March 2003 Cabinet minutes vetoed again

by Andrew Mason

The Information Commissioner’s Office has now issued a statement following today’s announced decision by Attorney General Dominic Grieve to veto for the second time the release of the March 13/17 2003 Cabinet meeting minutes. The Information Commissioner required the Cabinet Office to disclose the withheld information to the complainant within 35 calendar days of the date (4 July) of the decision notice.

An ICO spokesperson said:

“The Information Commissioner is disappointed that the Ministerial veto has been used to override his recent decision notice concerning the minutes of two Cabinet meetings held immediately prior to the commencement of military action in Iraq in 2003.

“His view is that the significant public interest in this matter justified an exception to the general rule that such information should not be disclosed before the usual due date for the release of Cabinet material.

“This is the third occasion this year where the veto has been used. The Commissioner will now study the Attorney General’s statement of reasons and present a report to Parliament in September. He recognises, however, that the Freedom of Information (FOI) Act allows for a Ministerial veto, and acknowledges that this decision is consistent with that made by the previous government, which vetoed disclosure of the same information following an Information Tribunal hearing.”

The decision notice, reference number FS50417514, can be read here.

Will the LibDems join the cover-up?

by Chris Lamb

On 4 July, the Information Commissioner’s Office issued a Decision Notice (as yet unpublished) for my second Freedom of Information request for the Cabinet minutes of 13 and 17 March 2003 to be disclosed. This upholds the ICO’s previous Decision Notice of 2008 and the ruling of the Information Tribunal (January 2009) that these minutes should be disclosed. Disclosure was frustrated by the imposition of the first Ministerial veto on these minutes after New Labour Cabinet agreement by former Justice Secretary, Jack Straw, in February 2009.

In a nutshell, the Decision Notice just released concludes that the passage of time, the change of government and the indeterminate reporting of the Iraq Inquiry do not alter the balance between the public interest argument and government confidentiality which required these minutes to be disclosed in 2008.

Indeed, the public controversy surrounding the invasion of Iraq and its questionable legality remains of the highest degree and the passage of time/ change of government reduce the necessity for confidentiality, accorting to the Notice.

I want to emphasize two points arising from this Decision Notice;

a) this is the first time a Ministerial veto has been overturned, as it were. However, as the veto in question only applied to the first Decision Notice of 2008, my second request was considered as from scratch on a merits-of-the-case basis. It is my view that disclosure, should the government permit it, will show the untruthfulness and hypocrisy with which the original veto was imposed as Cabinet ‘collective responsibility’, which the Straw veto claimed to defend, was not in evidence in the way that decisions were taken in these Cabinet meetings. Key decisions, such as Blair’s unilateral declaration of Iraq being in breach of its treaty obligations (13-14 March), were taken in the context of an exclusive networking of Prime Ministerial power outside Cabinet;

b) much emphasis has been placed on the Cabinet meeting of 17 March at which the Attorney General’s curtailed legal advice was presented for ratification. Although the question of what scope of deliberation was permitted is still an open question which disclosure of the minutes should help answer, it must not be forgotten that the Cabinet meeting of 13 March was also one of importance. The key decisions for the invasion had already been taken between 10-15 March, before the Cabinet met on 17 March. It needs to be shown whether the decision making involving a closed network between the Prime Minister, Foreign Secretary, Attorney General, Head of the Civil Service and Military Chiefs after 10 March was referred to Cabinet before they became a fait accompli.

The fate of this Decision Notice will be of great interest. The issue of disclosure has already been ruled upon by the (First Tier) Information Tribunal. If the Coalition Government chooses to move straight toward another veto, it will be much more difficult to achieve in the context of a Coalition Cabinet made up of at least one party strongly supportive of disclosure when the first Freedom of Information request was being decided upon.

Statement on Blair/Bush FOI request status

by Andrew Mason

Whilst researching for a new post about Stephen Plowden’s FOIA first-tier tribunal appeal decision, which itself now appears to be the subject of a further appeal process by the FCO, I have just come across the following, which was published on 24 July:

Statement by Stephen Plowden

If the Foreign & Commonwealth Office (FCO) had not put in an application to appeal, they would have had to disclose the information to me by 20 June. They put in their application on 18 June, which was turned down on 26 June. However the FCO can make another application to appeal, this time by applying to a higher court, by 26 July. I am sure the FCO will make this application and will delay making it to the last possible moment.

