Glasgow Corporation v Central Land Board

Under Scots law, a valid ministerial objection that disclosure of Crown documents would injure the public interest does not conclusively prevent the Court of Session from ordering production. The court cannot review the Minister’s assessment of injury. It nevertheless retains an inherent discretion to override the objection because the fair administration of justice is itself an important public interest.

The power is a real but exceptional safeguard. It must be exercised with great caution after weighing the needs of justice against the accepted injury to public administration. An appellate court will not interfere where the judge declines production on proper principles. A statutory body expressly exercising its functions on behalf of the Crown may invoke Crown protection for its documents.

Glasgow Corporation sought declarator that five development-charge determinations made by the Central Land Board under Part VI of the Town and Country Planning (Scotland) Act 1947 were ultra vires and ineffective. After allowing proof before answer, the Lord Ordinary was asked to grant diligence for recovery of documents concerning the determinations.

The Secretary of State for Scotland certified that specified internal communications, minutes and notes should be withheld in the public interest because their class required protection for the proper functioning of the public service. The Lord Ordinary allowed recovery only of the undisputed documents. The First Division adhered to that interlocutor.

The House considered whether the Board could invoke Crown protection, whether the ministerial certificate conclusively prevented production under Scots law, and, if not, whether the Court of Session’s inherent power should be exercised.

1. Appeal dismissed unanimously. Viscount Simonds, Lord Normand, Lord Radcliffe and Lord Keith of Avonholm held that the Court of Session retained an inherent discretion to override the Crown’s objection, but that the discretion should not be exercised in this case. Lord Somervell of Harrow agreed and particularly associated himself with Lord Radcliffe’s observations.

2. Per Viscount Simonds and Lord Normand, the Central Land Board was entitled to Crown protection. Sections 1(3) and 1(5) of the Town and Country Planning (Scotland) Act 1947 required it to comply with ministerial directions and expressly provided that its functions were exercised on behalf of the Crown. Its public financing and function of determining and collecting charges reinforced that conclusion.

3. Per Viscount Simonds, Lord Normand, Lord Radcliffe and Lord Keith, Duncan v Cammell, Laird & Co determined English law but did not determine Scots law. Its observations about Scotland were obiter and had been made without consideration of the sustained Scottish authority recognising an overriding judicial power. The Scottish rule was also preserved by section 47 of the Crown Proceedings Act 1947.

4. Per Lord Normand and Lord Radcliffe, the court cannot contradict the Minister’s assessment that disclosure would injure the public interest. The reserved power instead permits production despite that accepted injury. It exists because the interests of government do not exhaust the public interest: the fair and impartial administration of justice, including justice between citizen and Crown, is also a public interest of high order.

5. Per Lord Normand and Lord Keith, the power must be used with the greatest caution and only in exceptional or very special circumstances. It is not merely theoretical, but its rare exercise reflects proper respect for the executive’s assessment and the paramount importance ordinarily accorded to public administration.

6. Per Viscount Simonds and Lord Keith, the documents were internal departmental materials of a class generally entitled to protection and were not shown to be essential to the Corporation’s case. No wrong principle or sufficient reason justified interference with the Lord Ordinary’s discretionary refusal. Lord Radcliffe considered the case close to the boundary, particularly because routine departmental candour should not automatically outweigh justice, but agreed that production should not be ordered.

1. House of Lords: Dismissed the appeal and affirmed the refusal to order recovery of the disputed documents.

2. First Division of the Court of Session: Adhered to the Lord Ordinary’s interlocutor allowing recovery only of the undisputed documents.

3. Lord Ordinary: After previously allowing proof before answer, refused diligence for the documents covered by the Secretary of State’s certificate and allowed recovery of the undisputed documents only.