are wide enough to embrace both ancillary
enforcement and judicial review. In the grey area between these categories are sections
referring to proceedings pursuant to (Film Levy Finance Act 1981, s.8) or by virtue of the Act
(see statutes noted at n. 5, infra).
Foreign Enlistment Act 1870, s.29; Parliamentary Commissioner Act 1967, s.ll. In the Canadian
case R. v. Homestake [19771 3 W.W.R. 629, 634, it was held that a reference in a secrecy
statute to "information obtained in the course of official employment" could not be used to
protect an agency's internal records from disclosure when the whole thrust of that statute was
directed to combating or regulating private individuals or groups. The same observations could
be made of Biological Standards Act 1975, s.5(1); Census Act 1920, s.8 which employ a similar
phraseology.
Statutes which refer to information obtained under (Statistics of Trade Act 1947, s.9; Agriculture
Act 1947, s.80; Companies Act 1967, s.lll; Sea Fish Industry Act 1970, s.14), in the exercise
of (Atomic Energy Act 1946, s.13; Radioactive Substances Act 1948, s.7; Agricultural
Marketing Act 1958, s.47; Gas Act 1965, Sched. 6, para. 9; Nuclear Installations Act 1965,
s.24(5); Fire Precautions Act 1971, s.21), in compliance with (Water Act 1945, s.48; Civil
provided by a supplier who is aware of his legal obligation to supply

but against whom no actual compulsion has been exercised or
threatened. 5 But what of persons who provide information in the
mistaken belief that they are obliged to do so (whether or not that
belief is induced by an agent of the state)? 6 Of those who, although
in fact under an obligation to supply information, volunteer it in
ignorance of that obligation? 7 Or those who make data available in
return for a subsidy' or to obtain a service,9 or those who simply
supply information to an agency for some purpose of their own? In
order to protect such information an Act would have to focus on the
fact of its possession by the department in question and ignore the
means whereby it was acquired. Very few do so.t °
(ii) Information received or facts observed

Does the statute protect only what an official has been told
(orally or in writing) by others, or does it extend to facts which he
Defence Act 1948, s.4(4); Town and Country Planning Act 1962, s.212; Land Commission Act
1967, s.89; Highways Act 1980, s.292) or in pursuance of (Offices Act 1960, s.9; Water
Resources Act 1963, s.112) statutory powers would seem to require that the compulsion in
fact be exercised. This need not mean that the supplier be served with formal notice or
requisition (although in some cases this is provided for). It does mean that the public agency
should have acquired the information after manifesting its intention to insist on its statutory
powers in a particular case. (There need be no actual prior communication with the supplier.)
Such information may be said to be acquired "by virtue" of a statutory power in the sense that
it is unlikely to have been forthcoming if the statute did not exist. Statutes which use this
terminology are: Population Statistics Act 1938, s.4(2); Ministry of Supply Act 1939, s.17;
Cotton Spinning (Re-equipment Subsidy) Act 1948, s.4; Weights and Measures Act 1963,
s.48; Agriculture and Horticulture Act 1964, s.13; Highlands and Islands Development
(Scotland) Act 1965, s.12; Medicines Act 1968, s.118; Trade Descriptions Act 1968, s.28; Fair
Trading Act 1973, s.133; Consumer Credit Act 1974, s.174; Supply Powers Act 1975, s.5;
Energy Act 1976, Sched. 2, para. 7.
6 The inculcation of such a belief has been held to be sufficient to justify non-disclosure in the
public interest at common law: Liddle v. Owen (1978) 21 A.L.R. 286, 289.
7 Several Canadian decisions require that the supplier must be aware of his legal duty and be
acting in compliance with it: R. v. Gordon [1947] 2 D.L.R. 35; Jordan v. Fitzgerald [1950] 1
D.L.R. 247, 246; Smiths Transport Ltd. v. Vanderjagt (1957) 11 D.L.R. (2nd) 166, 178;
Lindfors v. Cameron (1962) 31 D.L.R. (2nd) 58. The Acts in question, however, protect
"statements," not information, and the cases could equally be said to turn on whether
volunteered information is the "statement" the Act requires the supplier to make. See Le
Blanc v. Murray (1978) 2 N.B.R. (2nd) 390. Untangling the motivation of supplier and
recipient in these cases will seldom be easy, as the Australian case Canadian Pacific Tobacco
Co. v. Stapleton (1952) 86 C.L.R. 1 illustrates. The information sought to be protected in that
case had been obtained by interrogating the director of the appellant company. The official
conducting the interrogation possessed a statutory right of access to the company's books and
he showed the director a notice to this effect. He also had the power to compel the director
to answer questions although he made no mention of this fact. What was in the director's
mind when he made his damaging admissions? Was the official in fact exercising his statutory
powers? Fortunately for the court in the Canadian Pacific case the statutory privilege which
might have been used to protect the admissions had been waived. The problem cannot always
be so easily avoided.
I The Prices Act 1974, Sched., para. 12(1) expressly protects information acquired in this way.
I Post Office Act 1965.
10War Damage Act 1943, s.118; Coal Industry Nationalisation Act 1946, s.56. S.23(2) of the
Cotton (Centralised Buying) Act 1947 protects information acquired by a public employee
"for the purposes of his functions" under the Act. See also Census Act 1920, s.8. Some Acts,
it is true, refer to the furnishing of information (see statutes cited n. 11, infra) which suggest
voluntary compliance. The context usually indicates otherwise, however.
has himself observed or physical material procured by him directly

