Public Interest Immunity (Hansard, 18 December 1996)

§ The Lord Chancellor
My Lords, with your Lordships' leave, 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 right honourable and learned friend the Attorney-General 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. Your Lordships will recall that the law which 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 general discretion to disclose documents without the prior approval of the court, if they consider that to be in the overall public interest. Against this 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, in a criminal case the fair trial of an accused, and what is sometimes also the clear public interest in the confidentiality of certain documents or information. But your Lordships will bear in mind that the so-called immunity is subject to the ruling of the court, and that in a criminal case where 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 Library of both Houses.
Under this 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 only claim public interest immunity when it is believed that disclosure of a document would cause real damage or harm to the public interest. This 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 this test shall be rigorously applied before any public interest immunity claim is made for any government documents.
1508 It is impossible in advance to describe such damage exhaustively. It 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 which the certificate aims to prevent. This 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 public interest immunity to protect either internal advice or national security material merely by pointing to the general nature of the document. The only basis for claiming public interest immunity 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 which Parliament defined as sensitive in the Intelligence Services Act 1994, although as I have said a document will not attract public interest immunity 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 public interest immunity claims will be significantly less frequent in future. And 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 these 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 each Library, provide what should prove a sensible, balanced and effective regime for the future, and I commend it to your Lordships.

§ Lord Irvine of Lairg
My Lords, at the fag end of this Administration, the Government's late conversion (after 17 years of restrictiveness) is a little hard to take. It really is a little rich. The beneficiaries of 17 years of 1509 restrictiveness herald a new openness, but one that can only be delivered by an incoming government. If there had been this spirit of openness 10 years ago, the events leading to the Scott Report would never have occurred. There would have been no issue of concealment by Ministers of information favourable to the defendants in the Matrix Churchill trial. I need not remind your Lordships that the Scott Report was about government attempts to conceal from Parliament changes of policy in relation to arms to Iraq and to conceal from the courts documents which, in the event, led to the acquittal of the defendants—defendants who would never have been brought to trial if the documents had been disclosed up front in the first place.
But I must not allow myself to be sour. If a late, although limited, belief in openness has taken over, the noble and learned Lord on the Woolsack will be the first to agree that, Joy shall he in heaven over one sinner that repenteth", even when the sinner is a government whose opportunities to continue sinning will be abbreviated in any event by the judgment of the people which is to be delivered on their stewardship.
Your Lordships will know that public interest immunity protection can be claimed on a contents basis or a class basis. That is the distinction that underlies the Statement that we have just heard. A contents claim is that the content of the document, if disclosed, would probably damage the public interest. A class-based claim need not allege that. There are decisions of your Lordships' House in its judicial capacity, which, of course, still stand, upholding many class-based claims; for example, Cabinet minutes or papers, documents concerning the security of the state, high-level interdepartmental minutes and documents concerning the administration of the armed services, to give only a few examples. I take it from the Statement that so far as this Government are concerned, class-based claims will never be made again. That is what I understand. The Statement reads: The former division into class and contents claims will no longer be applied". I understand the Statement therefore to be that in future Ministers will claim public interest immunity only where they actually believe that the disclosure of particular documents would cause real damage to the public interest and that no class claims as such will be made in the future. I invite that understanding to be confirmed. I assume that that means that application for immunity for documents which formerly would have been covered by class claims—I have cited examples—will still be made but on the basis of a belief by the Minister that to reveal them would cause real harm to the public interest. I ask for that too to be confirmed. I also ask for confirmation that the new policy which the Statement announces will apply equally to civil as to criminal litigation.
Perhaps I may ask one further question. Can the noble and learned Lord confirm that Ministers will be free under the new policy to make up their own minds in applying the test—what damage would disclosure of this particular document (or of these particular documents) 1510 cause?—so that there will be no repetition of an instruction to Ministers by the Attorney-General that they must sign? Will the noble and learned Lord therefore confirm that hereafter decisions to claim public interest immunity will be free, uninfluenced decisions by Ministers themselves applying the new test explained in the Statement?
I note, but dispute, the Government's view that legislation on public interest immunity is neither necessary nor desirable. Will the noble and learned Lord confirm that after the decision of your Lordships' House in its judicial capacity ex parte Wiley in July 1994, to which the noble and learned Lord on the Woolsack referred in the Statement, the Court of Appeal in the case of Taylor v. Anderton has upheld a class-based claim by a police force—that is, a public interest immunity claim in respect of the class of reports of officers investigating complaints against the police? The reason put forward and upheld by the Court of Appeal was the old "candour" one—that frank reports would be inhibited unless there was a class protection. I found that a depressing decision. I agree with Sir Richard Scott, who has expressed the hope: that class claims will never be made if they cannot be based on something more substantial than the 'candour' argument". My question, therefore, is this: in the context of the Government's announced decision to rule out legislation, if it is thought wrong (as the Statement tells us that it now is) for the Government themselves to advance a class-based claim, why is it right for the police to be able to advance class-based claims? Why should not such class-based claims be ruled out generally in favour of the new test which the Government say that they will apply for themselves? Is there any reason, for example, why a local authority might not argue, just as the police argued in Taylor v. Anderton, for a class-based immunity in relation to some sensitive internal investigation? I suggest that there is need for legislation, and that, however welcome this Statement may be within its own limits, it does not comprehensively address the problem of public interest immunity certificates, nor does the greater flexibility that it heralds on the part of the Government in that limited area in any way meet the point that what this country urgently requires is a comprehensive freedom of information Act.

