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.