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Lord Trefgarne: My Lords, the noble Lord included me in the criticism which he made of Mr. Waldegrave. Like Sir Richard Scott, he has relied heavily upon the evidence of Sir Timothy Daunt and Mr. Higson. Will he remind me which of those gentlemen was at the meeting to which he referred?

Lord Richard: My Lords, I do not think either was. The noble Lord, Lord Trefgarne, was, we know that. With great respect, I shall be interested to hear what he has to say. Of course Sir Timothy Daunt was not at the meeting, nor was Mark Higson. Higson was a desk officer in the Foreign Office who became so sickened at being asked to draft what he considered to be lying replies to Parliamentary Questions that he left the Foreign Office as a result.

Let me now turn to the Attorney-General. His activity, or rather the lack of it in respect to the Matrix Churchill case, is in marked contrast to that of his predecessor to Sir Patrick Mayhew in the supergun affair. The same point emerged there; namely, that the Government knew the objects for which the licence was

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requested. The then Attorney-General, Sir Patrick Mayhew, took the view that the prosecution would not succeed and the case should be stopped. Despite the objections by Customs when he gave them that advice, he threatened to enter a nolle prosequi if the prosecution were not dropped. It then was.

Contrast that with the behaviour of the present Attorney-General. He took no interest in the case until it arrived at the point where Mr. Heseltine refused to sign a PII certificate. That was on the grounds that he at least did not think that the documents should be concealed and that they were clearly relevant to the case for the defence. He also believed that disclosure would not cause any damage to the public interest. When told that he had to sign them, despite those views he queried the advice. It is at that stage that the Attorney-General comes into it. He wrote Mr. Heseltine a letter setting out the grounds on which he alleged that Mr. Heseltine was under a duty to sign. The Attorney-General did not read the documents, though he clearly should have. Indeed, he had not even read the documents by 1994 when he gave evidence to the Scott Inquiry.

Mr. Heseltine eventually signed the certificate under protest, requiring that his concerns be passed on to the trial judge. They were not. Indeed, Mr. Moses for the prosecution expressly told the judge that all the Ministers had signed on the same basis. Mr. Heseltine had written a letter to the Attorney-General setting out his concerns. Unfortunately, it seems that the letter remained unread by the Attorney until after the trial had started; that is, for at least three, and possibly as much as seven, weeks.

The two main grounds for complaint against the Attorney-General, according to Lord Justice Scott, are that he got the law wrong and that his advice as to the duty of Ministers to sign certificates was erroneous; and, secondly, that he was personally at fault in not ensuring that Mr. Heseltine's views were passed on to leading counsel and to the judge. Those are powerful criticisms.

On Matrix Churchill, the position that emerges from the report, it seems to me, is this. First, the Government knew the purposes for which the tools were intended, just as they knew the facts in relation to the supergun and exports by other firms. Secondly, they tried to conceal that knowledge by the unprecedented use of class public interest immunity certificates in a criminal trial, although Mr. Heseltine and the intelligence services themselves had no objection to discovery of their documents. Thirdly, the Government, through Mr. Clark, clearly knew that Matrix Churchill, together with other manufacturers, had been given a nod and a wink as to how to frame their export licence applications.

Fortunately for the interests of justice, the judge in the trial decided that the certificates were in the main unjustified and that the documents should be disclosed. It was fortunate--I see a noble Lord nodding--because another judge could well have taken exactly the opposite decision and did so in the Ordtec case. It is surely wrong to elevate the judge in a criminal trial to be the arbiter of what is or is not in the public interest. In a case in which a senior government Minister, the Secretary of

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State, Mr. Heseltine, had expressed to the Attorney-General that he thought that it was in the public interest to release the documents, not to conceal them, that fact underlines the problem that the Attorney-General now faces. If the documents had not been made available, it would not have been possible for Mr. Geoffrey Robertson, appearing for Henderson, to have cross-examined Alan Clark in the way that he did and thereby bring the trial to an end.

The trial should never have been brought. Sir Richard Scott himself recognises that, though he says it with hindsight. However, it is not hindsight but the lack of foresight that I criticise. Defendants were placed in jeopardy as a result of the Government trying to conceal facts. For that the Attorney-General must bear some of the responsibility. He lifted not a finger to prevent it, unlike Sir Patrick Mayhew in the supergun affair. On the contrary, he aided the prosecution by pressing Mr. Heseltine and other Ministers to sign the certificates on a view of the law which Lord Justice Scott has found to be erroneous.

