Scott Inquiry

HL Deb 15 February 1996 vol 569 cc723-40

The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie)

My Lords, with your Lordships' permission, I should like to repeat a Statement being made in the other place by my right honourable friend the President of the Board of Trade, on the Scott Report. I should like to make a Statement about the report published today of the inquiry by Sir Richard Scott, which my right honourable friend the Prime Minister commissioned in November 1992, following the end of the Matrix Churchill trial. "The Government have arranged for the report to be debated in both Houses of Parliament on 26th February. During the past three-and-a-quarter years the inquiry, with the full co-operation of the Government, has received many tens of thousands of pages of documentation from government files and has taken written or oral evidence from 268 witnesses. All Ministers, former Ministers, and civil servants who were asked to give evidence, did so conscientiously and thoroughly. The detailed procedures of the inquiry were left to the discretion of Sir Richard Scott himself.

"The House will realise the diligence with which Sir Richard Scott and his team have scrutinised the events covered by their remit, and for which the Government are most grateful. The report is wide-ranging and detailed, extending to five volumes and some 2,000 pages. In addition, the inquiry will be making available as soon as possible several thousand copy documents.

"The House will recall that the essence of the inquiry, as reflected in its terms of reference, was to establish whether the relevant government departments, agencies and Ministers operated in accordance with the Government's policies and to report on decisions by the prosecuting authority in the Matrix Churchill case and by those signing public interest immunity certificates.

"Let me now turn to the question of whether arms were supplied to Iraq. The report confirms, and I quote: `the Government was not prepared to countenance the supply of lethal equipment to either Iran or Iraq'. Sir Richard Scott goes on to say in his report, and again I quote: 'Ammunition, guns, tanks, bombs, mines and the like were not licensed for export to Iraq. Nor for that matter were they licensed for export to Iran'. "The inquiry also considered whether defence equipment supplied to countries other than Iraq might have been diverted to Iraq's armed forces. During the 1980s some evidence existed that certain other countries might have diverted goods to Iraq. As far as British goods were concerned, steps were taken to counter this. No British arms or ammunition were found in Iraq at the end of the Gulf War. Sir Richard Scott investigated a number of allegations to the contrary and found no evidence for them.

"On more general non-lethal defence equipment, Sir Richard Scott recognises that the Government strove to balance the interests of employment in this country with the objectives of our foreign policy. He makes no criticism of the Government's policy. He does, however, make strong criticisms of what he sees as a lack of openness on this, to which I shall return later. Nevertheless, the Government's restrictive policy on exports is in sharp contrast to many of our international competitors who, during the eight-year conflict between Iran and Iraq, in addition to non-lethal defence equipment, were also content to sell fighter aircraft, guided missiles, munitions and other lethal equipment. This country did not.

"I now turn to the most important reason why my right honourable friend the Prime Minister set up the inquiry in the first place. This is the grave allegation that Ministers, by signing public interest immunity certificates, conspired in a way which could have sent innocent men to prison. Sir Richard Scott's report demonstrates that this allegation is false and without foundation.

"I quote from Sir Richard's words:

`Finally, I must refer to the charges made and repeated in the media that the Ministers who signed the PH certificates were seeking to deprive defendants in a criminal trial of the means by which to clear themselves'. Sir Richard Scott concludes, after over three years of painstaking investigation, that all Ministers who signed PII certificates did so without any impropriety. There is no criticism of them for so doing. There was no attempt to gag. There was no conspiracy to gaol innocent men. Ministers who signed PII certificates did so in the knowledge that the judge was the final arbiter of what should be disclosed to the defence. There is no case for them to answer. As Sir Richard says, and I quote, `The charges to which I have referred are not, in my opinion well-founded'. "This conclusion gives the lie to the many scurrilous comments by honourable Members on the Benches opposite and by many in the media.

"For three years, several of my right honourable friends have had to endure repeated abuse and attacks upon their honour and integrity of the most offensive and unpleasant nature over their signing of public interest immunity certificates. They now stand wholly vindicated by the report.

"As one example, I remind the honourable Gentleman, the Member for Livingston, that he said on 7th November 1995 in respect of the PII certificates—I quote:

`Once again we see Ministers caught trying to cover up their role in arming Saddam Hussein'. The quotation continues: `Not only did they try to arm Saddam Hussein and keep it quiet but they were willing to cover up even at the expense of sending businessmen to court, knowing that those businessmen would be convicted, and knowing that if convicted they might well have gone to prison'. "The same criticisms were made by others on the Benches opposite. As recently as last week, the right honourable Gentleman the Deputy Leader of the Labour Party said, and I quote:

`Next week, we'll have more evidence with the Scott report. Showing how Ministers were prepared to send citizens to jail to cover their own backs'. "There could hardly be a more serious set of charges levelled against Ministers of the Crown; and they are now shown to be utterly unfounded. There was no conspiracy. There was no cover-up. Such charges were reckless and malicious and should never have been made. The House will now expect to hear them withdrawn without reservation.

