ATTORNEY GENERAL'S CHAMBERS
15 February 1996
PUBLIC INTEREST IMMUNITY
THE GOVERNMENT'S RESPONSE
The Scott Report makes clear that accusations that Ministers signed
PII certificates in order to "suppress" information, and were
prepared to see innocent men sent to prison, are unfair and without
foundation.
The Report recognises that public interest immunity (PII) is a
complex legal issue but expresses views on the law which differ
substantially from the generally accepted position.
Legal advice given to Ministers at the time of the Matrix Churchill
trial was entirely in accordance with the law as it then stood.
Ministers had a duty to claim PII whenever there was a public
interest in non disclosure of a document. It was for the court to
weigh that public interest against the interests of justice and to
decide on what documents should be disclosed. PII applied to
criminal cases in the same way as to civil.
This position reflected the best possible independent legal advice
from among others Sir John Laws (now a High Court Judge) and Mr
Michael Kalisher QC (former chairman of the Criminal Bar
Association).
It was also fully supported by decisions of the courts, including
judgments of Lord Wilberforce, Lord Scarman, Lord Donaldson, Lord
Justice Bingham and Lord Justice Mann. The application of PII to
criminal cases has been confirmed by a series of cases in the higher
courts, including judgments of Lord Taylor (Lord Chief Justice).
Other points are:
The law on PII was developed by judges, NOT by government.
it continues to develop. As a result of a decision of the House of
Lords in 1994, it is now open to Ministers to weigh the competing
public interests for themselves. This was not the position at the
time of the Matrix Churchill trial.
A PII claim is not a "gagging order". ALL the material is available
to the court and the court always has the last word on disclosure.
PII applies not only to Government documents but also, for example,
to details of informants held by police, and records of children in
local authority care.
The Attorney General's advice on PII in Matrix Churchill was
supported by Mr James Hunt QC and Mr Michael Stokes, Counsel for one
of the Matrix Churchill defendants, in a letter to The Times (13
November 1992):
Counsel for the Crown, Alan Moses QC, said at the outset, when
placing the Public Interest Immunity certificates before the court,
that the question of disclosure was a matter for the trial judge and
not for the Ministers concerned.
"Public Interest Immunity cannot be waived by either the prosecution
or the Ministers. It was for the Judge to decide whether the
interests of justice in ensuring a fair trial for the defendants
outweighed those considerations of public interest referred to in the
certificates.
The approach of Counsel for the Crown to the question of Public
Interest Immunity was entirely in accordance with our understanding
of the decided cases."
Another of the defence Counsel, Mr Gilbert Gray QC, later wrote an
article in The Times also endorsing the Attorney Generalls advice.
A summary of the Government's response on PII is attached. The full
text is available from the Press Officer on 0171 233 7524.
PUBLIC INTEREST IMMUNITY:
SUMMARY OF GOVERNMENT RESPONSE TO THE SCOTT REPORT
The Report of the Scott Inquiry expresses views on the law relating
to public interest immunity (PII) which differ fundamentally from the
generally accepted position. The approach taken by the departments
and individuals involved within Government accorded with the law as
it stood at the relevant time and with advice given by the
Government's independent advisers.
Did ministers have a duty to sign PII certificates?
The Report expresses the view that ministers were under no duty to
claim PII for documents if they considered that the overall public
interest favoured disclosure.
This is in direct conflict with the accepted view. The general
understanding of the law at the time was that, where a document fell
within a PII class, the Minister's duty was to assert the public
interest in non-disclosure of that document. It was then for the
court, rather than the minister, to strike a balance between the
public interest in non-disclosure and the public interest in
disclosure in the interests of justice. (The only exception to
the minister's duty to claim PII was where it was thought that on any
view the court was bound to order disclosure.)
That understanding of the law reflected specific advice from highly
experienced independent counsel, including Sir John Laws (former
Treasury Counsel, now a High Court Judge) and Mr Michael Kalisher QC
(former Chairman of the Criminal Bar Association). It was confirmed
by later advice from mr Stephen Richards and Mr William Charles
(present Common Law and Chancery Treasury Counsel) and was endorsed
by Sir Simon Brown (former Treasury Counsel, now a Lord Justice of
Appeal) in a lecture and article in 1994. it was also supported by
the Judge in the Matrix Churchill trial and by three of the defence
counsel writing in The Times after the trial.
Such advice was supported in turn by authoritative statements of the
law in the decided cases, by judges of the highest eminence. They
included Lord Reid in Conway v Rimmer (1968), Lord Salmon in R v
Lewes Justices, ex parte Home Secretary (1973), Lord Wilberforce in
Burmah Oil v Bank of England (1980), Lord Scarman in Air Canada v
Secretary of State for Trade (1983), and Lord Donaldson and Lord
Justice Bingham (now Master of the Rolls) in Makanjuola v
Commissioner of Police for the Metropolis (1989).
The decision of the House of Lords in Ex parte Wiley in 1994
signalled a major change of approach. It means that Ministers can
now weigh the competing public interests for themselves and, if
satisfied that disclosure is in the overall public interest, can make
disclosure without troubling the court. But the court remains the
ultimate decision maker and still has the duty to balance the
competing public interests and to rule on disclosure in any case
where the minister is not satisfied that disclosure should be made.
The legal advice given to Ministers at the time of the Matrix
Churchill trial, including the advice given by the Attorney General
to Mr Heseltine, was entirely in accordance with the law as it then
stood. The PII certificates explained the public interest in
non-disclosure. It was left to the court to decide where the balance
of public interest lay. The judge read the documents. He accepted
that the PII claims had been properly made and he decided which
documents should be disclosed. The process worked in exactly the way
in which it was intended to work.
