§ Lord McNally asked Her Majesty's Government:
§ What proposals they have for encouraging bodies not covered by the Statement made on 18th December on public interest immunity certificates to adopt practices and procedures similar to those now adopted by the Government.
§ The Lord Chancellor (Lord Mackay of Clashfern)My Lords, my Statement to the House on 18th December last set out the Government's new approach to public interest immunity. Although their policy is not binding on non-governmental bodies, the Government believe that their new approach, as explained in the report which has been placed in the Library, is likely to inform the approach taken by non-governmental bodies. It will continue to be for the courts to supervise public interest immunity claims both by the Government and by non-governmental bodies.
§ Lord McNallyMy Lords, I thank the noble and learned Lord on the Woolsack for that Answer. Does he not agree that the key basis for that Statement, which was made just before Christmas, was that the only ground for claiming public interest immunity was the belief that the disclosure would cause real harm? How do the Government expect that policy, which is to be enforced at governmental level, to be practised by the police, local authorities, health authorities and others? Is it simply a wish on the part of the Government, or are any guidelines to be issued? Can the noble and learned Lord tell the House whether requests for public interest immunity certificates by non-governmental bodies show an upward or a downward trend?
§ The Lord ChancellorMy Lords, I believe that the principle underlying the sustaining of public interest immunity certificates by the courts has been well understood as being damage likely to be caused to the functioning of the public service by the disclosure of the document in question and, in a case where it is sustained, that it is greater than the damage that would be done to the cause of justice by not disclosing in that particular case. I believe that the Government's Statement simply emphasised—perhaps more clearly than before—that that would also be the leading criterion in practice and, in particular, that an automatic reliance on classifications might obscure the real principle behind the doctrine. As I said in my Answer, I think that, once explained, that principle will inform the approach of non-governmental bodies in the future.
376 I am not able to say at present whether there is any particular trend in applications by non-governmental bodies in this respect.
§ Lord Irvine of LairgMy Lords, does the noble and learned Lord agree that in the recent Court of Appeal decision, Taylor v. Anderton, a claim for public interest immunity was successfully advanced by a chief constable for a class of documents—reports of officers investigating complaints against the police? Is any means available to the Government, short of legislation, to ensure that such claims—which the Government under their new policy would not themselves advance—stop?
§ The Lord ChancellorMy Lords, I am not absolutely certain, but I rather think that the Police Complaints Authority may have made that intervention. On the general law, in my submission, the principle is plain: the Court of Appeal was applying it in the case to which the noble Lord referred. It is perhaps worth pointing out in this connection that in his report on the matter Sir Richard Scott stated in the opening sentence of section K6.1:
The law on public interest immunity in civil and in criminal trials is judge made. I do not believe that legislative intervention is necessary or, at present, desirable".That is a part of the report which was instrumental in producing the result of the government Statement to which I have referred.