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Is Sir Jeremy Heywood at the centre of blocking my FoI request?

by Chris Lamb

In drafting my case for appealing the Information Commissioner’s decision backing the Cabinet Office’s refusal to disclose the official advice and discussions around the setting up of the Iraq Inquiry, I have been presented with the task of fleshing out the meaning of the so-called “chilling effect”.

The alleged “chilling effect” of the disputed information – deterring the candour of civil servants in offering advice to ministers in future and driving decision making into backroom, unrecorded channels – is the key reason put forward by the Cabinet Office, and accepted by the Information Commissioner, for blocking this request.

Reputable academic commentators on the “chilling effect” – such as the Constitution Unit at University College, London – have described it as a very slippery concept and have found very little evidence to suggest that it exists at central government level. The Constitution Unit, in surveying civil servants, has found that adhering to conventions based upon civil service professional ethics – such as being impartial and objective and recording decisions – takes precedence over a so-called “chilling effect”.

My task in searching out meaning for “chilling effect” in relation to the information I was requesting was made particularly difficult because neither Cabinet Office correspondence or the Information Commissioner’s Decision Notice offered clues to work out answers for the most basic questions. Logically, one would ask who, or which civil servants stand to be “chilled” by the discosure; how and why would they be?

The appeal process, through the First Tier (Information) Tribunal, has not been more helpful in this respect.

I have been forced to argue my case against a wholly abstract “chilling effect”, operating upon unspecified civil servants – except for the known quantity that they are central government senior civil servants – with next to no evidence explaining the how and why. All the Information Commissioner’s Office and Cabinet Office have to say of the matter is that if I knew the content of the information I would understand the “significant and notable” chilling effect accorded to it, but as I do not know unfortunately I cannot understand this.

It appears an information blocking fait accompli. Readmore..


Cabinet Office shambles delays Inquiry

by Chris Ames

The Information Tribunal has rejected my appeal against the Information Commissioner in my attempt to have all documents declassified for publication by the Inquiry released now, rather than having to wait for the Inquiry to publish its report. The question of whether it is reasonable and in the public interest for the information to be withheld so that the public do not try to make sense of it without guidance from the great and the good was not decided. During the appeal, the Cabinet Office introduced a new exemption under Section 12 of the FOI Act – that the cost of retrieving the information would exceed the relevant limits. They won the case because they convinced the Tribunal – and indeed me – that their record keeping is a complete shambles.

But the case did reveal a new reason for the delay to the Inquiry, particularly in the long-running process of getting documents declassified. For reasons that are unclear, where the Inquiry should have written to the relevant government department for permission to publish each piece of information, it instead addressed all its requests to the Cabinet Office, which then had to write to the relevant department, which then wrote back to the Cabinet Office, which then wrote back to the Inquiry – and so on.

The notorious protocol governing publication of information sets out very clearly what should happen:

The Inquiry will notify the department, agency or service within HMG which is the originator of the information or that was the recipient of the information if it originated from outside HMG (the “lead government department”) …

The lead government department, following consultation with other government departments with an interest in the information and, where applicable, any third party source of that information, will respond to the Inquiry, in writing, as soon as possible…

Rather surprisingly, the Cabinet Office’s witness – a deputy director – told the Tribunal that, as the sponsoring department for the Inquiry, the Cabinet Office was the “lead department” for all requests. Clearly, the lead department changes according to a specific piece of information. The Cabinet Office claims to have been facilitating the declassification process and making sure deadlines were met, which is pretty laughable in the circumstances. It seems control freakery provides a better explanation. Of course, the inquiry secretary is Cabinet Office insider Margaret Aldred.

The protocol doesn’t actually refer to declassification either but to the Inquiry being allowd to publish documents or extracts. Another interesting distinction that emerged during the hearing was that the original documents have not themselves been declassified, just the versions held by the Inqiury. Astonishingly, it appears that the Inquiry is both redacting the documents as instructed and stamping them “declassified”. Because the Cabinet Office’s record keeping is so bad, it is largely having to trust the Inquiry to do this as instructed.

Although in its written submissions, the Cabinet Office claimed that the Inquiry would publish its report and the evidence in June or July 2016, as suggested in Sir John Chilcot’s recent letter to David Cameron, its witness had to admit that there is no guarantee that it will even come out this year.

So here we are in 2016. We may see the end of the Inquiry this year. Or we may not.


