Yesterday the Government issued a second veto preventing the disclosure of minutes which recorded Cabinet discussions in 2003 on the Attorney General’s advice concerning military action against Iraq. The first veto which was issued in respect of this information was issued by Jack Straw MP in 2009 (see my post on the veto here). The second veto relates to a more recent request for disclosure of the same minutes, namely a request in March 2011. This more recent request was refused by the Government on an application of s. 35 FOIA (exemption in respect of policy formulation). The Commissioner accepted that s. 35 was engaged in respect of the minutes but found that the public interest balance weighed in favour of disclosure, particularly in view of the extremely strong public interests in creating transparency and accountability around the Labour Government’s decision to go to war in Iraq and the passage of time and changed circumstances since the Cabinet discussions took place (you can find his decision notice no. FS50417514 here). The Attorney General, as the person responsible for the advice which was being discussed in cabinet, assumed responsibility for issuing the veto certificate under s. 53. It appears that he consulted his colleagues in the Cabinet, the Commissioner and the Leader of the Opposition prior to issuing the veto.
In his Statement of Reasons for issuing the veto (which you can find here), the Attorney General notes that there were extremely strong public interests in the disclosure of the minutes. However, his position is that the need to protect a ‘safe space’ for Cabinet discussions relating to such highly sensitive matters was just as acute in 2011 as it had been when the first request for disclosure was made in December 2006. This was so, in his view, notwithstanding that the Cabinet discussions were, as at 2011, nearly a decade old; that there had since been a change of Government and, further, that UK forces were no longer engaged in combat in Iraq. The Attorney General’s view was that, irrespective of their age and the changed circumstances, disclosure of the minutes would have had a seriosuly chilling effect on Cabinet discussions in future. This was particularly because ‘the issue of Iraq was still live’ and most of the individuals involved in the discussions ‘are still Members of Parliament or otherwise active in public life’. The Attorney General also stated that, in assessing the public interest in disclosure, he had taken into account: ‘the very substantial amount of information which the public already has about the decision to use armed force in Iraq. That decision has arguably been subject to greater scrutiny than any other decision of the previous administration…’. He went on to refer in this context to the Hutton Inquiry, the Butler report and the more recent Chilcott Inquiry, which has still yet to issue its report. It is also clear that principle of upholding the convention of collective cabinet responsibility also weighed heavily in the Attorney General’s assessment of the public interest in maintaining the exemption.
Notably, the Attorney General was at pains to make clear that he had issued the veto because this was an ‘exceptional’ case and, as such, fell within the four corners of the Government’s existing policy in issuing vetoes. As I indicated in my earlier post on the Justice Committee’s report on FOIA (which you can find here), there is now a live question as to whether the Government’s policy will in any event be watered down so that it can also apply in non-exceptional cases.