"Sir Richard Scott has cast his net widely and examined a whole range of issues. He has made recommendations in a number of areas, and he has also made some criticisms. I should like to comment now on the subjects of these recommendations and criticisms, including in particular export control legislation; the law on public interest immunity; the ministerial guidelines on exports; the Matrix Churchill trial; and ministerial accountability.

"The report deals with the legislation which has governed the control of imports and exports since 1939. This legislation has, since the Second World War, served its purpose effectively in allowing controls to be imposed on the import and export of certain categories of goods.

"Sir Richard criticises the continued use of wartime emergency legislation by both Labour and Conservative Administrations over the past 50 years.

"The appellants in the Ordtec appeal in early 1995 challenged the 1939 Act, praying in aid Sir Richard Scott's views which he had first expressed a year earlier. However, in the Court of Appeal hearing on 22nd May, before the Lord Chief Justice, the orders made under the 1939 Act were declared lawful. We will, however, wish to consider further the future arrangements in this area in the light of Sir Richard Scott's comments.

"I turn now to the interpretation of the common law as it relates to public interest immunity. The inquiry has suggested that the law did not support, in the period of the Matrix Churchill and Ordtec trials, the concept that Ministers had a duty to sign public interest immunity certificates nor that these certificates could be used in criminal prosecutions.

"The Government followed well-established case law, backed up by independent legal advice, that Ministers both had a duty to sign PII certificates and that such certificates were applicable in criminal trials. It was then for the judge to decide which documents to release. The Attorney-General took advice on this from independent and eminent counsel and the Government's handling of PII was, incidentally, endorsed by three defence counsel in the Matrix Churchill trial. That PII claims were a matter of duty was supported by authoritative judgments of such distinguished judges as Lord Scarman, Lord Donaldson of Lymington, and Lord Justice Bingham. The applicability of PII to criminal cases had been established by a decision by Lord Justice Mann. It has since been confirmed by a series of decisions of the Court of Appeal presided over by the Lord Chief Justice, Lord Taylor of Gosforth.

"In his report, Sir Richard Scott does not in any way question the personal integrity of the Attorney-General. He does, however, express criticism of the adequacy of the instructions to prosecuting counsel conveying the views of the then President of the Board of Trade, and in particular that the Attorney-General should personally have supervised them. It must be a matter of opinion whether that was something which the Attorney-General could reasonably have been expected to do. Sir Richard does, however, accept the genuineness of the Attorney-General's belief that it was not. In any event it made no difference. The judge exercised his discretion, as the Attorney-General had said he would, and ordered the release of the relevant papers to the defence counsel.

"The Government remain firmly of the view that the advice given at the time to Ministers by my right honourable and learned friend the Attorney-General was correct and there is no doubt he acted throughout with complete propriety and integrity.

"The distribution of intelligence material within and between government departments is an area where the inquiry has found failings to have arisen in the 1980s. We accept that there is substance in this criticism. The report makes it clear, for example, that the junior Ministers who approved the Matrix Churchill licences for which the directors were later prosecuted did so without the benefit of intelligence reports which would have shown the intended military use of the items covered. Sir Richard concludes that the Ministers took their decisions on a false footing, which he makes clear was not their fault. Substantial revisions of procedures have already been made to prevent as far as possible a repetition of such failings. Sir Richard's report recognises that improvements in this area have been made.

"I turn to the Government's policy from the outset of the Iran-Iraq war in 1980. Our policy was to remain neutral in the conflict and not to sell lethal weapons to either side. Further, the Government took steps to ensure that non-lethal defence goods that could have had an impact on the way the war was prosecuted were controlled. In support of that policy, and to assist in its application as events unfolded, a set of guidelines was established in 1984 by my noble and learned friend Lord Howe, then Foreign Secretary.

"The guidelines established that export orders which would, and I quote, 'significantly enhance the capability of either side to prolong or exacerbate the conflict', would not be approved. Following the ceasefire in August 1988, these guidelines had to be applied in changed circumstances. Opportunities for expansion of legitimate trade began to emerge. At the same time, relations with Iran and Iraq were affected by concern over the hostages in Lebanon, human rights in Iraq, the fatwah against Salman Rushdie, the execution of Farzad Bazoft, and the safety of British nationals held in both Iraq and Iran. Ministers and officials were obliged to react to circumstances which were continually changing.

"Sir Richard Scott concludes that, following the ceasefire in 1988 but not before, government policy towards the export of non-lethal military goods changed in a way which, he believes, should have been drawn to the attention of the House. Both Ministers and officials believed at the time that they were applying policy in a way which remained within the existing guidelines and Sir Richard expressly accepts that they were sincere in doing so. However, he does not agree they were correct in their belief. On this basis, he concludes that a number of Ministers' letters and answers to parliamentary Questions were inaccurate because they restated what Ministers understood to be the policy but which Sir Richard believes, in retrospect, had changed.

"Discussion about the guidelines took place on several occasions in late 1988 and early 1989 between junior Ministers and officials at the Foreign and Commonwealth Office, the Department of Trade and Industry and the Ministry of Defence, as the situation developed. Those Ministers reached no settled decision to change policy which they regarded as requiring the approval of senior Ministers or an announcement to this House. As I said, Sir Richard disagrees with them but accepts they were sincere in their belief.

