Evidence submission by Lord Lester of
Herne Hill QC
1. The following submission is an account
of my attempt to seek the disclosure of the date upon which the
Government first sought and obtained legal advice about the legality
of the invasion of Iraq through a request under the Freedom of
Information Act 2000.
BACKGROUND
2. In March 2004, I tabled a Question for Written
Answer asking when the Government sought legal advice about the
legality of an invasion of Iraq. On 25 March 2004, the Minister
of State for the Foreign and Commonwealth Office replied that
it is not the Government's practice to disclose when and whether
any particular legal advice had been given, and if so by whom,
on specific occasions. [69]The
Minister relied upon exemption 2 and exemption 4(d) of the Code
of Practice on Access to Government Information. I subsequently
tabled three further questions on 6 April 2004 to seek clarification
of that answer, but the information sought remained undisclosed.
[70]
3. Following those responses, on 20 April 2004
I asked for an internal review of the decision to not to disclose
the information. I reiterated that I was not asking to see the
nature of the advice, merely to know when it had been sought.
I also explained that I did not believe that either of the exemptions
cited could justify a refusal to provide information relating
solely to a date.
4. I received a substantive reply from the Minister
on 18 June 2004. The Minister stated that the Government no longer
sought to rely on exemption 4(d) of the Code in this case, but
would continue to withhold the information on the basis of exemption
2 of the Code because disclosure of the information could "harm
the frankness and candour of any discussion". This view had
been reached in full consideration of any public interest there
might have been in having the information released. The Minister
also stated that disclosure of the date or fact of a request for
legal advice might act as a disincentive to others to seek such
advice in future because of the assumptions that might be drawn,
whether correctly or otherwise, from the fact of such advice having
been sought.
5. On 7 July 2004, a complaint of maladministration
was made to the Parliamentary Commissioner for Administration
on my behalf by Sir Menzies Campbell QC MP. In her report of 11
February 2005, the Ombudsman upheld my complaint and recommended
that the FCO should release the date when the Government first
sought legal advice about the invasion of Iraq. She said in her
Report:
"I think it is clear that there is a public
interest in information relating to any aspect of the legality
of the invasion of Iraq. Does that public interest, in this case,
outweigh any harm that might be caused by the release of the information
sought? I think that it does . . . It seems to me implausible
to suggest that legal advice would not be sought by Ministers
or officials simply because of the possibility that the date on
which it had been sought might be released into the public domain:
that would seem to me a wholly disproportionate response to a
recommendation, made by my Office in one specific case, that information
relating to a date should be released".
6. Despite the Ombudsman's unequivocal conclusion
that the Code exemption cited by the FCO could not be applied
to the information sought, the FCO refused to accept her recommendation
and did not release the date of the advice.
FREEDOM OF
INFORMATION REQUEST
7. In light of the FCO's refusal to accept the
Ombudsman's recommendation, on 15 February 2005, I submitted a
request for the "date when the Government first sought legal
advice about the legality of an invasion of Iraq" on the
basis of my rights under the Freedom of Information Act 2000.
The following day I received a letter from the FCO acknowledging
my request and stating that they would aim to reply within 20
working days.
8. On the 16 March and 8 April 2005, I received
letters from the FCO informing me that the Department needed extra
time to comply with my request, stating in each case that this
was necessary to apply the public interest test before taking
a decision on disclosure. The second letter anticipated that the
FCO would write to me by 22 April 2005.
9. On 25 April 2005, I received a further letter
from the FCO stating, for the third time, that extra time was
required. I replied asking for an internal review and, in light
of the delay and unsatisfactory handling of my request, I also
lodged a complaint with the Information Commissioner.
10. On 5 May 2005, the FCO responded to my request
for an internal review and explained the reasons why the revised
estimate was considered to be reasonable and in compliance with
the Act. The FCO explained that the exemption in section 35 (formulation
of government policy) of the Act applied to the information I
requested and that they were obliged to consider whether the public
interest in maintaining the application of the exemption outweighed
the public interest in disclosure. The FCO explained further that
in the present case, the assessment of the relative strength of
the competing considerations was complex and time-consuming and
required considerable consultation across a range of Government
departments. The FCO concluded that an estimated completion date
of 20 May 2005 was reasonable in light of all the circumstances.
11. On 20 May 2005, I received a letter from
the FCO informing me that still further time was required to respond.
The FCO explained that extra time was needed to apply the public
interest test before taking a decision on disclosure, citing the
section 35 exemption and section 10 (time for compliance with
request) of the Act.
12. On 3 June 2005, I received a substantive
reply. However, the FCO provided me with information concerning
a Government official who had sought legal advice on her own initiative
about remarks made by President Bush. This did not satisfy my
request which was for the date when the Government first sought
legal advice about the legality of the invasion of Iraq.
13. On 22 June 2005, I wrote to the Information
Commissioner to request a review of the FCO's handling of my request
and the unsatisfactory answer provided. On the same date I wrote
to the FCO asking them to comply with my request and to give me
the information I had requested.
14. On 5 October 2005, on the advice of the Information
Commissioner's office, I wrote to the FCO to request a second
internal review. By 23 November 2005, I had still not heard anything
from the FCO, despite the fact that the letter had stated that
they would aim to respond within 20 working days. I therefore
wrote a further letter requesting a progress report on the review.
15. As a result of this request, in December
2005, a senior FCO official, telephoned me seeking clarification
of exactly what information I sought. I explained that what I
sought to know is the date upon which the Government first decided
to seek legal advice about the legality of the invasion of Iraq.