So there we have it. That seems to me to be a summary of the allegations set out in the Scott Report. I said last week that this was a murky and disreputable affair. So it is. Ministers lied to Parliament and apparently no one is responsible. Defendants were placed in jeopardy and apparently no one is responsible. Someone is responsible and they should accept that responsibility and face up to it.

The report reveals the workings of Whitehall in a way in which they have rarely, if ever, been revealed before. What it reveals reflects little credit on either the Ministers concerned or some of the government departments involved. The overriding objective was concealment. "When in doubt, keep it hidden", seems to have been the guiding principle, irrespective of where the truth lay or even whether defendants might be convicted, when in reality they should never have been tried at all.

The whole affair reveals a contempt for Parliament, the British people and indeed the criminal justice system which, in our view, was and remains culpable.

3.50 p.m.

Lord Jenkins of Hillhead: My Lords, it is almost impossible to imagine a greater contrast between the emollient speech which the Minister, the noble and learned Lord, Lord Fraser of Carmyllie, addressed to the House this afternoon and the aggressive partisanship of the Statement that he was caused to repeat 11 days ago.

Over the past couple of weeks I have fluctuated between the view that the Scott Inquiry and Report was simply the longest running of all the Whitehall farces, and the belief on the other hand that it was a further devastating nail in the reputation of this Government. What has increasingly swung me in the latter direction has been a mounting feeling of indignation--of anger even--about the Government's presentation of the report 11 days ago to Parliament and the country.

By that, I do not mean the ham-fisted nonsense about offering us incarceration in padded cells or sealed capsules. That was good for a two-day joke, but it would

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be an inadequate foundation in itself for a more settled view. But two weeks ago I rather innocently thought that the Government were guilty merely of a natural discourtesy, of which in my experience some parts of government are well capable. What did not then occur to me was that there was, on the contrary, a coldly calculated plan to give the Government eight days' license to prepare a deception of both Houses of Parliament, and through them the British people. In the race to the microphone, having given themselves several laps' start, the Government won. But it was a victory that has been coming apart ever since, and one which those who perpetrated it will regret.

There is no doubt that the Statement to both Houses of Parliament presented a distorted picture of Scott's conclusions; and there is no doubt either, now, that that is the view of Lord Justice Scott himself. I regard the Government's grossly partisan handling of the publication of the report as being almost as reprehensible as the evil into which Scott was set to inquire. It is a compounding of sins if ever there was one. I regard the dissimulation in the Statement by the President of the Board of Trade as being almost as bad as anything of which Mr. Waldegrave is accused.

But it is not just a question of individual Ministers--one reason why I have never thought that the rolling of a few heads would settle the matter. It is much more a question of the whole ethos of the Government. There has never in my experience or to my knowledge been a government who have set a lower premium on honour and a higher one on clinging to office at all costs.

The responsibility lies with the Prime Minister as much, or more, than with anyone else. He appointed Scott. I do not find the result of that appointment the most succinct, pellucid or even syntactically distinguished report. But that is another matter, and in any event is the responsibility of the judge and the appointer. The Prime Minister is very good at snatching at short-term solutions, whether it be Nolan, Scott or the Mitchell Committee, and then complaining when his own chickens come home to roost.

Mr. Waldegrave and the Attorney-General have also been lucky to follow in the wake of Ms. Harriet Harman's troubles. On the PM's form of a year or so ago, the two peccant Ministers would have been entering a great danger zone just about now. But Ms Harman was given blanket protection by Mr. Blair, and the Downing Street mood is "anything you can do, I can do better". It is not exactly what you would call leading from the front, but it gives a better support to those two Ministers than was received by those who were in the past promised undying sustenance.

In any event, I do not think that their fate is the central issue. The Prime Minister himself is nearly as vulnerable as they are. It amazes me that in a debate of this importance, with the life of the Government almost at stake, he should not intervene in any of the discussions--or indeed the Leader of the House in this House today. It is the general conduct of the Government that is at stake.

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The recommendations of the report had, until the last few hours one might say, until the speech of the noble and learned Lord this afternoon and presumably the speech made in another place, been almost totally swept away by the desire of the Government--not the most confident indication of innocence--to protect themselves at all costs.

