Ministers ordered to disclose advice to Brown on setting up inquiry

by Chris Ames

Digest contributor Chris Lamb has won – for now – his Freedom of Information battle to force the Cabinet Office to disclose “candid” advice from top civil servants to Brown about setting up the inquiry, despite claims that this could undermine the inquiry before it publishes its report.

But the Cabinet Office has delayed release of the advice by indicating that it intends to appeal against the ruling by the information tribunal.

Cabinet Secretary Sir Jeremy Heywood is likely to have provided some of the advice and could well be behind the move to suppress it.

He was in charge of the Downing Street machine under Brown and was principal private secretary to Blair in the run-up to the invasion.

The papers, which date back to the setting up of the inquiry in 2009, could show why the inquiry was set up with limited powers and why it has taken so long.

For example, the Inquiry’s report is not expected to reach any conclusion on the legality of the invasion, having been set up by Brown when he was prime minister as a ‘lessons learned’ inquiry by privy councillors, rather than a judge-led inquiry.

In a unanimous ruling, the tribunal overturned an earlier decision by the Information Commissioner, who had backed the Cabinet Office’s refusal to disclose the advice .

To be allowed to appeal, the Cabinet Office will need to show that it is contesting a point of law. Given the strength of the ruling against it, this cannot be taken for granted. In the meantime, the tribunal judge has suspended the order to disclose the information.

According to the Commissioner, the secret advice to Brown consists of “a detailed and candid examination of the various issues and options associated with the establishment of the Inquiry”.

The Cabinet Office argued that disclosing the advice would have a “chilling effect” on officials in future. The Commissioner agreed that these arguments “attract particular weight given the high profile and potentially controversial nature of the subject matter and the level at which such advice was provided and discussed, being the highest level in government”.

Having seen the documents, the Commissioner accepted “that there is some merit in the Cabinet Office’s argument that disclosure of the withheld information could undermine the Inquiry itself”.

But the tribunal rejected these claims, pointing out that it is “precisely at the highest levels of the Civil Service that the public expects to find the highest standards of official behaviour, including robustness in giving a Prime Minister the best possible advice, candid though it may need to be”.

Setting out the tribunal’s decision, Judge Peter Lane wrote that the documents would be seen as “precisely the kind of high-quality and frank advice, which the public would expect the Prime Minister to be given”, and rejected any suggestion that publication might preclude or impede the inquiry from finishing its report.

The decision notice revealed that the tribunal had provided further assessment of the documents in a confidential annex, sent only to the Cabinet Office and the Commissioner.

The tribunal concluded that there is a “very strong public interest in understanding how the Inquiry came to be created and why a privy councillor-led panel was chosen”.

15 comments to this article

  1. Peter Beswick

    on June 5, 2016 at 4:09 pm -

    Off Topic for thread but needs to be said;

    A very moving article from Reg Keys, I expect there will be many with tears in their eyes and anger in their hearts when they view this important documentary.

    I take issue however with the word “insurgents” to describe the killers of his son, they were, almost certainly; US funded, trained and armed by the US. They were US created terrorists.

    No one can take Reg’s pain away or the families, friends and loved ones of the other British victims but when justice is done, and the public mood still supports that it will, that then a small comfort can be gained from a proper closure and the rebuilding of British Democracy and Justice system can begin.

    RIP Tom and all your brave comrades.

  2. Chris Lamb

    on June 5, 2016 at 6:45 pm -

    Back on thread for a minute- I am most interested to discover the ‘error in law’ that the Cabinet Office plan to use as grounds to appeal this ruling. I will be enquiring about joining the appeal, if granted, as an affected party.

  3. Peter Beswick

    on June 5, 2016 at 7:55 pm -

    Chris L, you should have already been asked if you want to attend or have your appeal judged “on papers”.

    Notwithstanding you, us and the public will be shafted.

    Thats where we have arrived.

  4. Peter Beswick

    on June 5, 2016 at 7:59 pm -

    The Cabinet Office have no authority to rule on an
    “error of law” the taxpayer pays them to uphold the law but they have grown above that.

