Political Commentary: You have failed to do your homework, Mr Attorney

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The Independent Online
THE OTHER day I was thinking of the rugby supporter from Llandeilo, Dyfed, who acquired a ticket for the England and Wales match in Cardiff. Being a farmer, and consequently not short of the odd bob, he decided to do things in comfort, and to stay the Friday night at the Angel Hotel. Seated in the dining room that evening, he was approached by a waiter, a young man from Treorchy who was on a youth training scheme or something of that nature.

'All I wanted really,' the farmer said, 'was some fish and chips.'

'But I'm the wine waiter,' the youth from Treorchy explained.

'That's all right,' the farmer replied. 'No need to worry at all. I'll have wine and chips.'

Lord Justice Scott, though a rugby supporter likewise (who played for Cambridge in 1957), is not like this. He gives the impression that, if he asked for fish and chips, that is what he would get, or know the reason why. I was about to add that he is just as polite as the farmer. But this would not be quite right. There were occasions last Thursday when, questioning the Attorney-General, he appeared to be not exactly rude but certainly on the brisk side.

It was as if a judge of the Court of Appeal were questioning not the principal law officer of the Crown but a young barrister who had just passed his finals. Or Richard Scott might have been a law don, Nicholas Lyell a quite promising pupil who was liable to spells of confusion. At one point Sir Richard said he did not mind Mr Attorney's having an opinion: he merely wanted to be clear what it was.

The lad seems to be incorrigibly idle as well. The learned judge scarcely bothered to conceal his disapproval on discovering that Mr Attorney had not only neglected at the time to read the documents on to which he had instructed ministers to slap their certificates. He had failed to read them to this day.

What made matters more ignominious was that he had appeared on television the evening before comparing himself to a lighthouse. He had also asserted in a newspaper interview a few weeks previously that he knew more about public interest immunity certificates than anyone else in the country. Until the end of last week, at any rate, he was prone to assert that those who differed from him were talking 'nonsense'.

This is the language of the politician or even the journalist. A statement may make perfect sense: but someone who disagrees with it or finds it inconvenient will dismiss it as nonsense. Yet Mr Attorney is not infallible, as he demonstrated during the passage of the Maastricht Bill. Nor is the law an exact science. Several views are possible. A claim can be upheld 1-0 in the High Court and 3-0 in the Court of Appeal and still be rejected 3-2 in the House of Lords.

The case against Mr Attorney is not that he is politically biased but that he takes an extreme view of ministerial certificates. It is supported by a few obiter dicta but not by the majority of cases which have been decided since 1968. In particular there is no authority for Sir Nicholas's view that the Attorney has the obligation - or, come to that, any business at all - to instruct ministers about their functions over immunity certificates. His curious opinion, reversed and then counter-reversed on Thursday, is that he is bound to force the minister to sign to give the courts the opportunity of overturning the minister. A blanket issue of certificates by ministers ensures a more thorough examination of them by judges. A likely tale]

In 1968 the House of Lords decided that the courts could go behind these certificates. They could arrive at their own decision about whether documents which a certificate purported to exclude could be admitted as evidence. The case concerned the alleged theft of an electric torch by a trainee policeman. He was found not guilty of the crime but was dismissed from the force. He sued an inspector and an attempt was made to exclude reports on him. The Lords, having examined the reports, decided there was no reason why they should not be admitted as evidence.

Previously the law had been that a ministerial claim of what was then called Crown privilege was conclusive. This was established in 1942, when relations of those who had died in the Thetis disaster tried unsuccessfully to get hold of the specifications of the submarine.

Throughout the 1950s and early 1960s there was some ministerial guilt about the unfairness of claims of privilege, particularly to plaintiffs (such as ex-servicemen) who were suing government departments. In 1956 the Lord Chancellor, Lord Kilmuir, said that privilege would not normally be claimed at all in criminal cases. He also introduced a distinction which has confused discussions of these certificates ever since: between, on the one hand, a claim made for a particular document and, on the other, a claim made for a whole class of documents (such as advice to ministers from civil servants) of which the document in question is but an example.

How can a judge tell whether a 'class claim', as it is called, is justified unless he goes through all the documents which are claimed to be members of that class? These are deep waters. Certainly judges are not inclined to examine documents once a claim of public interest immunity has been made on their behalf. In the Matrix Churchill case Judge Brian Smedley was exceptional. Mr Attorney's error is to assume that the 1968 case completely took away from a minister the duty to judge the public interest and handed it over to the courts.

Lord Wilberforce said in a 1980 case about the Burmah Oil Company and the Bank of England, where the company wanted to get hold of some documents from the bank, that it was for the minister to define the public interest and the grounds on which he considered that production would affect it. To invite a general procedure of inspection was to set the courts on a 'dangerous course'. They did not have the time or the experience to carry out in every case a careful inspection of documents and a weighing process.

In this case Lord Wilberforce dissented: he refused to look at the documents. The other law lords looked at them and decided that they did not help the company. What is clear is that, though there may be a general power of inspection, the courts have no intention of availing themselves of it in every case. When a minister slaps on a certificate, he cannot be inviting the courts to embark on an independent adjudication of where the public interest lies, an exercise of which he is merely a detached observer. Did Sir Nicholas really expect Judge Smedley to act as he did?

Lord Justice Scott will have performed a public service if he helps reform a branch of the law where the perils of judicial unpredictability have been added to the vagaries of ministerial discretion. Alas] most people do not care about law reform. What they care about are ministers' jobs. My feeling is that Sir Richard's report will be highly critical. But it will be published in September, when Parliament is not sitting. Mr Attorney may yet escape, along with the rest of them.