HC Deb 18 December 1996 vol 287 cc949-58 3.30 pm
The Attorney-General (Sir Nicholas Lyell)

With permission, Madam Speaker, I should like to make a statement on the future of public interest immunity in relation to Government documents as it operates in England and Wales, in the light of the consultation following publication of the Scott report. My noble and learned Friend the Lord Chancellor is making a similar statement in another place.

The Government are committed to the principle that there should be the maximum disclosure consistent with protecting essential public interests. The House will recall that the law that prevailed at the time of the Matrix Churchill case was further developed by the House of Lords case of ex parte Wiley in July 1994. Since that case, Ministers have had a gener al discretion to disclose documents without the prior approval of the court, if they consider that to be in the overall public interest.

Against that background, it is the view of Sir Richard Scott that legislation on public interest immunity is neither necessary nor desirable, and the Government agree. Public interest immunity is needed because of the potential conflict between two important public interests—the clear public interest in the administration of justice, which in a criminal case is the fair trial of an accused, and what is sometimes also the clear public interest in the confidentiality of certain documents or information.

The House will bear in mind the fact that the so-called immunity is subject to the ruling of the court, and that, in a criminal case, when Government documents are in issue, the judge himself examines any such document and makes the actual decision on disclosure in the light of the facts of the case.

In their proposals for the future, the Government have had particular regard both to the recommendations of Sir Richard Scott and to the many responses received during the consultation process. The Government's conclusions represent a new approach, which is set out in a paper today being placed in the Libraries of both Houses.

Under the new approach, Ministers will focus directly on the damage that disclosure would cause. The former division into class and contents claims will no longer be applied. Ministers will claim public interest immunity only when it is believed that disclosure of a document would cause real damage or harm to the public interest.

That new approach constitutes a change in the practice to be adopted by Ministers, but fully respects existing legal principles, as developed by the courts, and is subject to the supervision of the courts. It also accords with the view expressed by the present Lord Chief Justice that public interest immunity should only be claimed for the bare minimum of documents for which the claim of serious harm can be seen to be clearly justified". The Government intend that the test shall be rigorously applied before any public interest immunity claim is made for any Government documents. It is impossible in advance to describe such damage exhaustively. The damage may relate to the safety of an individual, such as an informant, or to a regulatory process; or it may be damage to international relations caused by the disclosure of confidential diplomatic communications.

Normally it will be in the form of direct and immediate harm to, for example, the nation's economic interests or our relations with a foreign state. In some cases, it may be indirect or longer-term damage to which the disclosure of the material would contribute, as in the case of damage to a regulatory process. In any event, the nature of the harm will be clearly explained.

This new, restrictive approach will require, so far as possible, the way in which disclosure could cause real damage to the public interest to be clearly identified. Public interest immunity certificates will in future set out in greater detail than before both what the document is and what damage its disclosure would be likely to do—unless to do so would itself cause the damage that the certificate aims to prevent. That will allow even closer scrutiny of claims by the court, which is always the final arbiter.

The new emphasis on the test of serious harm means that Ministers will not, for example, claim PII to protect either internal advice or national security material merely by pointing to the general nature of the document. The only basis for claiming PII will be a belief that disclosure will cause real harm.

In relation to national security, the Government's approach takes into account the types of information that Parliament defined as sensitive in the Intelligence Services Act 1994, although, as I have said, a document will not attract PII simply because it falls into a pre-defined category. Many public interest immunity claims are not the responsibility of Government. Although the Government believe that their approach can be applied more widely, the paper placed in the Library only restricts Government claims.

I am grateful to all those who have contributed to the debate and taken the trouble to respond to the consultation exercise in this complex area. A combination of the revised regime laid down by the House of Lords in ex parte Wiley and the Government's new approach should ensure that PII claims will be significantly less frequent in future. I repeat that any claim in a criminal case will always, in the end, be subject to review by the court itself.

I believe that those factors, combined with the new test based on serious damage, which I have described and which is set out more fully in the paper today being placed in the Library of each House, provide what should prove a sensible, balanced and effective regime for the future; and I commend it to the House.

