An open letter to the Information Commissioner

By andrewsimon - Last updated: Sunday, August 26, 2012 - Save & Share - 10 Comments

by Andrew Mason

Following the non-release by means of veto of the March 13 and 17 2003 cabinet minutes, Dr Christopher Lamb, the originator of two Freedom of Information requests seeking the release of these records, has now written an open letter to the Information Commissioner.

This letter asks the Commissioner to commission his lawyers to re-examine the case for a judicial review of Attorney General, Dominic Grieve’s section 53 veto over Decision Notice (Ref: FS5041714- ‘Iraq Cabinet Minutes’).

The letter seeks to identify the grounds for such a re-examination.

This is considerably enhanced, he argues, by the exceptional importance of the case in potentially holding the Blair government to some kind of account in the way it took the UK to war against Iraq.

We are now, at Dr Lamb’s request, placing a copy of the letter into the public domain here on the Digest.

OPEN LETTER TO THE INFORMATION COMMISSIONER

Please note that the letter is written in the later Microsoft Word 2007 .docx format. Earlier versions of Word will not open this file, you may need to download and install a compatible file viewer such as the one available here: Free File Viewer

Posted in Evidence, Issues, Meetings • • Top Of Page

10 Responses to “An open letter to the Information Commissioner”

Comment from LindaW
Time August 26, 2012 at 9:39 pm

The letter’s very well put. Here’s hoping it’s successful!

Comment from Anthony Miller
Time August 28, 2012 at 10:27 am

It’s all a bit farcical to not even publish redacted sections of the minutes when many of those involved have already given their own one sided and conflicting versions of events to the Inquiry who’s very purpose is supposedly to establish “UK’s involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened” …did someone forget to add “and then keep it a secret”.

The decision not publish would be easier to defend if the previous Cabinet its self exercised some of the collective responsibility which they claim is so important but instead they all discuss the meeting openly in public and not just at the Inquiry. Indeed, setting aside memoirs, many of which are written for commercial profit there are at least two plays doing the rounds by government insiders. If nothing else publishing the minutes would kill off the parasitical “what happened at the meeting industry”.

Clearly Clare Short’s testimony is at odds with everyone else’s so what is the inquiry to do if it doesn’t publish the minutes. It must state at least that one version of events has more veracity than another. They may as well publish the minutes. I see no point in not any more.

The issue is not just protecting Cabinet collective responsibility but that at least one person claims that that responsibility could not be exercised because they were denied enough information to exercise their responsibility logically.

Maybe the rules surrounding collective Cabinet responsibility and the publication of such minutes and indeed what ex-Ministers and indeed those who were not actually Ministers or Civil Servants but leak like the roof of the Croydon Whitgift Centre could be reviewed as a result of the Inquiry.

Comment from Anthony Miller
Time August 28, 2012 at 10:53 am

Oh and there is an offical backward compatibility patch for office 2003 that allows you to view office 2007 and I think 2010 files in Word 2003 etc
It is here
http://support.microsoft.com/kb/923505

Comment from chris lamb
Time August 30, 2012 at 9:35 am

Here is a link to the UCL Constitution Unit’s evidence to the HoC Justice Committee’s recent report on the FoI Act. This evidence deals with the so-called ‘chilling effect’ the threat of FoI disclosure allegedly instigates on the confidential space for ministerial deliberation in full Cabinet-

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/9609.htm

Comment from LindaW
Time August 30, 2012 at 1:27 pm

Re:http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/9609.htm It’s catch 22 again isn’t it? Political leaders claim it’s OK to prevent disclosure that Cabinet didn’t properly consider the legal issues surrounding the Iraq war because if it did put such information into the public domain ministers might be less willing to consider ky policy questions in the future!

