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Freedom of Information Act 2000

Volume 708: debated on Tuesday 24 February 2009


My Lords, with the leave of the House, I will now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice. The Statement is as follows:

“With permission, Mr Speaker, I should like to make a Statement on the use of the ministerial veto under Section 53 of the Freedom of Information Act in respect of minutes of two Cabinet meetings in March 2003 relating to Iraq.

I need first to set out some background. The FoI Act has profoundly changed the relationship between citizens, and their elected representatives and the media on the one hand, and the Government and public authorities on the other. It has, as intended, made the Executive far more open and accountable. The Act provides a regime for freedom of information which is one of the most open and rigorous in the world. It was the subject of almost three years’ intensive debate, by which the original scheme was much improved and strengthened. As initially proposed, decisions of the Information Commissioner would in law have been heavily persuasive, but not binding on Ministers. This reflected the regimes in other countries, such as in Canada. In the event, that scheme was replaced by a much tougher one.

There was, however, a key balancing measure written into the Act, and accepted by Parliament. This was to provide in Section 53, that in specific circumstances Ministers—and certain others—could override a decision of the commissioner or tribunal requiring the release of information if they believed on reasonable grounds that the decision to withhold the information was in accordance with the requirements of the Act. At the time of the passage of the Bill, Ministers in both Houses provided reassurance about the use of this veto. It would not be commonplace. Undertakings were also given that, although Section 53 required a certificate by a single Cabinet Minister or law officer, any use of the veto would be subject to prior Cabinet consideration.

The Act came into force on 1 January 2005. From then until September 2008, in approximately 78,000 cases where the requested information was held by government departments, it has been released in full. Before the Act, some of it would not have been released for 30 years. Since 2006, the Information Commissioner has dealt with more than 1,500 cases involving government departments, and the Information Tribunal has dealt with more than 50 such cases, but no Section 53 veto has been used to date.

In December 2006, the Cabinet Office received a freedom of information request for Cabinet minutes and records relating to meetings it held between 7 and 17 March 2003 where the Attorney General’s legal advice concerning military action against Iraq was considered and discussed. There were two meetings of Cabinet within that period; on 13 and 17 March. The Cabinet Office refused the request, citing the Act’s exemptions for information relating to policy development and ministerial communications. In keeping with its statutory obligations, the Cabinet Office had considered the public interest in releasing the information, but found twice, on balance, that there was greater public interest in withholding it.

The applicant duly exercised his right to ask the Information Commissioner to investigate the handling of his request. In February 2008, the commissioner reasoned, for the first time, that Cabinet minutes—these ones—should be released. The Cabinet Office appealed the commissioner’s decision to the Information Tribunal. On 27 January 2009, the tribunal published its decision. The tribunal was unanimous in deciding that the informal notes of the Cabinet meetings should be withheld, but by a majority of two to one, it decided that the public interest balance fell in favour of release of the minutes. It therefore upheld the decision of the commissioner ordering information to be disclosed, subject to some minor redactions.

Following that decision, and having taken the view of Cabinet, I have today issued a certificate under Section 53 of the Act in an appropriate form and consistent with the Act, the effect of which is that these Cabinet minutes will not now be disclosed. The conclusion I have reached rests on the assessment of the public interest in disclosure and non-disclosure. I have laid a copy of that certificate and a detailed statement of the reasons for my decision in the Libraries of both Houses. My decision was made in accordance with the Government’s policy criteria, which are annexed to my statement of reasons. Copies of all these documents have been sent to the requester and are available in the Vote Office.

To permit the commissioner’s and tribunal’s view of the public interest to prevail would, in my judgment, risk serious damage to Cabinet government, an essential principle of British parliamentary democracy. That eventuality is not in the public interest. Cabinet is the pinnacle of the decision-making machinery of government. It is the forum in which debates on the issues of greatest significance and complexity are conducted. Whether the nation was to take military action was indisputably of the utmost seriousness. However, I disagree with the reasoning of the majority of the tribunal. In its decision, it refers to the momentous nature of the decision taken, the public interest in understanding the approach taken to that decision and in the accountability of those who took the decision. It then says:

‘In the view of the majority the questions and concerns that remain about the quite exceptional circumstances of the two relevant meetings create a very strong case in favour of the formal records being disclosed’.

