Ministers' decision prevented change in guidelines being revealed to MP s

The Scott Report; Six who signed the gagging orders in the Matrix Churchill case
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Sir Nicholas Lyell: 'Fundamental misconception of the law'

Attorney General then and now

He was criticised over two key aspects of the Public Interest Immunity certificates - the so-called gagging orders - central to the Matrix Churchill trial. He was held personally responsible for a failure to inform the trial judge that one minister, Michael Heseltine, then President of the Board of Trade, believed that some material covered by the secrecy orders should, in the interests of justice, be disclosed to the defence.

And he was blamed for "a fundamental misconception" of the law - that Ministers were under a duty to sign the secrecy orders whether or not they had doubts about issues of justice.

Sir Richard said of Sir Nicholas's failure to supervise the prosecution: "...I accept the genuineness of his belief that he was personally, as opposed to constitutionally, blameless for the inadequacy of the instructions [to the prosecution counsel and through him to the court]".

"But I do not accept that he was not personally at fault. The issues that had been raised by Mr Heseltine's stand on the PII Certificate did not fall into the category of mundane, routine, run of the mill issues that could properly be left to be dealt with by officials in the Treasury Solicitor's Department without the Attorney General's supervision.

"Mr Heseltine had taken his stand, not as a result of any legal analysis which he was not equipped to make, but as a result of an apprehension that justice might not be done if documents were withheld from defendants.

"Such an apprehension on the part of a senior minister, charged, as is the Government as a whole, with the taking of decisions regarding the maintenance of national security and the promotion of the public interest, raised very serious issues, constitutional and legal, as to the role of PII certificates in criminal cases.

"If the responsible minister does not regard the withholding of the documents from the defence as being in the public interest, what is the function of the PII certificate that he has, so it is said, a duty to sign?"

Sir Richard said he would have expected the Attorney General to have recognised the important constitutional and legal issues raised by Heseltine's stand and articulated them.

He said he found it astonishing that a letter from Mr Heseltine to him over the issue had been "left unread for between three and seven weeks".

"Major responsibility for the inadequacy of the instructions to Mr Moses [prosecutions counsel] must in my opinion be borne by the Attorney General, " he said.

Sir Richard said the Government's attitude generally to disclosure throughout was "consistently grudging" - more so in some cases than that of the security services. He said in fairness to them they had relied on wrong advice from lawyers. In the case of Mr Heseltine, that advice had come from Sir Nicholas. That government practice had denied the defendants in the Matrix Churchill trial an essential safeguard, he concluded.

Kenneth Clarke: 'His explanation is inconsistent . . .'

Then: Home Secretary

Now: Chancellor of the Exchequer

"Mr Clarke could not have known his Certificate might have the restrictive effect on Mr Henderson's defence ...

"Mr Clarke's justification and explanation are, in my opinion, inconsistent with the proposition that it is not open to Ministers, when considering materials ... qualifying for PII protection, to authorise the disclosure of material they regard on a contents basis as innocuous.

"The Home Secretary's attention was drawn to Mr Heseltine's two Certificates and to the fact that Mr Heseltine was uneasy about signing the Certificates unless the Home Secretary was content. Mr Clarke marked the submission 'Content' and signed the Certificate accordingly.

"The incongruity between the terms of Mr Baker's Certificate ... which would have barred Mr T's evidence ... and Mr Clarke's Certificate in which he said he was satisfied Mr T's evidence could be given, seems to have occurred to nobody ... I would not wish to criticise Mr Clarke for giving this authority."

Michael Heseltine: 'Exercising his judgement'

Then: President of the Board of Trade

Now: Deputy Prime Minister

"Mr Heseltine was of the clear view that the DTI documents ought not to be withheld from the defence. He accepted that, in forming this view, he was exercising an element of judgement."

"Mr Heseltine signed the certificate in its redrafted form. Before doing so he read with some care the All England Report of the Makanjuola judgment and marked the passage at p.623 between g and h. The sentence '... the ultimate judge of where the balance of public interest lies is not him [ie the minister] but the court' was, said, Mr Heseltine, 'the clinching part as far as I was concerned'."

"He also took steps to try and ensure that the other ministers who had signed PII certificates were made aware of the limited nature of his own certificate."

Tristan Garel-Jones:

'He would still have signed Certificate'

Then: Foreign Office minister

Now: Backbench MP

"It was apparent . . . from his evidence to the Inquiry that knowledge of the proposed defence, e.g the allegation that the Government knew about the military-related use intended for the machine tools, would have made no difference to his readiness to sign the Certificate.

"Nor did Mr Garel-Jones know, when he signed the Certificate, that Mr Henderson had had links with the intelligence agencies.

"As to that, he expressed the opinion, with which I agree, that he should have been told.

"None the less, he would still, I infer from the evidence, have signed the Certificate.

"I do not agree with Mr Garel-Jones . . . I regard his suggestion as risible."

Peter Lilley

'Failed to discharge obligations'

Then: Secretary of State for Trade and Industry

Now: Secretary of State for Social Security

Peter Lilley failed to give an adequate answer over the Supergun to Labour MP Dick Caborn in December 1990, according to Scott. Although it is not clear he saw or was told about material that would have provided a fuller answer the failure was "a further example of failure to discharge the obligations of accountability".

Also criticised, by implication, over the introduction of the Import and Export Control Act which provided minimal powers for MPs to challenge decisions taken under it.

Signed public immunity certificates in the Matrix Churchill and Supergun cases. Sir Richard challenges the grounds made for a claim for immunity for some of the documents in the latter case, but says Mr Lilley was "fully entitled" to rely on an assessment of them made by prosecuting counsel and the Customs Solicitor's Office.

Malcolm Rifkind:

'Confidentiality of advice protected'

Then: Secretary of State for Defence

Now: Foreign Secretary

"Mr Rifkind made clear that, before signing the Certificate, he had read the documents in question to the extent necessary to satisfy himself that they did not fall within the categories described in the Certificate."

"In explaining the ambit of the class of documents . . . for which he was claiming PII, Mr Rifkind distinguished between documents relating to policy 'decided at a high level' and other government papers."

"The justification in his view . . . was that the confidentiality of advice given to ministers should be protected."

"Mr Rifkind said that he thought about amending his own certificate 'but [he] could not see any logical basis in which [he] should do so."

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