Chapter 7
Disclosure and public interest immunity


7.1This chapter addresses the particular issue of public interest immunity, which is a limitation on the Crown’s obligation for disclosure established under Crown proceedings legislation. This is followed by a brief discussion of other disclosure issues.

7.2Section 27 of the Crown Proceedings Act 1950 addresses the discovery of information in civil proceedings involving the Crown. There is an important intersection with the doctrine of public interest immunity, whereby the production of documents may be refused if disclosure would be injurious to the public interest. An assertion of public interest immunity is made by the executive. It consists of a statement that the disclosure of certain information in proceedings is against the public interest, although it would otherwise be part of the discovery. The existence of public interest immunity is acknowledged in the proviso to section 27(1) and in section 27(3) of the Crown Proceedings Act.

7.3The law on public interest immunity, and in particular the operation of section 27 of the Crown Proceedings Act, is currently unclear. Any replacement of the Crown Proceedings Act will need to address public interest immunity. For the Law Commission to recommend replacement of section 27, we need to give consideration to the proper place for requiring the Crown to discover documents for court, over and above any other obligations to disclose information through regimes like the Official Information Act 1982.