Leading Article: Some questions for Sir Nicholas

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The Independent Online
LORD Justice Scott's inquiry into the arms-to-Iraq scandal, due to report in the summer, already has one solid achievement. It has demonstrated that the practice of claiming immunity to protect government documents from court orders has been scandalously abused. Ministers may reasonably claim immunity in the public interest when a document being asked for contains genuine secrets. But this notion of immunity for entire classes of documents, irrespective of their contents, is absurd. It shows how deeply the seam of secrecy runs in Whitehall that claims for such 'class immunity' have become routine. The Government's first task after Scott will be to reform this pernicious misuse of state power.

The inquiry also raises a more immediate issue: the future of Sir Nicholas Lyell. As Attorney-General, Sir Nicholas presided over a systematic attempt to persuade ministers that they must swallow their consciences in the Matrix- Churchill case and sign public-

interest immunity certificates that might have led to the imprisonment of innocent men.

Under this pressure, at least two ministers acted courageously. Richard Needham, the trade minister, refused point-blank to sign a certificate. Jonathan Aitken, the defence procurement minister, asked so many questions that the officials went over his head - and won the signature of Malcolm Rifkind, the defence secretary. Peter Lilley, the social security secretary, also swallowed the line that he had no choice but to sign.

Michael Heseltine, whose testimony to the inquiry is still echoing around Westminster, occupied a halfway house. On reading his papers, he concluded that disclosure was in the public interest, rather than against it - but he agreed to put his name to a form of words that would make his reservations clear to the judge in the Matrix case. As a further precaution against personal political damage, he wrote a clever letter to the Attorney-General. The letter put it on record that Mr Heseltine was claiming immunity because he had been told he was 'under a legal duty' to do so, against his own judgement that 'at least some of them (the documents) ought to be disclosed'.

Sir Nicholas must now answer two questions. First, what sort of 'legal duty' did he tell Mr Heseltine and other ministers they were under - and why did he apparently change his mind about this duty later on? Second, was it Sir Nicholas's fault that the Matrix case judge was told that disclosure of the disputed documents would not help the defence, when it manifestly did?

The inquiry's progress so far suggests that, far from acting as the Government's impartial adviser, he behaved as a legal functionary devoid of a sense of right and wrong. To clear his name, Sir Nicholas and the judge should bring forward the hearing of his evidence to the inquiry. An Attorney-General should not leave such accusations unanswered for a week, let alone three.