TNAG-1694-FCO40-2344-Broadcasting-in-Hong-Kong-1987 — Page 83

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Date:

Time:

Reporter:

24.8.87

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11 am

CNB/11

invoked; neither is it sufficient that the interference was imposed because its subject matter fell within a particular category or was caught by a ́legal rule formulated in general or absolute terms; the Court has to be satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it.'

The question is therefore whether the interference with freedom of expression constituted by the Millett injunctions was, on 30 July 1987 when they were continued by this House, necessary in a democratic society in the interests of national security, for protecting the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary having regard to the facts and circumstances prevailing on the 30 July 1987 and in the light of the events which had happened. The continuance of the Millett injunctions appears to me to be necessary for all these purposes.

My lords, in my opinion a democracy is entitled to take the view that a public servant who is employed in the Security Service must be restrained from making any disclosures concerning the Security Service and that similar restraints must be imposed on anybody who receives those disclosures knowing that they are confidential."

Lord Brandon, one of the other Law Lords who delivered a speech in the House of Lords, also referred to Article 10 of the Convention but not perhaps in such detailed and glowing terms as Lord Templeman, and it is on the basis of that that Mr Lester argues that there is a presumption that freedom of speech should prevail and that there is a burden upon the Crown in this case the Attorney to displace that presumption.

Returning to the House of Lords, however, Lord Ackner did adopt the Lion Laboratories approach which received approval from Mr Justice Millett. At page 24 of the decision he said

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and this is Point 7 of the nine points which he made: [Reads] "This case involves an entirely new and highly significant

factor which is of the greatest relevance to the exercise of the court's discretion in considering whether to grant or refuse an injunction pending trial. Mr Justice Millett, in granting the original injunction,

Both and the Vice-Chancellor, in discharging it, proceeded on the same principle which I understand your Lordships accept, that when there is a conflict between the public interest of preserving confidentiality and some other

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