Comment from chris lamb
Time August 30, 2012 at 3:32 pm

It is certainly a conundrum, Linda, that Parliament needs to address in holding the Executive to account. The Executive has turned it into a complete mess because there are too many conflicts of interest which fatally compromise Ministers. Jack Straw is a case in point- he held a key responsibility in the formulation of this part of the FoI Act; was centrallly involved in Blair’s ‘sofa government’ elite in initiating (and manipulating)the Iraq invasion and then he presumed to act as the ‘accountable person’ in imposing the veto against disclosure of the resultant official minutes.

It is very difficult now for the Executive to pretend that the powers it can use against information disclosure, transparency and public accountability are not, in fact, abuses of power.

Comment from John Bone
Time August 30, 2012 at 4:13 pm

After the fiasco of the Bay of Pigs, JFK is supposed to have said “How can I have been so stupid” and to have told his aides that they had to act as Devil’s Advocates, to look for risks and weak points in any course of action, to ask “what happens if ….? The arguments about “safe spaces” and secret risk registers implies that politicians, aides and civil servants are engaged in this sort of process of thinking through all the implications of any policy or course of action.

Yet what we know about the lead-up to the invasion of Iraq is that a great deal had been taken on trust: that Iraq had WMD, that the other members of the UNSC would support a second reolution, that Bush had a good plan for after the invasion. This was despite a great deal of discussion in safe places on the sofa. Having a safe space doesn’t necessarily mean that it will be used to add rigour to policy making.

Comment from Bobm
Time August 30, 2012 at 8:22 pm

One comment on CL’s excellent proposal. He cites this passage from the earlier adjudication.

‘Finally, could it be said that the certificate was unlawful because Jack Straw, the minister in question, had a personal interest in being one of the members of the Cabinet in March 2003? I do not consider that this argument has a reasonable prospect of success either. Issuing the certificate is not a judicial function and is not therefore subject to the same rules as to the avoidance of actual or apparent bias. In any event, the opinion set out in the certificate is not the opinion of Jack Straw alone but is the collective opinion of the entire Cabinet’.

Rather belatedly, I would like to suggest that there is a false premise embedded in the second and third sentences. Straw may not have been acting judicially, but I suggest that didn’t absolve him from the constraints operating generally on office-holders in administrative law. [The closing reference to the collective opinion of the entire Cabinet is risible, I think.]

There is a very substantial body of law, starting with matters as ostensibly minor as the issuing of day tickets to public market stall-holders, that binds everyone exercising a public function to act reasonably and in conformity with the principles of natural justice. That latter point should, I suggest, have prompted Straw to disqualify himself in the present case.

Here is one, random, recent reference:
http://www.herbertsmith.com/NR/rdonlyres/F53498A7-7748-4F2E-BA3D-C17FF71B7A8B/0/Publiclaw251111.htm

In this regard, Mr Pitt Payne seems to be clearly in the wrong.

Comment from chris lamb
Time August 30, 2012 at 8:57 pm

Good point, Bob M. Proving that the ‘accountable person’ acted irrationally or unreasonably in the circumstances is key to successfully pursuing a judicial review.

On a different point, but one which continues to annoy me-

“Does the Secretary of State accept that the much greater threat to Cabinet government is not the release of the minutes, but any repeat of the collapse of Cabinet decision making in the Government of Mr. Blair? The argument against disclosure is that it might undermine full and frank discussion in Cabinet and mean that discussion will take place informally, outside the meeting. However, is not that precisely what happened under Mr. Blair, with the rise of sofa government? At least the prospect of disclosure in exceptional circumstances—the tribunal made it clear that it is not a matter of disclosing Cabinet minutes all the time, only in exceptional circumstances—might persuade future Cabinets to remember that Cabinet discussion should matter”- David Howarth, Lib. Dem. MP and Justice shadow.

