Matrix Churchill (Hansard, 10 November 1992)

§ The Lord Advocate (Lord Rodger of Earlsferry)
My Lords, with your Lordships' permission I wish to repeat a Statement which my right honourable and learned friend the Attorney-General has made today in another place. The Statement is as follows:
"As the House will be aware counsel for the prosecution in the Matrix Churchill case informed the court yesterday that, in the light of the evidence given by Mr. Alan Clark in cross-examination, he had concluded that it would no longer be right to seek a conviction in the case; and that the prosecuting authority, the Commissioners of Customs and Excise, had accepted that conclusion. Both he and the commissioners were satisfied that during the course of cross-examination Mr. Clark had given evidence which was inconsistent with a written statement he had made in 1991 and with what he had said in an interview with an officer of Customs and Excise in September 1992.
"The case raises important questions about the operation of export licensing policy in relation to Iraq during the period to which the events related. The Government will ensure that a full and independent inquiry into these events is undertaken by a judge. This will encompass the operations of all relevant departments and agencies. I am glad to tell the House that Lord Justice Scott has agreed to undertake this task. The precise terms of reference will be discussed with the judge. It is hoped to make them available to the House later this week. The judge will have access to all relevant papers and will be able to invite evidence from anyone he thinks fit. It will be for him to decide the extent to which he sits in public. His report and evidence will be published except in so far as, in the light of his advice, publication is contrary to the public interest.
"This inquiry will be set up and conducted as speedily as possible, having regard to the need not to prejudice any further criminal inquiries or proceedings. On this aspect, I should say that the commissioners have referred the papers in the case to the Director of Public Prosecutions. Any further action is a matter for them.
"Finally, it has been alleged that Ministers by signing public interest immunity certificates gave orders that departmental papers should be kept from defence lawyers in an attempt at a cover up. This is a complete misunderstanding of the law in this area and thus a distortion of the truth. It is the 107 law expressly enunciated by the courts that Ministers have a duty to claim public interest immunity either in respect of specific documents or recognised classes of document the production of which would in principle be contrary to the public interest. This duty cannot be waived. Once a proper claim has been made it is for the court to look at the papers if it thinks fit, to balance the competing public interests and to determine whether the interests of justice in the particular case require disclosure of some or all of the documents in issue. Such a claim must be made irrespective of whether it is embarrassing to the Government either to reveal or to withhold. In this case it was at the express invitation of prosecuting counsel that the judge looked at all the material before he made his ruling."

§ Lord Cledwyn of Penrhos
My Lords, we are grateful to the noble and learned Lord for repeating the Statement. It is clear that the matter is one of the utmost gravity. We welcome the Government's proposal to set up a full and independent inquiry—a course which we have been advising—and that Lord Justice Scott has agreed to perform that important task. We note that the judge will decide whether there are to be public sittings of the inquiry. It may well be in the public interest that as much of the evidence as possible is heard in public. In view of what we have already heard of the affair it seems desirable that there should be as much disclosure as possible.
The Statement indicates that the inquiry will be conducted speedily so as not to prejudice any further criminal inquiries or proceedings. We note that papers have been referred to the DPP and we fully support that action. However, given that the court had already sat for four weeks on the case why did the Ministers concerned not intervene much earlier? That is very difficult to understand, especially in view of the fact that if the matter had gone further it is not impossible that three innocent men might have been sent to prison.
The Statement refers to the allegation that by signing public interest immunity certificates Ministers kept departmental papers from defence lawyers. We know that Ministers have that duty in certain cases. However, will the noble and learned Lord bear in mind that there is anxiety about the increasing propensity of senior government Ministers to claim public interest immunity in criminal trials? We hope that the inquiry will look at that aspect of the matter.
Furthermore, did the four Ministers concerned in the case agree between them that the certificates should be issued? There was a time when such a question was decided by Cabinet committees. That is not now the case but it is important that Ministers know what is going on; indeed, the Cabinet should be aware of what is going on. I should like to be certain that the Prime Minister and his Cabinet were aware that the certificates were to be issued in this case.
108 The Statement indicates that the judge will be able to invite evidence from anyone he thinks fit. Does that mean that he can summon anyone he wishes and require him or her to give evidence on oath? That is an important matter. Finally, will the terms of reference cover the conduct of Ministers as well as matters of policy? It is essential that the judge should have the right and the facility to look into every aspect of this affair without let or hindrance.

