Volte‐Face on Public Interest Immunity
| DOI | http://doi.org/10.1111/1468-2230.00098 |
| Published date | 01 July 1997 |
| Date | 01 July 1997 |
Volte-Face on Public Interest Immunity
Gabriele Ganz*
It is a case of third time lucky. First one was an almost lone voice crying in the
wilderness,
1
then came the decision in ex p Wiley
2
and now the government has
made a complete U-turn on public interest immunity (PII). The statements by the
Attorney-General to the Commons
3
and 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,
5
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-General
9
that he wanted to hear
views on the recommendations on PII in the Scott Report. Over fifty responses
were received.
10
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
11
that legislation was neither necessary nor
desirable,
12
though Lord Irvine thought otherwise.
13
The statement is analogous to
the announcement made by the then Lord Chancellor in the House of Lords on 6
June 1956
14
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,
15
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.
The Modern Law Review Limited 1997 (MLR 60:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.552
* Faculty of Law, University of Southampton.
1 Ganz, ‘Matrix Churchill and Public Interest Immunity’ (1993) 56 MLR 564.
2RvChief Constable of the West MidlandsPolice, exp Wiley [1994] 3 WLR 433; see Ganz (1995) 58
MLR 417.
3 HC Deb vol 287 col 949 18 December 1996.
4 HL Deb vol 576 col 1507 18 December 1996.
5 ‘Public Interest Immunity,’ obtainable from the Treasury Solicitor.
6 A few column inches in The Guardian,The Times and The Independent on 19 December 1996.
7 HC 115 (1995–96), ssG and K6.
8 n4 above, col 1508.
9 On 26 February 1996.
10 n5 above, para 1.2.
11 n7 above, sK6.1.
12 n5 above, para 1.8.
13 n4 above, col 1510.
14 HL Deb vol 197 col 741 6 June 1956.
15 n5 above, para 4.7.
16 Lord Irvine, n4 above, col 1509.
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