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Freedom of Information Act 2000

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.