Information Commissioner Richard Thomas served the Legal
Secretariat to the Law Officers (LSLO) with the Notice which
required the disclosure of some – but not all – of the information
which had been requested under FOIA.
There had been 17 complaints to Mr Thomas over Government
refusals to fulfil FOIA requests. The Notice dealt with all of them
together.
Background
On 17th March 2003, Attorney General Lord Goldsmith addressed
Parliament in confident terms about the legality of action.
"Authority to use force against Iraq exists from the combined
effect of resolutions 678, 687 and 1441," he said in reference to
UN resolutions.
Resolution 678, passed in 1990, authorised the use of force to
eject Iraq from Kuwait and to restore peace and security.
Resolution 687, passed in 1991, set out the ceasefire conditions
after Operation Desert Storm and suspended the authority to use
force under 678. And resolution 1441 was a determination by the
Security Council in 2002 that Iraq "has been and remains in
material breach" of resolution 687 because it has not fully
complied with its obligations to disarm under that resolution.
The Attorney General argued that a material breach of 687
revived authority to use force under 678. But it subsequently
became apparent that he had been much less certain about the
legality of action in his advice to the Prime Minister just 10 days
before addressing Parliament. Parts of that note of advice were
leaked in March last year; and the Government made the full 13-page
note public the following month.
In it, the Attorney General had written that "the language of
resolution 1441 leaves the position unclear"; that "Arguments can
be made on both sides"; and that "the safest course would be to
secure the adoption of a further resolution to authorise the use of
force".
The FOIA revelations
What was not known was why the Attorney General's answer to the
question 'Is action legal?' changed, in effect, from 'maybe' to
'yes'. Today's publication provides some explanation.
The original advice of 7th March 2003 did include a
qualification: "The legal analysis may, however, be affected by the
course of events over the next week or so, e.g. the discussions on
the draft second resolution. If we fail to agree on the adoption of
a second resolution, we would need to consider urgently at that
stage the strength of our legal case in the light of circumstances
at that time".
The Disclosure Statement, made by the Cabinet Office and the
Legal Secretariat to the Law Officers, narrates the events that
followed.
"In the event, it became clear that a second resolution was
unlikely to be forthcoming," they write. "Nevertheless,
negotiations at the UN Security Council continued throughout the
week. Throughout this period, the Attorney General continued to
reflect on the legal arguments."
The Statement explains that, on 11th March, the Attorney General
attended a meeting at Downing Street. The Chief of the Defence
Staff said he would need a clear indication of the legal position
for the purposes of his directive to members of the Armed Forces.
The next day, the Legal Adviser to the Ministry of Defence wrote to
the Legal Secretary to the Law Officers, following up on the Chief
of Defence Staff's comment. The letter made clear that if the
Attorney General has advised that he is satisfied that action would
be legal, the Chief of Defence Staff would give his order
committing UK forces. Then the Treasury Solicitor told the Attorney
General that a clear statement on the lawfulness of military action
was required, both for the military and the civil service.
According to the Statement, "The Attorney General recognised
therefore that he needed to indicate his clear view as to whether
military action would be lawful and that the Government would need
to set out its position publicly."
On 13th March the Attorney General consulted his Legal
Secretary. "It was clear to the Attorney that there was a sound
basis for the revival argument in principle," explains the
Statement. "The question was whether the conditions for the
operation of the revival doctrine applied in this case."
The Statement continues:
"As the Legal Secretary recorded at the
time, the Attorney confirmed in that discussion that, after further
reflection, having particular regard to the negotiating history of
resolution 1441 and his discussions with Sir Jeremy Greenstock and
the representatives of the US Administration, he had reached the
clear conclusion that the better view was that there was a lawful
basis for the use of force without a second resolution. The crucial
point was that Operative Paragraph 12 of resolution 1441 did not
stipulate that there should be a further decision of the
Security Council before military action was taken, but simply
provided for reports of further breaches by Iraq to be
considered by the Council. The Attorney General made it
clear that he had fully taken into account the contrary arguments
as set out in his 7 March minute to the Prime Minister. In coming
to the conclusion that the better view was that a further
resolution was not legally necessary, he had been greatly assisted
by the background material he had seen on the negotiation of
resolution 1441."
It was agreed that the Legal Secretary would confirm to the
Ministry of Defence Legal Adviser that military action would be
lawful and that a statement setting out the Attorney's view of the
legal position should be prepared.
On 14th March, the Legal Secretary sought the Prime Minister's
confirmation (previously given orally) that "it is unequivocally
the Prime Minister's view that Iraq has committed further material
breaches as specified in paragraph 4 of resolution 1441". That
confirmation came the next day. And in an internal Downing Street
email, Baroness Morgan wrote that the Attorney was "happy with"
this confirmation and that he would "make clear in the course of
the week that there is a sound legal basis for action should that
prove necessary."
The Attorney General's statement to Parliament followed.
The Disclosure Statement concludes: "Other than the documents
referred to in this statement, the Cabinet Office and Legal
Secretariat to the Law Officers hold no further information from
the period 7 to 17 March 2003 relating to the preparation of the
Attorney General's Parliamentary Answer on 17 March 2003."
An "exceptional, complex and sensitive" FOIA case
The Information Commissioner said today that the Notice demanded
the substance of information which led to, or supported the views,
which were made public by the Attorney General in his statement to
Parliament on 17th March 2003. It did not require the publication
of information which was preliminary, provisional or tentative or
which may reveal legal risks, reservations or possible
counter-argument.
Mr Thomas described the case as "exceptional, complex and
sensitive."
"The Freedom of Information Act creates a presumption of
disclosure, but the Act also creates important and separate
exemptions relating to advice from the Attorney General,
ministerial communications, the development of government policy,
legal professional privilege, and prejudice to international
relations," he said.
He continued:
"I was satisfied that at least one of the
exemptions applied to all the requested information. I was then
required to balance competing public interest considerations. The
Notice sets out my reasoning in full.
“My conclusion is that the balance of the
competing public interest tests calls for disclosure of the
recorded information which led to, or supported, the concluded
views which were made public by the Attorney General in his 17
March Statement. As the government chose to outline an unequivocal
legal position, on such a critical issue at such a critical time,
the balance of the public interest calls for disclosure of the
recorded information which lay behind those views. By this means
the public can better understand the background and rationale
behind that published Statement and the extent to which reliance
upon those final conclusions was in fact justified.
“But I have also concluded that the
arguments for maintaining the exemptions are sufficiently powerful
that the balance of the competing public interests does not require
the disclosure of those parts of the requested information which
were of a preliminary, provisional or tentative nature or which may
reveal legal risks, reservations or possible counter-argument. Nor
is disclosure needed where it would prejudice the UK’s relations
with other countries.”
He said the nature of the documentation in this case makes it
impossible or extremely difficult to publish redacted text to meet
the requirements of the Freedom of Information Act. The Enforcement
Notice therefore required a Disclosure Statement to be published
meeting specified parameters. The Disclosure Statement had to
include the substance of those parts of certain documents, as
notified to the LSLO, which fall within these parameters.
The Commissioner said he is satisfied that the Disclosure
Statement meets his requirements.
