Leading Article: Sir Nicholas fails the test

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The legal mind may be trained to concentrate on detail, but the test of a great lawyer is his ability to grasp the whole, to transform the atoms of forensic material into a solid case. Sir Nicholas Lyell failed that test yesterday. He displayed courtesy and a punctilious regard for the proprieties suitable to his rank. But he seemed incapable of understanding that when the law is summoned to defend the interests of state, or when it enters the realms of high politics, greater qualities are called for.

In testifying at the Scott inquiry yesterday, the Attorney General displayed a narrow appreciation of his role. Was this a supine functionary or a stern officer of the law with power to intervene and compel? It was hard to make out. On the one hand, Sir Nicholas prided himself on the complete consistency of his advice to ministers. On the other, he did not seem to possess a view on the rights or wrongs of the case. Sir Nicholas reserved his scorn for the misconceptions and myths promoted by an ignorant media, but he seemed averse to clarity. Take the case of Michael Heseltine, whose concerns were not relayed to the prosecuting counsel, Alan Moses QC. Sir Nicholas blandly asserted that a letter conveying these reservations was sent to the Treasury solicitors instructing Mr Moses. But Mr Moses told the inquiry he had never heard of them. Could the Attorney General explain that? He could not.

Take the question of ministers' discretion to sign the famous public interest immunity certificates. In the morning, Sir Nicholas agreed with Lord Justice Scott that ministers with an instinct for justice could invoke a conscientious refusal to sign. But in the afternoon he said that in the Matrix Churchill trial they could not, because, in his sage judgement, it was not an exceptional case. He will have cause to reflect upon that choice of words. This was an extraordinary performance. Letters were dispatched, but it never occurred to the Attorney General to see that prosecuting counsel knew of their content. Sir Nicholas advised ministers to sign certificates, but seemed in two minds as to when they must do so. He sits at the apex of our system of criminal justice, but he recalls these events as if they were random acts of nature quite beyond his control, their overall effect unconnected to his own dutiful shuffling of paper.

It is this absence of any sense of personal responsibility that seems most disquieting. As if in mitigation, the Attorney General pointed out that the papers covered by his certificates had no effect on the trial, which only collapsed upon hearing the colourful testimony of Alan Clark. In other words, if Mr Clark had not spoken up, Sir Nicholas would have gone politely and with a quiet conscience on his way. Sir Nicholas did not explain why the prosecution was allowed to continue. He did not dispel the confusion over public interest immunity certificates. He took refuge in the letter of the law when he is supposed to be the guardian of its spirit.