"The crucial issue is whether these junior Ministers intended to mislead this House and the country. Sir Richard gives an unequivocal answer on this. He accepts that the Ministers believed they were avoiding a formal change to the guidelines and that, in holding this belief, they had—to quote his words—no 'duplicitous intention'. In respect of my right honourable friend the Chief Secretary, who was at the time one of the junior Ministers concerned, Sir Richard goes on to say that—and I quote again— 'he did not intend his letters to be misleading and did not so regard them'. My right honourable friend is therefore absolved of the charge that he intended to mislead members of this House or anyone else.

"The House will recall that the Scott Inquiry was set up following the collapse of the Matrix Churchill trial in 1992. Sir Richard has scrutinised this prosecution.

"The inquiry finds no evidence of impropriety in the way in which the Matrix Churchill prosecution was brought. There was no conspiracy and no deliberate withholding of material known to be relevant that might have helped the defence. It is worth emphasising too that the court itself at the time expressed no criticism of the way in which the prosecution, with the advice of independent and well respected counsel, was brought and conducted. But, as Sir Richard Scott says, with the benefit of hindsight this was a trial which ought never to have commenced. I stress, as Sir Richard Scott himself does unequivocally, that this is a judgment with the benefit of hindsight.

"While Sir Richard dismisses the serious allegations of personal impropriety that have been made about the conduct of Government Ministers, there is a continuing line of criticism running through the report of what he describes as the, 'consistent undervaluing by Government of the public interest that full information should be made available to Parliament'. One of his major recommendations is that there should be a review of the long-standing parliamentary convention whereby Questions on certain subjects are not answered or are not fully answered. He recommends that this review should take account of an enhanced need for Ministers to provide full and accurate information to Parliament.

"This subject will form an important aspect of parliamentary consideration of the Scott Report. This Government have made advances in the openness of Government which go beyond the position of any of their predecessors. Nevertheless, it is right that we should debate these issues further in the light of the findings in Sir Richard Scott's report, and the Government are ready to do so. In the light of that debate, the Government will consider whether any amendments to current practice should be made. It would be unrealistic, however, if I did not say at the outset that there are bound to continue to be areas, particularly in the field of international diplomacy and commercial operations, in which a degree of confidentiality will sometimes be necessary.

"Sir Richard Scott's report contains a substantial section of recommendations. The Government have already taken action on a number of the issues on which the inquiry now makes recommendations; for example, on intelligence handling.

"We are able to accept others straight away, such as those relating to export controls and licensing procedures, where a consultation paper will be produced, as Sir Richard Scott recommends.

"Other recommendations, such as those on changes to the law, for example, relating to prosecution practices and the approach to public interest immunity, are technically complex and will need careful and detailed consideration. They will receive it.

"In sum, all Sir Richard Scott's recommendations are under active consideration and a number have already been accepted.

"The House will recognise that the Scott Inquiry has been long, searching and thorough. It will want to consider the report fully and to discuss the issues raised by it. There are lessons to be learned from the inquiry and Sir Richard Scott has made a number of important recommendations which the Government will now pursue. The inquiry has identified areas where systems and procedures can be improved, and these will be closely and urgently studied. The overall picture which emerges is that, while mistakes were made, Ministers and officials acted honestly and in good faith. This country went to enormous lengths rigorously to enforce a self-imposed ban on the supply of all lethal and other offensive weapons to either combatant in the Iran-Iraq war and to remain neutral in the conflict.

"Our policy towards the combatants in that terrible war was sound and principled. It stands very favourable comparison with that of any other nation. It was conducted and sustained throughout with integrity.

"Not only did Britain sell no lethal weapons to Iraq, but as Sir Richard Scott's report makes absolutely clear, neither was there any conspiracy among Ministers to send innocent men to gaol. Those who alleged otherwise should now withdraw unreservedly and apologise to the House and to my right honourable and honourable friends whom they have defamed".

My Lords, that concludes the Statement.

4.8 p.m.

Lord Richard

My Lords, I must confess to a certain sense of anger when I listened to the Minister reading out that Statement. I have not had an opportunity to read the report. I obtained it about 20 minutes ago in the same way as other Members of the House obtained it. But in that very short time that I had before I came into the Chamber I managed to look at three or four sections of the report. I have to say—I shall read it out in due course—that the Statement, and the gloss that has been put upon that aspect of the report, at which, as I say, I have had five minutes to glance, is frankly totally misleading and a travesty of what the report says.

I did not obtain a copy of the report earlier because, as the House will know, I was offered the chance to look at it in a controlled environment at the Department of Trade and Industry in circumstances which I regarded as totally unacceptable and insupportable. I was going to read the letter that I received from Mr. Lang. That is an argument that we have already had in the House, and so I shall read just two sentences from the letter: You will be met in the car park by an official of the Department. This official will escort you throughout your visit. This is for your own convenience and security". I wondered from whom I was going to be secured: hordes of irate civil servants, no doubt, armed with their copies of the Scott Report about to attack the Opposition spokesman in the Lords. You will be escorted to a room in the conference suite where you will be able to read the report. You will be in an adjacent room to that of Mr. Cook as indeed will Mr. Blair. Your escort will be just outside your door". I was then asked to give certain undertakings about the report itself—on disclosure and not to make any copies—which frankly I regarded as totally unacceptable and demeaning.