§ Lord Mayhew
My Lords, we on these Benches regard the inquiry as essential. One or two aspects of the noble and learned Lord's Statement puzzle me, in particular the implication that the four Ministers concerned had a duty to withhold the papers where production would in principle be contrary to the public interest. The inquiry will ask carefully what the public interest was. At that time the war had ended and Mr. Henderson was no longer employed by MI6. What was the public interest involved other than the need to protect the reputations of the Ministers concerned?
Am I right in assuming that the terms of reference will refer only to Matrix Churchill and not to other firms about which similar suspicions have been voiced? I also wish to inquire into the express invitation of the prosecuting counsel that the judge look at all the material before making his ruling. I read that the prosecuting counsel argued that the documents disclosed would not help the defence. Is that so? If so it conflicts to a startling degree with the final sentence of the Statement.
Obviously, we must wait for the inquiry's report. In the meantime, thanks to the trial, certain facts are already incontrovertible. And they are barely credible. For three years up to the outbreak of war senior Ministers declared repeatedly and publicly that we were not helping to arm Saddam Hussein. At the same time in the utmost secrecy they pursued precisely the opposite policy. They helped to arm an aggressor and probably, almost inevitably, thereby encouraged him to take his chance. As the truth leaked out, and as was shown in the trial and is incontrovertible, Ministers resorted to increasingly desperate measures to cover up the truth. The climax was the signing of the certificates, which I am certain that the inquiry will wish to investigate. But for those papers being disclosed, and but for the decisiveness of the judge, these innocent men might have suffered a terrible injustice—

Noble Lords
Hear, hear!

§ Lord Mayhew
My Lords, I am sorry to say that we are used to incompetence on the part of the Government; for instance, Maastricht, coal and the ERM. But here, in the new scandal, we are faced not with the gross incompetence of Ministers but with their gross misconduct.

§ Lord Rodger of Earlsferry
My Lords, the noble Lord, Lord Cledwyn, asked about public sittings of the inquiry. That will be a matter for Lord Justice Scott; I am sure that he will take into account the kind of matters which the noble Lord raised. However, it is a matter for him. The noble Lord asked why nothing 109 was done at an earlier stage. I understand that what happened during the trial arose out of the specific evidence of Mr. Clark. As was explained in the Statement, that evidence differed from what had been said on two previous occasions. As a result, independent prosecuting counsel, and on his advice independent commissioners, then took the view that nothing further should be done and that the case should not be proceeded with. I understand that there was no reason to intervene at an earlier stage.
The question of the public interest immunity certificate has been dealt with by the courts and by your Lordships' House acting in its judicial capacity. In the light of the rulings of the courts the view has been taken that Ministers have a duty to take a point on public interest immunity where they consider that to be appropriate; for example, it is generally regarded that it would be against the public interest to reveal certain classes of documents. Decisions on such matters are taken and were taken in this case fully in the knowledge that in the light of case law which has been laid down by the courts they can be reviewed by the courts. It was not as if decisions in this case were taken and were thought in some way to be a final gag. They were taken fully in the knowledge that the matter could be raised in the trial court, as indeed happened. I do not know whether there was any degree of consultation among Ministers but I understand that decisions on the particular certificates would have been taken by individual departmental Ministers on the advice of their officials.
The inquiry is of the same general type as that of Lord Justice Bingham in respect of BCCI. Just as that inquiry was able to get to the bottom of those issues it is equally clear that this inquiry will have similar powers thereby ensuring that a full inquiry is carried out.
The noble Lord, Lord Mayhew, asked what was the public interest. I have explained already that the public interest can arise in various ways, either as to the particular content or the class of a document. A decision on that matter is taken in the full knowledge that, at the end of the day, a judge will decide whether the interests of the defence, the conduct of the trial and of justice would, in a particular case, outweigh the claim for public interest.
AS regards the terms of reference, noble Lords must wait until they are published. I understand that they will be wide terms of reference. Whether or not they will cover matters outside the Matrix Churchill case, I cannot at this stage inform your Lordships.
I believe that there is a misunderstanding as to what is implied in the last sentence of the Statement. The position was, as I understand it, that prosecuting counsel said something to the effect that he did not believe that certain aspects of the documents would be of particular assistance to the defence. He was entitled to say that, but that was in the context of his submission that it was for the judge to look at the whole situation and to rule on the matter. I have already given the reasons as to why the prosecution was dropped at the end of the day.
As regards the noble Lord's concluding remarks, I hear what he says but I refute completely any idea that 110 Ministers were in any way engaged in increasingly desperate measures, or any other kind of measures, to cover up wrongdoing on their part. All such matters will be for the consideration of the inquiry of Lord Justice Scott, and it is better for that independent forum to make the decisions.

