In a day of apparently contradictory evidence, Sir Nicholas's defence of his role in the Matrix Churchill arms-to-Iraq case did little to dispel the belief that he will be among the ministerial casualties of the affair.
Under intense questioning from Lord Justice Scott, the Attorney General appeared to concede on at least two occasions that ministers who signed public interest immunity (PII) certificates, in an attempt to deny the defendants documents vital to their defence, could have refused to do so. That contradicted his earlier assertions that ministers were duty bound to sign.
Sir Nicholas was asked by the judge what should happen if a minister 'with an instinct for justice' believed, despite legal advice he might have received, there was 'a clear case' that the documents should be made available to the defence. 'In that case conscientious refusal to sign could apply?' Sir Nicholas replied: 'Yes, it could do.'
The Attorney General's advice to ministers is a crucial issue at the inquiry. Pressure on Sir Nicholas increased after Michael Heseltine, President of the Board of Trade, gave evidence last month that he feared he was being asked to take part in a government cover-up. He said he was reluctant to sign a PII, believing the Whitehall documents might prove the innocence of the defendants charged with supplying equipment to Iraqi weapons factories.
Despite that he was advised by Sir Nicholas that he had a duty to claim immunity for the papers because they fell into categories normally covered.
The case against the three defendants collapsed after the trial judge overruled the ministerial certificates and ordered that the documents be disclosed.
When yesterday's hearing resumed after the lunch break, Sir Nicholas issued a fresh statement denying that his earlier statement was a concession and insisting he stood by his advice to ministers. He said: 'I have always taken the view that there are exceptional cases in which PII need not be claimed.
' This is no concession. It formed part of my original advice to Mr Heseltine. Matrix Churchill was not such an exceptional case. . . . Ministers in this case were under a duty to claim PII.'
After this he admitted that constitutionally the decision to sign was 'plainly a matter for the ministers', adding quickly 'on advice' (from lawyers).
Political opponents were unconvinced by his denial.
Menzies Campbell QC, Liberal Democrat defence spokesman, said: 'The Attorney General departed from his previous position that ministers had an obligation to sign certificates. He now says that in a clear case ministers have got to exercise their discretion.
'Michael Heseltine would not have signed the PII certificate if he had been given the advice on the law the Attorney General now appears to be giving.'
Lyell evidence, page 2
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