I hope that the House will therefore understand why I wrote back merely to say that I regarded the suggestions made in their letter as quite outrageous and that I was not prepared to attend on that basis.

That offer was specific, and was designed to achieve a certain object. That object was clear when the Minister read out the Statement. The object is to read out a Statement which bears not a great deal of relation to the substance of the report so that the House, and indeed the country, may get an impression of what is in the report without yet having had any opportunity to read it. I warn the House, as I have done in respect of Government Statements on a number of occasions in the past, that it is terribly important, particularly in the present atmosphere, that one reads the report and does not rely just upon the Statement.

There is not a word in the Statement which the Minister read about the fact that no less than 27 times Parliament was told that the guidelines were not changed. There is not a word in the Statement about the paragraphs in the report which I managed to fish out in seven minutes. Perhaps I may read a paragraph relating to the public interest immunity certificates. It is on page 1396, for those of your Lordships who are prepared to pick up your four volumes and turn to it. It states: Mr. Heseltine had taken his stand, not as a result of any legal analysis which he was not equipped to make, but as a result of an apprehension that justice might not be done if the documents were withheld from the defendants. Such an apprehension on the part of a senior Minister, charged, as is the Government as a whole, with the taking of decisions regarding the maintenance of national security and the promotion of the public interest, raised very serious issues, constitutional and legal, as to the role of PII Certificates in criminal cases. If the responsible Minister does not regard the withholding of the documents from the defence as being in the public interest, what is the function of the PII Certificate that he has, so it is said, a duty to sign?". There is not a word about that in the Statement. That bit was glossed over so as to give it the governmental spin.

I turn to the summary on PII certificates. We were told by the Minister that the Government have been totally exonerated in that regard. During the five minutes that I had, I happened to look at page 1537, which states: In summary, in my opinion, the making of the PII class claims and the preparation and signing of the PII Certificates in the Matrix Churchill case suffered from the following defects: (i) Class claims were made which were not, in my opinion, warranted by authority and which ought to have had no place in a criminal trial". That is the opinion of Lord Justice Scott. The report continues: Mr. Heseltine's reluctance to sign the P1I Certificate in case he thereby deprived the defendants of access to material documents evidenced an instinct for the requirements of justice that was fully justified and corresponded, in my opinion, with the legal principles correctly understood. (ii) The Category B class claims included a number of documents [for claims of public interest immunity] of which no more could be said than that they were confidential and in respect of which, even in a civil case, a PII claim would not, in my view, have been warranted by any of the judicial authorities that have underwritten the propriety of class claims". That is hardly a unanimous acquittal on the part of the inquiry of the Government's handling of the matter. It continues: (iii) Ministers were led to believe that they were not entitled, when assessing whether the PII class claims should be made, to take into account that the documents in question had the degree of materiality in a criminal trial that would, bar PH, have required their disclosure to the defence. (iv) Mr. Heseltine was led to believe that it was his legal duty to make the PII class claim notwithstanding that it was his view that the overall public interest required the disclosure of the documents to the defence". I am sorry that I have not had the opportunity of going through the rest of this fascinating bundle. In view of the brief glance that I have been able to take in relation to chose items I suspect that I shall find some rather interesting ammunition in other parts of the report.

Where do we go from here? We shall have a debate on 26th February and I shall make only two or three simple points. In the end, the whole matter of the Scott Report and government behaviour comes down to two or three relatively simple points. First, were the guidelines changed? The answer to that is clearly yes. Secondly, was Parliament misled? The answer to that is clearly yes. Thirdly, was Parliament misled knowingly and intentionally? I do not quite understand the adverb in that connection. The fact of the matter is that, on the whole, people are deemed to know the effect of their actions. If the effect of the action was to mislead, those who misled must have known that that was what the effect would be. In those circumstances, it seems to me that the Government are culpable.

As regards Matrix Churchill, the issues again appear to be relatively simple. Did the Government know that the company was exporting those machine tools to Iraq? The answer to that is clearly yes. Did the Government try to ensure that the fact that they knew was kept from the trial court? The answer to that is clearly yes. Did the Government use public interest immunity certificates to try to achieve that end? The answer to that is clearly yes.

This is a murky and disreputable affair in which Parliament was misled and defendants were put at risk. Surely someone is responsible, and it is time that he faced up to it.

Lord Jenkins of Hillhead

My Lords, as some of your Lordships will know, under the conditions suggested I too did not think it right to have any access to the report until a few minutes ago. Therefore, I have had no more opportunity to look at it than the overwhelming majority of your Lordships' House, except for some Members of the Government. In those circumstances, I would think it no more appropriate to comment in detail upon the report than I would to review a book which I had picked up in a bookshop and handled for a few minutes. What I can say is that it is very large, very expensive and appears to be nicely printed. I will reserve more serious comments for the debate.