But in my judgment, that analysis is not correct. The convention of Cabinet confidentiality and the public interest in its maintenance are especially crucial when the issues at hand are of the greatest importance and sensitivity. Indeed, the minority view of the tribunal that the minutes should be withheld was formulated on this basis. It stated:

‘The minority view seeks to reach the decision most likely to support continued confidence that Cabinets can explore difficult issues in full and in private’.

It continued,

‘publication would, in the minority view, be more likely than not to drive substantive collective discussion or airing of disagreement into informal channels and away from the record.  This would over time damage the ability of historians and any inquiries, if constituted, to reconstruct and understand the process Cabinet followed in any particular instance. And it would not be conducive to good government’.

Responsibility for Cabinet decisions is with the Government as a whole, not with individual Ministers: that remains the first principle of the ministerial code. The conventions of Cabinet confidentiality and collective responsibility do not exist as a convenience to Ministers. They are crucial to the accountability of the Executive to Parliament and the people. The concomitant of collective responsibility is that debate is conducted confidentially. Confidentiality serves to promote thorough decision-making. Disclosure of the Cabinet minutes in this case jeopardises that space for thought and debate at precisely the point where it has its greatest utility. In short, the damage that disclosure of minutes in this instance would do far outweighs any corresponding public interest in their disclosure.

What the minutes principally record are the deliberations of Cabinet in reaching its decisions. The actual decision, which was made at the later Cabinet on 17 March, was made public straightaway. I, as Foreign Secretary, conveyed it to the House in an oral Statement, accurately and immediately, within three hours of it being made. In that statement, Mr Speaker, I recounted the recent history leading up to that decision, and I brought to the House’s attention the information which had that day been made available to the House in order to inform the following day of debate.

Despite the powers under the royal prerogative, we put the use of force to a substantive vote. In opening that debate, our then Prime Minister, Tony Blair, spelt out in considerable detail the reasons for the Cabinet’s decision. The debate ranged across the history of non-compliance of Saddam’s regime, the negotiating history of the two UN resolutions in the run-up to military action, our discussions with allies, and much else besides. I ended that debate by fully setting out the factors the Government and Parliament had considered and should bear in mind in voting on the substantive Motion before them.

The Government subsequently released the Attorney-General’s legal advice. Furthermore, on 25 May 2006 a full disclosure statement was published by the then Attorney-General, which set out in considerable detail the considerations taken into account as the Attorney reached his opinion on the legality of military action. A number of inquiries have been conducted. There was the Hutton inquiry into the death of David Kelly, and the Butler Review of Intelligence on Weapons of Mass Destruction. Both those inquiries published detailed reports on aspects of the decision to take military action, and we have acted on their recommendations. There has yet been more scrutiny of the decision by Parliament itself. The Intelligence and Security Committee published its report, Iraqi Weapons of Mass Destruction, and Select Committees have investigated the matter on a number of occasions.

In summary, the decision to take military action has been examined with a fine-tooth comb; we have been held to account for it in this House and elsewhere. We have done much to meet the public interest in openness and accountability, but the duty to advance that interest further cannot supplant the public interest in maintaining the integrity of our system of Government. This decision to exercise the veto has been subject to much thought, and it will doubtless—and rightly so—be the object of much scrutiny. I have not taken it lightly: it is a necessary decision to protect the public interest in effective Cabinet government.

Shortly after he became Prime Minister, my right honourable friend established a high-level inquiry into the 30-year rule, under the chairmanship of Mr Paul Dacre of the Daily Mail. That report, published last month, proposed a reduction from 30 to 15 years. I have already told the House that the Government favour a substantial reduction in the 30-year rule. In that context, the report also recommended we consider protection under the Act for certain categories of information. There is a balance to be struck between openness and maintaining aspects of our system of democratic government. This tension is recognised in the fundamental framework of the FoI Act, and that Act, and much else that we have done, stand testament to the far greater openness and accountability secured under this Government. I commend my Statement to the House”.

My Lords, that concludes the Statement.

My Lords, first, I thank the right honourable gentleman the Secretary of State for Justice for making his Statement available before this afternoon’s debate.

