The Lord Advocate on public interest immunity

According to a report dated 30 May in the news section of the website of Scottish lawyers' magazine The Firm, the Lord Advocate, Eilish Angiolini QC, appears to believe that before the incorporation into Scottish domestic law of the European Convention on Human Rights the Scottish courts were bound to accept, and could not override, any claim of public interest immunity put forward by the Lord Advocate. With reference to the PII debate in the High Court last week and the court's decision to hold a later closed session once the documents have been produced to it, she is quoted as saying:

"What is a surprise is that it is a surprise," Angiolini told The Firm.

"The European Convention of Human Rights is what brings about this new procedure. It is not some frolic on the part of the court or the lawyers involved in this case. In the past, if there was a circumstance where there was public interest immunity, before ECHR, the Lord Advocate simply declared it and the court wouldn’t question that. It has now shifted to a position where the court determines interest, rather than the minister who makes the assertion."

"That is a huge change for the positive, that it is in court. You have to find a way which guards the issue at stake. The court has to determine the way forward. It is a complex issue and probably an issue of communication, but that is where you are hoping that journalists will look into the history of the law in this area. To look at the background, the history and the European jurisprudence. It is a very specialised area. What I hope is that there will be a balanced approach to it, informed by all of the facts."

If the Lord Advocate has been accurately reported, she is hugely mistaken about the history of public interest immunity. It has been the case for at least fifty years (and probably much longer) that Scottish courts could look behind a PII certificate from the Lord Advocate or a government minister and order the document to be made available as evidence. The House of Lords so decided in the Scottish case of Glasgow Corporation v Central Land Board 1956 SC (HL) 1 (and incidentally extended the Scottish approach to England in the later case of Conway v Rimmer [1968] AC 910).