I don’t know how long it will take for the application to be considered – perhaps a week or so as last time? My guess is that it will be turned down (I don’t think the FCO expect to succeed – they simply want to be able to say to the Americans “we tried our hardest”).

If I’m right, the document may be disclosed in early August. If I’m wrong and the appeal is heard, it will take months. I don’t have the right to appeal, since the appeal has to be on legal grounds and my arguments were on points of fact not law.

Perhaps all this will lead to a big row, which in turn will lead to a more comprehensive reform in the end.

I don’t think there would be any appetite for a truth committee at this point, but I do hope Parliament can be persuaded to reprimand Blair and Straw when we finally have the Chilcot report.

Stephen Plowden

As of last Friday (27th), Richard Norton-Taylor of the Guardian quietly – only 7 comments were made – reported that:

“The Foreign Office (FCO) is appealing against a judge’s ruling that extracts of a conversation between Tony Blair and George Bush days before the invasion of Iraq must be disclosed.”

“The FCO has now sought leave to appeal against the decision with an “upper tribunal” made up of more senior judges, officials have told the Guardian.

Blair silent on FOI review

by Andrew Mason

This short piece by Nigel Morris in today’s Independent should be of interest to many of the Digest’s regular commentators, in particular those who make FOIA requests themselves. It would appear that former PM Tony Blair could not find the time to personally fulfil a request by a Parliamentary committee to give oral evidence about his personal concerns since the introduction of the Act.

“Tony Blair faces scathing criticism today for his failure to cooperate with MPs investigating the impact of the Freedom of Information Act.

The former Prime Minister has described the Act as one of the greatest mistakes of his time in office. But he did not reply to requests from the Commons Justice Select Committee to give evidence to it.

Sir Alan Beith, its chairman, said: “We deplore Mr Blair’s failure to cooperate… despite being given every opportunity to attend at a time convenient to him.”

The committee dismissed Mr Blair’s written evidence, concluding that the Act was working well.”

The publication of the CJSC’s report,’Post-Legislative scrutiny of the Freedom of Infomation Act 2000′, was announced on 11 July.

From the committee’s website:

The Justice Committee will publish its First Report of Session 2012–13, Post-legislative scrutiny of the Freedom of Information Act 2000, at 00.01 hrs on Thursday 26 July 2012 as HC 96-I and II.

Embargoed electronic copies will be made available to witnesses and members of the press from 11.00 am on Monday 23 July 2012.

Copies of published reports may be obtained from the Parliamentary Bookshop and the Stationery Office (details below) and the text will be available via the Committee’s website, upon publication.

The direct link for the report is here.

The direct link for Tony Blair’s letter to the chair of the committee dated July 2012 is here.

It might also be interesting to learn of Digest readers’ best and worst experiences concerning the Freedom of Information Act in the comments section below?

The March 12 Blair/Bush conversation

by Andrew Mason

Rajeev Syal, writing in today’s Guardian, tells us that “Whitehall sources” have confirmed that the Attorney General may continue to block the release of the transcript of Tony Blair’s (Wednesday) March 12 2003 telephone conversation with George Bush, in which it is alleged that France’s President Chirac’s refusal to support a second UN resolution authorising the use of force against Iraq was discussed.

The report reveals that the proposed veto of the transcript’s release is to be discussed by the present cabinet within weeks, according to (presumably) these same sources.

Alastair Campbell’s very recently published ‘Burden of Power’, the fourth planned (but not necessarily final) part of his diary series, tells us more than just something about the discussion in question.

Campbell recounts that Blair had made it clear to Bush that it was essential that there would have to be a vote on action in the House of Commons because the longer it took between the end of the failed negotiations in the UN (if the plug was to be pulled) and a HoC motion the worse it would be for the government’s position. Bush then asked when Blair anticipated the vote would take place. Blair told him that the following Tuesday was pencilled in. Bush then said “Erm” and there was a long pause. The conversation then moved to the start of military action, which Bush wanted to happen on the following Monday. Blair then said that he had been given military advice about not going with a full moon (which would have actually been on Tuesday March 18). Bush then made it clear that the French position made it certain that there would be no second resolution, and that following the withdrawal of the draft resolution at the Security Council he would declare the diplomatic route to be over and issue the 48-hour ultimatum for Saddam and his sons to leave Iraq or face certain war.