Eleven days ago, I curdled in disbelief at the suggestion in the Statement that the noble and learned Lord, Lord Fraser, had to repeat; namely, that Mr. Cook ought to resign. Resign from what? It was not altogether clear--but from something at any rate. I hold no particular brief for Mr. Cook, but the proposition was childish. What is more important, it was wildly inappropriate for a ministerial Statement presenting a judicial report to Parliament. The so-called "information pack"--always be suspicious of an information pack; it is a term more appropriate to cheapjack advertising than to the objective presentation of facts--which was put out officially, I believe by the Cabinet Office, was also a disgrace. That, I fear, is an indication that 17 years of a one-party government threatens the integrity of an independent Civil Service which persisted from Palmerston to Callaghan (if the noble Lord will excuse me) and maybe for a few years after that. The correct response of officials responsible for the carrying on of that tradition ought to have been: "Put out your half-truths if you will, but do so under the stamp of Conservative Central Office, which is tailor-made, like most other party machines, for precisely that purpose, but not under that of high officialdom".

I turn to the position of the Attorney-General. The honour of the Attorney-General, it is said (and I half agree with that at least) is not directly at stake; although I must say that his failure even to read a letter from a senior Cabinet colleague, now Deputy Prime Minister, when a fair trial--which trial he ought not in any event have allowed to take place--turned on the luck of finding a courageous and non-executive-minded circuit judge, and then not to convey Mr. Heseltine's reservations, suggests that at the frontier incompetence and dishonour march fairly close to each other.

What is hardly in dispute is that the Attorney-General has been guilty of incompetence. I enjoyed his defence that he took the best legal advice. But the Attorney-General, if he is up to his job, is supposed to be the best legal advice. I simply cannot imagine the great attorneys, from Coleridge to Charles Russell to F.E.Smith to Douglas Hogg to Hartley Shawcross sheltering behind a formula of taking the best legal advice. They thought they were that, and on the whole they were. But Sir Nicholas Lyell, who in that respect is a modest man with much to be modest about, rested upon others and by so doing illuminated like a flash of lightning a new politico-legal landscape.

On performance, the Attorney-General certainly ought to resign. But there is one thought to give one pause. What Queen's Counsel is there in the other place who would be much better--on either side, or on all three sides, if one likes to be fair? The fact of the matter is that the race of great lawyer-politicians which has fortified our politics for two and a half centuries has become effectively extinct. From Erskine at the

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beginning to Shawcross or perhaps Monckton at the end, it underpinned our politics. Now it is dead; killed, I think, by the petty and excessive demands of modern constituencies. Brougham would not have been much good at coffee mornings. I would not set Sir Edward Carson to move from advice bureaux to bridge parties. One ought to recognise that the present holder is the last station on the line. Future governments, I fear--in itself I regret it, because the old system worked well--ought to look for law officers outside politics. It is only in that way that they will get Silks worthy of the tradition.

We recently saw the spectacle of half the Bar--perhaps not quite half but a large part of it--and some of the judiciary lining up to say that Scott is wrong on PIIs; and the other half and other judges indicating the reverse. Apart from the fact that the gravamen of the charge against the Attorney-General is not, in my view, that he misinterpreted the law of PIIs; there is the graver one that he did not stop the trial or pass on Mr. Heseltine's reservations.

Quite apart from that, the attempt to overturn Scott by weight of letters to The Times is surely a most extraordinary procedure for judicial gentlemen to engage in. Scott was specially chosen by the Government to pronounce upon this issue--to try the case, if one likes. He spent a rather excessive time doing so, in the course of which he must have become an expert on the issue. But now the Government say that he is just one opinion among many. It is as though an accused person, when informed of the sentence by the judge, were to say, "My Lord, your opinion is very interesting but I am informed that many other legal authorities take a different view. Until you have consulted them--have taken a poll of them--I do not propose to take any notice of your sentence."