(pollution samples, say)? Although there are usually no valid policy
reasons for making such a distinction the terminology chosen by the
draftsman will often force it upon the courts."
(iii) Conclusions derived from protected information
It has been suggested that an official may testify as to the opinions
he has formed as the result of facts he has observed even though
those facts themselves may be the subject of a statutory privilege."2
Such a distinction, if rigidly adhered to, could subvert a statutory
privilege entirely.' 3
(iv) Unattributedinformation
A statutory privilege will often protect even information which
is so general that its link with the supplier cannot be traced and
which can therefore do him no harm if disclosed. Some Acts seek to
deal with this problem by allowing disclosure "in the form of statistics
or otherwise, so that it cannot readily be recognised as relating to
any particular person or undertaking."' 4 Provisions which forbid the
disclosure of information relating to a particular business 5 are likely
16
to have the same limitation read into them.
In the New Zealand case Hiroa Mariu v. Hutt Timber and Hardware Co. [19501 N.Z.L.R. 458,
468 (see also Eggers v. E. D. Wilson Construction (Nelson) Ltd. [1964] N.Z.L.R. 901) the
court took the view that a statutory reference to "information acquired" (acquired is the term
used in s.8(2) of the Census Act 1920) embraced both personal observation and hearsay, a
view shared by the Supreme Court of Victoria in National Mutual Life Association v. Godrich
[19541 V.L.R. 708. In a later New Zealand decision, Bonner v. Karamea Shipping Co. [19731
N.Z.L.R. 374, it was rather tentatively suggested that a prohibition against the disclosure of
information obtained under statutory powers pre-supposed the existence of a supplier and did
not forbid the disclosure of observed facts or events. The writer finds it difficult to detect any
distinction between obtaining or acquiring in this context. The distinction made in the Bonner
case can more rationally be applied to statutes which refer only to information furnished (as
in Sewerage (Scotland) Act 1968, s.50; Civil Aviation Act 1971, s.36) or "given" (Prices and
Incomes Act 1966, Sched. 1,para. 16; Prices Act 1974, Sched., para. 12). Many statutes point
up the distinction between obtained and furnished by referring to both: Horticulture Act 1960,
s.12(3); Covent Garden Market Act 1961, s.32; Cereals Marketing Act 1965, s.17; Rivers
(Prevention of Pollution) (Scotland) Act 1965, s.l; Agriculture Act 1967, ss.24, 55, 108;
Agriculture Act 1970, ss.21, 83, 108; Merchant Shipping Act 1974, s.3. This suggests that the
dichotomy between information acquired via observation and that provided through other
persons was at least present in the mind of the draftsman.
12 Hiroa Mariu v. Hut Timber and Hardware Co., loc.cit., at p.460.
S Itmust be conceded that information obtained is not an apt phrase to use if it is intended to
bring opinions and conclusions within the reach of the statutory privilege. Conversely, one
may conceivably acquire opinions as well as facts. See statutes cited n. 11, supra.
14 Energy Act 1976, Sched. 2, para. 7. See also Covent Garden Market Act 1961, s.32; Industrial
Training Act 1964, s.6; Cereals Marketing Act 1965, s.17; Iron and Steel Act 1967, s.43;
Agriculture Act 1970, ss.21, 108; Iron and Steel Act 1975, s.33. Some statutes make even the
disclosure of unattributed information subject to Ministerial consent, e.g., Agricultural
Statistics Act 1979, s.3.
1'Ministry of Supply Act 1939, s.17(1); War Damage Act 1943, s.118; Coal Industry National-
isation Act 1946, s.56; Cotton (Centralised Buying) Act 1947, s.23(1); Statistics of Trade Act
1947, s.9; Cotton Spinning (Re-equipment Subsidy) Act 1948, s.4; Companies Act 1967, s.111;
Sea Fish Industry Act 1970, s.14; Civil Aviation Act 1971, s.36(1); Fair Trading Act 1973,
s.133; Supply Powers Act 1975, s.5(l); Restrictive Trade Practices Act 1976, s.41.
11Gamini Bus Co. Ltd. v. C.I.T. [19521 A.C. 571, 579.
(v) Statutory protectionfor trade secrets