There are a number of political reasons why the right honourable gentleman should be embarrassed at having to make this Statement today. In particular, if he was going to exercise his veto, why did he wait to do so until after the appeal process was completed? It makes his action appear to be a flagrant breach of due process. Why did he not make it clear at the outset that he found the request for the minutes constitutionally unacceptable, or have the Government made up their mind on such a crucial constitutional issue only today? Did they remain in doubt about this matter until the very last minute?

Moreover, in the right honourable gentleman’s Statement, he makes much of protecting the public interest in Cabinet secrecy. Yet the Government exhibited no compunction about releasing Conservative Cabinet documents on the ERM when it suited them.

Constitutionally, however, the Government are right to issue the veto. In its decision, the tribunal states that it is,

“the exceptional circumstances of the two relevant meetings that create a very strong case in favour of the formal records being disclosed”.

With great respect, the opposite is the case; the more crucial a matter is to the national interest, and the more potentially divisive the strongly held views on either side of the argument, the more important it is to retain the principle of the secrecy of Cabinet deliberations.

If this were not so, it would be virtually impossible to maintain the constitutional convention of collective Cabinet responsibility for its decisions. Collective Cabinet responsibility is, as your Lordships well know, crucial to our system of government in Parliament. Without it, day-to-day executive decision-making would simply break down. In a constitutional system in which there is no separation of powers between legislature and executive, this consequence would be inevitable.

I add this; the more momentous a decision, the more important it is for members of the Cabinet to engage in exchanges of the utmost candour. The knowledge that their deliberations would quickly be made public could prove to be profoundly inhibiting to freedom of expression in that context. Alternatively, decision-making could be driven even further from the Cabinet table and rapidly towards more informal avenues of communication, such as those exposed so alarmingly by the noble Lord, Lord Butler, in his admirable report.

With respect, those who are seeking to make public the contents of these minutes are aiming at the wrong target; for they are likely to reveal very little, especially as the texts of the two advices of the noble and learned Lord, Lord Goldsmith, are now in the public realm. It is much more important that we focus on the observations made by the noble Lord, Lord Butler, about the realities of Cabinet government today. His report refers, for example, to:

“wider collective discussion and consideration by the Cabinet to the frequent but unscripted occasions when the Prime Minister, Foreign Secretary and Defence Secretary briefed the Cabinet orally”;

and again:

“Excellent quality papers were written by officials, but these were not discussed in Cabinet or in Cabinet Committee”;

and again:

“The absence of papers on the Cabinet agenda so that Ministers could obtain briefings in advance from the Cabinet Office, their own departments or from the intelligence agencies plainly reduced their ability to prepare properly for such discussions”.

I emphasise that what I have said does not mean that the decision to go to war should not be intimately scrutinised. Indeed, there is now an unanswerable case for an inquiry. When are the Government going to announce it?

My Lords, I thank the Minister for repeating the Statement and for giving it to us in advance. Liberal Democrats do not believe that the Secretary of State’s decision in this case is right. We do not believe that it is in the public interest or that it has been made for the right reasons. The Statement recognises the very fine balance to be struck between openness and the public interest, but it goes on fatally to undermine that balance by wilfully ignoring the very mechanism that has been set up to maintain it.

It is not a trivial mechanism. First, there is a very considered, highly reasoned opinion by the Information Commissioner, which allows for a reduction. Incidentally, the Statement ignores the judgments of the Information Commissioner and the tribunal even more strongly, which suggested that reductions were definitely needed. The Statement also ignores the fact that the record of what was said at Cabinet contains only what was said and not by whom it was said. It remains anonymous.

Following the Information Commissioner’s decision, the Cabinet Office appealed and the appeal went to the tribunal, which was right in this case because it was a very serious decision. The tribunal’s reasoned opinion is exemplary in exploring the balance and difficulties. Paragraph 52 is of particular importance in debating the convention and the damage that can result from publication of the decisions that are being made in the Cabinet. It is not a decision that the tribunal took lightly. Paragraph 55 addresses the question raised by the Cabinet on whether a pattern would develop if this information was released. There seems to be no justification for thinking that a pattern would develop. Does this fear justify the straight veto by the Secretary of State? After all, he could have taken this to a High Court appeal, but he might have lost the argument.

