“the decision of the Court of Appeal cannot be supported”

Interesting news from the House of Lords on a long-running case involving a 2004 High Court ruling, by Mr Justice Girvan, and a subsequent 2005 Appeal Court ruling in favour of the Parades Commission, which touches on best practice in government and “the obligation resting on a public authority to make candid disclosure to the court of its decision making process” – [which has been mentioned in a similiar context – Ed]. The Law Lords have unanimously ruled, in a case brought by David Tweed, to overturn the Appeal Court ruling, that the original High Court ruling was mostly correct, and that the five documents requested by summons, but only provided in summary by the Parades Commission, in 2004 should be disclosed “in the first instance to the judge alone.”There are more detailed arguments in the Opinion from Lord Carswell in particular, who states

37. The Court of Appeal concluded (in paragraphs 22-23 of the judgment of Morgan J which I quoted) that the validity of rule 3.3 of the Commission’s procedural rules required to be ascertained before the extent of disclosure of documents could be settled. Girvan J expressed the view, however, in the High Court that the interests of justice could, if it were required, override the provisions of rule 3.3. He said at paragraph 8 of his judgment:

“[8] There are issues as to whether para 3.3 of the Procedural Rules are [sic] invalid and or whether the application of the rule involves an unfair procedure for determination of the issue which the Parades Commission had to determine. Discovery of the relevant documents would not be necessary for the determination of that legal issue. Para 3.3, if read as subject to an overriding power of the court to direct disclosure of documents if disclosure is necessary in the interests of justice, would not in itself preclude an order [for] disclosure if that is required in the interests of justice. The court would in that event have to determine whether it would be appropriate to direct discovery taking account of the fact that information in evidence was gathered on the basis that it would be treated as confidential. It would, in my view, require clear words to preclude the court from ordering disclosure of documents when [ex] hypothesi it considers that the interests of justice so require. Para 3(3) falls to be construed and applied in the context of rules made to explain how the court will exercise its statutory functions. It does not govern proceedings to challenge determinations in which a court is called on to review the legality of the way in which the Commission has exercised its functions, particularly where the court is required to take account of Convention rights. Accordingly, I conclude that there is nothing in para 3(3) which precludes an order for discovery, if otherwise appropriate. Insofar as the documents contain information obtained confidentially the protection of confidentiality may be achievable by limited redaction. Confidentiality, on its own, would not prevent an order for disclosure if the interests of justice are required and there is no public interest which requires that the documents should not be disclosed.”

I am in complete agreement with these propositions, the correctness of which was properly conceded by Mr McCloskey QC on behalf of the Commission. The court will clearly pay regard to the fact that statements and opinions were given to the Commission and its representatives on receipt of assurances of confidentiality and the importance of maintaining that flow of opinions and information in the future. It will no doubt seek to cause minimum disturbance to that confidence when assessing the requirements of justice in disclosure of the documents sought, bearing in mind always the principles laid down by the House in Science Research Council v Nassé [1980] AC 1028. It follows accordingly that the decision of the Court of Appeal cannot be supported and that the question of disclosure can be considered without waiting until the validity of rule 3.3 is the subject of adjudication.[added emphasis]

but here’s the opinion of Lord Bingham, which sets out the House of Lords ruling in a straightforward manner

LORD BINGHAM OF CORNHILL

My Lords,

1. As explained by my noble and learned friends Lord Carswell and Lord Brown of Eaton-under-Heywood (to whom I am indebted for their exposition of the relevant facts, the history of the proceedings, the relevant legislation and rules and the authorities), the issue in this appeal is whether discovery of five documents held by the Parades Commission should be ordered for purposes of Mr Tweed’s application for judicial review, to the extent that such application turns on a proportionality argument under the Human Rights Act 1998 and the European Convention on Human Rights.

2. The disclosure of documents in civil litigation has been recognised throughout the common law world as a valuable means of eliciting the truth and thus of enabling courts to base their decisions on a sure foundation of fact. But the process of disclosure can be costly, time-consuming, oppressive and unnecessary, and neither in Northern Ireland nor in England and Wales have the general rules governing disclosure been applied to applications for judicial review. Such applications, characteristically, raise an issue of law, the facts being common ground or relevant only to show how the issue arises. So disclosure of documents has usually been regarded as unnecessary, and that remains the position.

3. In the minority of judicial review applications in which the precise facts are significant, procedures exist in both jurisdictions, as my noble and learned friends explain, for disclosure of specific documents to be sought and ordered. Such applications are likely to increase in frequency, since human rights decisions under the Convention tend to be very fact-specific and any judgment on the proportionality of a public authority’s interference with a protected Convention right is likely to call for a careful and accurate evaluation of the facts. But even in these cases, orders for disclosure should not be automatic. The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.

4. Where a public authority relies on a document as significant to its decision, it is ordinarily good practice to exhibit it as the primary evidence. Any summary, however conscientiously and skilfully made, may distort. But where the authority’s deponent chooses to summarise the effect of a document it should not be necessary for the applicant, seeking sight of the document, to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document. It is enough that the document itself is the best evidence of what it says. There may, however, be reasons (arising, for example, from confidentiality, or the volume of the material in question) why the document should or need not be exhibited. The judge to whom application for disclosure is made must then rule on whether, and to what extent, disclosure should be made.

5. In the present case, Mr Tweed has obtained leave to apply for judicial review on grounds which include a challenge to the proportionality of the Commission’s interference with his claimed Convention rights. The Commission’s deponent has summarised five documents which Mr Tweed wishes to see. Disclosure is resisted on the ground that this would breach the assurance of confidentiality given to the Commission’s informants. Like my noble and learned friends, and for the reasons they give, I would order that the five documents in question be disclosed by the Commission, in the first instance to the judge alone. He will assess whether the documents appear to record information imparted in confidence by identified informants. If not, he is likely to order disclosure to Mr Tweed, since there will be no reason not to do so. If they do appear to disclose such information, he must consider whether the documents add anything of value to the summaries in the evidence. If not, that will be the end of the matter. If he judges that they do add something of value to the summaries, he will move on to consider the submissions of the parties on redaction and, if raised, public interest immunity.[added emphasis]

6. I would allow the appeal and make the order which my noble and learned friends propose.

The list of documents to be disclosed is

“1. The Form 11/1 received by the Respondent dated 9 March 2004 and referred to in paragraph 6(i) of Sir Anthony Holland’s affidavit of 29 July 2004.

2. The facsimile transmission received by the Respondent from the police and referred to in paragraph 6(ii) of Sir Anthony Holland’s affidavit of 29 July 2004.

3. The police report received by the Respondent on 24 March 2004 and referred to in paragraph 6(iii) of Sir Anthony Holland’s affidavit of 29 July 2004.

4. The situation report received by the Respondent from its Authorised Officers on 24 March 2004 and referred to in paragraph 6(iv) of Sir Anthony Holland’s affidavit of 29 July 2004.

5. The note provided by the Commission’s Secretariat to the Commission members dated 30 March 2004 and referred to in paragraph 6(v) of Sir Anthony Holland’s affidavit of 29 July 2004.

6. The further situation report provided to the Respondent by its Authorised Officers on 2 April 2004 and referred to in paragraph 6(vi) of Sir Anthony Holland’s affidavit of 29 July 2004.”