Mr. John Morris (Aberavon)

I am grateful to the Attorney-General for coming to the House to explain the Government's conclusions on the consultations that he set up as long ago as last February—although it has taken a little time. The House will also need time to react properly, and to study his paper that is now in the Library.

First, will the right hon. and learned Gentleman confirm that the application of his conclusions to Ministers will not affect the run-of-the-mill informant case and the need to protect such information? Secondly, will he clarify whether—and, if so, where—he departs from the substance of Sir Richard Scott's conclusions? Thirdly, does the abolition of the distinction between class and a contents claim mean effectively—particularly in criminal cases—that only contents claims will be made in future, whatever label they may or may not have?

Fourthly, when the Attorney-General refers to a claim being made only where there is real damage or harm to the public interest, does that mean the same as Lord Templeman meant in Wiley's case when he referred to "substantial" harm to the public interest?

Fifthly, do the Attorney-General's conclusions in adopting Wiley mean that the effect is a wholly new approach by Government? Does he expect that the claims will be made only rarely in criminal cases, and that Ministers will have to judge for themselves in each particular case whether to claim and the width of such a claim, having regard to the possibility of editing?

Sixthly, I welcome the right hon. and learned Gentleman's response to Scott. Ministers should have more time to consider their position, and should not have to consider matters overnight, which was the position in which the right hon. Member for Watford (Mr. Garel-Jones) was placed.

Having had a little experience of the urgency of dealing with red boxes, may I ask how this will operate in practice? What is the bottom line of this new approach? Will the more rigorous approach in civil or criminal cases, together with the effect of new legislation, radically reduce the number of claims? Will claims be made only in exceptional cases, after personal examination by Ministers and, where appropriate, a further check by the courts?

Lastly, can we properly anticipate that, when the liberty of the subject is involved, and when a person may go to gaol or receive other punishment, the chances of a wrong decision will be virtually eliminated? When second thoughts occur about a decision that is adverse to an individual, will the Attorney-General instruct those prosecuting to have no hesitation in withdrawing a criminal case, at whatever stage, if documents that may be of assistance to the defence have been withheld?

The Attorney-General

I am grateful to the right hon. and learned Gentleman for the welcome that he gave to the substance of the report, and for the way in which he put his questions, which I shall answer in the order in which he raised them.

I confirm that the new approach will not affect run-of-the-mill cases. The right hon. and learned Gentleman has had great experience in that area, and he knows that, in non-government cases involving police reports, informants and so on, the system works well. Although the courts may choose to adopt some of the practices that the Government are adopting, that will be a matter for them. Those practices will not be forced on them, and I expect the system to continue much as before in run-of-the-mill cases.

Secondly, I confirm that the departure from the previous position relates to the old distinction between class and contents claims and the new emphasis on real harm or real damage. It is not helpful to say that they are all contents claims rather than class claims. Class reasoning may be said to operate in some claims. if that is so, it will be clearly explained in the certificate. In every case, the Minister will have to be satisfied that real harm—which is the same as serious harm or serious damage—would be caused.

That brings me to the right hon. and learned Gentleman's fourth point, about whether "real damage" means the same as "substantial harm". In the words of Lord Templeman in the ex parte Wiley case, the straight answer is yes.

The right hon. and learned Gentleman's next question was whether there will be fewer such cases in future, following the new approach and the ex parte Wiley case in 1994. He made that point in a number of forms in his last three questions. The straight answer is that I believe that there will be significantly fewer cases.

In fact, the change in the law declared in ex parte Wiley was extremely helpful, because it gave Ministers a discretion where previously there had been an element of rigidity through the need to leave anything except a clear case to the court. For that reason, the number of occasions after 1994 on which public interest immunity certificates had to be used by Ministers was already lower. I am confident that the number will continue to be low in future.

I confirm that the approach is more rigorous. We recognise the importance of giving adequate time. The right hon. and learned Gentleman rightly referred to that: he knows something of the pressures, and I claim to know something of them myself. As the courts in recent criminal cases always looked at the documents, the chances of a miscarriage of justice were happily small.

