Use of gagging orders 'cavalier'

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The Independent Online

Home Affairs Correspondent

Official use of Public Interest Immunity (PII) Certificates - so-called gagging orders - to suppress information has long been of concern to lawyers and civil liberty groups.

Although there had been little public scrutiny of this tool of government secrecy until ministers' "grudging" conduct was exposed in the Matrix Churchill trial, it has been used by Whitehall and the police to great effect.

PII certificates prevented a full inquiry by both the coroner and the European Court of Human Rights into the 1988 Special Air Service killing of the three unarmed terrorists in Gibraltar. The families of the trio maintain that greater disclosure of details of the operation to thwart the terrorists by MI5, the military, and the Gibraltar police would confirm that there was a top-level plot to kill them.

Alison Halford, assistant chief constable of Merseyside, was blocked by PII from seeing personnel files she says would support her claim for sexual discrimination.

And until a ruling last year by the Law Lords, police had been able to claim PII over internal investigations into allegations of malpractice by officers.

PII has its roots in the constitutional convention of Crown Privilege, which for more than 100 years prevented the Government being sued and allowed it to decide what information should be kept secret. The 1947 Crown Proceedings Act ended its immunity from court actions, but said it need not disclose documentation where it would be "injurious" to the public interest.

Subsequent court rulings dictated that the final decision over whether documents should be disclosed rested with judges. But judges have been reluctant to intervene when faced with claims of "national security". Further, while PII has been used mostly in civil actions, ministers, officials and the police have used it increasingly in criminal cases.

Revelations over the misuse of gagging orders during the Scott inquiry prompted Lord Justice Simon Brown, a former leading treasury counsel and president of the security service tribunal, to warn judges that their reticence was inviting a "cavalier" approach to the use of PII by the Government.

Sir Richard's recommendations should ensure an end to that attitude. He condemned as "having no sound legal foundation" Whitehall's claim that PII must be cited where there are concerns over national security or the public interest. PII should not be claimed in relation to documents which might be of assistance to the defence, he says.