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Public Interest Immunity

3.30 pm

The Attorney-General (Sir Nicholas Lyell): With permission, Madam Speaker, 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 noble and learned Friend the Lord Chancellor 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. The House will recall that the law that 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 gener al discretion to disclose documents without the prior approval of the court, if they consider that to be in the overall public interest.

Against that 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, which in a criminal case is the fair trial of an accused, and what is sometimes also the clear public interest in the confidentiality of certain documents or information.

The House will bear in mind the fact that the so-called immunity is subject to the ruling of the court, and that, in a criminal case, when 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 Libraries of both Houses.

Under the 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 claim public interest immunity only when it is believed that disclosure of a document would cause real damage or harm to the public interest.

That 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 the test shall be rigorously applied before any public interest immunity claim is made for any Government documents. It is impossible in advance to describe such damage exhaustively. The damage 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.

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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 that the certificate aims to prevent. That 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 PII to protect either internal advice or national security material merely by pointing to the general nature of the document. The only basis for claiming PII 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 that Parliament defined as sensitive in the Intelligence Services Act 1994, although, as I have said, a document will not attract PII 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 PII claims will be significantly less frequent in future. 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 those 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 the Library of each House, provide what should prove a sensible, balanced and effective regime for the future; and I commend it to the House.

Mr. John Morris (Aberavon): I am grateful to the Attorney-General for coming to the House to explain the Government's conclusions on the consultations that he set up as long ago as last February--although it has taken a little time. The House will also need time to react properly, and to study his paper that is now in the Library.

First, will the right hon. and learned Gentleman confirm that the application of his conclusions to Ministers will not affect the run-of-the-mill informant case and the need to protect such information? Secondly, will he clarify whether--and, if so, where--he departs from the substance of Sir Richard Scott's conclusions? Thirdly, does the abolition of the distinction between class and a contents claim mean effectively--particularly in criminal cases--that only contents claims will be made in future, whatever label they may or may not have?

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Fourthly, when the Attorney-General refers to a claim being made only where there is real damage or harm to the public interest, does that mean the same as Lord Templeman meant in Wiley's case when he referred to "substantial" harm to the public interest?

Fifthly, do the Attorney-General's conclusions in adopting Wiley mean that the effect is a wholly new approach by Government? Does he expect that the claims will be made only rarely in criminal cases, and that Ministers will have to judge for themselves in each particular case whether to claim and the width of such a claim, having regard to the possibility of editing?

Sixthly, I welcome the right hon. and learned Gentleman's response to Scott. Ministers should have more time to consider their position, and should not have to consider matters overnight, which was the position in which the right hon. Member for Watford (Mr. Garel-Jones) was placed.

Having had a little experience of the urgency of dealing with red boxes, may I ask how this will operate in practice? What is the bottom line of this new approach? Will the more rigorous approach in civil or criminal cases, together with the effect of new legislation, radically reduce the number of claims? Will claims be made only in exceptional cases, after personal examination by Ministers and, where appropriate, a further check by the courts?

Lastly, can we properly anticipate that, when the liberty of the subject is involved, and when a person may go to gaol or receive other punishment, the chances of a wrong decision will be virtually eliminated? When second thoughts occur about a decision that is adverse to an individual, will the Attorney-General instruct those prosecuting to have no hesitation in withdrawing a criminal case, at whatever stage, if documents that may be of assistance to the defence have been withheld?

The Attorney-General: I am grateful to the right hon. and learned Gentleman for the welcome that he gave to the substance of the report, and for the way in which he put his questions, which I shall answer in the order in which he raised them.

I confirm that the new approach will not affect run-of-the-mill cases. The right hon. and learned Gentleman has had great experience in that area, and he knows that, in non-government cases involving police reports, informants and so on, the system works well. Although the courts may choose to adopt some of the practices that the Government are adopting, that will be a matter for them. Those practices will not be forced on them, and I expect the system to continue much as before in run-of-the-mill cases.

Secondly, I confirm that the departure from the previous position relates to the old distinction between class and contents claims and the new emphasis on real harm or real damage. It is not helpful to say that they are all contents claims rather than class claims. Class reasoning may be said to operate in some claims. If that is so, it will be clearly explained in the certificate. In every case, the Minister will have to be satisfied that real harm--which is the same as serious harm or serious damage--would be caused.

That brings me to the right hon. and learned Gentleman's fourth point, about whether "real damage" means the same as "substantial harm". In the words of Lord Templeman in the ex parte Wiley case, the straight answer is yes.

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The right hon. and learned Gentleman's next question was whether there will be fewer such cases in future, following the new approach and the ex parte Wiley case in 1994. He made that point in a number of forms in his last three questions. The straight answer is that I believe that there will be significantly fewer cases.

In fact, the change in the law declared in ex parte Wiley was extremely helpful, because it gave Ministers a discretion where previously there had been an element of rigidity through the need to leave anything except a clear case to the court. For that reason, the number of occasions after 1994 on which public interest immunity certificates had to be used by Ministers was already lower. I am confident that the number will continue to be low in future.

I confirm that the approach is more rigorous. We recognise the importance of giving adequate time. The right hon. and learned Gentleman rightly referred to that: he knows something of the pressures, and I claim to know something of them myself. As the courts in recent criminal cases always looked at the documents, the chances of a miscarriage of justice were happily small.

I can assure the right hon. and learned Gentleman, first, that the court will always continue to see such documents in criminal cases, and secondly that it is one of the key tenets of the prosecution always to keep any prosecution under review. If material emerges that shows that a prosecution ought not to continue, it will then be stopped.

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