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The code of practice on access to Government information introduced by the Major Government specifically and deliberately excluded minutes of Cabinet and Cabinet Committees, for the very reasons that the Secretary of State sets out in the statement of reasons he placed in the Library, and which plainly extend to all Cabinet minutes in general. Given what the Secretary of State has resorted to today, would it not be sensible to reintroduce that rule? In view of the principles that he has enunciated on the need for confidentiality at the heart of government, why did he have to string the applicant along through an internal review, an appeal to the Information Commissioner and a counter-appeal to the Information Tribunal—all at considerable public and private expense—when it was plainly a foregone conclusion that the Government would block the release of the information anyway? When did the Secretary of State take the decision that he would exercise the veto? Will he tell the House today what this entire process has cost?
The Secretary of State seeks to extol the Government’s good intentions by highlighting their changes to the 30-year rule. Why did the Prime Minister hold a review of the 30-year rule, if not to get the records available for public inspection more swiftly than is currently the case? Did he do so because he hoped that that review would conclude that the limit should be set so that the papers of the Conservative Government would be affected, while the background to the Prime Minister’s own decisions as Chancellor would remain concealed?
We accept, however, that the Secretary of State’s decision is the right one— [ Interruption . ] Yes, indeed. I am forced to disagree with the Information Commissioner when he says that such requests will have little impact because they will be rare. Quite the opposite. Because Ministers will not know in advance whether it will be deemed in the public interest to release their discussions, all discussions will be treated as though they could be released. It is clear from the Secretary of State’s statement that he agrees that if that were the case, officials would feel unable to give impartial advice freely, and Ministers would feel unable to discuss matters candidly, which would lead to even more sofa government than we have already suffered from him and his colleagues. May I therefore ask the Secretary of State when this damascene conversion by him, the Prime Minister and his Cabinet colleagues to those high principles of collective responsibility first took place? With the spin and briefings still going on today, none of us have noticed it.
Finally, does the Secretary of State agree with Lord Butler of Brockwell, when he found that in the case of the Iraq war,
“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”,
“Excellent quality papers were written by officials, but these were not discussed in Cabinet or in Cabinet committee”
“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 for such discussions”?
Do not those issues go to the heart of public disquiet over the way in which the Iraq war was initiated?
While we believe that it is right for Cabinet minutes to remain confidential for reasons of maintaining candour in government, that does not mean that the decision to go to war does not deserve scrutiny. The Secretary of State half concedes that point when he tries to gloss and explain that certain inquiries have already taken place. In the absence of the release of Cabinet minutes, is there not now an overwhelming case for an inquiry along the lines of that held into the Falklands war? When will the Government face up to their responsibilities in this regard, and stop hiding from their failures?
Mr. Straw: As the hon. and learned Gentleman blustered, I assumed that at some stage he would get to the point where he expressed agreement, not disagreement, with the issue of my certificate. Perhaps I should have said in my opening statement that we have been grateful for the bipartisan support we have had from senior and distinguished Conservatives, including Lord Hurd of Westwell, who gave evidence to the tribunal, Lord Heseltine and, quite separately, the right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind).
The hon. and learned Member for Beaconsfield (Mr. Grieve) tries to make play of the fact that I was the architect of the Freedom of Information Act, and said that I was now trying to circumvent it. No, I am not trying to circumvent it; I am trying to apply an essential component of it. The Government would never have agreed to the Act, and would have invited the House to vote against the Bill, had it not been for the inclusion of section 53. I see one of the hon. and learned Gentleman’s colleagues on the Benches behind him nodding in assent at that.
The Act was intended to secure a better balance between openness and the protection of some information that is essential to the operation of good government and other matters, and it was intended that that tension should be reflected in the Act itself. This is not a simple matter, as the hon. and learned Gentleman knows, despite his desire—not all that successful—to have it both ways in his bluster. Section 53 is in place precisely to express that tension and to ensure that in certain circumstances, which are very clearly set out, it is possible for a particular Minister to exercise a veto in appropriate and specified cases.
The hon. and learned Gentleman asked why the Prime Minister is not giving this statement. It is a matter of the construction and drafting of all sorts of legislation that decisions of this kind are made by Secretaries of State or Law Officers, not by the Prime Minister. The hon. and learned Gentleman also asked why it was I who made the decision. I made it because it falls under my responsibilities, and I would have been accused of ducking it if I had not. It was also subject to deliberation in Cabinet. He asked me when I finally came to my decision. It was yesterday afternoon, after the final Cabinet discussion of the matter. He asked me what right of appeal there would be. There is no direct right of appeal prescribed in the Act, but it is perfectly possible that some interested party may attempt to secure a judicial review of the decision.