I make one last layman's point in relation to this legal morass. I simply cannot accept and have not been able to accept from the beginning the absolute duty of a senior Secretary of State or other Minister to obey the instructions of the Attorney-General and sign automatically. I have always found that a good way to try to avoid excessive hypocrisy is to ask myself whether, as a Minister, I might have committed-- I repeat, might have committed--the fault complained of. Quite often the answer is yes. One hopes that one would not have done so and one may believe that one would not have done so, but it is not unimaginable. That, however, is not the case with the automatic signature. I simply cannot imagine myself as Home Secretary, say, acceding to such an instruction from an Attorney-General. The two I dealt with in that capacity were better lawyers than Sir Nicholas Lyell; but, even so, I cannot imagine accepting such an instruction. If the duty is automatic, what is the point of the signature as opposed to a rubber stamp from a clerk? If the duty is automatic, what right did Mr. Heseltine have to hesitate and make his reservations?

So we come to this debate, which has brought out such a remarkable attendance and participation. In my view there have been better reports; there have probably been greater deceptions of Parliament; but never in my experience has there been a more cynical handling of a major report produced at their own request by a British

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Government. What has been displayed is a partisan aggressiveness born out of weakness. Until the past few hours there has been no hint of lessons learnt or improvements to be made. Those changes which have now been announced give every impression of being made not out of conviction or even shame but out of fear--fear of further defections. My Lords, it is a very discreditable chapter.

4.7 p.m.

Lord Lloyd of Berwick: My Lords, I hope that I am not the only one of your Lordships not to have read the entire Scott Report. But I can say that I have read the whole of the section which relates to the Matrix Churchill case--some 400 or 500 pages--and I have also read Sir Richard Scott's recommendations on public interest immunity. I should like to say a few words on that now. I speak as a serving Law Lord, and so naturally, as your Lordships would expect, I shall stick strictly to my last. I shall not trespass outside the law to discuss more controversial matters.

As to the law, ever since the great case of Conway v. Rimmer decided by your Lordships in their judicial capacity in 1965, a clear distinction has been drawn between two aspects of the public interest. The first aspect concerns the proper functioning of government. That public interest may require the withholding of certain classes of documents--for example, Cabinet papers or papers relating to the conduct of foreign relations. That is one aspect of the public interest. The other aspect is of course the administration of justice. The problem arises as to what is to be done where there is a conflict between those two aspects of the public interest--a conflict which quite frequently arises in all classes of case, both civil and criminal cases.

The way in which the courts have sought to resolve that problem is quite simple, in theory, at any rate. It is for the Minister to assert in the first place that the documents in question fall within a protected class, whatever that class might be. It is then for the judge to decide whether the interests of the litigant should, in the specific circumstances, prevail. It is for the judge to balance those two interests when they conflict. That, as many judges will verify and I can say from my own experience, is what happens in practice. I have often had to do it myself. I can assure your Lordships that Mr. Justice Smedley was not the first to have to make a decision of that kind.

There are two reasons why your Lordships may think it better that the judge should carry out that balancing operation rather than the Minister. The first is a purely practical one; that is, that Ministers are, one supposes, busy men and cannot be expected to have the detail of every case in their minds when they have to exercise the function that they exercise in that respect. In many cases, at the time when they have to exercise that function, the issues in the case will not yet have been clearly formulated. By contrast, it is the judge who knows the issues in the case and who will take account of them as they develop; it is therefore the judge who is the best and only person who is in a position to say which of the documents within the class are likely to

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be of importance to the litigants and must therefore be disclosed, and which are of little if any importance and therefore may be withheld. That happens all the time.

The second reason is perhaps more theoretical. If it were for the Minister to carry out the balancing operation himself, even if he could, it may be said against him--it almost certainly would be said against him--that he was picking and choosing; that he was disclosing those documents which helped his case and concealing those which hindered it. It is to avoid that very danger that the courts have held consistently that it is the duty of the Minister to sign a PII certificate when the documents in question come within the class in question.

That was certainly the law in 1992 when the Attorney gave his advice to Ministers. But it had been the law long before 1992. There has been much talk of the Makanjuola case--a decision of the Court of Appeal--and the language of Lord Justice Bingham in that case. But in that case the Court of Appeal was merely summarising the law as it had been stated by your Lordships' House in many great cases going back to 1965. I shall mention three. It was the law as stated in the Lewes Justices case in 1973; in the Burmah Oil case in 1980 and in the Air Canada case in 1983. There was nothing new in what Lord Justice Bingham said about it being the duty of the Minister to sign.

