Public Interest Certificates (Hansard, 17 July 1995)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, the law on public interest immunity has been developed primarily by the courts. Public interest immunity certificates are one of the subjects under investigation by Sir Richard Scott. The Government will take careful note of any conclusions and recommendations in his report.

§ Lord Spens
My Lords, I thank the noble and learned Lord for that reply. Is he aware that outside this House the phrase "public interest" is seen, probably in the words of Mr. Bernard Levin, as the most mendacious phrase in the English language? Is it not time, with the shambles which presently surrounds this law, with Ministers apparently able to switch it on and off at whim, that a new look is taken overall at the law of confidentiality so that some way can be found out of this trap? That situation has taken the whole issue into disrepute.

§ The Lord Chancellor
My Lords, the courts have from time to time considered the subject at different levels and the law has developed. In consequence, Ministers have to take account of that in considering whether or not they should sign such a certificate. It is possible for people outside this House, and, possibly, people inside this House, to misunderstand the situation. However, I believe that the law has been laid down by courts, including this House in its judicial capacity, in terms that are reasonably plain.

Lord Bruce of Donington
My Lords, will the noble and learned Lord confirm that at the time of the appointment by the Prime Minister of Mr. Justice Scott to investigate these matters, the Prime Minister gave a rather firmer undertaking in regard to the result of that inquiry than merely, as the noble and learned Lord said, taking note of its findings?

§ The Lord Chancellor
My Lords, I am not absolutely certain what the noble Lord, Lord Bruce of Donington, has in mind. However, so far as I understand the position, the inquiry has been set up and, in regard to this subject matter—it is only one of the matters which concern the inquiry—I believe the correct position is that the Government should take note of the conclusions and have time to consider them.

§ Lord Strabolgi
My Lords, perhaps I may ask the noble and learned Lord when the Scott Report is likely to be published. Will it be published this year perhaps?

§ The Lord Chancellor
My Lords, the latest information that I have suggests that it will be "this year perhaps", to quote the noble Lord's own phrase. I think it likely that it will be this year.

§ Lord Skelmersdale
My Lords, is there not a certain amount of confusion over public interest immunity certificates? As I understand the matter—I am sure my noble and learned friend will correct me if I am wrong—such certificates serve as an early warning system for the courts. Courts can overrule them or disregard them if that seems pertinent to the matter in hand.

§ The Lord Chancellor
My Lords, my understanding of the position is that a certificate of this kind issued by a responsible Minister indicates that in his view the public interest requires that the documents should not be disclosed. There has been some modification of the test allowing the Minister to take account, in so far as he knows of them, of the issues raised in the particular case. However, the ultimate responsibility for deciding whether or not a certificate should preclude the production of the documents in court rests with the judge. The judge will weigh all aspects of public interest, including the public interest immunity, and the justice that is to be done between the parties in the case in question.

§ Lord Richard
My Lords, is the noble and learned Lord the Lord Chancellor aware that there seem to be far more of these certificates now than there used to be? In my own experience, for what it is worth, they were rather a rare occurrence in courts. They now seem to be cropping up in case after case. Does the noble and learned Lord share the view that it is important that such certificates should not be used as an illegitimate cloak behind which Ministers can shelter in order to avoid disclosing matters which they ought to disclose but, because of a public interest immunity certificate, they think that they might not have to disclose?
Will the noble and learned Lord expand a little on what he said about the results of the Scott Inquiry? I take it from what he said that the Lord Chancellor and the Government do not rule out the possibility of legislation in this area.

§ The Lord Chancellor
My Lords, I can categorically state that the Government would certainly not support the view that public interest immunity certificates should be used as an illegitimate cloak, which I believe was the noble Lord's phrase.
On the other hand, the underlying law under which documents are produced to the courts has itself developed considerably. One of the consequences is that far more documents are under consideration for disclosure, apart from questions of public interest immunity. When that occurs, it is not unnatural that there should also be a growth in the number of documents which might well qualify for public interest immunity. Therefore the growth to which the noble Lord refers—it is in particular in relation to criminal matters—has flowed, I believe to a substantial extent, from the underlying growth in the documents now produced as part of the criminal process.
Obviously it would not be wise to rule out legislation. We need to consider what Sir Richard Scott proposes and then decide whether it would be wise to bring any such matter before Parliament for legislation.