§ Lord Hailsham of Saint Marylebone
My Lords, perhaps I may ask a very short question: short because my noble and learned friend may agree with me that in the light of the wide inquiry proposed it is unwise to make further comments on the merits of the inquiry.
What is the exact constitutional position of the inquiry which is proposed? Lord Justice Scott is obviously a very well respected judge, but what powers will he have? Am I right in thinking that my noble and learned friend indicated that the inquiry would not be held under the Tribunals of Inquiry (Evidence) Act? If so, what powers will the judge have to compel evidence and the production of documents? Will he be able to issue a subpoena and will he have disciplinary powers against those who refuse to give evidence? How far will the rule against self-incrimination be applicable?

§ Lord Rodger of Earlsferry
My Lords, the inquiry will not be conducted under the 1921 Act. I do not believe that the precise formula of the inquiry is yet settled. That must be determined. Therefore, I cannot give my noble and learned friend all the details for which he has asked. The model being considered is the inquiry used in the case of BCCI. That proved effectual. One expects that all people and papers from the Government will be made available to the inquiry.

§ Lord Merlyn-Rees
My Lords, irrespective of this case, is it the practice of the Government that ordinary Ministers should always be advised as to what is in the public interest and what is in the interests of the Government?

§ Lord Rodger of Earlsferry
My Lords, in the light of advice received and having regard to the law of the land and everything else, Ministers must consider what is a proper basis for giving such a certificate. That matter is what comes under the heading of public interest.

§ Lord Campbell of Alloway
My Lords, perhaps I may ask my noble and learned friend four questions from these Back Benches. I ask them not as a Conservative, which I am, but as an ordinary lawyer who has seen a little service with the Armed Forces. First, is it right that, within a few days of the inception of the Gulf conflict, sophisticated weaponry was sent from this country? That was a conflict in which relations of mine certainly fought and in which even I, although fortunately the offer was refused, offered to serve.
Secondly, is it right to prosecute people who implemented government policy, if it was government policy? Thirdly, is it right for the Cabinet, the Government, or whoever it is, to fail to inform the Attorney General of the true position, which resulted in an abortive trial? Thank Heavens for the judiciary 111 of our country which ensured that, in the end, justice was done. There is an explanation to be given; it is not a question of a judicial inquiry. That explanation should be given now.
Fourthly, was it right for the Government, whom I support or try to support, to continue that trial by withholding essential evidence on public interest affidavits held by the judge to be spurious, which could only have secured an acquittal?
There is a certain revulsion—and this is not a question —on the part of an ordinary lawyer like myself at what has happened in this case. What is the answer? I should like to have an answer now. What is the answer in regard to those Ministers of the Crown who swore those affidavits? I should like an answer to that question now.

§ Lord Rodger of Earlsferry
My Lords, as to my noble friend's first question, I cannot give him information as to precisely what happened within a few days of the Gulf conflict breaking out. All questions which are relevant to that issue and to the issue to be determined will be matters for the inquiry to consider. Therefore, as I have already said, I do not believe that it would be proper to go further than that.
As to whether it was correct to prosecute people who implemented government policy, the question is whether or not, on the information available to independent prosecuting counsel, the decision to prosecute and to continue the prosecution until it was discontinued, was correct. Again, that may be a matter which the inquiry will look into. I have explained the position as I understand it to be.
As regards the true position, I have explained that what happened in this case, and in particular what led to it being discontinued, was that certain evidence that was given by Mr. Clark, which cast a new light on the circumstances, was not known to the Government or to the independent prosecutor before that change was made.
Whether or not it was right to continue the trial was a matter for the independent prosecuting authorities. My understanding is that it is not true to say that those certificates were universally held to be unfounded, or overruled by the judge. I understand that to some extent, at any rate, he upheld the contention for public interest immunity where he thought that was justified. With reference to the law on this matter, I have explained already that the Ministers concerned had a duty to take that point but did so in the full knowledge that the matter would be explored by the courts.