Then comes the next question. It may be said that that is all very well for civil cases, but what about criminal cases? Until the Matrix Churchill case, I had never heard it suggested that there was any difference. The reason is very simple; that is, that precisely the same principle applies whether in civil or in criminal cases. Of course, in a criminal case, the balance is much more likely to come down in favour of disclosure; it almost always will come down in favour of disclosure. However, the principle is the same. It is because the balance almost always comes down in favour of disclosure that there have been so few reported cases in which the point has been tested in criminal proceedings until the Osman case. The judgment of Lord Justice Mann in that case came as no surprise to any lawyer. It was plainly right and has been followed in a number of recent decisions by the Court of Appeal with the Lord Chief Justice presiding.

The Osman case therefore cannot be dismissed on the basis that it was only concerned with habeas corpus. It was making the point which was being made all along that there is no distinction between criminal and civil cases in that respect. My noble and learned friend Lord Woolf, when he was the Treasury devil, was asked to advise on that point as long ago as 1978. Without hesitation he advised that the same principle applies in criminal cases as in civil cases. One of the landmark cases, the Lewes Justices case, which is often cited, was itself a criminal case; it was a case of criminal libel.

When Sir Richard Scott says in paragraph G18.54 that the Attorney's advice as to the application of public interest immunity was based, as he puts it, on a "fundamental misconception", I can only say, with great respect, that I disagree. I believe that most judges-- not all--would share my view. I differ with great regret

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from Sir Richard because he is a judge for whom I and all my fellow judges have the greatest admiration. The thought occurs to me however (and it may be an unworthy thought) that possibly he allowed his strong views as to what the law ought to be, to colour his view as to what the law actually was in 1992.

As to the future, as your Lordships have heard, the law has been taken forward by the recent decision in the Wiley case, to which I was a party. Some may think that we went too far in that case and others that we did not go far enough. Probably Sir Richard Scott would count himself in the latter category. It is not easy in these cases to know quite where to draw the line. However, as to what the law was in 1992 there can be no shadow of doubt. The Attorney-General was bound by the law as it then was, just as were all other Ministers of the Crown. With great respect to the noble Lord, Lord Jenkins of Hillhead, it was not for the Attorney-General to change the law; that is for the courts. It was not for the Attorney-General to relapse the law in order to meet the needs of that specific case.

I wish to make one last point. I am glad to see that Sir Richard Scott does not think that legislation in this field will be either necessary or desirable. Like the Minister, I entirely agree with him on that. The trouble with legislation is that it tends to crystallise and ossify the law. If the law had been put on a statutory basis after the case of Duncan v. Cammell Laird in 1942, we should never have had the great liberating decision in Conway v. Rimmer in 1965. If the law had been put on a statutory basis in 1965 we would never have had what I hope is a liberating decision recently in your Lordships' House in Wiley. That is an area above all other areas where the law should be taken forward as best it can be by judges on a case by case basis, as it always has been in the past.

4.19 p.m.

Lord Hailsham of Saint Marylebone: My Lords, I do not often trouble your Lordships these days in debate. This is due to the increasing frailty of old age and an ailing wife. I hope, therefore, that I may be forgiven for saying a few words on this occasion.

I cannot tell your Lordships with what admiration I have just listened to the speech of my noble and learned friend, if he will allow me so to call him, Lord Lloyd of Berwick. He spoke with far greater authority than ever I would claim to command but exactly stated a good deal of what I thought I was going to say but which I now will not say. He gave an absolutely authoritative and, so far as I know, absolutely correct statement of what the legal principles involved in this case are.

We are a House of Parliament, and it is in my mind to say how grateful I am to the two Front Benches for conducting this debate in a form in which no Division will take place. That is in contrast to what is taking place a little way down the corridor. Parliament is the Great Council of the nation. In order that we might retain our tradition as the Great Council of the nation, it is absolutely vital that we should retain--or alas I must now say attempt to recapture--the ability to conduct a

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civilised and important discussion in an objective way. Clearly we have differences of opinion; clearly we have different political parties; and clearly there must be freedom of speech and opinions strongly expressed. But the habit of civilised discussion is, in my judgment at any rate, fundamental to all parliamentary debate. I am sorry to say that some of the recent exchanges of opinion have not lived up to that requirement.