§ Lord McNally
My Lords, I echo much of what the noble Lord, Lord Irvine, said. This is a cautious step forward, but dealing with a matter of such public concern on the last full day before Christmas will not encourage great public confidence that the Government are treating this matter with the responsibility that it deserves.
The issue of public interest immunity is raised by the Statement, and I ask the noble and learned Lord to clarify where the ministerial buck lies, because one of the points that emerged most clearly in Matrix Churchill was the claim by Ministers that they were bullied and brow-beaten by Law Officers into signing the certificates and that only the now Deputy Prime Minister, Mr. Heseltine, held out against that. Does the new guideline mean that that behaviour by Law Officers and that defence by Ministers will be at an end?
1511 There is also the question upon which the noble Lord, Lord Irvine, touched and upon which I should like the noble and learned Lord to expand. It is the part of the Statement which states: Many public interest immunity claims are not the responsibility of government". That is so, but that makes this a partial measure only. How do the Government intend to encourage other bodies which can claim public interest to adopt the new standards that the Government have set for themselves?

§ The Lord Chancellor
My Lords, I am grateful for the support for the Statement which the noble Lord, Lord Irvine of Lairg, gave, which I take to be supported also by the noble Lord, Lord McNally. So far as concerns the time that the Government have to put the procedure into practice, I, of course, do not share the prophecy of the noble Lord, Lord Irvine of Lairg. I believe that this practice will prevail for a long time to come.
To answer the questions so far as I recollect them: of course this applies to the civil and criminal jurisdictions. In the criminal jurisdiction, in particular, of course, the court will always itself look at any document which is not to be disclosed on the ground of public interest immunity. With regard to the practice of Ministers in relation to both civil and criminal jurisdiction, this Statement applies.
Secondly, the intention is that the document should be looked at from the point of view of serious harm in respect of that document, taken, of course depending on the circumstances, in conjunction with other documents.
It is of course correct, as has been said, that a distinction between class and contents claims has been recogInised by the courts as they developed this law. However, the fundamental point in both those cases is damage by disclosure to a relevant public interest. What this Statement is dealing with is the risk that too much concentration on the form, in relation to the class of document, damages the real focusing on the fundamental test, which is damage by disclosure. That is what the Statement says.
Members of the Government in future will look at the documents from that point of view rather than merely considering whether they fall within a class or are already recognised by the courts as constituting a damage to the public interest by disclosure.
It is of course for the courts to develop the law in that area, subject to the authority of Parliament. The courts have developed the law. Ex parte Wiley is a considerable development of the law since the Attorney-General advised in relation to the matters upon which he did advise. There are certainly clear statements in authority that in certain circumstances Ministers would have a duty to claim public interest immunity.
The situation has been developed as a result of the case ex parte Wiley. So far as my researches go, the important matter for the courts now and in the future is to consider how the test is applied. It does not 1512 necessarily mean that the courts will not also examine class claims in a more particular way perhaps and from a slightly different point of view than hitherto.
In relation to the last full day before Christmas, I am not sure how lacking in fullness tomorrow's day will be. It is an important day and an important debate. Surely this is a good day upon which to make an important announcement of this kind. It will give those of your Lordships who are not coming tomorrow, if there are any such, the opportunity fully to consider this Statement in the kind of relaxed atmosphere that, with most of your Lordships, will apply in the days before Christmas.
With regard to ministerial responsibility for claiming public interest immunity, it is clear, and always has been clear, that ultimate ministerial responsibility for a certificate signed by a Minister is on the Minister signing the certificate, whether that be the Secretary of State for Home Affairs as in Conway and Rimmer, or any other Minister. It depends of course upon the circumstances which Minister it is that signs the certificate, but it is plain that it is the person who signs the certificate who is responsible for it.