Paragraph 60 of the tribunal’s discussion makes a clear case for the fact that it is not as much about who said what to whom, as about what was not discussed. Paragraph 60 refers to the Ministerial Code being broken. The issue was whether enough was said by anyone to anyone else, which brings the entire concept of Cabinet government into question.

Paragraph 72 addresses the passage of time. What have the Government to fear by this now? They have resisted the public inquiry for which we have continued to call. They have said that that would affect the morale of troops or strategic decisions, but that was a couple of years ago. Time has passed since then. It was also not lost on the other place that in this case the Government are both judge and jury. The Secretary of State now, as the Ministry of Justice Minister, was then the Foreign Secretary, which places him in an invidious position to make the veto.

The Statement refers to the use of the Freedom of Information Act in other countries. Are the Government aware that Australia is about to expunge the veto because it believes that it so compromises the Freedom of Information Act as to make it meaningless? The Statement does not recognise, we believe, that this case is truly exceptional. The decision to go to war was highly controversial. Some 1.5 million people bothered to march about the issue. We do not think that this would pave the way for every Cabinet decision being called into question. This was an exceptional case.

Finally, this is not a new issue. On 15 December 1932, Lloyd George asked for the minutes of discussions on the American debt question to be put into the public domain. The discussion about balance has carried on for decade after decade. The Government made a good first move in introducing the Freedom of Information Act, but they have now fatally compromised it by using the veto in such an inappropriate way.

My Lords, I thank both noble Lords for their contributions, and I thank the noble Lord, Lord Kingsland, and the members of his party for their support for the decision taken. It is absolutely consistent with everything they said during the passage of the Freedom of Information Bill as it then was. The noble Lord made a number of telling points, and he will not be surprised to hear that I agree completely with his analysis of the importance in difficult and serious cases of absolutely maintaining the principle of collective responsibility. Once that is allowed to go, our system of government would have to be altered irrevocably. He is right to make the point, which is precisely what lies behind the decision of my right honourable friend.

Having praised the noble Lord, I should just gently chide him for saying that somehow or other the decision should have been taken well before this stage. There is a distinct procedure—some would call it due process—which means that any complainant who chooses to do so under the Act can first go to the commissioner and, after the decision of the commissioner has been made, it can be properly appealed to the tribunal. All this is set out precisely in the legislation. I would argue that the appropriate moment for the Cabinet to consider the position is once the tribunal has reached its view. It has of course done that here following an undertaking we gave when the Bill was passed, and the relevant Cabinet Minister has made the decision.

The argument used by the noble Lord about the importance of keeping the confidentiality of Cabinet minutes sacrosanct in this particular case is the answer to the argument put by the noble Baroness. Is she really saying that the risk that would be run to collective Cabinet responsibility if we were to say that these minutes should be published is a risk worth taking? I hope that the majority view in this House would be strongly against such a point of view.

The noble Baroness also mentioned the High Court. We could take the case to the High Court, but only on a matter of law. This was not a matter of law. The reasoning was set out both by the majority and the minority of the tribunal, and for that reason we feel that it would have been inappropriate to take the matter to the High Court; it is not a proper matter for law.

As the Bill went through its stages in both Houses before it became an Act, this issue was discussed at great length. Indeed, there are noble Lords in the Chamber today who will remember the discussions around it. This provision was put into the legislation after much debate for a purpose, which was that it was felt that it might be necessary to use it in various circumstances. It was also made absolutely clear that this course would not be taken easily or frequently.

The statement of Her Majesty's Government’s policy that is attached to the document of my right honourable friend that is in the Library says:

“The exercise of the veto would involve two analytical steps. It must first be considered whether the public interest in withholding information outweighs the public interest in disclosure. Only if this test is satisfied can it then be considered whether the instant case warrants exercise of the veto. The Government will not routinely agree the use of the executive override simply because it considers the public interest in withholding the information outweighs the public interest in disclosure”.

The case has to be exceptional. We feel that this case is exceptional and that we have taken the right decision.

My Lords, there is a need for the maximum information about the reasons for the Iraq war. I think that the Minister has forgotten my noble friend’s question about an inquiry into Iraq. Are there any circumstances in which this Government will set up a general inquiry into the Iraq war in this Parliament or are they going back on the commitment, which was pretty inadequate in any event, which they previously gave?

