More on the Attorney General
Back now, with a further thought about the Information Commissioner's decision on the legal advice on the Iraq war, given the dust has settled. It illustrates a weakness of FOI as a tool for opening up government.
In his the Commissioner, Richard Thomas, made the interesting decision to force ministers to tell us more about the evidence that supported the government case - but they've not had to tell us anything more about the evidence on the other side. You can read his reasoning in the Notice.
In other words, if the Attorney General's initial advice had not been leaked, this suggests that Thomas would have forced the disclosure of the parts that supported the legality of the war and not the counter-arguments or caveats.
It will be interesting to see if this becomes any kind of precedent for other cases.
But beyond that the striking thing is how little other written material there seems to be which helped the decision come down in favour of legality. And Thomas states that the government assured him that they had shown him everything relevant.
FOI's limitation is that it only applies to 'recorded information'. It can't force people to answer questions about what was going on inside their heads.
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On December 20, 2004, shortly before the Freedom of Infomation Act (FOIA) entered into force on the first day of 2005, the then Solicitor General Harriet Harman - a former legal officer for Liberty - said in a written reply that she could not even divulge the number of pages in the legal advice by her boss, Attorney-General Lord Goldsmith on the legality of waging war on Iraq, because "the information requested relates to the provision of confidential legal advice and is covered by legal professional privilege."
On the eve of 2005 The Guardian carried a scene setting article on the FOI Act ("Release of Iraq war advice is test for new act: Freedom of information battle looms on legality of action, Dec. 31, 2004)
The day before, the same paper published a letter from me arguing that "one key document that should be put into the public domain is the crucial advice from [Lord] Peter Goldsmith, on the legality of the invasion of Iraq," and I too asked for its release "along with each of its earlier iterations and all emails or other interdepartmental correspondence relating to reasons for changes."("Secret state," letters, Dec 30,2004 -www.guardian.co.uk/freedom/Story/0,,1380741,00.html)
17 months later, we have still only had a partial answer, containing no primary internal documents. Rather than provide the primary information ( not even in a redacted form), all we have is Attorney-General's own summary narrative of the sequence of events. Why should we believe the A-G has included all pertinent elements of the story: indeed why believe veracity of this account at all, in light of experience of earlier ministerial utterances on Iraq?
The A-G admits he diametrically changed his advice from his first judgment, that any invasion of Iraq without a second UN security council resolution would be illegal, after discussions, inter alia, with Sir Jeremy Greenstock, our ambassador to the UN in New York, on the interpretation of the negotiating record of security council resolution 1441.
The narrative puts it in these extraordinary words, that the A-G finally " had reached the clear conclusion that the better view was there was a lawful basis for the use of force without a second resolution." Better for whom? it may be asked.
None of us know, because of the refusal to make public primary internal information, what SirJeremy told Lord Goldsmith in private. But we do know what he said in public, before the UN security Council on behalf of the United Kingdom in the debate on SC 1441 on 8 November 2002.This was confirmed in a Parliamentary answer by the then foreign office minister Bill Rammell, placing on the record SirJeremy's exact words, viz.
"There is no 'automaticity' in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12 [of Resolution 1441]. We would expect the Security Council then to meet its responsibilities." (Hansard, 7 May 2003 : Column 740W)
Sir Jeremy was asked about his role as described in the A-G's narrative on the Radio 4 'Today programme' on 26 May. He retorted bluntly "Let that account stand for itself. I won't comment any further."
What we do know is the Government has refused his request to publish his memoirs as a diplomat, including his crucial time as Britsh Ambassador to UN in the run up to the invasion of Iraq.
With the public's own watchdog, information commissioner Richard Thomas failing to deliver for the public, I shall now be forced to appeal his judgment upwards to the final appeal body, the Information Tribunal. I suggest all other applicants for the same information do the same.
- Dr David Lowry
Stoneleigh
Surrey