In the end, then, the minutes of Cabinet meetings at which the decision to invade Iraq was taken will not be released; Jack Straw has invoked section 53 of the Freedom of Information Act, thus vetoing disclosure in spite of the ruling of the Information Tribunal by a two to one majority that the Information Commissioner’s decision, that the minutes be released, should stand. Here’s Jack Straw’s statement in the Commons.
Many will be outraged by this decision; I’m not. As I wrote at the time of the Information Commissioner’s original decision a year ago, I think his (and since then, the Tribunal’s) decision in favour of disclosure risks making it open season on Cabinet minutes, in effect destroying the traditional confidentiality of Cabinet discussion and encouraging Prime Ministers to sideline Cabinet and make the real decisions on unminuted, undisclosable sofas instead. I know that the Tribunal, or the majority of it at least, think this would not set a precedent, but I don’t believe that for a moment. Iraq is not the only time this country has gone to war, and going to war is not the only important or controversial decision government takes. A disclosure of these minutes would undoubtedly lead to demands for the disclosure of minutes relating to Heathrow, the Lisbon Treaty, Abu Qatada, national ID card schemes, 42 day detention and so on, so on and so on. To single out the Iraq minutes for disclosure because of the political controversy Iraq still causes is not a principled stance: it is based on political factors, just as much as the government’s decision to keep them secret. Ultimately therefore I agree with Martin Kettle and Steve Richards about this, not with David Hencke or Chris Ames. While Chris Ames is right that the Freedom of Information Act has always envisaged the disclosure of Cabinet minutes in some circumstances, I disagree with him that this means the veto “wrecks” the Act. The Act has always envisaged the possibility of a veto, too.
Beyond the argument about these particular minutes, though, I’m not happy with the way the Freedom of Information Act works. Once you accept that Cabinet minutes should in certain circumstances be disclosable, then it’s wrong in principle that ministers themselves should ultimately be able to block disclosure: even if there is a judicial review of Jack Straw’s decision, the courts will not quash it unless it is unreasonable. The section 53 veto should be done away with.
But I’m not happy with the basic legal structure under which this decision was taken by the Commissioner and the Tribunal, either. The Act does not recognise any “class” exemption in relation to Cabinet minutes, which is itself a major flaw. The government objected to disclosure under section 35(1) since the minutes related to the formluation of government policy, after which the decision whether to disclose simply depends, under section 2(2)(b), on whether the Commissioner or Tribunal thinks
the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
This is far too vague and unstructured a test for anyone to apply it sensibly, or for the Tribunal’s decisions to be based on consistent and coherent principles. On the contrary it is a recipe for subjective, politicised, arbitrary and capricious decision making by the Commissioner, the Tribunal and ministers.
It would be much better if the Act recognised the special status of Cabinet minutes by providing that they are not to be disclosed except in certain defined circumstances. Parliament, instead of lazily passing the buck to officials like the Information Commissioner to make vague judgments should do the work of defining when Cabinet minutes should be released – the fact that it failed to do that, and instead created the “safeguard” of the ministerial veto, is a sure sign of legislation dominated by the executive.
My proposal would be that Cabinet Minutes should only be disclosed if the Commissioner is satisfied, first that the public interest requires him to look at the minutes and consider their disclosure (this would be the case an applicant would have to make); and second, that their contents indicate that Parliament has been misled or cannot properly hold government to account unless the minutes are disclosed. That, or something like that, would in my view cater for a situation in which the minutes showed some wrongdoing or lying by ministers. And I think the person making the final, binding decision on that should be independent of government – a judge, for instance, or the House of Lords or Supreme Court following an appeal.
The absurdity of the current legislation is shown by the fact that the majority of the Tribunal said its decision in favour of disclosure was not based on the contents of the minutes (paragraph 82 of its ruling). But once you decide that Cabinet minutes should not be protected simply on a “class” basis, a decision in favour of or against disclosure can only sensibly be made on the basis of their contents. Everything else is abstract chatter, good intentions and airy-fairy nonsense.
In some cases a basic confidentiality rule for a certain period (20 years?) could be a solution, ultimately letting historians in on matters, but excluding the need for vetoes as badly expressed as Straw’s.
Agree: although not happy that Straw made this decision, as he has a personal interest in this (point made by Gary Slapper in The Times today). Not sure why the Govt decided not to appeal the Tribunal decision. But presumably the decision to invoke s53 is a decision subject to judicial review?
Head of Legal – I like your analysis of this issue. The whole idea of including a Ministerial veto in an Act is clear evidence of how Ministers dictate the content of legislation and it also shows how supine Parliament can be.
Lord Bingham – in a speech at the Liberty Convention – has touched upon how Parliament needs to be a better guardian of freedom:
I am only a simple man. If an act of Parliament is a solution you only have the British population in support…minus a few bankers. Go Carl!