State privilege, protection of information and legal proceedings : notes

Previous case law and legislation have explained the nature of state privilege in terms of its relationship to public policy (ie the reasonable expectation that certain state actions and communications cannot be disclosed as evidence during the course of a trial and that such non-disclosure is in the public interest, or in the interests of justice). Unfortunately, the Promotion of State Information Bill B6B of 2010 omits any reference to the crucial concepts of state privilege and public policy. Current criticisms of the Bill mostly focus on those clauses which penalise the disclosure of classified information by a so-called whistle blower. This note supplements the critical debate by illustrating the very real danger posed by Chapter 12, clause 52 of the Bill, entitled 'protection of state information before courts', to the future development of the evidentiary and procedural principles which define the concept of state privilege.