Lord Campbell of Croy
My Lords, at the beginning of his Statement, my noble and learned friend said that it referred to England and Wales. I should be grateful for clarification because, while cases in Scotland are likely to be rare, I am aware that highly confidential documents can exist or originate in Scotland; for example, connected with the Security Service or operations by the police against serious crime. Courts in Scotland might well be involved in such cases. Is a similar change intended to be made in Scotland, or is Scots law, felicitously, already satisfactory in this area?

§ The Lord Chancellor
My Lords, I am sorely tempted by the last part of my noble friend's question. The difficulties that have arisen in recent times have arisen in relation to the operation of the legal system of England and Wales. The consultations which preceded this Statement focused principally upon England and Wales. It is for that reason that the Statement, following the consultation, focused on England and Wales. The law and practice in Scotland are, as my noble friend knows well, not identical to those in England and Wales. Since no problems have been thrown up by the operation of the system in Scotland, we felt it unnecessary to make any statement in relation to that important jurisdiction.

§ Lord Callaghan of Cardiff
My Lords, as far as I understood the Statement, it appears to be an improvement on the past situation. I shall read the debate tomorrow with great interest at my leisure. I welcome very much what the noble and learned Lord the Lord Chancellor said about documents signed by Ministers. I was surprised to hear of the dispute that arose out of the case to which this matter gave rise. The noble and learned Lord was quite unequivocal about it. On the last occasion Mr. Heseltine had objections to signing a document and was told by the 1513 Attorney-General that he must sign it. If that situation arises in future can the Minister refer back to the words of the noble and learned Lord the Lord Chancellor this afternoon and say that he takes responsibility for the matter and is not ready to sign the document? How is the matter to be resolved in future?

§ The Lord Chancellor
My Lords, I do not want to go into the detail of the previous case, but it is clear that ultimately a certificate was signed in terms different from those originally proposed to, for example, Mr. Heseltine. The certificate was altered to take account of his difficulties in relation to it before it was signed. Ultimately the matter went to the court.
One other matter that arises is that a Minister is entitled to receive advice in relation to what he does, but it is ultimately his decision whether or not he accepts that advice. In my judgment, plainly he has responsibility for that. As far as concerns the Matrix Churchill case, it is clear that the documents in question were available to the defence a considerable time before the case collapsed. It is not accurate to say that the case collapsed on the disclosure of the documents. It collapsed at a later stage in regard to the oral evidence that was given.

§ Lord Sewel
My Lords, referring to the question put by the noble Lord, Lord Campbell of Croy, I seek clarification about the practice of government in Scotland. Is it the same as that in England and Wales?

§ The Lord Chancellor
My Lords, I explained a moment ago that law and practice in Scotland are somewhat different from England and Wales. I am not conscious—I do not know whether the noble Lord, with his considerable experience of Scotland, is—of any difficulties in Scotland such as those that have arisen in England in recent times in connection with this matter. In broad terms, the principles are very much the same in Scotland and England, but the development of law and practice is not the same. The basic system of law in the administration of justice, civil and criminal, is different. I believe that it is wise to concentrate on those areas in which difficulties have arisen and to try to take an important step forward in the light of experience. I do not regard this altogether as repentance but more as learning from experience how to make improvements to the system of public administration.

§ Lord Jenkins of Hillhead
My Lords, the noble and learned Lord the Lord Chancellor was almost but not wholly clear and satisfactory in his reply to the noble Lord, Lord Campbell. Surely, if responsibility rests with the relevant Secretary of State or Minister he must have the option of refusing to give his signature if he does not believe it is right to give it. It was that point in the Matrix Churchill case that was extremely obscure. It would be a great advantage if the noble and learned Lord could confirm that where responsibility lay with the Minister the Minister's signature could not be automatic.