A moral and pragmatic duty to publish lessons now

by Chris Ames

In the Guardian, Richard Norton-Taylor says:

As MPs prepare to vote on whether or not the RAF should bomb Syria, the Chilcot report on the 2003 invasion of Iraq – the policy decision now widely recognised as the original sin that paved the way for Islamic State – should have been essential reading.

MPs have instead been summoned to meetings to talk to “experts” – David Cameron’s reference to intelligence agencies that he is reluctant to identify after the disaster in Iraq. We are having to wait until next summer, more than 13 years after the invasion, to hear what Chilcot says about “lessons learned”, the main purpose of his inquiry.

Devastating – but now largely forgotten – testimony to Chilcot points to parallels between 2003 and today that should be there for all to see: the dangers of trying to topple dictators without filling the power vacuum they leave behind; of bombing a country without taking responsibility for what’s happening on the ground; and of military intervention increasing, rather than diminishing, the terrorist threat.

He concludes:

Chilcot has a moral as well as pragmatic duty to publish now at least a summary of the lessons his inquiry has learned – and help avoid further tragedies.


Livingstone, Blair and the July 2005 attacks

by Chris Ames

The Guardian reports that:

Tony Blair was guilty of “criminal irresponsibility” for launching the Iraq war in 2003 based on the testimony of one discredited local politician who said that Saddam Hussein possessed weapons of mass destruction, Ken Livingstone has said.

The former London mayor spoke out as he defended his claim last week that Blair was to blame for the 52 deaths in the 7/7 bombings in London in 2005 after ignoring warnings that the invasion of Iraq would provoke terrorists.

The issue is one that needs to be discussed rationally and is again one on which the Inquiry has failed to provide “lessons learned”. One of the questions the Digest thinks the Inquiry should answer is: “Did the government properly consider the likely impact of its involvement on the terrorist threat to the UK?

It’s worth putting aside immediately the red herring that arose on Question Time last week:

The intervention by Livingstone was immediately condemned by the comedian and former Labour adviser Matt Forde. He told Livingstone: “This idea that you can absolve the people that killed those innocent Londoners by blaming it on Tony Blair is shameful.”

It’s perfectly possible to say that the intervention in Iraq led to, provoked, or increased the chances of an attack on the UK without absolving the attackers. But this is where Livingstone should have been clearer. Both last week:

I remember when Tony Blair was told by the security services: ‘If you go into Iraq, we will be a target for terrorism.’ And he ignored that advice and it killed 52 Londoners.

and today:

“Tony Blair was told by the security services when he took that decision this will put us at risk. We started preparing for that. We spent four years of tests and exercises because we knew that terror attack would come.

“If that had been the truth – that Saddam Hussein had had nuclear weapons, weapons of mass destruction. But to base that whole war on the testimony of one discredited local politician now in retrospect looks like absolutely criminal irresponsibility.”

he failed to differentiate between warnings that invading Iraq would increase a pre-existing terror threat and a claim that it would create one. As former head of MI5 Lady Manningham-Buller said in 2009:

I said it as explicitly as I could. I said something like, ‘The threat to us would increase because of Iraq’.

Having said that, although increasing a threat does not necessarily mean that it will happen, it is inherent in the concept that an increased threat can be the difference between something happening and not happening. Livingstone is therefore quite entitled to conclude that the specific attacks happened because of the invasion of Iraq, particularly given what the attackers said.

And, given that Blair has more recently fallen back on asserting that, in the absence of actual WMD, Saddam’s intentions were sufficient justification for invading Iraq, Livinstone is also entitled to argue that the increased risk wasn’t worth it.


The South African angle

by Chris Ames

The Guardian reports that

Tony Blair went to war in Iraq despite a report by South African experts with unique knowledge of the country that showed it did not possess weapons of mass destruction, according to a book published on Sunday.

God, Spies and Lies, by South African journalist John Matisonn, describes how then president Thabo Mbeki tried in vain to convince both Blair and President George W Bush that toppling Saddam Hussein in 2003 would be a terrible mistake.

Mbeki’s predecessor, Nelson Mandela, also tried to convince the American leader, but was left fuming that “President Bush doesn’t know how to think”.

The claim was this week supported by Mbeki’s office, which confirmed that he pleaded with both leaders to heed the WMD experts and even offered to become their intermediary with Saddam in a bid to maintain peace.

