Volte‐Face on Public Interest Immunity

Abstract

It is a case of third time lucky. First one was an almost lone voice crying in the wilderness,' then came the decision in exp Wiley2 and now the government has made a complete U-turn on public interest immunity (PII). The statements by the Attorney-General to the Commonsand the Lord Chancellor to the Lords on 18 December 1996,4 which were accompanied by a more detailed paper placed in the libraries of both Houses,received scant attention from the broadsheet press.6 This seems surprising in view of the crucial importance of PII in the Matrix Churchill case and hence the Scott Report.7 One might have thought that this almost complete acceptance of Scott's recommendations on PII would have been hailed as a famous victory. Perhaps good news on the day before the Christmas recess is no news. Maybe Lord Irvine, then shadow Lord Chancellor, reflected the public mood when he said, 'the Government's late conversion (after 17 years of restrictiveness) is a little hard to take. It really is a little rich.'8 The conversion came nearly ten months after the announcement by the Attorney-General9 that he wanted to hear views on the recommendations on PII in the Scott Report. Over fifty responses were received.'o What is the status of the government's announcement? It cannot, of course, change the law which in this area is judge-made. The government agreed with Sir Richard Scott's recommendation that legislation was neither necessary nor desirable,'2 though Lord Irvine thought otherwise.'3 The statement is analogous to the announcement made by the then Lord Chancellor in the House of Lords on 6 June 195614 that classes of documents which had previously been subject to a claim of Crown privilege would now be disclosed. It announces a change of practice by the government,'5 but one which 'can only be delivered by an incoming government.'16 No future government, any more than the present one, can be legally bound by such a statement, but it would be politically impracticable to put the clock back to the previous practice.