Although the great majority of secrecy statutes were enacted to
protect financial and technical data obtained by public agencies from
commerce and industry, very few of them restrict the protection they
offer to this particular type of information. The privileges they create
span the whole range of business information, a much wider protec-
tion than that available at common law which is confined to trade
secrets proper.17 It is therefore something of a paradox that those
statutes which specifically deal with the problem of trade secrets"
should provide a much narrower protection than those which do not.
Only trade secrets and manufacturingprocesses are privileged; other
information whose disclosure would be damaging to a firm's com-
petitive position remains unprotected.
B. SECRECY STATUTES AND THE COMMON LAW

The secrecy statutes do not exist in an evidentiary vacuum. Much of
the information which they seek to protect could convincingly be
made the subject of a claim of public interest immunity at common
law. How do the two sources of evidentiary protection interact?
Three approaches are possible. The first holds that once the statute
is enacted the common law vacates the field, and those claiming
evidentiary protection must find it in the statute or not at all. The
second would say that statute and public policy are contained in
mutually exclusive compartments, the only point of contact between
them being that, quite fortuitously, they relate to the same item of
evidence. The third approach envisages a symbiosis between statute
and common law whereby the statute constitutes a new head of
public policy and common law attributes are absorbed into the
statutory privileges. Although the courts do in fact choose between
the three approaches their choice is seldom explicit, 9 perhaps
because each leads to unfortunate results if indiscriminately applied
in all forensic situations. There is of course one form of interaction
between statute and common law which cannot occur: it is impossible
to tame or trim a statutory privilege proper by reference to the
public interest. Once it is accepted that a true privilege has been
created by statute the common law can only contain or extend, but
never contract, that privilege. Public policy cannot render admissible
what the statute makes inadmissible.
'7Ashworth v. Roberts (1890) 45 Ch.D. 623; Mitovski v. Mandelberg (1890) 6 T.L.R. 207.
Radioactive Substances Act 1960, s.13(3); Town and Country Planning Act 1962, s.212; Water
Resources Act 1963, s.112; Weights and Measures Act 1963, s.48; Land Commission Act
1967, s.89; Sewerage (Scotland) Act 1968, s.50; Trade Descriptions Act 1968, s.28; Biological
Standards Act 1975, s.5; Energy Conservation Act 1981, s.19.
19 For a rare recognition that such a choice exists, see Honeychurch v. Honeychurch 11947]
S.A.S.R. 31, 35.
1. The Statute as Part of the Balancing Process