§ Lord Williams of Mostyn
My Lords, will the Minister bear in mind some bleak, implacable facts? Those defendants have been in danger of ruination and certain imprisonment for month upon month, year on year, when it is more likely than not that government departments had in their hands documents which would have pointed to their innocence—and all this in England in 1992.
The noble Lord, Lord Mayhew, said that these defendants might have been saved from suffering injustice. They have already suffered it. Is it not unjust to be burdened by this weight in these circumstances? 112 Will there be any thought of apology, compensation or—a word atrophied through disuse—resignations? Will the terms of reference be sufficient to guide Lord Justice Scott specifically to the conduct of senior Ministers and not senior civil servants? Will the defendants be allowed representation? Finally, will it be for Lord Justice Scott and for him alone to decide what is to be published?

§ Lord Rodger of Earlsferry
My Lords, the noble Lord said that it was more likely than not that documents which pointed to innocence were available to government departments. That is a matter of assertion. That question and others relating to the merits of this matter are, as I said, a matter for Lord Justice Scott and not a matter for comment on this occasion in the House.
The terms of reference will be wide and such as to allow a full and proper inquiry to be made into the actions of those who have played a part in the matter. Whether or not representation will be permitted may be a matter to some extent for Lord Justice Scott in the light of how he chooses to conduct his inquiry. I have already explained in the Statement how the matter of publication will be dealt with: that is to say, it will be judged in the light of the advice of Lord Justice Scott. I leave it at that.

§ Lord Harris of Greenwich
My Lords, may I ask the noble and learned Lord one further question? It was put first by my noble friend Lord Mayhew and also by the noble and learned Lord, Lord Hailsham of Saint Marylebone. They asked whether in fact a witness could be compelled to give evidence. The noble and learned Lord referred to the Bingham inquiry. As he will be aware, no one could be compelled to give evidence at that inquiry. Is he therefore saying that we are going to have a situation where some witnesses could refuse to give evidence?
My second point refers to the security services. Is the noble and learned Lord aware that many of the matters which Lord Justice Scott will look into concern a number of operational decisions taken by MI5 and MI6? Is it not almost certain, would he not agree, that these matters will not be dealt with fully in Lord Justice Scott's report, for rather obvious reasons? Can I also ask whether the Opposition parties in Parliament will be shown those sections of the report on a Privy Councillor basis?

§ Lord Rodger of Earlsferry
My Lords, I do not think I really can go further on the question of the machinery of Lord Justice Scott's inquiry because the matter has not been determined. I cannot really give any assurance or otherwise on the question of compulsion. I would merely add that the inquiry of Lord Justice Bingham did indeed prove fruitful, and I think that in the same sort of way this inquiry should be able to deal with the issues which are involved. On the other matter raised by the noble Lord, Lord Harris, I think one would need to wait and see what was in Lord Justice Scott's report that related to the security services. A decision as to what is to be done with the publication of those matters will have to wait until that stage is reached.

§ Lord Jenkins of Putney
My Lords, is it not the case that the noble Lord, Lord Trefgarne, is in his place and as he has special knowledge of this matter he might feel disposed to assist your Lordships in the matter if he were so minded?

§ Lord Monson
My Lords, one can agree wholeheartedly with the noble Lord, Lord Cledwyn of Penrhos, that it is a very great pity that Ministers did not intervene much earlier so as to save the taxpayer a very large sum of money and also to spare three innocent men being put on trial on a very serious criminal charge. Having said that, would the Minister not agree that it is all very easy, with the benefit of hindsight, to say now that it has been obvious all along that Saddam Hussein is an evil man and that Iraq has always been our enemy number one in the Middle East? However, that is not how it seemed less than three years ago. At that time it was Iran which appeared to be enemy number one: Iran, with its fanatical ayatollahs, with their fatwahs and their mass hostage taking. On that basis, it must have seemed only prudent to let Iraq have a limited amount of low-grade non-nuclear weaponry which would help keep the Iranians at bay.

§ Lord Campbell of Alloway
My Lords, would the noble Lord give way?

Noble Lords
No.

§ Lord Rodger of Earlsferry
My Lords, I do not think I can go into the substance of what has been said. On the matter of the intervention of Ministers, I have to remind your Lordships that we are dealing here with a prosecution in the courts. It is a proud part of our tradition, which is jealously guarded, that Ministers do not intervene in prosecutions. That is a matter which would raise the most profound issues. The independence of our prosecution system is one of the most important principles that we have.