The Government have gone to remarkable lengths to impose a degree of ludicrous and insulting secrecy upon one of the most elite reports in the history of reports. It is extraordinary that in these circumstances the Government should choose this afternoon, through the President of the Board of Trade and the Minister who has repeated the Statement in this House, to make a Statement of considerable length and quite exceptional density, complexity and tendentiousness. I find it very difficult to believe that any noble Lord not having a copy of the Statement in his hand could possibly have told when the Minister was quoting from Sir Richard Scott and when he was giving the ex-parte view of the Government.

I do not propose to pronounce on the detail of the report until I have read it. I did not go through it as much as did the noble Lord, Lord Richard, but it so happens that it almost fell open at page 504, paragraph D4.60. That gives a very different impression from what we have heard this afternoon. One's memory goes back to the presentation of the Franks Report on the conduct of the Falklands War at the end of 1982 or the beginning of 1983. I pay tribute to the press officer of the noble Baroness, Lady Thatcher, because a most successful news operation was mounted, which meant that the immediate impact of that report on the afternoon and evening was very different from that which emerged in subsequent days.

I shall wait until our debate on 26th February to comment in detail. Today I shall confine myself to one comment and one question. My comment is that I never believed that when the report was published a primary objective—certainly not my primary objective—would be to see the heads of Ministers roll. I do not like seeing heads rolling and I believe that the Government ought to cling on to such talent as they have within their ranks. I trust that there will be no discrimination because it would be unacceptable to have discrimination in which the heads of civil servants rolled while the heads of Ministers were sacredly preserved.

A much more fundamental question lies behind that. It is how the Government react to the overwhelming exposure in the evidence—and from what was read out by the noble Lord, Lord Richard, I believe that a good deal will come out of the report—of a culture of excessive secrecy; of a miasma of half truths and occasional untruths; and of the love of an opaque screen, almost for its own sake, about the decision-making process. That has come out in the evidence. That habit has not produced particularly effective government in this country. It has certainly contributed to the alienation of the public from the political process.

I have a very specific question to ask. The noble Lord the Lord Privy Seal told us two days ago that he was not among the Ministers to see an advanced copy, so that is obviously the case. Clear discriminatory and perhaps rational decisions were made as to who should see it and who should not. Will the Minister tell us whether Dr. Mawhinney, the Chairman of the Conservative Party, was among those who received the report eight days ago? Upon that answer will substantially turn whether the advance distribution was in the self-defence of threatened Ministers or for a massive news management exercise in which Dr. Mawhinney is rather pathetically thought to be expert.

Lord Fraser of Carmyllie

My Lords, I wish to deal absolutely head on with the quite disgraceful allegations that have been made about access in advance of publication. As occurred on a previous occasion when the Learmont Report was published, particular arrangements were made for the Shadow Home Secretary which exactly mirrored the timing that was available and the circumstances offered today. What happened was that the Shadow Home Secretary at least had the courtesy to thank the Minister for making those exceptional arrangements.

As regards these arrangements, as I am sure noble Lords appreciate, Lord Justice Scott was insistent that prior to the publication of his report there should be only very limited access. He required that those who were to see the report should be notified to him. When we wished to allow access to both noble Lords who have just spoken, the President of the Board of Trade had to write to Sir Richard Scott to ask to be relieved from his obligation to disclose it to no other persons and we then managed to secure that opportunity.

Furthermore, the secretary to the inquiry headed by Sir Richard Scott wrote back saying: I would be grateful if you would let me have details of the arrangements which you propose for access to this report". He was provided with those details and agreed with the details that were provided. In particular, there was a document that I know was sent to those noble Lords which required a signature indicating that they would not disclose it to anyone else. Those noble Lords, distinguished Privy Counsellors and holders of high political office in the past, seem to have been outraged by that suggestion. I must say, as my right honourable friend has just told another place, that he too signed just such a document. Before I was permitted access to the report, which I saw, I too had to sign such a document.

But one individual who was not given the opportunity to see that report and who was not afforded the opportunity even to give an undertaken of secrecy was the Chairman of the Conservative Party, Dr. Brian Mawhinney. Therefore, no effort was made by the Government to make it impossible for those who wished to have limited access. I hope that noble Lords who have spent so much time on that matter will appreciate that, in describing the events as outrageous in the vernacular, it is they who are rubbishing Scott, not anyone on behalf of the Government.

Lord Richard

My Lords, the noble and learned Lord is telling us how generous the Government were in relation to access to the report. He will know that my right honourable friend the Leader of the Opposition wrote to the Prime Minister suggesting that, far from having the report at 12 noon, access should be given under those terms and conditions at nine o'clock in the morning. Having seen the size of the report, will the noble and learned Lord tell us why that request was not acceded to?

Lord Fraser of Carmyllie

My Lords, if the noble Lord wishes to dig a deeper hole for himself, far be it from me to stop him. But I understand that what we proposed as being the appropriate arrangements were very much what Lord Justice Scott considered to be appropriate.