Secondly, I should like to ask the Minister a question arising directly from the Statement. He mentioned the 30-year rule review committee, to which I gave evidence. Does the Statement mean that the Government have accepted the proposal to reduce the limit of publication on Cabinet proceedings from 30 years to 15? That is certainly the implication of the Statement, at any rate.

My Lords, I am grateful to the noble Lord for reminding me that I had not replied regarding the inquiry. The inquiry is a slightly different issue from the one raised today, but I am not exactly surprised to hear it mentioned. The best thing that I can do is remind the House of what the Prime Minister said in December: this is a matter to consider once our troops have come home. My own view is that that is a very strong argument. It would be the wrong time to hold an inquiry while our troops are still risking their lives in Iraq. Once they come home, the matter should be considered.

We welcome the review on the 30-year rule. We agree in principle that there should be a substantial reduction of the 30-year rule, phased in over time. The change would result in earlier public access to large numbers of official documents and would give the public a more detailed understanding of how Governments have handled more recent events. The caveat is that we need to look at the recommendations in detail and consider the practical implications carefully before providing a detailed response by the summer.

My Lords, I, too, support the Government’s decision. Can the Minister please give us a clear undertaking that none of the withheld information from the two meetings is already in the public domain as a result of memoirs or diaries published by former Ministers or political officials? Further, can he please give us a clear undertaking that the necessary legal action will be taken against any former Minister who refers to these two meetings in memoirs or diaries to be published in the near future?

My Lords, I think that I can say that the memoirs that have appeared so far do not breach the concern that we have and the reason that we have issued this veto. There are strong rules about memoirs, which the noble Lord will know from his distinguished time in government. Ministers are constantly reminded that they have to keep to those rules.

My Lords, on page 3 of the Statement there are references to the role of the Cabinet Office. It says:

“The Cabinet Office refused the request”,


“the Cabinet Office had considered”,


“The Cabinet Office appealed”.

The Cabinet Office is an institution. Who made the decision? The Cabinet Office has no collective voice. It is responsible, if anything, to the Prime Minister of the day. If the Cabinet Office is responsible to a Minister, or collectively to the Cabinet, has let identity independence?

My Lords, as I understand the procedure, the complainant would make his application to the relevant government department, which in this case was considered to be the Cabinet Office. It refused the application. It was then asked to reconsider it. As I understand it, independent people within the Cabinet Office are then, under the Act, obliged to look at the case again to see whether the first officials were right or wrong in refusing it. That process took place here before the claimant went, as he was entitled to, to the commissioner. The Cabinet Office, as I understand it, is a department of state in the Government. It has Ministers who are members of that department.

My Lords, my question was which individual made the decision. The Cabinet Office is not an institution. Some person or group of people must have made those decisions. I was not arguing about the outcome; I was asking how it happened.

My Lords, I am quite sure that various officials considered the complaint and that a collective decision was then made by the Cabinet Office to refuse the request. As far as individuals are concerned, I am afraid I cannot help the noble Lord.

My Lords, I voted in favour of the Freedom of Information Act as an MP, but I knew at the time that it would be an absolute gift to opposition political parties and opposition groups of one type or another. That is why I fear for its survival in this form if there were to be a Conservative Government in future. It is a good Act, but does my noble friend agree that the danger has always been that if you go too far with it you drive decision-making underground. If you do that, you end up hollowing out the institutions where these decisions are supposed to take place. One of the areas of the Act that needs review is whether we should make the law much clearer that private conversations should be encouraged in some areas rather than pushed outside such institutions as the Cabinet.

I make a final point. Even if the appeal had been run, all it would have done is led to an argument between lawyers about whether the Attorney-General got it right or wrong. That is actually not the key issue about Iraq.

My Lords, I agree very much with what my noble friend says. Indeed, it follows what the noble Lord, Lord Kingsland, was arguing a few minutes ago: once what happens in Cabinet becomes public knowledge, decisions will eventually be made elsewhere in private and will not be so accountable.

