Public Interest Immunity (Hansard, 30 June 1993)

§ The Lord Advocate (Lord Rodger of Earlsferry)
My Lords, the Government do not keep a central record of the number of claims made for public interest immunity, but I do not believe there has been any appreciable increase in recent years. The Government are committed to a policy of openness and will be setting out proposals to carry this forward in a White Paper before the Summer Recess. There are always some matters which it is not in the public interest to reveal, and even in countries with freedom of information legislation, protection is provided for the most sensitive material.

§ Lord Spens
My Lords, I thank the noble and learned Lord for that reply. I am delighted that there will be some proposals put forward. Does the noble and learned Lord not agree with me that, increasingly, the use of public interest immunity, because it is invoked inevitably by the Government, is being seen as a device to prevent disclosure of incompetence, malpractice and abuse of the system—to coin a phrase used yesterday in another place—and that this is something that needs to be dealt with now before it gets out of hand?

§ Lord Rodger of Earisferry
My Lords, as I indicated in my first reply, am not aware of any evidence that public interest immunity certificates are being used to any greater extent than in the past. Therefore, it follows that I do not agree with the noble Lord that public interest immunity is being used in the way he suggests.

Lord HaiIsham of Saint Marylebone
My Lords, I declare a former interest in the matter. Does my noble and learned friend realise that in most government departments—certainly, in the departments I have experience of—there are papers stuffed with intimate details concerning the private lives of individuals which it would not be in the public interest to disclose and where it is absolutely essential that public immunity should be claimed where it is available? Unlike almost every other form of prerogative, the courts have the right to override public immunity where the interests of justice require it and they act responsibly and even-handedly in the matter.

§ Lord Rodger of Earisferry
My Lords, my noble and learned friend is, of course, correct. Anyone who has ever been concerned with the administration of criminal justice will recognise exactly the point he makes; namely, that many documents come into the hands of the authorities which contain information of a sensitive and personal nature referring to many individuals which it would clearly be wrong to make public. As my noble and learned friend added, it must be remembered in this general area that whereas it is the duty of the authorities in appropriate cases to make the claim, that claim is always subject to scrutiny by the courts and, in appropriate cases, despite the claim being made, the courts may order disclosure.

§ Lord Ewing of Kirkford
My Lords, does the noble and learned Lord accept that we are in a difficult situation when a Member of another place uses the privileged protection of that place to make serious allegations? Does the noble and learned Lord agree that it would be wholly wrong for the Serious Fraud Office to claim public interest immunity against the background of a Member of another place using the privileged protection of that place to make serious allegations?

§ Lord Rodger of Earisferry
My Lords. the situation relating to what is proper in connection with proceedings in another place is a matter for the Speaker and the authorities of another place and I would not wish to comment upon it. All I can say is that in an appropriate situation—I am not talking about the situation that has been mentioned—where a claim for public immunity was appropriate. it would be the duty of the Serious Fraud Office to make that claim.

§ The Earl of Onslow
My Lords, will my noble and learned friend clear up a point for me? It is undoubtedly acceptable to practically everyone that there should be some form of public interest immunity. However, do Ministers, when presented with a document to sign, have discretion in that matter or does the law require them to sign that document?

§ Lord Rodger of Earisferry
My Lords, the position, which has been explained on a number of occasions, is that when, having considered the documents which are placed before him and all the circumstances, a Minister decides that it is in the public interest that these documents should not be disclosed, he does not have a discretion in the matter. At that stage he has a duty not to disclose them.

§ Lord Dean of Beswick
My Lords, the Minister is quite right. What occurred in another place yesterday is not the business of this House. I understand that a Statement is being made in another place dealing with that problem. Regarding the Question of the noble Lord, Lord Spens, concerning statutory bodies, the Minister is not entirely correct in saying that there has been no extension of the practice. There has been a substantial increase in the number of people appointed to statutory bodies who have already been found wanting in the performance of their duties. In some cases there have been questions of probity. That 801 is part of the public record. However, in no case have the Government taken action against those people. In some cases they have even sent them on their way with a golden handshake. Those are irrefutable facts. Is it not time that the Government extended to members of statutory bodies the strictures which apply to people in local government who, if they are found wanting and fall by the wayside, are quickly hauled before the courts and dealt with?

§ Lord Rodger of Earlsferry
My Lords, if I have understood the question correctly it falls rather wide of the Question on the Order Paper. However, statutory bodies are like everybody else in this area. Where it is their duty to claim public interest immunity in relation to papers, they must do so.

§ Lord Renton
My Lords, is my noble friend aware that public interest immunity, and other matters, cannot be made effective unless the Official Secrets Act is observed? Will he say to what extent there has been any difficulty in recent years in enforcing it?

§ Lord Rodger of Earlsferry
My Lords, my noble friend Lord Renton will be familiar with the fact that legislation on official secrets has been modified in recent years. We are all optimistic that with that modification it should be possible to enforce the Act satisfactorily in future. Of course, I take the point that if it is not enforced satisfactorily that could lead to difficulties of the kind my noble friend mentioned.

§ Lord Richard
My Lords, is the noble and learned Lord aware that I was surprised to hear that there are no statistics as to the number of public immunity certificates which are issued? Does he not agree that in the absence of any such statistics there is a feeling among practitioners that there is a growing use of these certificates? Their use is certainly not diminishing. Does he also agree that although judges now have the power —which, as he will know, is a very recent one—to look at the documents for which immunity is claimed, it does not follow that they will overrule the person or body applying for immunity? Finally, does he agree that in terms of the administration of justice this is a somewhat dangerous practice and that claiming immunity for documents which could be used in a trial is a right which should be used sparingly and only in the last resort?

§ Lord Rodger of Earlsferry
My Lords, I note that the noble Lord is surprised that no statistics are kept in this matter. I am not quite sure what the purpose of such statistics would be. After all, if one has to claim public immunity, that is in response to a request which is made for documents. It follows that it is only if requests are made, and perhaps in proportion to the number of requests made, that certificates have to be granted. Therefore, I do not believe that statistics would of themselves assist very much.
There is always the safeguard, which has been much developed by the courts, that at the end of the day it is for the courts to take the final decision. They have done so and, as the noble Lord will be aware, in many 802 cases they have overridden the claim for public interest immunity. I believe that that is a satisfactory way of handling the matter.
I recognise that, in the case of prosecutions, public interest immunity certificates are a matter of particular sensitivity. Since that is a matter which, as the noble Lord knows, is under investigation by Lord Justice Scott, it would be best to say no more about it.