The Inquiry doesn’t get it
By Chris Ames
It’s beginning to look as if the Inquiry has lost the plot on transparency.
This morning I have published this article on the Guardian’s Comment is Free – an analysis of the Cabinet Office’s protocol for sharing information with the Inquiry. Compared to the promises that Gordon Brown made in June when he set up the Inquiry, there has been some serious backtracking, both in terms of what information the Inquiry will be given and what it will be allowed to publish.
Despite Brown’s numerous promises that the Inquiry would have unhindered access to government information – promises that are cited in the new protocol – the government is now saying that it may have to withhold some “confidential” information from the Inquiry. Wasn’t the point of an inquiry by privy counsellors that it could see everything?
The government has also backtracked on what the Inquiry will be able to publish. According to its website: “It is the Committee’s intention to publish all the relevant evidence except where national security considerations prevent that.” But, according to the protocol, the Inquiry has to get prior permission to publish “any information” given by the government or use such information in public proceedings. There is a long list of reasons, beginning with a generic “public interest” reason, why the government might refuse permission. In the event of a dispute, the government has a veto. The process is wide open to abuse by a government that wants to cover things up.
The response from the Inquiry so far seems very complacent and naive. Astonishingly, one of its members, Martin Gilbert wrote this on Comment is Free in August.
It is my personal knowledge – in my 50th year of continuous historical research not only into Churchill but into many facets of British history in the 20th century – of how much of the past has so often been deliberately and dangerously hidden from a public that needs to know, that made me agree to take part in the Iraq inquiry, knowing that the independence and professionalism of the inquiry’s members, and their individual and collective determination to see the truth prevail, would give the British public a chance to know what really happened during a traumatic and controversial decade.
By contrast, it seems that people outside the Inquiry do get it. Without any prompting from me, one of the Digest’s contributors, Chris Lamb, wrote this in a comment in response to publication of the protocol.
“Given the commitment of the Iraq Inquiry to publicize the maximum of evidence and to hold hearings in public, the quantity and, at times, wide ranging and obscurely worded discretionary powers reserved for it to go into private session and withhold the publication of information must be worrying.
Of equal concern is the role of the shadowy Inquiry Secretariat in servicing or providing a support role in the exercise of these discretionary powers.
The Iraq Inquiry Secretariat, to my mind, has not resolved the conflict of interest issue that its key personnel are drawn from sensitive Cabinet Office Directorates and that the Cabinet Office and Cabinet Secretariat are the sponsoring Department for the Iraq Inquiry.
It is still not clear what influence Ministers may exert on the Inquiry through the conduit of the Cabinet Office, its Secretariat and Directorates and the Iraq Inquiry Secretariat.
What is evident from the Kafkaesque Cabinet Office Documents and Other Written and Electronic Information procedures governing the flow of official information to the Inquiry is that ultimately the Cabinet Office has the final say over public access to highly contested and confidential information. Affected Government Departments and the Cabinet Office have considerable sway also over the packaging of controversial information into a form acceptable to them for public release.
The protocol for sensitive information which identifies about ten government laid down criteria whereby information may be withheld could be very restrictive indeed. Only one example is needed from these:-
Namely, the statutory bar posed by Section 59 of the Data Protection Act 1998 which could cover all information supplied by Government Departments which the Government does not want disclosed.
As the Inquiry does not have a judicial or legal basis would it challenge this Data Protection Statutory bar through citing the public interest case contained in SEction 59 (2) (e) of the 1998 Act?
If, in practice, the Inquiry copiously uses discretionary powers to reserve confidentiality or withhold publication, it will potentially face the loss of public confidence in the veracity of its proceedings and outcomes.”
2 Responses to “The Inquiry doesn’t get it”
Comment from Iain Paton (former RAF)
Time November 3, 2009 at 9:02 pm
Sorry, the tragic death in the A-10 incident was L/Cpl Matty Hull.
Comment from Iain Paton (former RAF)
Time November 3, 2009 at 8:56 pm
Just like “Yes Minister”: The official secrets act exists to protect officials, not secrets.
It is worrying if the Cabinet Office and the ‘shadowy’ Secretariat are stating they may withhold documents from the inquiry.
I doubt if many classified documents of US origin would ever end up in front of the Inquiry. The accepted practice in release of protectively-marked material is that this requires the consent of the originator. The embarrassing battle over the A-10 video recording showing the death of L/Cpl Matty Young demonstrates the reluctance to release such material, even years later. The UK government can claim inability to disclose such material, based on damage to future information sharing protocols.
However, this should not necessarily impact on the Inquiry. After all, it will be considering UK decisions and actions, rather than US. Any UK originated documents, for example those classified “UK/US Secret” would be expected to be disclosed and probably published. Protective marking is not a barrier to disclosure if the documents are of UK origin.
So, if the Inquiry wants to review UK documents, then I can’t see any reason why they should not get them. However, it is right to be suspicious from the outset that the government may try and keep some unpalatable secrets under wraps, whether through refusing to release them or through pressure on the Inquiry not to ask for them. This can be fought as well, by the media and the public. If documents are withheld, then there is a good chance that they will be leaked. The Iraq Inquiry Digest may well end up performing a vital public service in keeping these matters in the public eye, allowing criticism of the Inquiry if it is edging towards whitewash.
Also, there will almost certainly be a change of government by May 2010. The current government has an unenviable choice: try and limit embarrassing evidence before the election and leave the inquiry in the hands of a Conservative government, or try and get through as much as possible before a change of government. They’ve gone for the first option. I would be surprised if an incoming Tory government does not trawl through the archives, remembering well the aftermath of the Scott Inquiry and the mauling the-then government received at the hands of Robin Cook, and seeking to maximise the scope of the Iraq Inquiry to criticise the Blair governmen