Rule change on `gagging' orders

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The Independent Online
The Government moved yesterday to reform the use of public-interest immunity (PII) certificates by ministers in court cases, in the wake of the criticisms in the Scott report into arms for Iraq.

But although ministers will in future only claim the protection of the so-called "gagging" orders if a document would cause "real damage or harm to the public interest", there were doubts last night that the new approach would make a significant difference.

In simultaneous Commons and Lords statements, the Attorney-General, Sir Nicholas Lyell, and the Lord Chancellor, Lord Mackay of Clashfern, said that ministers would "focus directly on the damage that disclosure would cause. The former division into class and contents claims will not longer applied ... The Government intends that this test shall be rigorously applied before any PII claim is made for any government documents."

The final decision on whether official information should be disclosed in a criminal or civil trial would be for the courts concerned. There is no guarantee that a document vital to a person's defence - as in the Matrix Churchill trial which sparked the Scott inquiry - would necessarily be disclosed.

While the blanket nature of the earlier approach appears to have been mitigated, "real damage or harm to the public interest" has not been defined. In a clue as to what the Crown might argue, the ministers suggested that it might relate to "a regulatory process; or it may be damage to international relations caused by the disclosure of confidential diplomatic relations" or "the nation's economic interests or our relations with a foreign state".

The ministers said PII certificates would :"set out in greater detail than before both what the document is and what damage its disclosure would be likely to do - unless to do so would itself cause the damage which the certificate aims to prevent".

That proviso indicates that it could be just as difficult in future to contest the testimony of the security services because it would be difficult to make informed representations to the court.

Ben Emmerson, a civil rights barrister who is taking cases involving PII to the European Court of Human Rights at Strasbourg, said: "The move from class claims to claims relating to specific documents is a positive one. But the categories of information which can be withheld remain unacceptably vague and open to interpretation."

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