On the issue of an inquiry into aspects of the military action in Iraq and its consequences, as I said, there have already been at least four inquiries. I am well aware that
the Prime Minister is on record as saying that once the troops are home he will consider the case for a further inquiry, but, with respect to the hon. and learned Gentleman, that is not and cannot be germane to this decision. Any inquiry established would certainly not be under freedom of information rules.
Sir Stuart Bell (Middlesbrough) (Lab): Can the Secretary of State confirm that the Freedom of Information Act is not to be used like Wikipedia, which people can add to and subtract from, and to which any fraudster can introduce themselves and distort the record? Will he reconfirm what he has just said—that 78,000 documents have been released under the Act? Is it not in accordance with our constitution, going back to Bagehot and others, that we have Cabinet Government and an Executive accountable to this House? If this House is not holding the Executive to account, it is this House that fails, and it does not need any Freedom of Information Act to fulfil its duties.
Mr. Straw: I agree with my hon. Friend in both respects. The Freedom of Information Act is a package deal. The House would not have been able to have the first establishment of the right of direct access to information without there being some concomitant balancing measure such as section 53. I think that that the House will confirm that, as this is the first time that that section has been exercised in more than four years of the Act being in force, we have kept our word and ensured that its use is exceptional.
The figure of 78,000 that I referred to was the number of requests, so that will cover many more than 78,000 documents. All those requests have been accepted by Government Departments without demur or argument. In the other 1,500 cases that have been before the commissioner, and the 50 before the tribunal, the decision has been accepted in each case as final, however much the Government might have objected to it in the first place. That is the position, and I am proud that we have ensured that freedom of information is subject to a far more open regime than existed under the previous Administration.
David Howarth (Cambridge) (LD): I also thank the Secretary of State for an advance copy of his statement. I am fascinated that the coalition that supported the Iraq war seems still to exist in the House. The decision to go to war in Iraq was momentous, controversial and disastrous. It was especially disastrous for the rule of international law and for this country’s reputation as an upholder of international law. It marks the point when the Government decisively endorsed the destructive doctrines of military neo-conservatism.
The Secretary of State says that various inquiries have been held into the Iraq war, but, as the current Foreign Secretary conceded last March, they were all narrow and specific. There has never been a full, comprehensive inquiry into the decision to go to war in Iraq. Will the Secretary of State give his full support for an inquiry, not as and when the Prime Minister decides, but now? We need to learn the lessons of that time as quickly as possible. That is why the Cabinet minutes should be released much earlier than normal.
Does the Secretary of State accept that the much greater threat to Cabinet government is not the release of the minutes, but any repeat of the collapse of Cabinet decision making in the Government of Mr. Blair? The argument against disclosure is that it might undermine full and frank discussion in Cabinet and mean that discussion will take place informally, outside the meeting. However, is not that precisely what happened under Mr. Blair, with the rise of sofa government? At least the prospect of disclosure in exceptional circumstances—the tribunal made it clear that it is not a matter of disclosing Cabinet minutes all the time, only in exceptional circumstances—might persuade future Cabinets to remember that Cabinet discussion should matter.
Am I right that Cabinet minutes do not generally give the names of the speakers, apart from that of the speaker who introduces the discussion? We are not considering the release of the Cabinet Secretary’s notebooks. Am I also right that it is a case not of revealing who agreed and who dissented—though, in this instance, we know that from the memoirs of the dissenters—but only of knowing whether discussion and challenge of any sort took place? That is a matter of great public importance, which goes to the heart of accountability.
The Secretary of State says that he has a good case on its merits. Why, therefore, has he chosen to issue an order—the first of its kind—rather than appealing to the High Court in the ordinary way? Why is he silencing opposition to his position by fiat instead of trying to persuade an objective court of its strength? Does not that show that, in reality, even he suspects that his position is weak, and that the decision has more to do with preventing embarrassment than protecting the system of government?
Mr. Straw: Well, certainly not the latter. There have been plenty of occasions to discuss the nature of the decision to go to war. I profoundly disagree with the hon. Gentleman’s description of the legal basis for the war and I have—and am happy to do so again in future—argued that the then Attorney-General, Peter Goldsmith, was entirely correct to advise that there was a lawful basis for the decision to go to war. Anybody who had months of intensive negotiation, as I had, about the line-by-line, word-by-word structure of what became resolution 1441 would know its legislative history and why we were justified in making the decision within international law.
The Butler inquiry was extensive and, yes, it criticised some aspects of the way in which the Government had operated. I have never been a fan of so-called sofa government, since the hon. Gentleman asks. What is more, the Government led by Tony Blair and now by my right hon. Friend the Prime Minister accepted and implemented the inquiry’s recommendations. However, that is not an argument for releasing the minutes for when the Cabinet was operating effectively; when it was, notwithstanding the criticisms, the final arbiter of the decision to take military action, and when it had discussed military action in not one or two, but, from recollection, 20 meetings.
