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The Lord Chancellor: My Lords, it may be that one detail of the background is being slightly overlooked in
the question of the noble Lord, who has considerable experience in this area of practice. In decisions before this time the courts said that in certain circumstances there would be a duty on the relevant Minister to claim public interest immunity. Therefore, it is right that the Minister should be advised that if he is satisfied that these circumstances have arisen, then that duty does arise and he has a legal obligation to sign the statement. However, whatever advice the Minister receives, ultimately the responsibility for the certificate that he signs is his.The discussion that has taken place in relation to this matter may not give full effect to the fact that in decided cases there was a statement to the effect that this was not a privilege. In the old days this was referred to as Crown privilege. The courts modified that and pointed out that it was not a privilege but an important aspect of the safeguarding of the proper function of the public service. Therefore, where such damage by disclosure would arise the Minister would not be exercising a privilege but discharging a duty in making the claim. That is the basis of the matter. Ultimately, it is the Minister's responsibility to form a judgment on the facts, apply the relevant law as he is advised, and take a decision.
Lord Merlyn-Rees: My Lords, questions have been raised about the relationship between a Secretary of State and the legal adviser to the Government. I was surprised to read in the Scott Report that so many junior Ministers had signed a public interest immunity certificate. I had always understood--indeed, in a similar case I was so advised--that only the Secretary of State could sign and that junior Ministers should not and could not sign. Is that still the case?
The Lord Chancellor: My Lords, I should have thought that that would be a matter of good practice where the senior Minister was in a position to deal with the documents and form a judgment. That may be quite a large task. As the noble Lord knows only too well, the Secretary of State may have many heavy responsibilities upon him. This is a heavy and important responsibility. Where the Secretary of State is able to undertake the matter and sign the certificate, for my part I should think it appropriate that he should do so. But there is nothing to prevent a junior Minister from making a claim. There may be all kinds of reasons--involvement and other matters--why the Secretary of State cannot do so. From time to time claims have been made by officials, for example in relation to documents which relate to a previous administration which it would be inappropriate for the current Secretary of State to see. I agree with the thrust of the noble Lord's question that, this being a matter of considerable responsibility, the most senior Minister available to discharge that responsibility should do so as long as he is able to discharge it.
Lord Simon of Glaisdale: My Lords, in justice to the Attorney-General should it not be said that it is now overwhelmingly accepted that the legal advice he gave at the time as to the law as it then stood was, contrary to the opinion of Sir Richard Scott, entirely correct?
Was not the advice that the document in question fell within a class that had been previously recognised by the law as to be withheld and there was no ministerial discretion in the matter?
The Lord Chancellor: My Lords, I am happy to endorse that. It is appropriate that that statement should come from such an eminent authority on the Cross Benches. I entirely agree and I sought to explain that in relation to the question asked by the noble Lord, Lord Jenkins of Hillhead. It is because there was a duty to make a claim in the circumstances that applied that that was the situation.
Lord Jenkins of Hillhead: My Lords, I am sorry to pose this question, but I am now totally confused. I do not understand how there can be ministerial responsibility if there is no ministerial discretion.
The Lord Chancellor: My Lords, that is an extraordinary statement. For example, Ministers of the Crown are under an obligation to obey the law and to act lawfully. That cannot imply that they have a discretion not to do so. The mere fact that one has responsibility does not mean that one has a discretion not to do what one is advised it is right to do, for example, in relation to taking a decision or signing a document.
If one has a statutory obligation to do something, it does not imply that one has an option not to do so. If one signs the document, of course, one has a responsibility for it. The reason one has discharged one's duty in that way is because, in my specific example, of the obligation imposed by law.
Lord Callaghan of Cardiff: My Lords, what I am a little worried about is the way in which the noble and learned Lord, Lord Simon, phrased his comments. I have the greatest respect for him on all these matters. But Ministers derive such authority as they have from statute and from Parliament. Those are the only two bodies to which they are responsible--to the statute and to Parliament.
Can the Lord Chancellor make it absolutely clear that if the opinion of the Attorney-General on a matter of law differs from that of the Minister and the Minister does not agree with that interpretation, he is perfectly free to decline to sign a document. If that is so, I assume that he may be challenged in the courts at some stage. But it is his responsibility and his alone and no Attorney-General can require a Minister to sign a document with which he disagrees.
The Lord Chancellor: My Lords, it is surely plain that, where a Minister seeks legal advice, it is right that he should have regard to that advice, for instance, from the Attorney-General.
There is possibly a misunderstanding lying behind this confusion. The Attorney-General's advice is given on the basis of the Minister being satisfied in relation to a specific matter. The legal advice may be, "If that is your position, this is what you must do". Unless the
Minister has reason to suppose that the legal advice is wrong, the Minister, not being a lawyer, is unlikely to have grounds on which to refuse the advice or refuse to follow it.A responsible Minister obtaining legal advice with which he has no reason to disagree will surely wish to follow it. Of course, he may have reason to doubt the legal advice and, if so, to challenge it, explore it and see on what it is based. That in no way detracts from his responsibility to take legal advice. He, not being a lawyer, if that be his position--some of us do not have that particular route--it would surely be rational for him to follow that advice unless he has reason to doubt it. In that case he should raise those doubts and seek to have them resolved before deciding on his course of action.
Lord Hutchinson of Lullington: My Lords, the point in the Matrix Churchill case was that the Minister saw perfectly clearly that if the document was not released there would be a miscarriage of justice. Nevertheless, the Attorney-General told the Minister that he had to sign the document. Not only was that the situation, but counsel for the Crown at the trial was instructed to ask the judge to keep those documents from the jury. In the end it was only because the judge refused to do that that there was not a miscarriage of justice. Therefore, surely what the noble Lord, Lord Callaghan, is saying is true. The Minister saw perfectly clearly that if he refused to sign the document there would not be a miscarriage of justice, and that is what the whole matter was about.
The Lord Chancellor: My Lords, this is not the occasion on which to seek to reopen the details concerning that case. I am prepared to do so, but this is not the right use of your Lordships' time when we are discussing this Statement.
The position was accurately put by the noble and learned Lord, Lord Simon of Glaisdale. I can well see that situations could develop--that is the reason for the policy set out in the Statement--where concentration on class claims as such, without perhaps focusing sufficiently on the reason that the courts have admitted those class claims, may sometimes damage the real exercise which the Minister is seeking to carry out. It is in order to try to remove that kind of mechanical reliance on class claims that this change of practice is to take place; that is, in order to try to alleviate for the future any problems of the kind advanced in the past.
Lord McIntosh of Haringey: My Lords, this time is for Back Benchers and I do not wish to intervene and would not do so if it were not absolutely necessary. But is it not clear that the Lord Chancellor has been the subject of high level and profound interrogation? Would
it not be to the benefit of the House if the usual channels were to find time for a debate on these important matters which was not time-limited?
The Lord Chancellor: My Lords, the important matter is the Statement of what the position is for the future. I hope that I have made that absolutely clear.
Lord Jenkins of Hillhead: My Lords, not to me.
The Lord Chancellor: The noble Lord says that it is not plain to him. Let me have one more go. In the light of this practice as presently stated the Minister will be responsible for the signature if he signs a certificate. If he takes legal advice in that regard, he still retains responsibility for it. That remains the position, as it has always been.
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