Of course I appreciate that, even if the document had been available at nine o'clock in the morning, as it has 2,000 pages clearly it would be extremely difficult to do more than skim it. But the point that needs to be grasped is that this is a Statement which accompanies the publication of the report. I believe that I have set out fully and fairly what are the Government's initial reactions to it. I should have thought that it would be welcome and useful to your Lordships' House to have some indication of those recommendations that are accepted without question; those areas on which we think there should be further debate; those areas on which we should go out to consultation; and those areas where we consider that we must, with respect, disagree with Lord Justice Scott. That seems to me a proper way to approach the matter, particularly in view of the fact that we have arranged that on 26th February there will be a full debate on this matter in both Houses of Parliament. We shall then have the opportunity for an informed debate on what is contained in the report.

Perhaps I may deal with two particular matters that were raised by the noble Lords who have spoken. In relation to the PII certificates, I took some time in the Statement to indicate that not only did the Attorney-General have the advice of eminent and independent counsel but he understood that he was following through a clear line of authority. I cited the names of those judges from which that authority was derived.

The short, simple conclusion should be that, had the Attorney-General decided to go against that independent and eminent advice from counsel, he would have been utterly perverse in the discharge of his duties as Attorney-General. Therefore, I invite the noble Lord to study very carefully what is said in the report about public interest immunity because in my heart of hearts I believe that he will probably accept that the view which the Attorney-General took of the law in 1988, 1989 and 1992 would probably be the same as his own.

Lord Richard

My Lords, is it not right that Matrix Churchill was the first case in which class PII certificates had been claimed in a criminal trial?

Lord Fraser of Carmyllie

My Lords, if the noble Lord finds it difficult to read the whole of the report, he may like to read what I said in the Statement, when I gave an indication of where the very issue of class claims was first considered. If the noble Lord does that he will understand what was the law. He will readily appreciate that subsequent to that there has been a development of the law culminating in the recent ex parte Wiley case.

The noble Lord said also that he considered it to be quite clear that the policy set out in the guidelines had changed. I accept that that is one of the central issues in this report. There are two points that I make about that in repetition of what I said in the Statement. First, those three Ministers who looked at it, and looked in particular at the third of the guidelines which referred to significant enhancement and contained the words "in our view", took the view then that they were justifiably using the flexibility contained within those guidelines. Sir Richard Scott does not agree with that view of it, but he says that Ministers who were looking at the matter then did not do so in the belief that they were changing the policy and he said expressly that they did not do so with "duplicitous intention". I hope that I have answered fully the questions put by both noble Lords. But, really, if access is the only matter, it seems to me that that is a thin response to the report.

4.30 p.m.

Lord Callaghan of Cardiff

My Lords, as no one else has risen to speak, I am happy to do so for a moment. It seems to me that the Government have been in power for so long that they simply have no appreciation of the offence that they cause to senior Privy Counsellors who are asked to subscribe to conditions that I regard as being absolutely offensive and demeaning. I fully understand why my noble friend Lord Richard and the noble Lord, Lord Jenkins, behaved as they did. I probably would have done the same.

That is a minor matter in one sense. The other matter I wish to raise is, I suppose, relatively minor. I believe that the Statement we heard repeated is close to an abuse of normal, parliamentary procedure. It was not wholly, as it should have been, a Statement of the Government's reactions to the report. It was an attack on some honourable Members of another place, which is quite out of place in such a Statement. That should have been reserved for the debate. It is clear that the Statement was intended to damage without Members of another place having an opportunity immediately to respond because they were not aware what was in it.

Those two matters are procedural. The third matter I find a little difficult to understand is that, if I understood the noble and learned Lord correctly—I experienced some difficulty in deciding when he was quoting from the report and when he was reading the Statement—Lord Justice Scott came to the conclusion that, when writing letters, the Ministers concerned not only had no intention of deceiving anyone, but also did not realise that there was a difference between what they were writing and the lines of policy that had been laid down.

I am sure that both Ministers will be very relieved at that decision—I would certainly not wish to dissent from anything if that is so—but there is something which puzzles me. Is there any information given in the report, or any reason suggested, as to why a highly intelligent man like Mr. Waldegrave, a Fellow of All Souls and a man of the utmost intellectual distinction, should not have recognised that what he was writing was different from the policy that had been laid down? It seems awfully difficult to understand that someone of that distinction should not recognise the fact that what he was saying was different from the policy to which he had agreed. Is there any explanation?

Lord Fraser of Carmyllie

My Lords, I very much regret if the noble Lord believes that I departed in any way from the practice that is appropriate when repeating such a Statement on the publication of a report. I do not want to weary the House in the limited time available, but I must ask the noble Lord whether, during his time in politics, he can recollect a time of such sustained attacks on Ministers about what might be in a report before it was available to enable anyone to form an opinion? I see that the noble Lord wishes to respond. I give way.

Lord Callaghan of Cardiff

My Lords, I ant much obliged. I believe that the answer is yes. I have in mind the Stanley Report of 1946–47. Anyone who recalls the occasion will remember the sustained attack made upon Hugh Dalton, Mr. Stanley and, indeed, on a number of other people. I must tell the noble and learned Lord in response that it would have been far better and more appropriate if the Government had just published the report and delayed any Statement of theirs for 48 hours so as to give everyone the opportunity to read it.