What Cabinet minutes do is record the details of the deliberations, normally without attribution to individual Ministers, but with more attribution than perhaps the hon. Gentleman believes. In any event, my judgment—and I think that this would be the judgment of anybody who
had served in a Cabinet—is that the degree of detail, which is properly and essentially given in Cabinet minutes, is such that if those minutes were published, not least in respect of very important issues and discussions, they would undermine, in the manner that I have described, the whole principle and basis of collective responsibility. As I have said, that is not a convenience for Ministers, but is essential for the accountability of Ministers to the House.
The last point that the hon. Gentleman raised was about why we had not chosen to put in an appeal under what I think is section 56 of the 2000 Act—no, section 59. The answer is this: an appeal to the High Court would arise on a point of law. There is no suggestion whatever in the structure of the Act that one should wait for an appeal to the High Court under section 59 before exercising a veto, effectively, under section 53. Under section 53, the accountable person is essentially substituting his or her judgment for the judgment made by the commissioner or the tribunal.
Dr. Tony Wright (Cannock Chase) (Lab): May I say to my right hon. Friend that it must be a source of considerable regret that the veto has been used for the very first time by the Government in this case? As it happens, I agree with him on the principle—that is, on the importance of the confidentiality of Cabinet proceedings. What I do not agree with him on is the application of that principle in the current case. What the case seems to turn on is not the content of Cabinet proceedings, but their conduct.
The point of the 2000 Act was to set up an elaborate system to get an external and independent determination of where the public interest lies, through commissioner, tribunal and court—it was not to be decided by Ministers, but independently—and they have decided that there is a public interest, in this exceptional case, in knowing about the conduct of Cabinet business during that decisive period when we went to war. I would like to know from my right hon. Friend why it is appropriate in this case to substitute ministerial judgment for that external judgment. Will the effect not simply be to confirm people in the belief that there is something in that period that needs to be hidden?
Mr. Straw: My hon. Friend took a very close interest in the debates on the Freedom of Information Bill as it was, as he and I will recall with some affection. Indeed, it was partly thanks to his efforts that the Bill as proposed by me originally was changed and strengthened. However, he will also recall that on Report in the Commons—a very long stage—he identified what he regarded as three ingredients for what he described as a compromise veto: first, there should be a collective Cabinet decision in respect of the veto; secondly, the scope should be narrower; and thirdly, such a veto should not apply to local authorities. We have effectively complied with all three of his conditions.
If, in the abstract, there was to be a provision for a veto, there was bound to be an occasion on which it would be used. It was put into the 2000 Act for a purpose. It has, in fact, not been used before, but it was almost inevitable that it would be used in respect of an issue that appeared to be controversial. The Government have bent over backwards, even when, in other circumstances, they believe that the commissioner or
the tribunal has come to decisions that are inappropriate, to ensure full compliance with those decisions, because we are very committed to the spirit as well as to the letter of the Act. However, there was bound to be such an occasion, and in my judgment it was exactly this kind of occasion that the House and my hon. Friend had in mind when we agreed section 53.
Sir Alan Beith (Berwick-upon-Tweed) (LD): Given the strength of the tribunal’s argument that this is a unique case setting no precedents, is it not particularly unconvincing for the right hon. Gentleman to argue that if the minutes were released, it would allow Ministers to demonstrate their attachment to any given policy in general, thereby absolving themselves from responsibility for decisions that they have agreed to stand by? Has the Justice Secretary not noticed that he is living in a world, and indeed a Government, where Ministers find all sorts of other ways of doing that, including on this issue?
Mr. Straw: The tribunal was far less “strong”—to use the right hon. Gentleman’s adjective—than he implied, as it was split 2:1. I urge him to read the minority as well as the majority judgment. Secondly, at no stage that I can recall did the tribunal say that this decision and these circumstances were unique, although it did say that they were of a very unusual nature. It said that the risk of setting a precedent for general application would be reduced, but it went on to say:
“This is not to say that it is only in such an extreme case as the present that disclosure should be ordered.”
So, it was far from saying in practice that the case was unique.
Alan Simpson (Nottingham, South) (Lab): Surely the tribunal was right to recognise that there is no more momentous a decision made by a Parliament than to take its country into a war of choice. That is what makes this issue so specific and unique. The Justice Secretary and all Members will remember that at that time, the then Prime Minister, Tony Blair, frequently told the House that if we only knew what he privately knew, we would understand that the threat was real, that the war was necessary and the action was legal. We had to accept as ordinary Members that we were not privy to the information that was available at a Cabinet level through private security briefings. Cannot the Justice Secretary see that exercising the veto at this point will send out precisely the opposite message that he has tried to convey to the House and that the public will believe that in refusing to clarify whether the Cabinet were among the deceivers or the deceived, nothing is being protected other than their own interests? As such, the integrity of the House is being damaged.
Mr. Speaker: Order. I have to consider other Back Benchers and if questions are too long, it is unfair to others.
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