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Lord Fraser of Carmyllie: My Lords, I am much obliged. Before the noble Lord expands on that theme, perhaps I could invite him to look at the parliamentary Questions that have been tabled in another place and, indeed, in this place. If I understand the convention of both Houses correctly, if there is an opportunity to give such information in a parliamentary Answer, then that will be the appropriate place to do so rather than to advance it to one particular Member or noble Lord. That is the reason for my adopting such an approach. I hope that the noble Lord will accept from me that I certainly did not have any intention of depriving him of that information for the purposes of today's debate.

Lord Williams of Mostyn: My Lords, I accept what the Minister says, but the question remains in my mind: if the material was fully available in detailed form, who had what and when; and why was it not possible to reply to my letter either indicating what the information was or where I might reasonably discover it?

The third question in my letter outlined my concerns about the expenditure of public funds on representation before Scott. I wanted to know how much had been spent and who had been in receipt of legal assistance; that is to say, of taxpayers' money. The noble and learned Lord told me that the total of £1,210,000 had been paid. I omit some words from it, but the noble and learned Lord has a copy of his own letter. If I do not correctly paraphrase the contents, then I apologise in advance. However, I believe that I do. He said that the Government do not consider it right to identify the individuals who have received legal advice either directly or indirectly. Have the Government learnt nothing? The noble and learned Lord, Lord Fraser of Carmyllie, speaks on behalf of the Government. I do not attach personal blame to him of course; I am attacking the message, not the messenger. In opening today's debate, the noble and learned Lord said that this Government are devoted to openness. Well, well!

I propose, I hope at not too great a length, to give your Lordships some quotations from the report. They will not be selected quotations, because they lay the trail that I wish to follow for a moment or two. I have no animus against the Attorney-General; indeed, I am sorry for the position in which he finds himself. I believe it to be an intolerable position and one which can only be

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properly resolved by his departure from his post. I regret to have to say that, but I am inevitably driven to that conclusion.

As long ago as September 1991, according to Volume III of the report at page 1268, the instructions from the DTI to then junior counsel Mr. Nigel Pleming (who is very experienced in that class of work) said:

    "It is anticipated that Counsel for the Defendants will submit that the Government knew and encouraged the trade to be less than frank in their licence applications".
Those were the prosecution instructions. At page 1269 of the same volume it states that Mr. Pleming,

    "thought it likely that there would be two strands to the defence; firstly, that DTI turned a blind eye to the military possibilities, and secondly that ... HMG were in any event aware of the full facts".
I continue. Prosecuting counsel was Mr. A. Moses. He was assisted by junior counsel Mr. Grenfell and Mr. Calvert-Smith. Those counsel were kept in the dark. On page 1240 of Volume III, Mr. Moses said that,

    "if that connection [referred to in the documents] was known at the time, I do not see how the prosecution could have continued. It seems to me to show not just suspicion but knowledge of the intended use. I do not understand why this information was not brought to my attention".
Similarly, on the same page, Mr. Grenfell said:

    "I think (absent a satisfactory answer to the matters I have indicated would need to be investigated) that the prospects of conviction in the light of this material and its effect on the jury's views, would be so reduced that one would have advised the prosecution should not proceed".
On page 1241, Mr. Calvert-Smith said:

    "I saw none of this nor was I told of it ... I would not have advised a prosecution".
Because I do not believe that one should take party advantage of a mis-statement of what one believes the law then to have been, I entirely accept that it was reasonable to have a different view from the one which has subsequently been expressed by Sir Richard Scott. I refuse to join the bandwagon which says that the Attorney-General was inevitably wrong at the time. I believe that what the noble and learned Lords, Lord Slynn and Lord Lloyd, among others, have said, is certainly correct as one possibility of a view that could have been taken. I will go further because I do not think that one should take small-minded advantage. I think, with great respect, that the view expressed by the noble and learned Lord, Lord Lloyd, was the majority view then subsisting.

