A vital tool in bringing facts to light is the ability to obtain evidence held by strangers to the proceedings. Those laws which make government departments immune from subpoena strike at the root of the ability of the court to get to the truth. Concerns that if the facts come to light they will damage the national reputation, embarrass the government, or embarrass a foreign government, are misconceived. If facts exist that will damage the national reputation or embarrass governments, then it is imperative they be brought to light. Only by uncovering shameful behavior can it be prevented in the future. Issues such as commercial sensitivity, national security, or medical privacy can all be dealt with by:
- having lawyers, judges, parties and juries give enforceable confidentiality undertakings to the court.
- restricting access to genuinely sensitive documents to legal counsel, the judge and the jury.
- where applicable, requiring that the lawyers, judges and jury hold national security clearances.