It is possible to treat every secrecy statute as a factor to be weighed
in assessing the public interest even if it does not itself create a
statutory privilege. This is not, it should be emphasised, a matter of
construing the statute but of using it in applying the common law
rule. Sometimes the secrecy legislation will itself have a balancing
test expressly written into it. Regulation 12 of the Civil Aviation
Authority (Air Transport) Regulations 1972 provides that informa-
tion obtained under those Regulations can only be disclosed where
there is no ". . . disadvantage to the person or body who provided
it, which by comparison with the advantage to the public and the
prospective recipient of this disclosure to him, is unwarranted."
Express incorporation of balancing in the statute is as unnecessary
as it is rare. The fact that parliament has thought certain information
worthy of statutory protection cannot be altogether irrelevant in
deciding whether it should be excluded in the public interest. The
statute is only one policy factor among many. It is never conclusive
and may not even be decisive. (One would expect it to be brushed
aside at a criminal trial, for example.) To use a statute in this way
does not require a slavish adherence to its actual words. (Subtleties
such as the distinction between obtained and furnished may properly
be ignored, for example.) The common law may properly paint with
a broader brush than the statute even when making use of it.
(a) The failed statutory privilege

A statute which falls short of constituting a true privilege need
not therefore be completely devoid of evidentiary effect. Acceptance
of "the court is not a person" argument, for example, need not mean
consigning the statute to forensic oblivion. All of those doubtful
privileges referred to earlier are potentially available as part of the
balancing process. Thus, in Gamini Bus Co. Ltd. v. Commissioner
of Income Tax, Columbo2° the Privy Council, although it described
such a statute as "not primarily a rule of evidence," thought "it
would be very improper to disregard it" when tendering a document
within its provisions. "Their Lordships would strongly deprecate the
production or use of such a document." If, as Lord Reid suggested
in Conway v. Rimmer,2" the courts should be willing to construct
from the mere fact of compulsion an undertaking not to disclose the
information obtained by its use, and in some cases to give effect to
20 [1952] A.C. 571, 579.
21 [19681 A.C.910, 946.
The Cambridge Law Journal [19831
that undertaking, even in legal proceedings,22 should they not give
at least as much weight to an express statutory pledge of secrecy
even if they cannot construe it as a true privilege? Lord Morris in
Norwich Pharmacalseems to recognise this. To him, section 3 of the
Finance Act 1967 was important because it showed: ". . . that the
names of importers come within an area indicated by the legislature
as being one of special sensitivity."23
It was, in other words, a legislative nudge in the direction of
exclusion of which he might have taken heed had not the information
sought been so central to the plaintiffs' case.
The Canadian Supreme Court has taken a contrary view, how-
ever, and would deny such statutes any part whatsoever in the
balancing process. In R. v. Snider it held that a statute either creates
a privilege or it does not. If it does not, it has no evidentiary function
at all.24 This seems also to have been the attitude of Lord Cross in
Norwich Pharmacal. For him, section 3 "had nothing to do with
disclosure under an order of the court for the purpose of legal
proceedings." 25
(b) Statutory oaths and declarations

Section 6 of the Taxes Management Act 1970 requires employees
of the Inland Revenue to make one of the declarations set out in
Schedule 1 to that Act, in which the maker promises not to disclose
information received by him in the execution of his duties except for
the purposes of those duties or for the purposes of any prosecution
for an offence relating to the taxes administered by the Inland
Revenue or in such other cases as may be required by law.
If the obligations undertaken in this declaration had been
imposed directly by the Act, a statutory privilege might well have
been created.2 6 All the more surprising, then, that such judicial
opinion as there is should be so uniformly hostile to the use of such
declarations as an evidentiary bar. This seems as much due to
historical accident as to any considered policy choice. Collectors of
taxes administered oaths of secrecy to their clerks long before there
was any statutory requirement to that effect.2 7 In Lee v. Birrell8
such privately administered oaths were held to be subject to an
implied exception which would allow evidence to be given in a court
I The mere fact of compulsion will not, of course, lead to automatic exclusion London and
County Securities Ltd. v. Nicholson [1980] 1 W.L.R. 948.
1 [1974] A.C. at p. 182.
24 [1954] 4 D.L.R. 483, 487.
1 [1974] A.C. at p.198.
26 The oaths final proviso could be an obstacle here: see, n. 22, p. 123, supra.
27 A statutory oath was first imposed on Revenue Officers in 1918 by s.87 of the Income Tax Act
of that year.
1 (1813) 3 Camp. 337; 170 E.R. 1402.
of justice.2 9 It was easy for judges to adopt the same dismissive