Lord Fraser of Carmyllie

My Lords, I was aged 18 months at the time, so I hope that the noble Lord will forgive me if I do not remember the report. What had been heralded prior to today's Statement by those on the Opposition Benches in another place was that the report would clearly reveal that a number of Ministers had acted in such a way that their resignations ought to be instant. In such circumstances, it seems to me entirely appropriate that, in putting forward a Statement on behalf of the Government, a number of observations in the report by Lord Justice Scott should he highlighted which, far from attacking the integrity of those Ministers, make it quite clear that their conduct remains unimpeachable.

I am also concerned that the noble Lord indicated that he would not have been prepared to submit to the type of conditions that were asked of those who wanted access to the report prior to its publication. I can only repeat that they were not conditions and an approach simply dreamt up by an officious government; indeed, it was what was required of government by Sir Richard Scott who headed up the inquiry. It was in those circumstances that not only were those noble Lords on the Benches opposite invited to sign the document, but so also was the most senior member of Her Majesty's Government, the Prime Minister, who signed such a certificate without demur.

Lord Campbell of Alloway

My Lords, in view of the remarks made by the noble Lord, Lord Richard, can my noble and learned friend the Minister confirm that the Attorney-General correctly advised Ministers that it was their responsibility, and hence their duty, to decide whether to claim immunity and not to usurp the functions of the judge who decided later, having read all the documents, whether they should be disclosed in the public interest? Can my noble and learned friend also confirm that there was no reason—and, indeed, not one has been found in the report which none of us has read—which would lead one to suppose that it would have been right for the Attorney-General to have taken over the personal supervision of a Customs and Excise proceedings?

Can my noble and friend also confirm that, contrary to the suggestion in The Times today, the Attorney-General made no attempt to influence the decision of the Ministers, nor did he make any attempt to influence the decision of the judge? I found the relevant passage in the report by chance. It is to be found on page 1361 of Volume III at G13.76. It says that there was no cause for the Attorney-General to read the documents which would be read by the judge and that he did not do so. In those circumstances, any suggestion of impropriety on the part of the Attorney-General was wholly without foundation.

Lord Fraser of Carmyllie

My Lords, as I indicated when repeating the Statement, there is certainly no attack on the personal integrity of the Attorney-General. I believe that I spelt out in some detail the basis upon which the Attorney-General proffered advice to those Ministers who had to sign PII certificates. In the ensuing circumstances, it seems to me that the law followed through its course exactly as might have been expected: the PII certificates were signed; they were submitted to the court; the court deliberated upon them and ruled on a significant number of them. The outcome of the ruling by the court was that the decision regarding most of the documents in respect of which public interest immunity had been claimed was overturned. The documents were then handed over to the defence counsel in the trial. As I revealed earlier, three of the defence counsel accepted that the way the Government handled the PII certificates was indeed correct. If the Attorney-General had acted other than he did, I believe that it would have been perverse.

However, there is one criticism of the Attorney-General which was spelt out by Sir Richard Scott. He was concerned that, given Mr. Michael Heseltine's particular views on the subject matter in respect of which he was invited to sign a certificate, the Attorney-General should have made sure that those views were conveyed to prosecuting counsel. I indicated that it is a matter of opinion whether someone in the position of the Attorney-General could have been expected reasonably to have done just that. That is a matter for debate. However, I wish to stress that Sir Richard was in no doubt that the Attorney-General was honest in his belief that it was not for him to do that, and indeed his workload was such that he would be overburdened if he tried to take on that sort of task on every occasion.

Lord Mishcon

My Lords, I appreciate, as I am sure all Members of your Lordships' House do, that it is really useless to comment on the Statement in so far as it refers to the report until we have had an opportunity of reading the report. I wonder whether the Minister can deal, however, with one question. I imagine that he and his colleagues are extremely satisfied with the fair conduct of the inquiry by Sir Richard Scott. I pause to see whether or not the Minister nods his head. I invite him to nod his head. Does the fact that he does not nod his head mean that he does not agree that Sir Richard Scott conducted this inquiry in that way, or is he as wary of making any reply, committal or non-committal, as seems to be the case on this occasion with many of the questions that we have in our minds? I ask him this: if he is content with the fair conduct of this inquiry by Sir Richard Scott, can he explain the conduct of his senior colleagues, past Ministers of Her Majesty's Government, in criticising Sir Richard Scott, as they have done in the media and elsewhere, in the way that, quite honestly, no serious and responsible person could without even having read the report? Was the criticism, for example, of the noble Lord, Lord Howe, and others of his colleagues made on the basis that they thought that the report would be rather more critical of them than it was? Is this the way to treat Her Majesty's judges, and certainly one of the most senior and fine judges that the country has the privilege of having?

Lord Fraser of Carmyllie

My Lords, the noble Lord can scrutinise Hansard tomorrow and read my subsequent remarks. I defy him to find anywhere in my words any personal criticism of Lord Justice Scott. Certainly it is no part of my purpose in responding to questions on this Statement to offer any such criticism. On the contrary, I began by indicating to your Lordships that those who have the opportunity to read this full report will appreciate the extraordinary diligence with which he undertook his task. The noble Lord will appreciate from the Statement that there are a number of matters on which Lord Justice Scott made recommendations which are accepted. There are criticisms which he made that are accepted, and there are a number of issues where, with respect, we do not agree with Sir Richard Scott. That seems to me to be a perfectly responsible position for us to hold, and it is one which we can debate on 26th February.