§ The Lord Chancellor
My Lords, it may be that one detail of the background is being slightly overlooked in 1514 the question of the noble Lord, who has considerable experience in this area of practice. In decisions before this time the courts said that in certain circumstances there would be a duty on the relevant Minister to claim public interest immunity. Therefore, it is right that the Minister should be advised that if he is satisfied that these circumstances have arisen, then that duty does arise and he has a legal obligation to sign the statement. However, whatever advice the Minister receives, ultimately the responsibility for the certificate that he signs is his.
The discussion that has taken place in relation to this matter may not give full effect to the fact that in decided cases there was a statement to the effect that this was not a privilege. In the old days this was referred to as Crown privilege. The courts modified that and pointed out that it was not a privilege but an important aspect of the safeguarding of the proper function of the public service. Therefore, where such damage by disclosure would arise the Minister would not be exercising a privilege but discharging a duty in making the claim. That is the basis of the matter. Ultimately, it is the Minister's responsibility to form a judgment on the facts, apply the relevant law as he is advised, and take a decision.

§ Lord Merlyn—Rees
My Lords, questions have been raised about the relationship between a Secretary of State and the legal adviser to the Government. I was surprised to read in the Scott Report that so many junior Ministers had signed a public interest immunity certificate. I had always understood—indeed, in a similar case I was so advised—that only the Secretary of State could sign and that junior Ministers should not and could not sign. Is that still the case?

§ The Lord Chancellor
My Lords, I should have thought that that would be a matter of good practice where the senior Minister was in a position to deal with the documents and form a judgment. That may be quite a large task. As the noble Lord knows only too well, the Secretary of State may have many heavy responsibilities upon him. This is a heavy and important responsibility. Where the Secretary of State is able to undertake the matter and sign the certificate, for my part I should think it appropriate that he should do so. But there is nothing to prevent a junior Minister from making a claim. There may be all kinds of reasons—involvement and other matters—why the Secretary of State cannot do so. From time to time claims have been made by officials, for example in relation to documents which relate to a previous administration which it would be inappropriate for the current Secretary of State to see. I agree with the thrust of the noble Lord's question that, this being a matter of considerable responsibility, the most senior Minister available to discharge that responsibility should do so as long as he is able to discharge it.

§ Lord Simon of Glaisdale
My Lords, in justice to the Attorney-General should it not be said that it is now overwhelmingly accepted that the legal advice he gave at the time as to the law as it then stood was, contrary to the opinion of Sir Richard Scott, entirely correct?
1515 Was not the advice that the document in question fell within a class that had been previously recognised by the law as to be withheld and there was no ministerial discretion in the matter?

§ The Lord Chancellor
My Lords, I am happy to endorse that. It is appropriate that that statement should come from such an eminent authority on the Cross Benches. I entirely agree and I sought to explain that in relation to the question asked by the noble Lord, Lord Jenkins of Hillhead. It is because there was a duty to make a claim in the circumstances that applied that that was the situation.

§ Lord Jenkins of Hillhead
My Lords, I am sorry to pose this question, but I am now totally confused. I do not understand how there can be ministerial responsibility if there is no ministerial discretion.

§ The Lord Chancellor
My Lords, that is an extraordinary statement. For example, Ministers of the Crown are under an obligation to obey the law and to act lawfully. That cannot imply that they have a discretion not to do so. The mere fact that one has responsibility does not mean that one has a discretion not to do what one is advised it is right to do, for example, in relation to taking a decision or signing a document.
If one has a statutory obligation to do something, it does not imply that one has an option not to do so. If one signs the document, of course, one has a responsibility for it. The reason one has discharged one's duty in that way is because, in my specific example, of the obligation imposed by law.

§ Lord Callaghan of Cardiff
My Lords, what I am a little worried about is the way in which the noble and learned Lord, Lord Simon, phrased his comments. I have the greatest respect for him on all these matters. But Ministers derive such authority as they have from statute and from Parliament. Those are the only two bodies to which they are responsible—to the statute and to Parliament.
Can the Lord Chancellor make it absolutely clear that if the opinion of the Attorney-General on a matter of law differs from that of the Minister and the Minister does not agree with that interpretation, he is perfectly free to decline to sign a document. If that is so, I assume that he may be challenged in the courts at some stage. But it is his responsibility and his alone and no Attorney-General can require a Minister to sign a document with which he disagrees.