16. On 17 January 2006, I wrote to the senior
FCO official outlining the history of my request and explained
that neither the complaint mechanism to the PCA nor the FOI had
been able to provide me with information on a matter of considerable
public interest. I expressed the hope that he or his colleagues
would at last provide me with the necessary information, or that
the Information Commissioner would intervene to provide me with
an effective remedy.
17. On 20 February 2006, I received a substantive
response from the FCO. In order to help me understand their June
2005 response, the FCO explained the process by which the Government
obtains legal advice. They explained that Government legal advisers
frequently give advice, both orally and in writing, without formal
requests for advice being made. Consequently, "it will often
be difficult to pinpoint a date on which legal advice was first
sought on a particular matter". Furthermore, it is relatively
rarely that a Minister asks for legal advice on a particular point,
because the legal dimensions of an issue will usually have been
discussed in the papers by the Government legal advisers, which
the Minister will have seen. The FCO explained that my request
had therefore been interpreted as seeking the "date on which
legal advice was first sought on the situation which culminated
in the outbreak of hostilities in March 2003", and the answer
they had provided was not an attempt to evade providing an answer
to my request, but was provided in good faith in the belief that
it was the best answer they could give. The FCO explained further
that my request had not specified that I was seeking information
about when particular Ministers first sought legal advice and
that:
"if such a question were asked in relation to
many Governmental decisions, the answer might be that Ministers
themselves never sought advice. But this does not mean that the
Government did not seek legal advice, or that Ministers did not
receive legal advice".
18. The FCO stated that, in light of my letter
of 5 October seeking a second internal review, it had become clear
that I was seeking more specific information and it was for this
reason that the senior Whitehall official had contacted me by
telephone. As a result of that conversation the FCO said that
they now understood my request as being for the date when a request
for legal advice was first made by the "Prime Minister, his
office or officials on his behalf". In view of this, the
FCO concluded that they should deal with my request for internal
review by providing a new response to the "re-formulated
question".
19. The FCO considers that the information that
best suits my "updated request" is 21 February 2002.
On this date, an official in the Cabinet Office commissioned interdepartmental
advice on Iraq for Ministers, including the Prime Minister. This
advice is summarised in paragraphs 259-269 of the Butler Review
of Intelligence on Weapons of Mass Destruction and was provided
to Ministers in early March 2002. This commission included a request
for a paper from the FCO on the legality of possible military
action against Iraq. Furthermore, as referred to in paragraph
287 of the report of the Butler Review, the Prime Minister chaired
a meeting of Ministers and officials on 23 July 2002 to discuss
the options for dealing with Iraq's non-compliance with its UN
obligations. During the course of this meeting, the issue of the
legal basis for possible military action arose and further work
on the legal issues was commissioned.
CONCLUSION
20. The service I have received in relation to
my FOI request has been wholly unsatisfactory. The FCO stated
that they would reply to my request of 15 February 2005 within
20 days. It has taken over a year for them to do so. In their
letters of 16 March, 8 April, 25 April and 5 May 2005, the FCO
explained that the delay was due to the extra time needed to apply
the public interest test before taking a decision on disclosure.
This cannot be considered a reasonable excuse for a delay of four
months, particularly in view of the fact that the Ombudsman had
previously found that the public interest in disclosing the information
outweighed any harm that might be caused and had recommended disclosure.
21. The lack of any meaningful response from
the FCO to my attempts to gain disclosure of the information through
the FOIA complaint mechanism over five months was similarly unreasonable
and a further example of maladministration. When I finally received
a substantive communication from the FCO in December 2005, it
was in the form of a telephone call from a senior official seeking
"clarification" of my request. I was surprised to find
that my question, to which I had been seeking an answer since
March 2004 needed further clarification. This purported need to
"clarify" or "reformulate" my request, as
detailed in the final letter of 20 February 2006, can only be
interpreted as an obfuscation of what was a question formulated
in simple terms and demonstrates the secrecy and delaying tactics
which have characterised the Government's treatment of my request.
22. In the White Paper, Your Right to Know
(December 1997) the Government set out the aims of the proposed
Freedom of Information Bill:
"Unnecessary secrecy in government leads to
arrogance in governance and defective decision-making. The perception
of excess secrecy has become a corrosive influence in the decline
of public confidence in government. Moreover, the climate of public
opinion has changed; people expect much greater openness and accountability
from government than they used to."
23. The Government's repeated refusal to disclose
basic information on a matter of considerable public importance
and their lack of co-operation and transparency indicate that
much work is needed across Whitehall to ensure that the Freedom
of Information Act is an effective means by which the citizen
may gain access to information about the workings of government.
24. The lack of candour and public disclosure
in this matter suggests that there is a continuing culture of
secrecy in parts of Whitehall, coupled perhaps in this case with
a desire to avoid political embarrassment about the date when
the Prime Minister first contemplated participating in the invasion
of Iraq and sought legal advice.
25. Although my treatment involves a pattern
of maladministration I shall not complain again to the Parliamentary
Ombudsman but would be grateful if the Constitutional Affairs
Committee would take my experience into account in its inquiry.
I shall send a copy of this submission to Sir Menzies Campbell,
the Parliamentary Ombudsman, the Information Commissioner, and
Baroness Ashton of Upholland.
Lord Lester of Herne Hill
March 2006
69 HL Hansard 1179 WA 108 (25 March 2004) Back
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HL Hansard 2218-20 WA 222 (6 April 2004) Back
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