attitude to statutory oaths once they encountered them.
In Hill v. Phelp3 ° a statutory oath taken by the Commissioners in
Lunacy and their subordinates was held to be no bar to the
production of books and records which the statute required to be
kept.3" Subsequent Australian and Canadian decisions have also
refused to let statutory oaths stand in the way of litigants.32 At the
opposite end of the spectrum is the early Victorian case Spong v.
Spong"3 where it was thought that a statutory oath precluded
disclosure in all cases whatsoever. A statutory oath is neither brick
wall nor tissue paper. One would not expect it to apply to information
which had already been published34 or to be used to keep information
from the person it is designed to protect. (Hill v. Phelp might
usefully have been decided on this ground.) Conversely, an oath
could be used estop the Crown from disclosing to suit its own
purposes. (This seems to have been recognised in Lee v. Birrell
where the court thought that the oath required the taker to await a
subpoena before testifying.) It is only where a statute requires the
taking of an oath, however, that the courts should have regard to it.
Public agencies should not be able to set up barriers to forensic
disclosure by executive fiat. That quaint ritual called "signing the
Official Secrets Act," whereby civil servants and government con-
tractors acknowledge that their attention has been drawn to those
Acts and that they understand the likely consequences of disclosure
need not therefore be given any evidentiary effect at 36all 35 (except
perhaps in litigation between the signer and the state).
2. Ousting the Common Law in Exempt Proceedings

An Act which expressly authorises disclosure in legal proceedings,
either generally or in particular cases, can be construed as obliging
the courts to order the disclosure whenever it is asked for in the
course of such exempt proceedings, thereby eliminating common
law balancing so far as the authorised disclosure is concerned. On
this view, if the public agency cannot find its evidentiary protection
2 It is interesting to note that the court did not attack the oath head-on by overriding it on
forensic policy grounds, but chose instead a somewhat forced interpretation of its meaning.
o (1852) 7 Ex. 230; 155 E.R. 929.
31 The case is somewhat inconclusive. The books were produced by the keeper of a private lunatic
asylum licensed by the Commissioners. It does not appear from the report whether he in fact
took the secrecy oath or even whether he was required to do so by the statute.
32 Cowan v. Stanhill Estates (Pty.) Ltd. [1966] V.R. 604, 606; R. v. Vanguard Hutterian Brethren
Inc. [1979] 3 W.W.R. 247, 251, 255.
33 [1914] V.L.R. 77, 80.
' See R. v. Vanguard Hutterian Brethren Inc., n. 32, supra.
35 Nowhere in the Official Secrets Act are such declarations mentioned, much less made
mandatory.
See Bell v. University of Auckland 11969] N.Z.L.R. 1029, 1036.
in the statute it will not find it at all. The only alternative would be
to allow the common law to survive unless expressly abrogated.
There is no room for symbiosis here.
(a) Disclosure authorised in all proceedings

Several secrecy provisions, of which section 21 of the Fire
Precautions Act 1971 is typical,37 strangle the prospect of a statutory
privilege at birth by exempting from their operation disclosures
made "for the purpose of any legal proceedings" (my emphasis).
Nothing in these statutes expressly extinguishes the common law of
Crown privilege in so far as it applies to the information obtained
under the Act. It is likely that these sections were simply intended
to ensure that persons giving or tendering evidence would not lay
themselves open to criminal charges. It is in the highest degree
improbable that they were intended to make the information in
question available to all litigants, irrespective of their need for the
evidence or the importance of the proceedings.
(b) Disclosure authorised in some proceedings only

Where, as the case with most secrecy statutes, parliament has
expressly ordained that the information shall be protected in some
proceedings but not in others, it is possible to argue that this
represents a conscious legislative choice as to the desirability of
disclosure in the exempt proceedings, a choice which cannot be
reopened by the courts. Sometimes the section will be so worded
that no other conclusion is possible. Section 61 of the Sex Discrimi-
nation Act 1975 authorises disclosure in criminal cases or in civil
proceedings to which the Equal Opportunities Commission is a
party, but leaves the court a discretion in all other cases. We must
therefore assume that there is no discretion in the former type of
case. 38 In the absence of such explicit legislative guidance the courts
may be prepared to allow Crown privilege to survive, if not to
flourish, in the interstices of the statutory privilege--or so it would
appear from several Australian cases in which the courts have been
prepared to entertain-although they have not always allowed,
claims of public interest immunity in cases brought under the secrecy
statutes themselves (and therefore outside the statutory privilege). 39
In none of those cases, however, is the issue discussed; and this
3 See also Coal Act 1938, s.53; Wireless Telegraphy Act 1949, s.5; Offices Shops and Railway
Premises Act 1963, s.59; Harbours Act 1964, s.46; Gas Act 1965, Sched. 6, para. 29; Health
and Safety at Work Act 1974, s.28; Fisheries Act 1981, s.12.
3 See also Race Relations Act 1976, s.52(1).
9 Krew v. Commissioner of Taxation (1971) 45 A.L.J.R. 269; L'Estrange v. Commissioner of
Taxation (1973) 47 A.L.J.R. 319; Tomlinson v. Commissioner of Taxation (1974) 24 F.L.R.
314.
writer prefers the view that partial exemption effectively removes

