It ought to depend on the detail of the case against him - above all, how he behaved over the Public Interest Immunity Certificates whose use was scathingly attacked in the Scott report. This is a complicated matter on the surface, though simple at heart.
In a sense, what one is asking about the Matrix Churchill trial is absurd: why did it all end happily? Ministers were supposed to scrutinise documents to be withheld from the trial. One of them at least - Michael Heseltine - closely did so. He raised his fears with Lyell and his PII Certificate was changed. The judge, Brian Smedley, who was supposed to decide what information was released in his court, took the hint. The trial was fair. No ministers conspired. The accused were released, to pose with champagne glasses in the Strand.
That is the simple, cheerful view. It is, to quote one Scott witness, half the picture. But the other half is darker.
Ministers had been told that they had an absolute duty to sign orders intended to keep whole classes of information private, whatever their views. This humiliating vision of ministerial power, which has them as human rubber-stamps for official secrecy, was based on case law, known as the Makanjuola judgement.
Heseltine, confounding his caricature as man bored by detail, read the documents and the original Makanjuola judgement. He accepted that he had to sign something, but was deeply unhappy about what was going on. As a note used in the Attorney-General's office put it, "The problem is that he thinks it is in the public interest for the documents in this case to be disclosed... I gather that he is unhappy about the Customs prosecution and does not want to be party to the suppression of documents which are helpful to the defendants."
The deal Heseltine struck was that the certificate should be changed (it was) and that if necessary, his attitude should be emphasised by the prosecution in court. This didn't happen. Asked whether a clear message of his views had been passed to Judge Smedley, Heseltine told Scott: "No, and it should have been... I find it difficult to explain the way in which events worked out."
Did it matter? Not in practice, but that was partly luck. As one observer put it, Judge Smedley was "a jobbing Old Bailey judge, picked from the ranks of the prosecutors, a good criminal practitioner, not an intellectual giant." Initially, he didn't spot the Heseltine reservation. Having heard a whole cabal of Cabinet ministers telling him that it would be against the national interest to release documents, he would have been interested, at the very least, to know that one strongly disagreed.
Still, one could argue that none of this necessarily showed bias on the part of the government machine. It was holding back all the relevant material from the whole court, wasn't it? One could only really complain of unfairness if the prosecution were allowed special favours.
Except - they were. There was a spook, "Mr T", whose evidence came under the general ban to avoid "serious and unquantifiable damage to the functions of the security and intelligence services." But the prosecution wanted to call him as a witness and use his statement. And so they got him - no problem.
The Government was releasing or trying to block information as it found convenient for its own case. In Sir Richard Scott's words, the Mr T evidence "suited the prosecution... a clear demonstration of the uneven strength of the prosecution's hand compared with that of the defence under the PII practice espoused by the Attorney General."
This is a rotten, indeed disgraceful, system. Had Heseltine, with his self-confidence and energy, not questioned what he'd been told by the Attorney General he had a legal duty to sign, the trial might have gone the other way. Smedley made the right choice; but he wasn't offered every opportunity by Lyell to do so.
In the Commons yesterday, the former trouble-maker Heseltine sat beside the Attorney-General nodding loyally as the latter defended himself: "I took special steps... to ensure that the judge was alerted to the need for special care." But if Heseltine hadn't forced him, he wouldn't have taken any steps, never mind special ones.
Unlike Heseltine, he hadn't read the relevant documents. He argues that he couldn't have - there are too many such, and it wasn't his job. But Sir Nicholas is not only the Government's senior legal adviser. He is also the minister with a special responsibility for justice.
He is not a bad man, nor corrupt, nor a malign conspirator. But a system which expects an Attorney-General to order ministers to hide important information, without knowing what it contains, is biased against the citizen and against justice. And a system which allows the selective release of secret information for the convenience of the prosecution in a criminal case is potentially oppressive.
And Sir Nicholas is, inescapably, the embodiment of that system. He has been criticised in very strong terms by Scott for his part in a trial which, even senior ministers now agree, should never have taken place. He is the minister responsible, in every meaning of the term, for what happened. He should have apologised. He should have refused to continue in office.
But he believes that he is innocent and today, self-belief is apparently an absolute ministerial defence against any charge of political misconduct. If so, then the old doctrine of ministerial responsibility, which has looked so haggard for so long, can be declared dead. It expired at about 5pm on 16 February 1996.
Unless Parliament exerts itself, the British constitution has been altered this winter, and very much for the worse. The Commons will get its chance on Scott, and probably its last chance, next week. The Government is putting down no self-justifying motion but is using an adjournment debate, which means there would normally be no vote. After Scott, no vote? Can they be serious?
The Opposition will try to force one. That doesn't mean they think they would win it - there are too many variables, including the behaviour of the Ulster Unionists, and the numbers of unwell MPs on either side. But they are well aware that ministers could sabotage the whole process by simply accepting the end of that day's business.
After fixing the terms of the report's release and using servants of the state to try to spin its findings, this would be - let's put it gently - a provocative response. It would belittle the Commons, which on this subject has been a place of sanctimony and of blusterous harangues. Enough, already. There ought to be a motion and there must be a vote.Reuse content