How much should the British public be allowed to know about the controversial 2003 decision to join the U.S. led invasion of Iraq? In a setback for public accountability, Dominic Grieve, the UK attorney general, has ruled that the available information should not include papers detailing cabinet-level discussions among members of the then Labour government led by Tony Blair.
The request for access to the cabinet minutes had been approved by Christopher Graham, the independent Information Commissioner, who had concluded the public interest in the information was sufficient to justify an exception to the standard 30 year non-disclosure period for cabinet minutes. But after consulting with current and former ministers, as well as the Leader of the Labour Party and Opposition, Grieve disagreed (a similar request in 2009 was also vetoed by Jack Straw, then the Labour government's justice minister).
In his statement of reasons for exercise of the executive override under Section 53 of the Freedom of Information Act 2000, Grieve concluded that disclosure would be “(1) contrary to the public interest; and (2) damaging to the doctrine of collective responsibility and detrimental to the effective operation of Cabinet government.” He further concluded that this is an exceptional case, one of the criteria required for exercising veto power.
Citing Straw’s 2009 reasoning, Grieve found that the passage of three years did not diminish the high public interest in maintaining confidentiality to preserve the capacity for free and frank discourse necessary to a Cabinet government. Grieve highlighted that the information concerned the substance of a policy discussion and “not the mere process of a decision being taken,” saying discussions of highly controversial matters “are precisely the occasions where the benefits that stem from Cabinet confidentiality can be most valuable.”
He further considered the substantial amount of information concerning the decision to use armed force in Iraq already in the public domain and the level of public scrutiny already applied to the decision. (The Iraq Inquiry, led by Sir John Chilcot, has seen the documents in conjunction with their work on investigating the Iraq war.) Grieve asserted that the Government as a whole rather than any individual minister was accountable for the decision to go to war, and releasing the documents would have prejudicial effects on cabinet members and decisions, citing the continued participation of many implicated MPs in the government and public life.
Freedom of Information advocates including the Open Society Justice Initiative support the release of these meeting minutes. The Open Society Justice Initiative’s recently released draft Global Principles on National Security and the Right to Information highlight the importance of a public interest override and of disclosure of exactly this kind of information.
While the principles focus on national security as one of the main justifications governments use for restricting access to information, the principles also apply to related state interests. The principles, based on emerging international and national law and best practices, posit that, to outweigh the public interest in disclosure, information must pose “an identifiable and significant risk of irreparable harm to a legitimate and compelling national security interest in a democratic society consistent with international law.”
Further, any withholding must be the least restrictive means available to protect against the harm and the law must provide safeguards for prompt, full and effective scrutiny of the validity of the withholding.
We agree with the Information Commissioner in this case that refusal to disclose the entirety of the Iraq Cabinet minutes was disproportionate and unnecessary in light of the significant interest, relative availability of related information, and potential solutions for at least partial release.
Principle 10 highlights the high presumption in favor of disclosure of exactly the information Attorney General Grieve cites in his statement of reasons. The Cabinet meeting minutes contain information concerning important decisions and policies, including decisions to commit combat troops overseas. The first and second reasons cited by Grieve support an even higher public interest in disclosure of the information as it is not merely procedural but concerns important decisions on policies to commit troops overseas. The ongoing domestic interest and relationship to other current political strengthen rather than weaken the public interest in disclosure as Grieve claims, because of the importance of the information to ongoing public discussion and debate.
Finally, the continued activity as MPs and other public figures provides no basis to restrict information and suggests abuse of the worst kind, restricting information to avoid political embarrassment and to stifle the public’s ability to hold their representatives accountable. The decision to join the U.S. in the Iraq war was a controversial one and the public has an interest in knowing the extent to which the Cabinet was informed about the proposal to go to war and had the opportunity to discuss and debate the decision. It is of the utmost relevance to current political issues and secrecy poses a serious threat to civil society, the rule of law, and public accountability.