Was the Government right in its approach to PII in criminal trials?
The Scott Report says that the principles of PII do not apply to
criminal trials in the same way as to civil cases, and that the PII
class claims made in the Matrix Churchill trial were unjustified.
Again, this is in direct conflict with the accepted view. The
Government's understanding was and is that PII applies in the same
way in criminal cases as in civil cases. That is true of both
contents and class claims. There is a public interest in
non-disclosure of a document within a PII class (e.g. information
about informants), irrespective of its particular contents. That
interest is the same whatever the nature of the proceedings. It
is to be balanced against the public interest in disclosure, taking
account of the importance of the document to the case. The balance
is more likely to favour disclosure in a criminal case, but the
principles of PII are the same.
That understanding is likewise supported by specific advice from
highly experienced independent counsel, including Sir John Laws and
Mr Michael Kalisher QC (whose advice was in line with that given by
Lord Woolf when he was Treasury Counsel in 1978).
Such advice has been confirmed and reinforced by a consistent series
of cases in the Divisional Court and the Court of Appeal, including
judgments of Lord Justice Mann, Lord Justice Simon Brown and Lord
Taylor (the Lord Chief Justice). Relevant decisions include Ex parte
Osman (1991), R v Ward (1992), Ex parte Bennett (1993), R v Keane
(1994) and R v Saunders (1995). Moreover the applicability of the
normal principles of PII in criminal proceedings, including the
making of PII class claims, was accepted by the Court of Appeal in
the recent Ordtec appeal. In each case it has been accepted that a
balance has to be struck between the competing public interests.
PII class claims as well as contents claims have been accepted by the
courts as being properly made in criminal proceedings. In practice,
most PII claims in criminal proceedings relate to non-governmental
material, such as police reports or information about police
informants. It is an everyday occurrence for such claims to be made
and upheld.
Were the PII class claims in Matrix Churchill and Ordtec properly
made?
The Scott Report says that the "advice to ministers" class claims
were too wide and unjustified by precedent. But the certificates
were formulated in terms very similar to those upheld by the courts
in previous cases, and the reasoning in support of the class claims
continues to be accepted by the courts in analogous cases.
The Scott Report also says that the "national security" class claims
were inappropriate and that the public interest could be adequately
protected by the making of contents claims alone. But claims in the
form advanced in the Matrix Churchill and Ordtec proceedings have
also been advanced, and upheld by the courts, on many occasions.
Concluding comments
It is not always clear whether the views expressed in the Report are
intended to be views on what the law was at the material time or on
what the law should be for the future.
Insofar as the views expressed with regard to the duty of Ministers
to advance a claim for PII and the application of PII to criminal
trials are intended to represent the law as it stood at the material
time, they differ fundamentally from the accepted position as
indicated above. Moreover whatever view one may now take of the law
at the material time, it was entirely reasonable for those advising
Ministers to act in accordance with the advice of Counsel.
In so far as the views relate to the future development of the law,
they have implications for the disclosure of non-governmental
material such as police reports and information about police
informants, as well as for the disclosure of governmental documents.
WHAT IS PUBLIC INTEREST IMMUNITY?
Public interest immunity (PII) is a system developed by the courts
for the purpose of deciding when information should not be disclosed
in court proceedings on the ground that disclosure would be against
the public interest. In a given case it may be in the public
interest for certain material to be kept confidential - eg because it
relates to national security. But it is also in the public interest
for justice to be done on the basis of proper disclosure of the
facts. The rules of PII determine how the balance between those
competing public interests should be struck - when material should be
withheld and when it should be disclosed. The law on PII has been
developed by the Judges, not by the Government. It applies not only
to Government information but, for example, to details of informants
held by the police, and records of children in local authority care.
It applies even where the person holding the information wishes to
use it.
The law on PII has changed greatly over the years and the courts have
defined differently at different times the respective roles of the
Government and the courts.
In Duncan v Cammell Laird (1942) the House of Lords held that the
court was bound to accept a minister's claim that a document had to
be withheld in the public interest. The minister's word was final.
In Conway v Rimmer (1968) the House of Lords held that the courts,
rather than ministers, should have the last word. Thereafter the
duty of the minister was to claim PII where it applied and to leave
it to the courts to balance the competing interests and decide
whether the documents should be disclosed, unless it was thought that
on any view the court was bound to order disclosure.
With ex parte Wiley (1994) there has been a further shift, the House
of Lords holding that ministers may volunteer disclosure where they
think this is in the overall public interest. But the court
remains the final arbiter.
PII can apply to a document either because of its particular
contents. or because it belongs to a recognised class of documents.
The rationale for PII classes is that disclosure of any material
within a class could be damaging to the public interest even though
the contents of the particular document may be innocuous. For
example, disclosure of the identity of a police informer may cause
sources of information to dry up in future, even if no harm comes to
the informer in the particular case. Other PII classes which have
been recognised by the courts include national security;
international relations; advice to ministers; and information about
the criminal investigation process. The classes have evolved over
time and are always subject to review.
PII is claimed by means of a certificate signed by the relevant
minister, explaining why disclosure of the documents in question
would harm the public interest. Alternatively, claims are
sometimes made by affidavit or by submission from counsel. The court
weighs the PII claim against the need to disclose the information in
order to do justice in the case. A PII claim is not a "gagging
order', because all the material is available to the court which will
decide on what should be disclosed.