the common law from the scene.
3. Policy Accretions to Statutory Privileges

There will seldom be any need to resort to the common law in
proceedings in which a statutory privilege proper is available to
litigants. It may be, however, that a judge wishes to extend the
protection provided by the statute by applying the common law
prohibitions against waiver and secondary evidence. A proponent of
the "separate compartments" view would say that he could do so
only if the evidence in question would have been privileged inde-
pendently of the statute. Supporters of the "symbiosis" view would
see the statutory privileges as capable of absorbing the common law
prohibitions against waiver and secondary evidence so that they
apply even to information which the common law would have left
unprotected. Those who believe that outside the statute there is no
salvation would have regard to such prohibitions only where the
statute expressly so provided.
(a) Grafting the secondary evidence rule on to the statute
One of the chief shortcomings of the statutory privileges is the
sense of departmental tunnel vision which they display. By protecting
only that information which is in the hands of the departments at
the time the privilege is claimed, the statutes threaten to defeat one
of the chief purposes for which they were enacted: ensuring that
those under a statutory duty to supply information to the state are
not driven to withhold it or distort it by fear of disclosure in legal
proceedings. Suppliers are likely to find the prospect of disclosure
by persons outside the department just as inhibiting as that by those
within it. Nor would suppliers think much of a statutory promise of
secrecy which could be evaded by extracting the self-same informa-
tion from their own records. It is precisely such a cramped and
artificial privilege which the common law prohibition against secon-
dary evidence seeks to avoid.
Can the courts graft the prohibition against secondary evidence
on to the statute, not as a matter of construction but because the
public interest requires that a statute's underlying purpose be not
subverted by allowing or requiring disclosure through persons outside
the department?
Australian' and American41 courts did at one time permit the
secondary evidence rule to be attached to the statute in just this
Honeychurch v. Honeychurch [19431 S.A.S.R. 31; Bridges v. Bridges [19541 Q.W.N. 24.
4' Federal Trade Commission v. Dilger, 276 F.(2nd) 739 (1960); Webb v. Standard Oil Co., 319
P. 621 (1957).
C.L.J.--6
way, and although this approach has now largely been abandoned in
those jurisdictions4 2 it has, in this writer's view, much to recommend
it. It would enable the courts to offer a limited protection at source.
Information which came into existence to comply with a statutory
obligation would be protected. Copies of privileged originals would
also be privileged, but not information which, although it may have
gone into producing those originals, has an independent existence. 43
A supplier of information could not be questioned as to the content
of what he supplied, but copies of documents which the department
seized without warning would not be protected." Again, information
would continue to be protected even after it passes out of the
receiving department into the hands of persons not covered by the
statutory ban on disclosure.45
(b) Statutory waiver inhibited by public policy

Most statutory provisions as to waiver are permissive in form.
They state that disclosure shall not be ordered "except with the
consent of" or "without the authority of" a specified person or class
of persons. These statutes certainly allow such persons to block
disclosure, but can they require it? The statutes can be read either
way. It is accepted that in Crown privilege cases the court itself has
a duty to protect information which the state or other interested
persons may wish to disclose.46 Does the enactment of a statutory
privilege derogate from the court's position as the ultimate arbiter
of admissibility?
(i) Overriding a capricious ministerial waiver