§ Lord Hughes
My Lords, will the noble and learned Lord give two assurances to the House? Will he assure us that the four Ministers who signed these documents will have no hand in determining what the terms of reference are going to be? Secondly, will he give an assurance that if they are invited by Lord Justice Scott to give evidence, or "summoned"—a word used latterly in another place—they will accept that invitation?

§ Lord Rodger of Earlsferry
My Lords, on the first point, I do not know exactly what the machinery will be for determining the terms of reference but, as I pointed out in repeating the Statement, the terms of reference will be discussed with Lord Justice Scott. I am sure he will make sure that the terms of reference will be what he considers suitable to allow him to carry out an effective inquiry. On the second point, I am perfectly certain that if Ministers are asked to co-operate with the inquiry they will do so.

§ Lord Wigoder
My Lords, in case it should transpire that this prosecution turns out to have been totally unjustified right from the beginning and has led directly to a well-known company being forced into 114 liquidation, will the noble and learned Lord use his influence to see that the terms of reference enable the tribunal to award such compensation as is appropriate?

§ Lord Rodger of Earlsferry
My Lords, I think that that would be rather an unusual power to give to a tribunal of this kind. The terms of reference will be a matter for consideration by Lord Justice Scott, and I do not think I want to go further than that.

§ Lord Stoddart of Swindon
My Lords, does this affair not have the stench of arrogance and corruption of a government that has sat for too long and of a party that has governed for too long? Will the noble and learned Lord answer the question which was put to him by my noble friend Lord Williams about who will decide about the publication of the report when it is finally ready? Will it be Lord Justice Scott, or will the Government decide what is to be published? Regarding the Ministers involved, will resignations not be enough and if in fact something more serious is proved against these Ministers, will they be indicted or impeached?

§ Lord Rodger of Earlsferry
My Lords, I simply say of these matters that so far as publication is concerned I cannot and will not go further than what was said by my right honourable and learned friend the Attorney-General in his Statement: that is, that the matter will be considered in the light of the advice of Lord Justice Scott. As for matters of resignation, and so on, I think all that is rather premature. We have to await the outcome of the inquiry.

§ Viscount Whitelaw
My Lords, I wonder whether it would be reasonable for someone who could never be described as anything to do with the law just to say a word as far as your Lordships' House is concerned. Equally, your Lordships will understand, someone like me is deeply hurt and upset by the incidents that we have been told about. Obviously, they have to be seriously investigated, and I understand that they are to be. I wonder whether it is really wise for your Lordships' House to continue a debate in which many harsh things will be said before the opportunity of the inquiry has been able to be fulfilled. I feel myself that we would do ourselves better—

Noble Lords
There are only two minutes left.

§ Viscount Whitelaw
My Lords, maybe there are, but I still want to make the point that I was making. At least if I succeed in stopping it, I shall be very pleased indeed.

§ Lord Rodger of Earlsferry
My Lords, I would concur. As I have said, a lot of these matters are for Lord Justice Scott's report and it really would be wrong for your Lordships to trespass on them.

§ Lord Macaulay of Bragar
My Lords, this inquiry was welcomed on this side of the House by my noble friend Lord Cledwyn of Penrhos, and I understand the spirit in which the noble Viscount, Lord Whitelaw, made his remarks. However, has it not now become clear that, as the noble and learned Lord the Lord Advocate cannot even tell us the form of the inquiry, 115 this Statement is a panic device by the Government to block public discussion of a very serious affair affecting the lives of three individuals, as was pointed out by my noble friend Lord Williams? Perhaps I may ask one more question. The judge was asked to look at the documents in this case. Did the Attorney-General have any part to play in making that decision or was that decision made purely by prosecuting counsel on his own initiative?

§ Lord Rodger of Earlsferry
My Lords, on the first point, perhaps I may say that if the Attorney-General had come to the House today and had not offered an inquiry, I am perfectly certain that those on the other side would have been making a greater complaint and insisting on having an inquiry. On the second matter, as I understand it, the question of looking at the documents was a matter that was put forward to the judge by prosecuting counsel on his responsibility. One would not normally expect the Attorney-General to get involved in the detail of such a matter. Indeed, I understand that he did not in this particular case.