I can assure the right hon. and learned Gentleman, first, that the court will always continue to see such documents in criminal cases, and secondly that it is one of the key tenets of the prosecution always to keep any prosecution under review. If material emerges that shows that a prosecution ought not to continue, it will then be stopped.

Sir Archibald Hamilton (Epsom and Ewell)

I congratulate my right hon. and learned Friend on introducing measures that will certainly give public interest immunity certificates a much better public image. He told us, however, that the judge would make the decision on disclosure. In the light of that, can he tell us whether there have been any miscarriages of justice as a result of the issue of ministerial public interest immunity certificates?

The Attorney-General

I am certainly not aware that any miscarriages of justice have arisen from the issue of a ministerial public interest immunity certificate.

Mr. Menzies Campbell (Fife, North-East)

I welcome what the Attorney-General has told the House, so far as it follows the recommendations in chapter 5 of Sir Richard Scott's report. Can he confirm, however, that, notwithstanding his announcement today, if the procedures that he has outlined had been in place at the time Ministers, could well have signed public interest immunity certificates in the Matrix Churchill case?

Will the Attorney-General also tell the House what his role is to be hereafter? He will recall that Sir Richard Scott was critical of a failure on his part to advise prosecuting counsel to advise, in turn, the judge in the Matrix Churchill case of the reservations of the then President of the Board of Trade when he was called on to sign public interest immunity certificates. Where in the proposals that the Attorney-General has outlined today are the procedures to prevent that from happening again in the future?

The Attorney-General

The hon. and learned Gentleman asked whether, under the new procedure, Ministers might still have signed public interest immunity certificates in the Matrix Churchill case. Yes, I expect that there would have been some certificates. They would have covered fewer documents, but they would have been perfectly properly signed—as, indeed, they were properly perfectly signed under the law as it stood at the time.

That brings me to the hon. and learned Gentleman's second question. There was a disagreement between SirRichard Scott and myself as to the law that was understood at the time. Sir Richard clearly and courteously set out his findings in his report.

On that issue, the House will recall—certainly it will be recalled by the hon. and learned Gentleman, who will have read the report of the debates in the House of Lords—that, while there has been no judicial ruling on the matter, all six Law Lords and former Law Lords who participated in the debate took the view of the law that I had given, and expressly endorsed it. Lord Ackner made that abundantly clear in another place.

Sir Richard Scott himself was good enough—in the House, before the Public Service Committee in May—to make it clear that points made by Lord Ackner, who said that he might have failed to distinguish between the law as it then stood and the law as he thought that it ought to have been, perhaps contained an element of truth. I am very grateful to Sir Richard for saying that.

Sir Ivan Lawrence (Burton)

I congratulate my right hon. and learned Friend on getting it right over Matrix Churchill, and welcome the clarification, simplification and improvement of a very complicated area of the law as far as Ministers are concerned. Will he, however, reassure the public that, at the end of the day, it will still be up to the good sense of an independent judiciary to decide whether a public interest immunity certificate should be upheld?

The Attorney-General

My hon. and learned Friend makes a crucial point, which applied in the Matrix Churchill case and applies today. In any criminal case in which public interest immunity is claimed by a Minister of the Crown, the judge will always see the documents, and in the end it will be the judge who decides whether there is any question of withholding such a document from disclosure.

Mr. Kevin McNamara (Kingston upon Hull, North)

I am grateful to the Attorney-General, who has thrown a very positive light on the issue of public interest immunity certificates, but may I turn his attention to his other responsibility, as Attorney-General for Northern Ireland?

May I ask about the role of public interest immunity certificates in coroners courts in Northern Ireland? Will coroners there have the same powers in relation to those certificates as an ordinary member of the judiciary? As juries' verdicts in Northern Ireland are based on evidence, the withholding of information by either the Royal Ulster Constabulary or the Ministry of Defence from coroners' juries can cause severe damage not only to the public interest but to the interests of individuals in Northern Ireland.