  5. Lee

    on June 6, 2016 at 8:31 am -

    It doesnt seem to me that any judicial body should be in the least interested in whether disclosure harms the Chilcot report, or has a chilling effect on anyone. The tribunal has no responsibility whatsoever to safeguard the Chilcot process, now and during its aftermath. Of course, the Cabinet Office had nothing left but to appeal, so as to delay the disclosures, hopefully to after the release of the report unless they get the disclosures stopped entirely. Its hard to imagine a really independent appeal swayed by “an error in law”. If such a convincing way of quashing the disclosure exists, why was it not used earlier ?

    Chris, does it work as it does in America, that the appeal can approve a redacted version to be released (ie a useless version) ? Do we know whether the “advice” is a single document or a dossier ? If the latter, papers can go astray.

    Its all rather odd to me. When Greenpeace Netherlands leaked Obama’s atrocious TTIP, all it did was confirm what people already knew it contained. Wont the release of this “advice” be rather similar ? Chilcot himself drew so many fences around the inquiry at one point or another, isnt what he produced a physical manifestation of the undisclosed “advice” ? Are we expecting a real surprise or a confirmation of what we know ? I ask this not in criticism, but to understand the name of the game.

  6. Lee

    on June 6, 2016 at 8:36 am -

    I know, I know. The Mail stinks in more ways than can be imagined. But, in this affair, they have been far braver and have reflected the public interest far more than any other mainstream paper. Why is that ?

  7. BobM

    on June 6, 2016 at 7:19 pm -

    This is the most nebulous area of law that I have ever encountered.
    (I am not a qualified lawyer but I have first-hand experience of many fields.)

    Chris has a grasp of the issues: the policy formation matter; and the threat that the inquiry might be undermined…is there more?

    I have found the “undermining” argument perplexing.
    It seems to have been run on the basis that disclosure might delay delivery, an argument dismissed by the tribunal [?].

    I had always thought that government’s real fear was that disclosure might undermine any semblance of balance in the selection of panel members…a more dangerous risk, from gov’ts perspective.

    The distinction between findings of fact and and law is very well established, the principle being that appeal courts only address findings of fact where they are persuaded that a finding was perverse. The problem, here, is that it’s quite unclear, to me, whether any of the findings so far are findings of fact, law, or mixed findings of both.

    Congratulations to CL on the progress he has made.
    If he has the time I’d appreciate a one-paragraph comment; unless he feels that that would put his suit at risk.

  8. Chris Lamb

    on June 6, 2016 at 8:32 pm -

    I am not the appellant in the proposed action to appeal the First Tier Tribunal ruling so I will not receive- nor can I make use of- Notice of Appeal forms or papers. It will be up to the Cabinet Office to choose the kind of hearing it wants. As I have never previously been involved in an Upper Tier Tribunal appeal, I am not sure what kind of status I would be accorded if I joined as a party affected by the appeal decision. I don’t know if I would be accorded the status of a Respondent and, if so, whether I have in fact exhausted my store of legal arguments in the first appeal. I am not a lawyer.

    The Cabinet Office cannot rule on ‘an error of law’ but can only appeal the First Tier Tribunal decision to a higher court on such an alleged basis. If the appeal is granted, the Upper Tier Tribunal will decide whether such an error occurred. However, as far as I understand it, the Cabinet Office has to show sufficient grounds that such an ‘error’ happened before it can be allowed to appeal.

    I think it is in the power of a Tribunal to agree a redacted version of disputed information for disclosure, but this would be following a judicial decision and not as a result of grinding any political axe. I believe that the Information Tribunal ruling of 29 January 2009 over disclosure of the 13 and 17 March Iraq War Cabinet minutes involved minor redactions of the information.

    I honestly cannot say for certain- and do not want to speculate- on ‘facts’ which may underlie the reasons for the Cabinet Office argument that disclosure would ‘undermine’ the Inquiry and its report. Following the dismissal of the ‘chilling effect’ by the Tribunal ruling- and the Tribunal’s clearing of senior civil servants from any charge of behaving contrary to their professional code- I am much more inclined to view the ‘chilling effect’ as a diversion from the real reasons for the Cabinet Office’s opposition to disclosure and its decision to appeal to a higher court.

  9. Chris Lamb

    on June 6, 2016 at 9:01 pm -

    In answer to Lee, I don’t know what form the ‘advice’ takes.