However, the majority view then subsisting was expressed at page 1260 in the case of Makanjuola. That case is not in fact authority for the proposition that, once asserted, the right must be maintained. Makanjuola quite plainly says--and, indeed, the Attorney-General referred to this in correspondence--that in some circumstances it is not necessary for a public interest immunity right to continue to be asserted. Therefore, the criticism which I believe to be rightly made against the conduct of the Attorney-General is not that he got the law wrong; indeed, he may have got it right.

I believe that it is conscientiously fair to say that the majority view at that time would have supported the Attorney-General. I respectfully dissent from the

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proposition put forward by the noble Lord, Lord Jenkins of Hillhead, that the Attorney-General is the best legal advice--that is not so in my experience. What he does, quite rightly and legitimately, is to go outside for other legal advice. That is what this Attorney-General did. He went to the present Mr. Justice Laws, Michael Kalisher QC, and others. Therefore, I do not fault him in that respect. Others may wish to do so for different and more ignoble purposes.

I believe that the case of Makanjuola is worth a second view. At page 1260 it says:

    "This does not mean"--
that is, PII--

    "that in any case where a party holds a document in a class prima facie immune he is bound to persist in an assertion of immunity even where it is held that, on any weighing of the public interest, in withholding the document against the public interest in disclosure for the purpose of furthering the administration of justice, there is a clear balance in favour of the latter".
The one person who read Makanjuola correctly was the then President of the Board of Trade. I believe that he presently holds a different job. But he got it right, and he got it right having looked at Makanjuola.

As has rightly been pointed out, the Home Secretary declined to be bound by the stricter view. He authorised the evidence to be given by a "Mr. T". "Mr. T"--not, perhaps, one of the usual suspects--was someone who was identified in that way for reasons of anonymity. Mr. T's statement was released to the prosecution because the Home Secretary (it may well have been a perfectly legitimate view because the Home Secretary of the time was Mr. Clarke) wished that material to be used by the prosecution; as, indeed, the noble Lord, Lord Hutchinson, pointed out earlier.

Those are not lawyers' quibbles. The strength of feeling which I believe informed the speech of the noble Lord, Lord Hutchinson, is that there was a serious danger not of a wrong view of PII law but of a negligent conduct of a prosecution. I am sorry to say this again against someone who has been a personal colleague, but that is the charge that I make and sustain against the present Attorney. That gives me no pleasure.

I give a few further examples. I refer to page 1352 of Sir Richard's production. The virtue of not having a summary is that it drives one to read it all. I refer to the reference to Mr. Heseltine on page 1352 in a note written by Miss Wheldon. I just pause for a moment. When the history of legal and parliamentary business in our time is read, if he has no other achievement he shall have gained the following one. It is stated on page 1352 that,

    "Mr. Heseltine--the president--
as he was then called--

    "apparently accepts the PII classes in question exist and indeed that it is in principle against the public interest for documents in those classes to be disclosed. The problem is that he thinks it is in the public interest for the documents in this case to be disclosed, despite the fact that they fall within a class. I gather that he is unhappy about the Customs prosecution and does not want to be party to the suppression of documents which are helpful to the defendants".

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The note written by Mr. Heseltine's assistant, Miss Wheldon, is again mentioned on page 1353,

    "Miss Wheldon enclosed with her Note the whole file so that the Attorney General could see the extent of his office's involvement and warned that 'The prosecution may yet come to a sticky end'".
The Attorney-General endorsed that note. It was not a case of, "I was not there. I cannot remember. I was too busy"; he endorsed the note. At page 1353 he stated,

    "I wish to take an overview of the prosecution to assess the pros and cons".
This is the whole substance and basis of what I regretfully press as a charge against him. The Attorney further stated,

    "I have an overall responsibility and this problem having been drawn to my attention I think stock should be taken".

The Attorney sent a letter to Mr. Heseltine. The letter is reproduced on page 1353 and states,

    "It would be quite wrong for you to make assertions which you believe to be untrue"
--that is in respect of a claim for PII.

At page 1354 the Attorney stated, having only a short while earlier said that he wished to take an overview,

    "I have not myself read the documents in question".
He ought to have done so, particularly when the President of the Board of Trade had raised that issue. The latter was not a junior Minister or a clerk; he was someone who had considered this matter with care.

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