The Attorney-General

As I am sure the hon. Gentleman is aware, law and practice in Northern Ireland have developed differently, as indeed they have in Scotland. That is why I was careful to say at the beginning of my statement that the new approach that I have set out applies to England and Wales. The law will continue to be developed in Northern Ireland by the judiciary.

Mr. Peter Bottomley (Eltham)

I invite my right hon. and learned Friend to see whether we can change the language, and start to describe these certificates as public interest disclosure certificates, which in effect is what they have become. Will he confirm that, up to Wiley and up to the Scott report, the law and procedure had been set only by judges and not by Ministers or Parliament? Will he also confirm that, in future, the advice of Law Officers to Ministers will be on the basis of a public announcement following a review, as today, or to guide Ministers with the words of judges, as in the past?

The Attorney-General

I understand my hon. Friend's point about nomenclature, but, albeit that "public interest immunity certificate" is not particularly illuminating, "public interest disclosure certificate" might not be much more so. My hon. Friend will forgive me if I do not adopt that suggestion. I can confirm that, up to and including the decision in Wiley and since, the law in this area is judge-made. My statement changes practice only in relation to Government documents which are the subject of certificates by Ministers. My hon. Friend is right: the law in this area will continue to be judge-made.

Mr. Dennis Skinner (Bolsover)

Perhaps the Attorney-General can explain. I think that this all arose because a number of Ministers said that they had to sign these public interest immunity certificates when there was a prospect of people being sent to gaol. Their defence was, "Look, the Attorney-General told us to sign them." The then President of the Board of Trade had a different view; he said, "Hold on a bit—I'm not too sure about this prospect."

The net result, from what I have heard the Attorney-General say—he can tell me if I am wrong—is that, in similar circumstances where some people could possibly go to gaol, he or another Attorney-General could go to Ministers and say, "Look here, you had better sign these documents." Would they be expected to sign them, or would the Heseltine theory apply? What has really changed? Let us cut all the cackle and hear what the situation is all about.

The Attorney-General

That is a helpful question, from a seeker after truth. The first point that the hon. Gentleman will want confirmed is that there has been no question whatever of suppression in relation to public interest immunity certificates. The whole notion that they were "gagging orders"—a phrase which I might have heard trip off the hon. Gentleman's lips occasionally—

Mr. Skinner

No, I used it last time.

The Attorney-General

I know, but the hon. Gentleman knows better now, and he is not using that language.

They were never "gagging orders", and they are not "gagging orders". If Matrix Churchill were being re-run now, it would be possible for a Minister to have discretion to volunteer disclosure when he felt that the documents could be disclosed, even when it was not a clear case in which they were bound to be disclosed on any balance of the public interest. Consequently, whether my right hon. Friend would have had to make a certificate at all, or whether he could have made one in relation to many fewer documents, which I believe is likely, is a moot point. It would certainly have been a great many fewer documents.

A combination of the decision in ex parte Wiley and the new approach in my statement will, as I said when I was rightly questioned by the right hon. and learned Member for Aberavon, lead to many fewer such certificates, covering far fewer such documents in future.

Mr. Rupert Allason (Torbay)

May I give sincere thanks to my right hon. and learned Friend for what I believe to have been the widest consultation on this topic? Is it not correct that every lawyer who has ever had anything to do with PII certificates was invited to contribute to the consultation process?

Does my right hon. and learned Friend agree that the abolition of the class and contents claims announced today will eliminate any chance of injustice in future? Does he also agree that the clear explanation that he has described and that will appear in future certificates will also reduce the possibilities of injustice?

Finally, will my right hon. and learned Friend confirm that the abolition of the blanket use of national security, in line with the evidence given by David Bickford to the Matrix Churchill inquiry, will be abolished? Is that not precisely in line with the undertaking to me and to the House by my right hon. Friend the Chancellor of the Duchy of Lancaster seven minutes, or whenever it was, before the end of the Matrix Churchill debate?

