The deceitfulness of Jack Straw (again)

by Chris Lamb

I am posting the reply sent by the Information Commissioner, Christopher Graham, to my Open Letter of 23 August and a further e-mail of 31 August. I shall not revisit the contents of the Open Letter which was posted on the Digest a few weeks ago.

Nevertheless, I am disappointed both that the Information Commissioner has decided not to consult legal counsel about the legal case for a judicial review and that he has not addressed the issues I raised questioning the ‘reasonable grounds’ for deploying the veto in his reply. My impression is that the Information Commissioner’s Office is motivated more by a climate of fear over the possible retribution Government might inflict upon it if a judicial challenge was mounted, particularly in the form of legislating an absolute exemption for Cabinet minutes and papers.

The prevailing situation, as referred to in the Information Commissioner’s blog and Report to Parliament, is hardly better. An absolute exemption in fact, if not name, has been in evidence since Jack Straw’s first veto of February 2009 in the way Governments of both parties have used the veto. The Information Commissioner himself ruefully comments that it is difficult to see, given this blanket use policy of the veto, how Cabinet minutes and papers will ever be disclosed in controversial cases before the official declassification date of 30 years elapses.

In this context, surely it is better to expose by a judicial review the hypocrisy of the Government’s hand – ie. a general pretence of offering qualified freedom of information whilst enforcing the reality of an absolute exemption by proxy of the veto – simultaneously challenging the weaknesses and contradictions underlying a specific veto than to submit to this arid fear of retaliation. What real choice is there between a rock and a hard place?

In the case of the Iraq pre-invasion Cabinet minutes, there could hardly be more contradictions and irony to challenge than the official veto line of safeguarding Cabinet ‘collective responsibility’.

A second point I want to raise from the Information Commissioner’s reply is a technical point. It relates to the paragraph;

In your e-mail of 31 August…you refer to the “reformulation” of the Statement of HM Government Policy on the use of the veto. It is important to recognize that there is no statutory requirement for such a policy statement…

What Mr. Graham is referring to is the discrepancy between the assurance given to Parliament by Jack Straw on 4 April 2000 that the Cabinet ‘collective decision’ over the use of the veto- as a quasi-judicial decision would have to secure the agreement of all Cabinet members before it could be enforced and Ministry of Justice Guidance on the exercise of the veto, from 2011, which stated that the ‘accountable person’, the Attorney General or Cabinet Minister, would have discretion to make the decision alone after having elicited the ‘view’ of Cabinet and weighed its significance using his own discretion (or ‘entitlement’, as is the wording used in the guidance).

Although this is a significant reformulation of how power is configured in the exercise of the veto – no longer requiring that all Cabinet ministers agree to it – the breach with Straw’s assurance to Parliament cannot be challenged because Mr. Straw and his government did not write it into the Bill. It has no statutory bearing (as Mr. Graham points out). These promises to Parliament without statutory back up, also commented upon by Mr Graham in his Report, are an early symptom of the deceitfulness of New Labour which reached its zenith with Iraq in 2003.

Thus, the Executive is free now and in the future to reformulate at will how it arranges the exercise of the veto in Cabinet without the encumbrance of either judicial scrutiny or challenge.


5 comments to this article

  1. John Rentoul

    on September 17, 2012 at 7:14 pm -

    Jack Straw’s “deceit” consists, as far as I can make out the rhetoric, of saying to Parliament that the use of the FoI veto would be a “collective decision” by Cabinet when it is now being treated as a matter for the Attorney General, having elicited the “view” of Cabinet. Does Chris Lamb really think that, had the matter had been formally discussed at Cabinet, the outcome would have been any different?
    How many ways can Iraq Inquiry Digest find to say, “We don’t agree with the veto”, which is itself a way of saying, “We didn’t agree with the war”?

  2. Anthony Miller

    on September 18, 2012 at 11:58 am -

    Mr R,

    Be the veto as it may … the Inquiry surely has seen the minutes and inquired of many people at that meeting what happened….?

    As I understand it glueing the testimonies together…

    Clare Short states pretty bluntly that Lord Goldsmith had in her view mislead the Cabinet about the surety of the advice he was offering on the legality of war and that although she tried to ask questions everyone ignored her or shouted her down or something…

    Lord Boetang says that he does not recall Clare Short protesting in Cabinet.

