Lyell will fight to avoid being only scapegoat: Patricia Wynn Davies on the Attorney General's likely testimony to

ONE OF the few consolations left to Sir Nicholas Lyell, the beleaguered Attorney General, is the fact that he is the Scott inquiry's last witness and has about three weeks to refine his defence.

The instinctively non-confrontational chief law officer will not readily don the mantle of sole scapegoat for the way a number of ministers routinely reached for PII certificates to suppress information in the Matrix Churchill trial.

Sir Nicholas can be expected to highlight the fact that Michael Heseltine was the only Cabinet colleague to consult him - and at least he sanctioned the form the Heseltine certificate finally took.

He is also likely to mount a doughty two-pronged defence against charges that he should have stepped in and stopped the trial - first, because governments cannot be seen to be interfering with a criminal case mounted by a supposedly independent Customs and Excise, and second, because it was not the once-suppressed documents that established innocence, but the 'economical with the actualite' evidence of former minister Alan Clark.

Thereafter, it could be downhill all the way.

Most attorney generals tread a rocky path between the legal and political worlds. But the 55-year-old QC has taken serious punishment for - among other perceived failings - his handling of the Asil Nadir affair and the alteration of legal advice on Maastricht which led to a confidence crisis for John Major.

Sir Nicholas, educated at Stowe and Oxford and a long- standing 'wet', has responded to repeated criticism by saying that he has given the Government 'clear and fearless' legal advice. In this instance, he has insisted that ministers have a duty to claim immunity if disclosure would prejudice the public interest.

Lord Justice Scott has already commented that the doctrine, developed by judges under the civil law, has been 'turned on its head'.

To nobody's surprise, it has rarely been invoked in criminal trials. As some judges and lawyers have pointed out, that is because the interests of a fair trial are bound to outweigh the interest in keeping all but the most sensitive documents secret. It is also at direct odds with the principle of the Attorney General's own guidelines on defence disclosure.

The judge and Presily Baxendale QC, the inquiry's counsel, might ask Sir Nicholas whether he had studied the disputed bundle of documents when he gave his advice to Mr Heseltine. The answer is likely to be no.

That could be viewed as an example of independent, fearless advice that fits the theory that the judge makes the final decision. But, quite apart from the allegations that Mr Heseltine's concerns were not relayed to the trial judge, many ordinary members of the public would view as bizarre such 'arm's length' advice in the context of an impending criminal prosecution.

So far, only Mr Heseltine has emerged as having made any sort of protest that non- disclosure could - and that is the operative word - have led to jail sentences had the judge not taken the initiative.

The inquiry might ask whether Sir Nicholas had misgivings after Mr Heseltine had made his protest. The answer is likely to be yes, that Sir Nicholas believed it might be necessary for the other ministers - such as Kenneth Clarke - to amend their certificates as Mr Heseltine had done.

What happened next is shrouded in mystery. Was that view communicated, and how? If so, why were the other certificates not changed? Whether there is more than one fall guy could depend on the answers to those questions.

Leading article, page 17

Rat and the facts, page 18