The attorney-general

I am grateful to my hon. Friend for his welcome. Taking his last point first, yes, that does fulfil the undertaking of my right hon. Friend the Chancellor of the Duchy of Lancaster to my hon. Friend. As part of the consultation, I considered carefully what he had said on the matter, and it has been taken into account, along with the responses from others. I am grateful for his welcome for the clear explanation that will appear in any such certificate, for the ending of the often confusing apparent distinction between class and contents claims, and for the new concentration on real or substantial harm.

Mr. Gerald Bermingham (St. Helens, South)

I welcome today's proposals, but does the Attorney-General agree that one of the problems is that documents are often considered at the beginning of a trial, when perhaps their full meaning is not fully understood by the tribunal trying the matter? Therefore, would it not be right—will not the Attorney-General give this undertaking—for Law Officers to continue to monitor cases in which documents or ministerial certificates are granted, to ensure that, if the court has misunderstood the full purport of the documents, the officers will intervene and seek to redress that fact?

The Attorney-General

The hon. Gentleman makes interesting points. I expect cases of difficulty to come to the Law Officers. I would not expect every case to come to them as a matter of routine. One of the advantages of the system in a criminal case whereby the judge sees the documents, if they are in issue, at the beginning of the case, is that the judge himself will have in mind the possibility that they may become relevant when they had not initially seemed relevant.

The House will recall that, in the Matrix Churchill case, Judge Smedley initially saw the national security documents. When he first saw them, and heard argument, they did not appear to him to be relevant. Counsel for Mr. Henderson then made it clear that Mr. Henderson was saying that he was an agent of the intelligence services. The judge considered the documents again, and changed his view the following day. That is a short-order example of what could happen after a longer period in another case. That is what the hon. Gentleman has in mind.

Mr. Michael Stephen (Shoreham)

Does my right hon. and learned Friend agree that the label "ministerial gagging order", which the press have attached to PII certificates, is misleading nonsense—like so much else in the newspapers—for the very reason that the effect of that so-called gagging order is to place the documents in question before the trial judge, so that he can decide whether those documents should or should not be admitted into evidence?

The Attorney-General

My hon. Friend is absolutely right. Anyone who wished to suppress something would be mad to attach it to a PII certificate, because he would know that, in a criminal case, putting those documents in front of the judge would be the first thing that would happen. My hon. Friend is absolutely right to say that the expression "gagging order" should not be used. It should not have been used in the past. It has grossly misled the public, and it should not be used in future.

Mr. Tam Dalyell (Linlithgow)

What would have been the position under the new dispensation of Alan Moses QC? Will the Attorney-General reflect on paragraph G13.119 of the Scott report, which states: I question the propriety of instructing counsel 'to seek to avoid the disclosure of documents"'. It goes on: The authority would not have been forthcoming from Mr. Heseltine … The process of seeking the requisite instructions would have exposed the impossible position in which the Treasury Solicitor and Mr. Moses were placed, namely, representing Departments with different views. Will the House have an opportunity to discuss this after looking at the statement and the documents? Have the views of Professor Anthony Bradley, who wrote a long article in the journal Public Law been taken into account?

The Attorney-General

A great many learned and academic comments have been made on this matter, and, as far as possible, they have been taken into account, but I will not comment on one particular contribution.

I shall now deal with the position of counsel in the case, Mr. Alan Moses, now Mr. Justice Moses, and the fact that he might have been in an impossible position. One of the points that will be considered carefully for the future, and which has been considered in the past on occasion, is whether prosecuting counsel is sufficiently equipped to present arguments on behalf of one Department which may be in conflict with another. That was an interesting and important point made by Sir Richard Scott, and it will be borne in mind carefully in future.

In this case, it is not correct to say that Mr. Alan Moses was ever seeking to avoid disclosure, in the sense of seeking to suppress anything. He was arguing in good faith—I do not think that anybody has suggested otherwise, and I would challenge them strongly if they did—that the documents were not necessary or relevant to the issues as he saw them, and that he did not believe that they were bound to be disclosed. Had he believed that they were bound to be disclosed, they would have been disclosed, and I would not have had to advise my right hon. Friend the Deputy Prime Minister to make his certificate.