I wish to give one or two statements about this matter--shorter than I was going to give in the light of the immediately preceding speech of my noble and learned friend Lord Lloyd--reminding ourselves, as I think we should all do, that we are discussing a document in length rather longer than my copy of the authorised version of The Bible. In my copy, from Genesis to Malachi there are about 1,155 pages, and in my copy of the New Testament, from Matthew to Revelation there are another 255 pages. The Scott Report is a document weighing--I do not know how much. It costs £45 to the ordinary citizen, although most of us have been able to obtain a free copy. All quotations from it are, if Sir Richard Scott will forgive me for saying so, by their nature, and by the nature of what he has himself written, selective quotations. Having said that, there are just one or two remarks that I want to make about individual matters.

The first relates to personalities. I take, first, Mr. Waldegrave. He has been known to me for some years, both through his family and as a Fellow of All Souls. I would venture to say that he is and always has been the soul of honour. It greatly grieves me to hear the wild and sometimes unsubstantiated accusations which have been made about him in connection with this matter. I believe that the report, viewed properly, bears this out. Perhaps I may say this in speaking of Mr. Waldegrave. I was deeply moved to read the complete absolution given to him in the columns of The Times in a short letter by my noble friend Lord Carrington, a testimony all the more remarkable owing to his own selfless and absolutely flawless performance in relation to the Falklands dispute. His opinion carried all the more weight because of that.

I now turn to the Attorney-General and to the PII certificates. I am probably one of the very few Members of your Lordships' House who has had to sign such a certificate as a Minister. I may not be what the noble Lord, Lord Jenkins, referred to as one of the great lawyer-politicians, and certainly not up to the Douglas Hogg to whom he made previous express reference. But I was greatly troubled by this. I inquired as to the law and I discovered what the law was. I knew that there were certain types of certificate which related to individual documents. We can forget those because they did not enter into this case. But there were also class certificates, which is the type I had to sign.

I was greatly troubled as to what I should do, especially as the honour of one of the parties was at stake. I researched the law. The researches bore out exactly what my noble and learned friend Lord Lloyd of Berwick has just told us. It is the duty of the Minister to ascertain that the documents belong to a particular class of document. He cannot shirk that duty and he

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must also satisfy himself that the class is one which attracts Crown immunity. What does he do then? The answer is that it is his duty in the main, as my noble and learned friend has just told the House, to sign the certificate. I was greatly worried before I did this--I do not mind saying that--but I had no doubt that the law was as I have just stated. It is true that it was much stiffer when Lord Simon was Lord Chancellor and the case of Duncan and Cammell Laird was decided, but since Conway v. Rimmer, and the powerful speech of my late noble and learned friend Lord Reid in that case, it has been the duty of the Minister to sign the certificate.

As I faced the issue I realised that if I tried to enter into the merits of the case I should be usurping the function of the judge. The Minister having signed the certificate, it is for the judge to say whether the interests of justice in the particular case where he has studied the issues override the class protection given to the class of documents for which the certificate is signed. That has been the universal opinion since Conway v. Rimmer and I do not myself regard the much later case of Wiley, which took place after the events we are discussing, alters that in the least.

I should like to add a few words of quotation from the defence counsel in the Matrix Churchill case, which is what triggered off this whole affair. In 1994, Mr. James Hunt and Mr. Michael Stokes in a letter and Mr. Gilbert Gray in an article, all in the columns of The Times, while the Scott Inquiry was going on and after the result of the Matrix Churchill prosecution was known, said the following. I quote first from Mr. Gilbert Gray QC, who was one of the defending counsel:

    "It must be borne in mind that the prosecution was brought by Customs and Excise. The Attorney-General has no formal involvement in their cases, more's the pity"--
"More's the pity" would have been echoed by Sir Richard Scott--

    "Too often, prosecutions by Customs and Excise are characterised by 'Yo ho ho and a bottle of rum' tactics. They behave like privateers with planks"--
I do not know whether that is just--

    "The prosecution case was not so conducted by Alan Moses, QC. He was the embodiment of fairness. The prosecution failed, but he succeeded. He sought no victory and suffered no defeat. Neither did the Attorney-General.

    Now blame is being heaped upon the Attorney-General; it should not be. He is attacked in respect of the claims to protect certain classes of documents from production by means of public interest immunity certificates signed by ministers".
In the case of Mr. Heseltine's doubts, they were duly passed on to the trial judge--

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