I have no doubt that my noble friend Lord Howe is more than able to explain his own views on the fairness or otherwise of the procedures followed by Sir Richard Scott's inquiry. I would simply say that I certainly acknowledge it has been carried out extremely thoroughly. I have not come across anything that I would consider to be, in a crude fashion, unfair. As I say, there are passages with which I do not agree, not least as regards Sir Richard's interpretation of some parts of the law. However, what is interesting and valuable in the report—which no doubt will be of particular interest to the noble Lord—is that Sir Richard considers whether the six cardinal principles set out in Salmon ought to be applied in each and every circumstance where there is an inquiry. He explains forcefully and robustly why he does not believe the right to cross-examination should be afforded on every occasion. I have no doubt that, independent of the substance of this report, the way he has approached that particular issue will certainly give rise to a great deal of debate and interest among lawyers.

Lord Tebbit

My Lords, is my noble and learned friend aware that when I picked up my copy of this report a few moments ago I fell into the familiar trap of most politicians when considering a book or publication about politics; namely, I looked for references to myself? I discovered that I am accused, on page 73, of a reprehensible abuse of executive power in the course of carrying out my duties as President of the Board of Trade. Does my noble and learned friend suggest that I should be more upset at that accusation than comforted by the fact that it is also made against my noble friend Lord Cockfield, the noble Lord, Lord Mason, the late John Smith, Sir Edward Heath and Mr. Peter Shore, to name but a few of the 15 who were accused of abusing executive powers? Does that not make the report slightly extraordinary?

Lord Fraser of Carmyllie

My Lords, I take it that my noble friend is referring to the occasions on which the powers that were available under the 1939 Act were exercised. It is certainly the case that on repeated occasions since the previous war that measure has been used by successive governments. It was a matter that was open to challenge. It was challenged in the Ordtec trial and a decision was made in the Court of Appeal. Notwithstanding the fact that the court upheld the legality of the orders made under the 1939 Act, we should like to look again at the whole issue in the light of the observations that have been made. However, my noble friend might remember that when the particular provisions of the 1939 Act ceased to be temporary and became permanent, that was done with the agreement of the Opposition, and the absence of any provision for even the negative resolution procedure was omitted from the Act with the knowledge and, indeed, possibly, at the instigation of the Opposition.

Lord Harris of Greenwich

My Lords, I wish to ask the noble and learned Lord one question arising from the Statement. He referred to the Learmont Report as being in some way analogous with the one we are discussing. Is he aware that that is a nonsensical comparison? The Learmont Report was a limited report on prison security. It raises none of the issues of the Scott Report and therefore the comparison he made in justifying, or attempting to justify, these strange distribution arrangements really does fall pretty flat.

However, on the question of the distribution arrangements, I return to the point made by the noble Lord, Lord Richard. As I understand it, the Government's case is that everything they have done in relation to the distribution arrangements is entirely because of the views of Sir Richard Scott. That is their position, as I understand it. That being so, I ask the noble and learned Lord one question. The noble Lord, Lord Richard, referred to a letter from the Leader of the Opposition in the House of Commons to the Prime Minister in which he asked for these reports to be made available at nine o'clock in the morning. Can I take it that Sir Richard Scott was consulted on that point? Can I also take it that he was opposed to it? Is that the Government's position?

Lord Fraser of Carmyllie

My Lords, it is certainly my understanding that when the suggestion was made that it should be made available from lunchtime, or twelve o'clock, he was in agreement with that. I certainly understand that to be his view. I did not suggest that the Learmont Report was, in terms of physical size, like this report. I referred to the Learmont Report to point out that on that occasion an exceptionally long period of consideration was allowed prior to the Statement. That decision was viewed with gratitude in another place. There have been many larger reports published as parliamentary papers where the period allowed to Opposition spokesmen for consideration has been much shorter than the time permitted on this occasion. It was only for that limited purpose that I made that observation.

Lord Barnett

My Lords, would it be fair to assume, following the noble and learned Lord's 20 minute repetition of the Statement made in the other place after more than three years' work by Lord Justice Scott, which has resulted in a report of 1,800 pages, that there is nothing wrong at all and everything is okay?

Lord Fraser of Carmyllie

My Lords, that is not a fair summary of what I said in the Statement. I recognised that on a number of matters, including the handling of intelligence, there were problems with procedures. I indicated that had those procedures been better it is likely that a different view would have been arrived at in the Matrix Churchill case. I also indicated that on a number of matters it would be appropriate to go out to consultation. I made it quite clear that there was a set of criticisms. I certainly did not indicate that there were no difficulties whatever

What I did set out—and I make no apology for doing so, given the outrageous accusations that have been made against a number of my right honourable and honourable friends in another place—was that this was an entirely suitable occasion to demand of those who have made those accusations, without having seen the report, that they withdraw them unequivocally.