    However, I have a point to make, which has a bearing on this, arising from the wording and scope of the original FoI request. I shall make this point after any Upper Tribunal appeal as it may well raise a matter of some sensitivity in relation to the appeal itself. Sorry to be cryptic about it.

  10. Lee

    on June 7, 2016 at 8:26 am -

    I am not a constitutional lawyer either. But it seems to me that we have to distinguish between law and process. The tribunal cannot possibly have any legal obligation to protect the integrity of the Chilcot Report. What it can do, however, is make a judgment about whether information being kept secret, could, if released, have an arbitrary and vicarious negative impact. As a silly example, if the secret information named the members of the Inquiry who were sleeping with someone other than their spouses.

    The tribunal would have to determine whether those members had broken a binding oath that would subject them to criminal charges, which hardly seems likely, unless the compliant sex partners were witnesses. We must remember that while the appeal uses judicial process, it is not a trial. It is ultimately a judgment about the impact releasing the secret information would have, and whether in terms of public interest, it would be legitimate to do so.

    As the CO is apparently relying purely on an “error in law”, the merits described above, are unlikely to be replayed. That phase has already been completed.Chris has won subject to a narrow appeal. I imagine that any redaction would have already been decided, and is probably entirely within the control of the Government. There will be no appeal against that. We would have to rely on wikileaks or Snowden or a reporter willing to go to prison.Can you think of a reporter whose only value left would be to go to prison for a noble cause ? I can, but I know its unlikely.

  11. BobM

    on June 7, 2016 at 2:00 pm -

    Chris L

    There is a civil law convention under which interested third parties may be given a right of audience, as “interveners”, at the discretion of the court.

    I have seen it in the Family Court, and seen it reported in various v high profile cases dealing with major issues, where a third party of sufficient proximity or standing is considered to be likely to have something worthwhile to say, and which the court ought to hear.

    You might consider whether Liberty are interested and/or can offer you some free thoughts?

  12. Chris Lamb

    on June 7, 2016 at 6:15 pm -

    Thank you Bob M but I shall wait for guidance about my rights to participate in the appeal from the Upper Tier Tribunal should the appeal be granted.

    The decision of the First Tier Tribunal was exemplary in placing proper and judicial weighing of the balance of the public interest for and against disclosure before reaching its decision. The decision was unanimous and overwhelmingly for disclosure in the public interest. There was no hint of any spurious intention to protect the integrity of the Chilcot Report over and above its duty to determine where the public interest lay between disclosure and exemption.

    Therefore, Lee, the First Tier Tribunal was a model of what you would have expected it to be.

    There is no evidence whatsoever to suggest that any of the courts have initiated redactions of the disputed information or that there is collusion with the government to ,ake redactions.

    Given the rules of appeal to the Upper Tier Tribunal, the Cabinet Office has no choice but to appeal on ‘an error of law’. This is the only basis from which a First Tier Tribunal decision is appeal-able. The first appeal cannot be re-played again.

    Clearly, the Cabinet Office will go for a ‘reversible’ error of law- which means a mistake in the Tribunal’s legal proceedings of a magnitude that the decision will be over-turned. Whether it has credible grounds to pursue this strategy is another matter.

  13. Lee

    on June 9, 2016 at 11:07 am -

    That’s helpful. It seems to imply that the “error of law” is an act of the First Tier Tribunal itself. Its hard to imagine that this far into the process, the “error” applies to any other aspects of the matter (ie something the First Tier Tribunal should have spotted…. why would the Cabinet Office not have pointed it out at the time ?)

  14. Lee

    on June 9, 2016 at 11:39 am -

    When will the CO’s appeal be heard ?

  15. Chris Lamb

    on June 12, 2016 at 12:10 pm -

    The ‘error of law’ is something that the Cabinet Office will contend to have occurred within the proceedings of the First Tier Tribunal, but the decision about whether it has a case with its application for an appeal is still outstanding. It may be that the Cabinet does not have a credible case to proceed.

    The Upper Tier Tribunal appeal, if it happens, will be a process and not an event. I cannot comment on how long it is likely to take- if the first appeal is anything to go by it may be up to nine months.

    Clearly, one motive for this action by the Cabinet Office is to play for time. A new appeal decision is unlikely to be made until way beyond the time span for publication of the Chilcot report.