    And Jack Straw said that he didn’t wish to invalidate Ms Short’s recollection of the cabinet shouting her down but it wasn’t his recollection and also the Cabinet wasn’t exactly full of “wilting violets”.

    At least one of those people is talking rubbish.
    How will we ever find out without recourse to the mintues – even if it is only in partial form?

    Is it not farcical that the inquiry asks at least four separate people the details of what happened at this “meeting who’s minutes cannot be discussed without eroding the principle of collective responsibility” in public … but this cannot be checked in public against the minutes due to the doctrine of responsibility ? Unless the minutes are to magically appear in the final report?

    What then is the point of the Inquiry in this context other than to supply more questions than answers other than to burn public money?

    How can the Inquiry examine how decisions are made at a meeting in public without also publishing the details of meetings….?
    What happens in the final report?

    Does/will the Inquiry state “this is what happened” or “we do not know what happened” or “versions of events differ”. Indeed, what is the point then in having minutes at all except as a historical curiosity…?

    Either the Inquiry answers the question “What happened at the Cabinet discussion” …or …it’s a bit of a waste of public money?

    And if the doctrine of collective responsibility is so important why ask Cabinet members these questions in public in the first case?

    Surely the whole point of the Inquiry was that the level of recrimination and leaking and differing versions of events that were spreading about prior to it had already undermined any doctrine of collective responsibility already since everyone was already passing the blame onto each other in public so the responsibility for the decision was no longer being shared out equally?

    Collective responsibility is surely a meaningless concept unless everyone agrees to carry the can their fair share of the distance…?

    Perceptive political watchers will remember when Ed Milliband was elected leader of the Labour party and gave a speech criticising the decision to go to war David Miliband was filmed turning to Harriet Harman and asking: “You voted for it, why are you clapping?”

    What he’s saying is “where’s the collective responsibility then?”. Well, if you ask me collective responsibility had left the building a long time ago… so what’s the point in this ideological obsession with not even releasing a partially redacted part of the minutes? At least enough to answer the cruical question – who’s lying Clare or everyone else?

  3. Bobm

    on September 18, 2012 at 2:20 pm -

    “Does Chris Lamb really think that, had the matter had been formally discussed at Cabinet, the outcome would have been any different?
    How many ways can Iraq Inquiry Digest find to say, “We don’t agree with the veto”, which is itself a way of saying, “We didn’t agree with the war”?”

    Mr Rentoul insults his own intelligence, let alone that of others, with this sort of comment. Or is he unwittingly asking, in frustration, why some people keep expecting/encouraging the inquiry to do the right thing?

  4. chris lamb

    on September 18, 2012 at 9:02 pm -

    I think it important to point out one of the Information Commissioner’s primary arguments. In his view, this case is not ‘exceptional’ in the sense of being a case in which an exception should be made and the veto applied. He argues that the judgement of his second Decision Notice took full account of the arguments made by the Straw veto about ‘exceptional circumstances’. Thus, the rehashing of Straw’s arguments by Dominic Grieve, presented nothing that was ‘exceptional’.

    Another perspective on ‘exceptional’ would challenge its veracity in this case in that the veto now appears to be routinely applied to Cabinet minutes and papers. What is routine or the norm cannot any longer be ‘exceptional’. Thus, Mr Graham’s wry reference in his blog to the ‘inevitably exceptional’.

    Given that the Information Commissioner has applied such critical reasoning to the veto decision, it is difficult to understand why he will not take it that one step further to judicial review.

    On John Rentoul’s point, I am afraid that (not uncommonly) he completely misses the point about the disparity between the powers appropriated by the Executive in overriding disclosures of information and Ministerial assurances made to Parliament at the time the Bill was debated. The principal cause of this disparity was the (deliberate?) ommission of statutory back up to promises made.

    If Mr Rentoul does not grasp the importance of the change between an assurance that the ‘collective decision’ would require unanimous agreement by all Cabinet ministers (Straw) and an arrangement by which one ‘accountable’ Minister (or Attorney General) has effective power of decision having taken into account a mere Cabinet ‘view’ (Grieve) he is spectacularly unqualified to comment on politics, power and its uses/abuses. The removal of a unanimous agreement requirement can make all the difference in a split party Coalition Cabinet!