While the court may not traverse a department's reasons for
claiming a statutory privilege, this does not mean that those few
statutes which authorise the Minister to consent to disclosure47 can
be used to punish suppliers of information who have attracted the
department's ire. The court should be able to intervene to ensure
42 Oudman v. Warren (1963) 4 F.L.R. 69; St Regis Paper Co. v. United States, 361 U.S. 208
(1961). The "grafting" approach, although rejected by federal courts in the United States, still
survives in California. See Crest Catering Co. v. Superior Court, 398 P. (2nd), 150 (1965);
Save On Drugs Inc. v. Superior Court, 538 P. (2nd) 739 (1975).
4 Crest Catering Co. v. Superior Court, supra.
Bhaiya Saheb v. Ramnath [1938] A.I.R.(N.) 358.
4' Unless perhaps, it were so widely circulated as to bring the common law prior publication
principle into play (p. 133, supra); although even here it would be possible to argue that
departments should not be permitted to subvert the statute by deliberately publishing the
information (see Sankey v. Whitlam (1979) 21 A.L.R. 505, 531).
4 Hennessey v. Wright (1888) 21 Q.B.D. 509, 518; Chatterton v. Secretary of State for India
[1895] 2 Q.B. 189; Duncan v. Cammell Laird & Co. [1942] A.C. at p. 642; R. v. Home
Secretary, ex p. Lewes Justices [1973] Q.C. 388, 400; Science Research Council v. Nasse' [19801
A.C. 1028, 1066, 1074, 1081 and 1087.
17 See statutes noted n. 58, supra.
that the supplier is consulted and to exclude at least that information

which would be inadmissible at common law. Where, however, as
in section 13 of the Radioactive Substances Act 1960, the statute
clearly envisages that the Minister's consent be an alternative to that
of the supplier, the court would be powerless to override a ministerial
waiver. Nor could the court substitute its view for the Minister's
where the statute provides a48procedure for consulting the supplier
and the Minister observes it.
(ii) Preventing selective disclosure

Selective disclosure can scarcely be in the public interest, whether
it be by Ministers or other persons with an interest in the information.
The common law could be used to prevent the arbitrary editing of
evidence. A judge cannot, of course, order complete disclosure since
this would be to fly in the face of the statute which bans all disclosure
except where consented to. He should, however, be free to exclude
evidence which is so closely linked to the privileged evidence that its
reception would be misleading. If judicial control over selective
claims of privilege is to be effective, it cannot be confined to the
exclusion of evidence whose rejection could be justified indepen-
dently of the statute. It is the misleading effect of partial disclosure,
not the sensitivity of material disclosed, which is in issue.
(iii) Consulting joint interests

Public policy should be flexible enough to ensure that all those
with a legitimate interest in disclosure be consulted before that
disclosure takes place, and not simply the person whose consent the
statute requires to be obtained. Intermediaries would not then be
able to force disclosure on an unwilling ultimate source, nor agents
on their principals. It is true that the court cannot hold the balance
equally. The person specified in the statute can always veto disclosure
against the wishes of other interested persons, however unfairly this
may operate (where, for example, those jointly interested are locked
in litigation).
C. CONCLUSION
The secrecy statutes may have as their wholly laudable aim the task
of ensuring that public employees do not take their role as custodians
of other peoples' secrets too lightly, but their evidentiary provisions
amount to an extreme case of legislative overkill, an exaggerated
responie to forensic threats to those secrets, threats which have
largely failed to materialise.
I Civil Aviation Act 1971. s.36(1).
There are two possible justifications for this heavy-handed (albeit
largely absent-minded) legislative intervention. The first is that it
may be necessary to secure some legitimate public interest in secrecy
which the courts are unwilling to protect, either because of the
binding force of precedent or because of a mistaken view of the
policy factors involved. The second is that the statutes provide
certainty in a notoriously uncertain area of the law, thereby substi-
tuting firm legislative prescription for the rather woolly requirements
of public policy.
So far as the first justification is concerned, in the one area where
the protection afforded by the common law is grudging and
inadequate-personal information about individuals held by public
agencies-parliament has largely been silent.49 It is a strange notion
of legislative priorities which solemnly keeps from forensic view
returns concerning potatoes or pig meat but allows a person's
psychiatric records to be produced with impunity. Most statutory
privileges concern business or financial information and are part of
an unspoken legislative bargain struck between public agencies and
the industries they regulate. Information obtained by statutory
powers is not to be used for the purposes of private enforcement.
The delicate relationship between regulators and regulated can
remain undisturbed by the rude demands of private litigants. But
the truth is that the legitimate concern of commerce and industry
that their trade secrets be kept from competitors is already recog-
nised by the courts and needs no legislative boost. The protection
offered by most statutory privileges is far wider than is necessary to
this end. As regards certainty, while it may be true that the outcome
of common law balancing in a given case is anything but predictable,
the statutory privileges provide rather a drastic cure. The certainty
thus created is all one way. There are few statutes which provide a
right of access to information. The statutes themselves are in any
case far from clear and their scope uncertain. There is little to
choose between the somewhat inexact sciences of case analysis and
statutory interpretation so far as predictability is concerned. More-
over, since the statutes seldom expressly abrogate the rules of public
policy (no doubt because these are viewed by the departments
concerned as a final filter for any secrets which may have escaped
the draftsman's net), vagueness and uncertainty hover over much of
the information which the statutes seek to protect.
The impact of secrecy statutes on the law governing the admis-
sibility of official information is almost wholly pernicious. They
9 Such legislative action as there is in these fields has been by way of delegated legislation:
Adoption Agencies Regulations (S.I. 1959 No. 639); Public Health (Infectious Diseases)
Regulations (S.I. 1968 No. 13661); Abortion Regulations (S.I. 1968 No. 390).
should be forensically neutered, so that they neither abrogate nor