§ The Lord Chancellor
My Lords, it is surely plain that, where a Minister seeks legal advice, it is right that he should have regard to that advice, for instance, from the Attorney-General.
There is possibly a misunderstanding lying behind this confusion. The Attorney-General's advice is given on the basis of the Minister being satisfied in relation to a specific matter. The legal advice may be, "If that is your position, this is what you must do". Unless the 1516 Minister has reason to suppose that the legal advice is wrong, the Minister, not being a lawyer, is unlikely to have grounds on which to refuse the advice or refuse to follow it.
A responsible Minister obtaining legal advice with which he has no reason to disagree will surely wish to follow it. Of course, he may have reason to doubt the legal advice and, if so, to challenge it, explore it and see on what it is based. That in no way detracts from his responsibility to take legal advice. He, not being a lawyer, if that be his position—some of us do not have that particular route—it would surely be rational for him to follow that advice unless he has reason to doubt it. In that case he should raise those doubts and seek to have them resolved before deciding on his course of action.

§ Lord Hutchinson of Lullington
My Lords, the point in the Matrix Churchill case was that the Minister saw perfectly clearly that if the document was not released there would be a miscarriage of justice. Nevertheless, the Attorney-General told the Minister that he had to sign the document. Not only was that the situation, but counsel for the Crown at the trial was instructed to ask the judge to keep those documents from the jury. In the end it was only because the judge refused to do that that there was not a miscarriage of justice. Therefore, surely what the noble Lord, Lord Callaghan, is saying is true. The Minister saw perfectly clearly that if he refused to sign the document there would not be a miscarriage of justice, and that is what the whole matter was about.

§ The Lord Chancellor
My Lords, this is not the occasion on which to seek to reopen the details concerning that case. I am prepared to do so, but this is not the right use of your Lordships' time when we are discussing this Statement.
The position was accurately put by the noble and learned Lord, Lord Simon of Glaisdale. I can well see that situations could develop—that is the reason for the policy set out in the Statement—where concentration on class claims as such, without perhaps focusing sufficiently on the reason that the courts have admitted those class claims, may sometimes damage the real exercise which the Minister is seeking to carry out. It is in order to try to remove that kind of mechanical reliance on class claims that this change of practice is to take place; that is, in order to try to alleviate for the future any problems of the kind advanced in the past.

§ Lord McIntosh of Haringey
My Lords, this time is for Back Benchers and I do not wish to intervene and would not do so if it were not absolutely necessary. But is it not clear that the Lord Chancellor has been the subject of high level and profound interrogation? Would 1517 it not be to the benefit of the House if the usual channels were to find time for a debate on these important matters which was not time-limited?

§ The Lord Chancellor
My Lords, the important matter is the Statement of what the position is for the future. I hope that I have made that absolutely clear.

§ Lord Jenkins of Hillhead
My Lords, not to me.

§ The Lord Chancellor
The noble Lord says that it is not plain to him. Let me have one more go. In the light of this practice as presently stated the Minister will be responsible for the signature if he signs a certificate. If he takes legal advice in that regard, he still retains responsibility for it. That remains the position, as it has always been.

§ Lord Renton
My Lords, my noble and learned friend the Lord Chancellor has been speaking on this matter now for half an hour. May I suggest to my noble friend the Leader of the House that we now get on with the main business?

§ Lord Thomas of Gresford
My Lords, does the noble and learned Lord the Lord Chancellor agree that his Statement today adds a second safeguard in that it emphasises the role of the trial judge in determining what is or what is not in the public interest? Is it not the case that in the Matrix Churchill trial the step forward taken by the judge, Sir Brian Smedley, was that he, for the first time, demanded to see the documents; having seen them, he came to his conclusion. No previous judge in a criminal trial had demanded to see the documents for which public interest immunity was claimed.

§ The Lord Chancellor
My Lords, my understanding of the law in England and Wales—at least since Conway v. Rimmer—has been that the court is the ultimate tribunal to decide whether a public interest immunity claim should prevail. It has the responsibility of weighing interests other than those which in former times were thought to be the responsibility of the Secretary of State. The court has that responsibility and it is important that the court should adequately and fully discharge that responsibility, as I believe it has done and will continue to do.