One result of the Scott inquiry is that any special respect accorded to ministers of the Crown by virtue of their office in court proceedings has been diminished.

This is a healthy development and long overdue in cases where ministers issue public interest immunity certificatesIn 1942 the House of Lords held that the courts could not question a claim to Crown privilege made in proper form by a minister.

Sir Humphrey must have been ecstatic!In 1968 their lordships became a little less trusting and held that such a claim was subject to review by the courts.

However, a claim to class privilege for documents was approved.

There was still the belief that ministers could be relied upon not to dish out certificates claiming immunity without good cause.This feeling was not shared by numerous disgruntled litigants and the legal profession.

The fact is that a certificate can be used to protect a government from unpleasant publicity.

In practice, the chances of getting a sight of documents for which PII was claimed was remote.How things have changed! Since the Matrix Churchill d-b-cle the doctrine that ministers can be relied upon has taken a knock.In that case, the claim to PII was particularly important as it was made in a criminal case.

A series of ministerial certificates had been signed which would have the effect of preventing the defence seeing documents which not only helped the defence case but pointed towards the innocence of the accused.

The judge only granted disclosure of a handful of documents but luckily it was enough.The prime minister should be congratulated for setting up the Scott inquiry.

Whether his cabinet colleagues will regard the exercise to be as great a triumph as his back to basics campaign remains to be seen.Now we have the novel spectacle of ministers having to appear before an independent tribunal to answer personally for having signed PII certificates.

It is a revealing demonstration of ministerial responsibility in the late 20th century.Two views have emerged.

The first is that advocated by Kenneth Clarke, the chancellor of the exchequer.

He rightly took the view that it was his duty to decide whether or not to issue the certificate.

He decided to do so and gave his reasons.

If he gets criticised he will resign.

Long live Mr Clarke!The other view is reminiscent of that old so ng: 'I didn't want to do it.' It is a kind of Nuremberg defence.

The evidence is pointing in the direction of the Attorney-General as being the person who made them do it.

The argument is that the unfortunate minister has to claim PII: that it is not for the minister to decide such important matters - it is for the court.Thus, on this argument, ministers can sign fistfuls of certificates with a clear conscience and a sad sigh.

If this view is correct then ministerial responsibility has indeed taken a curious turn.

The most charitable view of this approach is to say that it is perhaps based on a misreading of the judgment of Bingham LJ in Makanjuola v Commissioner of Police of the Metropolis [1992] 3 All ER 617 (in which this issue was considered).This view, albeit convenient, is erroneous and it is to be hoped that Lord Justice Scott will relegate it to the Civil Service dustbin together with claims for class immunity.

Mr Clarke is correct.Behind all of this lurks a much more sinister question.

On what basis was the prosecution in Matrix Churchill allowed to proceed and who made the decision?If all the documents were read, it was clear that it was improper to bring the prosecution.

The question is whether the prosecution was allowed to continue in the expectation that the documents protected by PII certificates would not have to be revealed.If this were the case then it goes to the very heart of our system of justice.

It would be morally wrong and indefensible for anyone in authority to allow citizens to be prosecuted if they knew from the information available that the accused were innocent.If this is what happened then the odd sexual indiscretions of ministers or Members of Parliament will pale into insignificance compared with such a scandal.We are hoping for much from the Scott inquiry.

PII should not be used to cover up government embarrassment and certainly not at the expense of the liberty of innocent citizens.

The courts should examine claims for immunity far more critically: the Australian courts have given a lead.

Claims for class immunity should be abolished.All too often we are faced with a facile circuitous argument if we seek to protest against the application of PII.

The judge says: 'What documents do you want?' The advocate replies: 'I cannot specify the precise document because I am not allowed to know what they are.' The court replies: 'This is a fishing expedition: you are not able to identify the documents; you have not even established the relevance of the documents in issue.' Game, set and match to the government.

There is no reason why a list of documents cannot be provided as in any other litigation.

The parties themselves identify the documents which seem relevant.

This is a duty which the legal profession takes seriously.

Why should the government be exempt? Those documents for which PII is claimed can be identified much as in the same way privilege is claimed by a litigant in civil litigation.There are some of us who still remember the words of Viscount Kilmuir in 1956 when he was Lord Chancellor.

He said if documents '...are relevant to the defence in criminal proceedings, Crown privilege should not be claimed'.

Standards seem to have changed since then.