9 June 2022: Fenwick - B

Public Interest Immunity (PII) was described as an instrument which allows an exception to the normal rules of disclosure when certain information is agreed to be of a type which requires it to be kept out of the public domain. It was a duty on Government to use PII when considered applicable but could only be authorised by a judge.

The types of documents which could fall within the scope of PII were reviewed. While it seems reasonable for this type of instrument to exist, it does cover those types of material which would be very informative for a court or an inquiry to examine. It also opens the door to an unscrupulous official potentially hiding behind PII to avoid exposing information which could be seen to make someone or a public body culpable. Among other things, PII allows for more candid, free-ranging, and exploratory discussions to happen in the course of doing government, for example between Ministers and officials, so that they know it would be protected. The witness advised the DH to have an approach of applying PII in a “granular” way, rather then going for a “blanket approach”. They knew there would likely be challenges to PII, and it would be easier to justify the use of PII if only those relevant parts were not disclosed. Then it would be for a judge to balance out the public interest of disclosure with the public interest of non-disclosure. The witness had been aware of the possible accusation of seeking to not disclose documents which would support the persons bringing the action, while allowing those document which supported the DH’s case, but this had not influenced his actions.

Mr Fenwick had expressed the view that normal briefings should be disclosed and not all lumped together as privileged. He could not remember giving advice to civil servants on the correct approach to sifting documents in the context of PII. He did say there were “relatively few documents” which was a concern, and there were discussions about where more of any relevant files might be located. There is a difference between decisions over disclosure when the case was considered to be robust, and those where the claim was seen to be more speculative so that then it might be more likely to allow for PII non-disclosure. The witness acknowledged the powerful nature of the PII arrangements and how these had to be used properly. He commented that in his opinion, for example, PII had not been used correctly in the Scott Inquiry (weapons to Iraq).

The Court of Appeal issued a judgement on PII document certification related to the HIV Litigation when the over 950 claimants sought, as expected, to overturn the use of PII to some of the materials which they felt should have been disclosed. The judgement had recognised the weakness of the plaintiffs’ position in law, while also acknowledging the reality of the plight people faced.

Counsel referred to the witness’s answers from his statement about the potential for deliberate destruction of documents. The witness said he had no reason to think anything like that had happened. However, he was disappointed at the lack of documents. Similarly, he was not aware of any attempt to claim privilege under PII simply for the purpose of not disclosing documents that would have stopped relevant information being available that could have exposed the DH or any individual to an accusation of having acted illegally or in a way which could be considered wrong.

Mr Fenwick was asked about the involvement of Prof Bloom and Dr Mayne in their advising on relevant litigious cases. He recognised the challenge of trying to find experts who were not immune to the matters being investigated, and the reasonable concerns of people who would see this as a significant conflict of interest. Reference was made to the evidence of Dr Rejman on the matter of finding suitable experts, since they would most likely have been involved in the very case being considered. Clearly, it was very difficult to find an independent expert in this case who could give meaningful input. This appears to be a crucial systemic flaw in the whole process of progressing cases under these types of circumstances.

Another Dr Rejman statement was reviewed relating to the recruitment of expert witnesses. It again highlighted the problem of getting suitable persons since, by asking someone to submit an initial document to make sure they had the subject knowledge and capacity to fill the role adequately, asking them to do so could also be open to the accusation of filtering out those who would not be supportive of the DH position. Further to this, the witness had no sense of anyone in the DH ever seeking to pressurise or influence the content of a person’s expert evidence.