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The attorney-general: I am grateful to my hon. Friend for his welcome. Taking his last point first, yes, that does fulfil the undertaking of my right hon. Friend the Chancellor of the Duchy of Lancaster to my hon. Friend. As part of the consultation, I considered carefully what he had said on the matter, and it has been taken into account, along with the responses from others. I am grateful for his welcome for the clear explanation that will appear in any such certificate, for the ending of the often confusing apparent distinction between class and contents claims, and for the new concentration on real or substantial harm.
Mr. Gerald Bermingham (St. Helens, South): I welcome today's proposals, but does the Attorney-General agree that one of the problems is that documents are often considered at the beginning of a trial, when perhaps their full meaning is not fully understood by the tribunal trying the matter? Therefore, would it not be right--will not the Attorney-General give this undertaking--for Law Officers to continue to monitor cases in which documents or ministerial certificates are granted, to ensure that, if the court has misunderstood the full purport of the documents, the officers will intervene and seek to redress that fact?
The Attorney-General: The hon. Gentleman makes interesting points. I expect cases of difficulty to come to the Law Officers. I would not expect every case to come to them as a matter of routine. One of the advantages of the system in a criminal case whereby the judge sees the
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documents, if they are in issue, at the beginning of the case, is that the judge himself will have in mind the possibility that they may become relevant when they had not initially seemed relevant.
The House will recall that, in the Matrix Churchill case, Judge Smedley initially saw the national security documents. When he first saw them, and heard argument, they did not appear to him to be relevant. Counsel for Mr. Henderson then made it clear that Mr. Henderson was saying that he was an agent of the intelligence services. The judge considered the documents again, and changed his view the following day. That is a short-order example of what could happen after a longer period in another case. That is what the hon. Gentleman has in mind.
Mr. Michael Stephen (Shoreham):
Does my right hon. and learned Friend agree that the label "ministerial gagging order", which the press have attached to PII certificates, is misleading nonsense--like so much else in the newspapers--for the very reason that the effect of that so-called gagging order is to place the documents in question before the trial judge, so that he can decide whether those documents should or should not be admitted into evidence?
The Attorney-General:
My hon. Friend is absolutely right. Anyone who wished to suppress something would be mad to attach it to a PII certificate, because he would know that, in a criminal case, putting those documents in front of the judge would be the first thing that would happen. My hon. Friend is absolutely right to say that the expression "gagging order" should not be used. It should not have been used in the past. It has grossly misled the public, and it should not be used in future.
Mr. Tam Dalyell (Linlithgow):
What would have been the position under the new dispensation of Alan Moses QC? Will the Attorney-General reflect on paragraph G13.119 of the Scott report, which states:
The Attorney-General:
A great many learned and academic comments have been made on this matter, and, as far as possible, they have been taken into account, but I will not comment on one particular contribution.
I shall now deal with the position of counsel in the case, Mr. Alan Moses, now Mr. Justice Moses, and the fact that he might have been in an impossible position. One of the points that will be considered carefully for the future, and which has been considered in the past on occasion, is whether prosecuting counsel is sufficiently equipped to present arguments on behalf of one Department which may be in conflict with another. That was an interesting and important point made by Sir Richard Scott, and it will be borne in mind carefully in future.
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In this case, it is not correct to say that Mr. Alan Moses was ever seeking to avoid disclosure, in the sense of seeking to suppress anything. He was arguing in good faith--I do not think that anybody has suggested otherwise, and I would challenge them strongly if they did--that the documents were not necessary or relevant to the issues as he saw them, and that he did not believe that they were bound to be disclosed. Had he believed that they were bound to be disclosed, they would have been disclosed, and I would not have had to advise my right hon. Friend the Deputy Prime Minister to make his certificate.
The House should be crystal clear. Every such document was put clearly before Judge Smedley. He read every document attached to my right hon. Friend the Deputy Prime Minister's certificate and to the certificates of other Ministers during the argument before the case began, and he made his decision even before the case began. The case did not collapse but ran for four weeks, until it was withdrawn by prosecuting counsel--in accordance with the points made to me by the right hon. and learned Member for Aberavon (Mr. Morris) and the hon. Member for St. Helens, South (Mr. Bermingham)--in exercise of his function of fairness as prosecuting counsel.
Mr. Edward Leigh (Gainsborough and Horncastle):
Apparently, both sides of the House now agree with open government and with the fact that we have the best civil service in the world. If we are to retain a civil service which is unpoliticised and impartial, it must be confident that advice given to Ministers, particularly that given by private secretaries to Ministers, will be protected unless there is a danger of miscarriage of justice. Can my right hon. and learned Friend reassure civil servants that our traditional way of doing things will be maintained?
The Attorney-General:
My hon. Friend has put his finger on one of the trickiest issues, which is the extent to which documents relating to advice to Ministers should be withheld. What I have made clear today is that documents relating to advice to Ministers will be judged by the same test as documents in the category of national security and various other categories, which is whether disclosure would cause serious harm to the public interest. They will have to pass that test. If they can--I can conceive of circumstances in which they would--they would be entitled to protection, subject of course to the overriding views of the judge, to whom they would be shown and who would make his decision after argument.
Mr. Max Madden (Bradford, West):
As the Attorney-General has said that judges will remain the final arbiters in those matters, will there be any right of appeal against a judge's decision? Unless there is, yet another legal anomaly would seem to be created whereby there is no right of appeal against an individual judge's decision. Under the new arrangements, will the
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The Attorney-General:
I shall take the second part of the hon. Gentleman's question first. I should expect--this will be the guidance given to the public service--that cases of difficulty, but not every case, will be referred to the Law Officers for advice.
On the first question, if the trial judge decides that a document should not be disclosed, there will, at the end of the case, be an ultimate right of appeal. The general rule in Crown court trials, which I think would apply in this instance, is that the trial judge's ruling on an interlocutory matter of this nature in the case is final at that moment. One could not rush off to the Court of Appeal on the matter at that stage.
If I have mistaken the position in any way, however, I shall write to the hon. Gentleman, as he has raised an interesting point of law, and place a copy of the letter in the Library. But, at the conclusion of the case, if one believed that an injustice had arisen, it would be a ground of appeal.
Mr. Rod Richards (Clwyd, North-West):
Will my right hon. Friend confirm that the new PII regime will guarantee protection of sensitive intelligence sources, both human and technical?
The Attorney-General:
Broadly, the answer to my hon. Friend's question is yes. He has posited a very sensitive source, which would normally require protection. In such cases, if the information were essential to a fair trial, the prosecution would have to decide either to disclose the information and to proceed with the trial, or to drop the trial to protect the source. The system provides a method of proper protection for such security information, although occasionally it may be necessary to drop a trial to protect the source.
"I question the propriety of instructing counsel 'to seek to avoid the disclosure of documents'".
It goes on:
"The authority would not have been forthcoming from Mr. Heseltine . . . The process of seeking the requisite instructions would have exposed the impossible position in which the Treasury Solicitor and Mr. Moses were placed, namely, representing Departments with different views."
Will the House have an opportunity to discuss this after looking at the statement and the documents? Have the views of Professor Anthony Bradley, who wrote a long article in the journal Public Law been taken into account?
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