I have just re-read the Lib. Dem. response (cited above) by former MP David Howarth (shadowing Straw when Justice Secretary) during the Commons debate about the Straw veto in February 2009. In the context of this, it is completely mystifying how the Lib. Dems. in Cabinet performed a complete volte-face with the Grieve veto (which is, after all, nothing more than a re-hash of the Straw veto). This is always assuming that the Lib. Dems. in Cabinet were consulted by Grieve and it was a ‘collective’ Cabinet decision as required by the terms of the Act.

If the Lib. Dems. had remained consistent with their position in 2009, the Grieve veto would never have passed (because a veto requires ‘collective’ or unanimous Cabinet consent). I think the Lib. Dems. owe the public an explanation for their perfidy on this.

Comment from chris lamb
Time August 30, 2012 at 10:28 pm

It is interesting to compare and contrast a Parliamentary commitment msde by Jack Straw (as Home Secretary sponsor of the FoI Act in 2000) about what Cabinet ‘collective’ decision making in exercising the Executive over-ride (or section 53 veto) should mean with a Ministry of Justice update on this subject dated 2011. Interesting to the extent of discovering just how slippery the official meaning ‘collective’ can be made to be- ironic in that at the heart of all this is a dispute about the validity and apparent failure of the convention of Cabinet ‘collective responsibility’.

Here is Jack Straw when Home Secretary;

“It is neither possible nor necessary to write into the Bill that decisions made by a Cabinet Minister must be made only after consultation and agreement with all of his or her Cabinet colleages- not least because some of the decisions are quasi-judicial. In practice, it would be an extremely unwise Cabinet Minister who chose to issue an exemption certificate amounting to a veto of a decision made by the Commissioner to order disclosure without consulting his or her Cabinet colleagues”.

(HC Deb. 4 April 2000 c. 922).

Note that ‘decisions made by a Cabinet Minister must be made only after consultation and agreement with all of his or her Cabinet colleagues’.

Now for the Minstry of Justice 2011 update-

‘The Government considers that the veto should be used in exceptional circumstances and only following a collective decision of the Cabinet. This policy is in line with the commitment made by the previous administration during the passage of the Freedom of Information Bill that the veto would only be used in exceptional circumstances and only then following collective Cabinet agreement.

…However, in accordance with our over-arching commitment to use the power only in exceptional cases, such consideration would be preceded by a collective Cabinet view on whether it might be appropriate to exercise the veto in a given case. In making his or her decision, the Cabinet Minister or Attorney General (acting as the accountable person) would be entitled to place great weight on the collective assessment of Cabinet in deciding whether or not to actually exercise the veto.

‘In cases where the information being considered relates to papers of a previous administration the Attorney General will consult former Ministers and the Opposition in line with the process set out in the policy. In accordance with the convention on papers of a previous administration only the Attorney General will have access to the information being considered’.

(Ministry of Justice 2011: Statement of HMG Policy: Use of the Executive Override Under the Freedom of Information Act 2000 as it Relates to Information Falling Within the Scope of Section 35(1))

Here, ‘consultation and agreement with all of his or her Cabinet colleagues’ has been whittled down to eliciting a ‘collective Cabinet view’ which the Minister or Attorney General may ‘attach great weight’ to (if he so decides). This is a much weaker formulation than Straw’s commitment from 2000 which makes a collective Cabinet determination (encompassing all Cabinet ministers) an absolute imperative.

The ‘entitlement to attach great weight’ gives the appearance of a significant discretion to the ‘accountable’ Cabinet Minister or Attorney General to exercise the veto whether or not there is unanimous Cabinet agreement for it.

This slippery reformulation of statutory intent and playing around with words is symptomatic of the very problems with Cabinet ‘collective responsibility’ which lie at the heart of the Cabinet meetings of 13 and 17 March 2003.

Indeed, a further analogy can be made in terms of the mystery of how the Cabinet can collectively reach an informed view or assessment about exercising the veto when only the Attorney General (in this case) has access to the Government papers concerned and the case of the 17 March 2003 Cabinet rationally deciding upon the ‘better view’ of invading Iraq without access to the full legal advice.