The House should be crystal clear. Every such document was put clearly before Judge Smedley. He read every document attached to my right hon. Friend the Deputy Prime Minister's certificate and to the certificates of other Ministers during the argument before the case began, and he made his decision even before the case began. The case did not collapse but ran for four weeks, until it was withdrawn by prosecuting counsel—in accordance with the points made to me by the right hon. and learned Member for Aberavon (Mr. Morris) and the hon. Member for St. Helens, South (Mr. Bermingham)—in exercise of his function of fairness as prosecuting counsel.

Mr. Edward Leigh (Gainsborough and Horncastle)

Apparently, both sides of the House now agree with open government and with the fact that we have the best civil service in the world. If we are to retain a civil service which is unpoliticised and impartial, it must be confident that advice given to Ministers, particularly that given by private secretaries to Ministers, will be protected unless there is a danger of miscarriage of justice. Can my right hon. and learned Friend reassure civil servants that our traditional way of doing things will be maintained?

The Attorney-General

My hon. Friend has put his finger on one of the trickiest issues, which is the extent to which documents relating to advice to Ministers should be withheld. What I have made clear today is that documents relating to advice to Ministers will be judged by the same test as documents in the category of national security and various other categories, which is whether disclosure would cause serious harm to the public interest. They will have to pass that test. If they can—I can conceive of circumstances in which they would—they would be entitled to protection, subject of course to the overriding views of the judge, to whom they would be shown and who would make his decision after argument.

Mr. Max Madden (Bradford, West)

As the Attorney-General has said that judges will remain the final arbiters in those matters, will there be any right of appeal against a judge's decision? Unless there is, yet another legal anomaly would seem to be created whereby there is no right of appeal against an individual judge's decision. Under the new arrangements, will the presumption be that Ministers will seek the advice of the Attorney-General in those matters, or that the Attorney-General will offer Ministers such advice?

The Attorney-General

I shall take the second part of the hon. Gentleman's question first. I should expect—this will be the guidance given to the public service—that cases of difficulty, but not every case, will be referred to the Law Officers for advice.

On the first question, if the trial judge decides that a document should not be disclosed, there will, at the end of the case, be an ultimate right of appeal. The general rule in Crown court trials, which I think would apply in this instance, is that the trial judge's ruling on an interlocutory matter of this nature in the case is final at that moment. One could not rush off to the Court of Appeal on the matter at that stage.

If I have mistaken the position in any way, however, I shall write to the hon. Gentleman, as he has raised an interesting point of law, and place a copy of the letter in the Library. But, at the conclusion of the case, if one believed that an injustice had arisen, it would be a ground of appeal.

Mr. Rod Richards (Clwyd, North-West)

Will my right hon. Friend confirm that the new PII regime will guarantee protection of sensitive intelligence sources, both human and technical?

The Attorney-General

Broadly, the answer to my hon. Friend's question is yes. He has posited a very sensitive source, which would normally require protection. In such cases, if the information were essential to a fair trial, the prosecution would have to decide either to disclose the information and to proceed with the trial, or to drop the trial to protect the source. The system provides a method of proper protection for such security information, although occasionally it may be necessary to drop a trial to protect the source.

Mr. Ian Pearson (Dudley, West)

May I press the Minister further on the issue of ministerial responsibility? As a non-lawyer, I was wondering whether he could explain who in government is responsible as the final arbiter of whether public interest immunity should be claimed? Is it the relevant Secretary of State, or is it the Attorney-General? Is there not an obligation to adhere to the advice of the Attorney-General?

The Attorney-General

The ultimate responsibility is the Minister's, but the Minister will act on advice. If the advice is cogent and appears to be in accordance with the law as it is then understood, the Minister will be likely to follow it, as my right hon. Friend followed the advice that I gave him on that specific occasion. Ultimate responsibility for a decision on whether to claim public interest immunity belongs to the Minister. In future, as I have explained, the matter will be a lot easier, because, first, after ex parte Wiley, the Minister has a much wider discretion; and, secondly, the new approach focuses the mind so very clearly on the test of real harm.