My Lords, given what my noble friend has just said and what the Statement makes very clear about the principle of Cabinet confidentiality and collective responsibility, there seems to be—perhaps my noble friend could reflect on this—a degree of agreement between the noble Lord, Lord Kingsland, and my right honourable friend in another place that actually a decision should be taken not to reveal Cabinet minutes at all. I very much regret the fact that Conservative Party minutes were revealed. That was a wrong decision. I hope that we have learnt something by this exercise. It seems to me that the Conservative and the government Front Benches—the Liberal Democrats take a different view—are saying that, as a matter of principle, collective responsibility would be undermined by such revelations and we should simply take a decision to amend the Freedom of Information Act accordingly.

Some reflection should be given to what the noble Lord, Lord Ryder, said about revelations made by Ministers and officials. It is no good dealing with a self-denying ordinance or codes of conduct over this: they are simply put on one side. There should be an absolutely clear ruling that those who have had the privilege of being involved in such discussions in Cabinet, and those who have heard such discussions taking place, do not reveal what has been said. That absolutely undermines that collective responsibility which both sides of the House have paid so much attention to.

My Lords, following the question of my noble friend Lord Rodgers, do I understand that the decisions of the Cabinet Office are made as a matter of process by civil servants and not by a Minister? Is no single person accountable? Is it then left until late in the day, as has happened today, for a Minister—the Lord Chancellor—to step in and put a block on decisions to which he was party? There should be some ministerial accountability, and decisions should be taken at ministerial level both on freedom of information requests and the publication of memoirs, to which the noble Baroness referred a moment ago.

My Lords, not every request is decided by a Minister, but with a request of this seriousness, of course—as I understand it, there is ministerial responsibility for dealing with some requests. Other requests are dealt with by officials. A huge number of requests are made, many of which are of course granted readily and easily. I talked about the 78,000 figure a few minutes ago.

My Lords, is it not a great pity, not that the Government have come to this decision—which I believe to be correct—but that they have taken so long to avail themselves of this procedure of issuing a certificate under Section 53 of the Act? After all, if one looks at the grounds on page 1 of the statement of reasons, it says,

“disclosure of this information would be … contrary to the public interest, and … damaging to the doctrine of collective responsibility”.

With each of those reasons I of course agree. However, turning the page, I see under the heading “Analysis” the words:

“First, I am satisfied that at the time of the request in December 2006, the balance of the public interest in this case fell in favour of non-disclosure”.

Will the Minister come back to the question with which my noble friend Lord Kingsland opened his speech? Why has it taken so long? In answer to another question, the Minister has this afternoon implied that due process required that the matter should be appealed by the Cabinet Office to the information tribunal. Unless I am completely mistaken, due process in Section 53 lays down that there should be a statement to the commissioner within 20 working days of a decision notice, setting out the opinion of the Secretary of State that there are reasonable grounds for issuing a certificate. Can the Minister think about those points and assist us further?

My Lords, I am grateful to the noble and learned Lord. The point is that freedom of information applications are made under a scheme. The Government would have been even more heavily criticised than they have been today if they had stepped in at an earlier stage and vetoed this claim before due process had been gone through.

What happened was what ought to have happened. The claimant makes his claim. It is refused. The claimant then goes to where he is entitled to go: to the commissioner. Then, after the commissioner rules, the Cabinet Office is entitled to appeal, which it does. When that decision is reached is the proper moment for the Government to consider whether they will use exceptionally—this will be an exceptional not a commonplace use—their right to veto under Section 53. That is precisely what they have done. The noble and learned Lord makes a good point; namely, that it is surprising that it has not been used up until now. However, that reflects the fact that the Government will not use this power for the sake of using it and will consider it very carefully. The Cabinet will be consulted before that step is taken.

My Lords, like other noble Lords I support the Government’s decision in this case. Further to the points made by the noble Lord, Lord Soley, and the noble Baroness, Lady Symons, does the Minister agree with me that until firm lines are drawn in this matter—if necessary, by amending the Freedom of Information Act—those taking part in important discussions in government will always feel inhibited about being candid because they will be uncertain whether what they say will be revealed under the Freedom of Information Act? Therefore, it is necessary to draw clear lines in this matter.

My Lords, I am grateful to the noble Lord, who has huge practical experience in this field. I hear the very strong arguments that have been put on all sides of the House regarding this matter and the possible need to reform the Act. I hope that he will forgive me if I do not commit the Government to any such course this afternoon but I promise to take back to the department the strong feelings of noble Lords who are very experienced in this field.