The two most interesting issues arise from the revelation that “Mbeki himself then met Blair for three hours at Chequers on 1 February”. The first issue is of course that we haven’t heard this through the Inquiry.

The second is the comment:

Blair’s office did not deny the meeting with Mbeki or the specifics of what was said. A spokesperson said: “All such information, including that based on limited and controlled access, would have been scrutinised and assessed by our intelligence agencies. Other intelligence agencies agreed that Saddam had weapons, the disagreement in the international community was what to do about it.

The lie that all the other intelligence agencies believed/thought/agreed that Saddam had wmd has been diluted to simply “other”, i.e. some, presumably because it is implicit in the story that South African intelligence did not believe this.

 


Cameron out of order

by Chris Ames

In the following exchange in the Commons yesterday, Alex Salmond’s criticism of David Cameron seemed to get support from Speaker John Bercow:

Alex Salmond (Gordon) (SNP): On a point of order, Mr Speaker. You may recall that, last Thursday, there was considerable disquiet across the House about the seven-year delay in the publication of the Chilcot inquiry and the fact that the Government chose not to make a statement on that. You invited those on the Government Front Bench to consider that position, but I now understand that the Prime Minister has declined to make a statement. This involves matters that are clearly the Government’s responsibility, including claims that the Cabinet Secretary delayed the release of documents, and matters that relate to the national security timetable, which has been built into the release of Chilcot. Given the need to avoid such a disgraceful situation occurring again, in the light of the seven-year delay, can you confirm that it would have been in order for the Government to make such a statement without prejudicing the independence of the inquiry? Do you also agree that the decision not to do so—given the considerable offence caused to the 179 service families waiting for answers from the inquiry—is a matter for the Prime Minister alone?

Mr Speaker: I am grateful to the right hon. Gentleman for his point of order. I am happy to confirm that it would have been entirely orderly for a statement by a Government Minister to be made on this matter. The right hon. Gentleman is an extremely experienced parliamentarian, and he knows that that is an entitlement of a Minister but that it is not an obligation that the Chair can impose upon a Minister. In the absence of an offer of a Government statement, he will also be well aware that there is a range of options open to hon. and right hon. Members who seek to elicit from the Government a statement of their current thinking on the matter in question. He does not need me to provide him with the toolkit, but I am happy to confirm its existence.


Did No 10 ask for 7 March legal advice to be burnt?

by Chris Ames

The Mail on Sunday has another story on Iraq:

Tony Blair was rocked last night by a new crisis over Iraq after it was revealed that Ministers were told to ‘burn’ a secret document which said the war was illegal.

The Mail on Sunday has learned how Downing Street descended into panic on the eve of the war when Attorney General Lord Goldsmith told Mr Blair the conflict could be challenged under international law.

The Prime Minister was horrified, and Ministers and officials who had a copy of Goldsmith’s written opinion were told: ‘Burn it. Destroy it.’

Ten days later, with the invasion just days away, Goldsmith did a U-turn and said an attack could be justified. Among those who were told to ‘burn’ their copy was Defence Secretary Geoff Hoon, who flatly ignored the order.

A big flaw in the story, apart from the fact that the document was not burnt, as the story concedes, is that the advice did not say the war was illegal and Blair was not so unhappy with it that he wanted it burnt.

As the note of a meeting on 11 March 2003 records, Blair accentuated the positive of Goldsmith’s advice, which Goldsmith and chief of defence staff Michael Boyce also thought was good enough:

The Attorney General’s advice made it clear that a reasonable case could be made that UNSCR 1441 is capable of reviving the authority of UNSCR 678, although of course a second resolution would be preferable.

There is nevertheless a clear history of Blair marginalising Goldsmith, keeping him out of the picture until he came up with a better answer on the legality of the war, and hiding his equivocation.

In evidence to the inquiry, the Foreign Office’s chief legal adviser Michael Wood told of No 10’s reaction to a paper Wood wrote in October 2002 “on the consequences of the United Kingdom using force against Iraq without there being any international legal authority”:

It did go to Number 10, who said, “Why has this been put in writing?”

Estimate is not good enough – families

by Chris Ames

The Telegraph reports that:

Sir John Chilcot should be bound by Parliament to publish the Iraq War inquiry report in April, say families of the conflict’s victims who are concerned that the completion date is only “estimated”.

Sir John has so far only committed to an “estimate” of producing the report in the week starting 18 April next year in a letter to Prime Minister David Cameron this week.