At this point Blair then said that he was worried that the Tories would use this as reason to attack him by supporting a war motion and at the same time forcing a confidence vote which he could not survive. Bush said he would have it made known to the Conservatives and Iain Duncan Baker (as he referred to IDS) that if that happened “we will get rid of them”. The conversation continued with Blair stating that it was important that the government still demonstrated its reasonableness, and that if Bush could delay his broadcast until after the Commons vote it would help his position. A new timetable was worked up, “Sunday, say you’ve tried, the French are being impossible, we are working the phones. Monday, we take it to Parliament and say we must bring this to a conclusion. Vote Tuesday. Forty-eight hours you go to their (?) people and say war.”

Campbell continues: “The best argument we had is that we don’t want our foreign policy decided by the French…”

The evidence is not wholly consistent

by Chris Ames

Deconstructing John Chilcot’s letter to David Cameron, explaining why the Inquiry report will be delayed for another year is not easy. It does not seem to be as clear cut as blaming the government and civil service for their refusal to release documents, as the Guardian and Daily Mail do.

But one observation from Chilcot looks very important:

The evidence the Inquiry has examined is not wholly consistent. That is largely explained by the fact that most of those involved had only a partial picture of events and their levels of understanding varied signficantly.  There are also gaps in the documentary record and lapses of memory, so many years after the event.

There are therefore three crucial issues here affecting the ability of the Inquiry to get to the bottom of what happened, particularly in respect of the decision to go to war.  The Digest has always taken the line that the documentary record should be the main source of evidence, with the risk that the evidence of witnesses will be self-serving, not least from people who would like to claim that they did not know what was going on. On that point Chilcot is clearly signalling that there was a plan that was not widely shared, even within the government.  Are there gaps in the documentary record because records were not taken (“sofa government”) or because records that were taken cannot be found? (See this post for an example of the latter)

On the issue of “lapses of memory”, is this Chilcot making excuses for witnesses who have said things that have been contradicted by documentary evidence, or perhaps a reference to the tendency of some witnesses to come over all forgetful when presented with questions that they cannot answer. Tony Blair feigned an inability to remember whether the March 2002 Options Paper was shown to the Cabinet (it wasn’t).

Although Chilcot does not directly blame the government for the new delay, he does appear to be suggesting here that it is the difficulty in reconciling the evidence that is at the root of the problem. He says that the Inquiry has on key issues “sought to establish the fullest picture it can” of what happened.

Three years in and with another year at least, the fullest picture possible really isn’t good enough, particularly from an Inquiry that is promising to withhold evidence from the public in case we reach the wrong conclusions.


Report delayed again

by Chris Ames

The Inquiry has published a new explanation of where it is up to with its report, the gist of which is that:

The Inquiry has advised the Prime Minister that it will be in a position to begin the process of writing to any individuals that may be criticised by the middle of 2013.

In addition, it has published a letter from John Chilcot to David Cameron, which appends a paper setting out the scope of the report.

The letter and “scope of report” require quite a lot of reading between the lines to work our what is going on.

Best wishes from the Digest to Martin Gilbert, who has been “seriously ill”.

The Reckoning

by Chris Ames

The Guardian reports that:

A British woman who worked at the top of the US military during the most troubled periods of the Iraq war has said she fears the west has yet to see how some Muslims brought up in the last decade will seek revenge for the “war on terror”.

Speaking for the first time about her experiences, Emma Sky also questioned why no officials on either side of the Atlantic have been held to account for the failures in planning before the invasion.

Interesting and perhaps worrying observations, but it isn’t exactly the first time that Sky has spoken about her experiences. She gave evidence to the Inquiry, albeit in private, and is the subject of this page on the Pear Shaped Comedy Club’s analysis of the Inquiry, which notes “her penchant for extreme self publicity“.