expand the protection available at common law. They could then
revert to their primary function, which is to regulate disclosure
outside the courtroom. If these statutes serve any useful function at
all, it is to stand as a ghastly warning as to what is likely to happen
if an attempt were to be made to recast the whole of the law relating
to public interest.immunity in a statutory form.

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PUBLIC INTEREST IMMUNITY AND

THE rules governing the exclusion of evidence in the public interest

It is to some extent possible to compensate for the paucity of

A. STATUTORY PRIVILEGES PROPER

1. Express Statutory Privilege

various ombudsmen from being called to give evidence as to matters

2. Implied Statutory Privilege

(a) The doubtful privileges

(i) Is the court a person?

a privilege. Again, as has been rightly pointed out, disclosure in

(ii) Is information evidence?

proceedings. 18 The logic is palpably circular, and even if it were not,

(iii) Is there a testimonial duty to disclose?

(iv) Can disclosure to a court be unlawful or improper?

communication by persons present in a polling station of information

(v) Do exceptions demolish or enhance a privilege?

piled under regulation 10 of the Boarding Out of Children Regula-

o [1974] A.C. 133.

they might perhaps have viewed it differently.35 Unfortunately none

(b) The Rowell v. Pratt statutes

under section 17(2) of the Act. This improbable progenitor of a vast

response to them into the statute. Legislative attempts to predict

(a) Waiving the statute

(i) Disclosure with the consent of interested persons

(ii) Ministerial waiver permitted by statute

on which the Minister is to exercise the power it confers, although

(b) Secondary evidence and the statute

(i) No statutory protection at source

Rowell v. Pratt, where the defendant claimed he had kept no copy

(ii) Protection at second hand

(c) The duration of statutory privileges

(d) Proceedings exempt from the statutory privilege

(i) Criminal cases

(ii) E.E.C. obligations

General of Fair Trading.85 ) The effect of the proviso is in fact far

(iii) Cases connected with the secrecy statute itself

agency in connection with its administration of the Act?2 A search

(e) The subject-matter of statutory privileges

(i) Compulsorily obtained or freely given?

provided by a supplier who is aware of his legal obligation to supply

(ii) Information received or facts observed

has himself observed or physical material procured by him directly

(v) Statutory protectionfor trade secrets

B. SECRECY STATUTES AND THE COMMON LAW

1. The Statute as Part of the Balancing Process

(a) The failed statutory privilege

(b) Statutory oaths and declarations

of justice.2 9 It was easy for judges to adopt the same dismissive

2. Ousting the Common Law in Exempt Proceedings

(a) Disclosure authorised in all proceedings

(b) Disclosure authorised in some proceedings only

writer prefers the view that partial exemption effectively removes

3. Policy Accretions to Statutory Privileges