[…]

The families of members of the Armed Forces who died in Iraq said that they want MPs to agree a “parliamentary declaration” to force Sir John to commit to that week.

They are also still holding out the prospect of a High Court action to ensure that pressure is maintained on the Iraq War inquiry.

From one point of view, the families – and their lawyers – are right to be unhappy that Chilcot has only given an estimate for handing the report over. Although it is the first time he has given any timetable, it isn’t unreasonable to suggest that repeated delays in the past damage confidence in meeting it.

Another point of view is provided by Charles Moore, also writing in the Telegraph.

The purpose of the inquiry is not to assist the bereaved, though it should be respectful of their feelings. (Sir John’s team has met family groups to explain to them what is happening.) It would actually be wrong if its timetable or content were affected by their views. It is not a moral thing if inquiries of this kind are wrenched round to vindicate, comfort or compensate victims or their families for what happened.

The purpose of an inquiry such as Chilcot is to study and thus improve how public policy in a controversial matter was made and implemented. It is supposed, in doing so, to serve the interest of good government for all, not of any particular individual or group, however meritorious or suffering.


Blair denies responsibility for delay

by Chris Ames

The Office of Tony Blair has issued the following statement:

Tony Blair has always wanted the Inquiry to report as soon as it properly can and he looks forward to responding to the Inquiry’s report.

“Mr Blair also wants to make it clear that the timetable of the Inquiry and the length of time it will have taken to report is not the result either of issues over the correspondence between him as Prime Minister and President Bush; or due to the Maxwellisation process.

“As for the first, the correspondence has been with the Inquiry from the beginning. The only question was over how much of the correspondence could be published in the final report not about its content being used to inform the report. In any event that question was resolved between the Cabinet Office and the Inquiry in May 2014.

“Secondly, Tony Blair received the deliberations of the Inquiry under the Maxwell process in full only in January 2015, four years after the Inquiry finished taking evidence. He responded by August. This is not therefore the reason for the delay as Sir John Chilcot has made clear.

“It is our understanding that other witnesses also received information very late in the process, so any suggestion that witnesses have been the cause of the delay is categorically incorrect and this has again been stated clearly and publicly by Sir John.

It’s interesting and quite revealing but, like a lot of what Blair says, looks shaky under close inspection.

For example, just because the question of what could be published from the Blair/Bush correspondence was resolved last May doesn’t mean it didn’t hold the process up until then. Note that Blair has not denied involvement in that issue.

Also, Blair is saying that it took him from January to August to respond to Maxwellisation. And that is from when he got “the deliberations … in full”.

On the Maxwellistion point, the Guardian’s politics blog quotes an interesting point from Richard Norton Taylor:

It became clear, as the Maxwellisation process got under way, that Whitehall had held back relevant documents from the inquiry only to give them later to those the inquiry planned to criticise. This has caused further delays, and aggravated the deteriorating relations between Chilcot on the one hand, and Whitehall, backed by 10 Downing Street, on the other.

For it also should be remembered that it is not only Blair and former Labour ministers and political advisers who will be attacked, but senior Whitehall officials – sometimes called the permanent government. Armed with a powerful weapon – the final say over what documents could, and what could not be published, they have fought a rearguard action against Chilcot.


“Disappointed” Cameron: get on with it!

by Chris Ames

The Inquiry has now published David Cameron’s reply to Chilcot’s letter. Cameron is not only “disappointed”, he has asked Chilcot to hurry up.

Thank you for your letter of 28 October setting out a timetable for the completion of the work of the Iraq Inquiry.

Whilst it is welcome of course that there is now a clear end in sight for your Inquiry, I am disappointed – and I know the families of those who served in Iraq will also be disappointed – that you do not believe it will be possible logistically to publish your report until early summer.

I recognise that you have a significant task, but would welcome any further steps you can take to expedite the final stages of the Inquiry. I have seen your letter of 28 October to the Cabinet Secretary requesting additional resource to support the publication process, which I can confirm that we are happy to provide. As I have underlined previously, we remain ready to provide whatever further assistance we can in order to support the conclusion of your work, and I am very happy to provide more resource if it would allow the Report to be published more quickly.

In relation to National Security checking, the Government will aim to complete the process as quickly as possible. As you know, National Security checking for the Savile Inquiry took two weeks to complete. It would certainly be our plan and expectation to take no longer than this, and we will look to complete the process more quickly.

I am content for you to publish this letter alongside yours.