Sunday, November 30, 2008

The "real reasons" for the cabinet's decision...?

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Publish and be damned

The government must reveal the notes of the meetings where the cabinet discussed the legality of war in Iraq

Chris Ames, Friday November 28 2008 19.30 GMT

So it appears that there was a pretty brief discussion of the attorney general's advice that the Iraq war would be legal, when he presented the cabinet with a single-page opinion to that effect just three days before the invasion. But what was the cabinet told before Lord Goldsmith made up his mind?

This week, the information tribunal has been hearing the government's appeal against an order by Richard Thomas, the information commissioner, to release the minutes of two cabinet meetings, on March 13 and 17 2003.

The stakes are very high. According to cabinet secretary Sir Gus O'Donnell, they include the future of effective cabinet government. O'Donnell appeared before the tribunal on Tuesday to make the government's case that the confidentiality that is necessary for effective cabinet discussion will be irreparably damaged if the papers are released. The commissioner believes that the damage will be very limited and that the public interest in showing what went on at this hugely controversial moment in history outweighs it.

There is also the question of whether the current system is as effective as has been made out, which is something the papers could help us with.

Professor Peter Hennessy, a witness for the commissioner, said that the episode represented a major failure of collective cabinet government. So the content of the minutes could determine not just the value in their release but the strength of the case for maintaining cabinet confidentiality. If collective cabinet government doesn't work, why protect it?

Ironically, in a hearing that has largely taken place in closed session, it has been the Cabinet Office counsel, Jonathan Swift, who has given the biggest hints about what the papers show.

He has revealed that the commissioner believes that the minutes of March 17 will reveal not just "the absence of sufficient discussion" but the "real reasons" for the cabinet's decision to sign up to Blair's war.

There have also been strong suggestions that the meeting on March 13 could be highly significant. This took place while Goldsmith was coming to his definitive view that war would be legal without a further UN resolution. I suspect that at this meeting Blair strung the cabinet along with premature reassurances as to the legal position.

A previous decision by Thomas required the government to publish a narrative account of the process that took Goldsmith from his equivocal and very long advice on March 7 to his unequivocal and very short opinion on March 17.

For me, this was one of the commissioner's worst freedom-of-information decisions. Rather than requiring the government to publish the paperwork – some of which was admittedly legally privileged – he allowed it to construct its own narrative. Because this was a mixture of documented fact and spin, it is impossible to know what is true and what isn't.

The key date happens to be March 13, when Goldsmith is said to have concluded that the war was legal, based on UN security council resolution 1441 and without the further resolution that could not be obtained. According to the narrative, Goldsmith told his legal secretary that he had reached this conclusion, which the legal secretary then recorded. He then met Sally Morgan from Blair's office and Lord Falconer and told them he would give the green light for war.

The claim that Goldsmith made up his mind before meeting Morgan and Falconer is a key part of the government's case that he wasn't leaned on. But we only have the government's word for it. Neither the commissioner nor the Cabinet Office have been willing to confirm that this sequence of events is based on documentary evidence rather than spin. I'll be making a new freedom of information act (FOI) request to find this out.

It seems likely that when the cabinet met on the morning of March 13, Blair did not know that Goldsmith would sign up to war. Goldsmith did not attend, but there was a discussion about the legality of the war and it looks as if Blair told the cabinet that it would be legal.

There is clear evidence that Blair and cabinet allies jumped the gun on the issue. According to Clare Short's memoirs, Blair told her on March 11: "Attorney-General said 1441 enough."

On March 12, defence secretary Geoff Hoon said on the Today programme that war would be legal, based on resolution 1441 alone. When this was put to the prime minister's official spokesman (PMOS), "the PMOS said that Mr Hoon's words were correct". The PMOS speaks with the direct authority of the prime minister so effectively Blair made this claim.

So we know that some members of government were claiming prematurely that war would be legal without a further UN resolution and it appears that at least one cabinet minister was told that this was the attorney general's view. The minutes of the meeting on March 13 could tell us whether the cabinet was misled in this way and whether Goldsmith was subsequently bounced into his "decision". If that does turn out to be the case, we might expect less smugness in future about the effective working of cabinet government.

Page last updated at 17:54 GMT, Friday, 28 November 2008

Iraq advice 'should stay secret'

Releasing records of the cabinet's Iraq war meetings would do "serious harm" to war planning, says a government lawyer.

Cabinet Office counsel Jonathan Swift told a tribunal that minutes from March 2003 should be kept secret or ministers may become "more cautious" in cabinet.

But the Information Commissioner argued in favour of the minutes' release.

He said they were "highly material" to whether legal advice on the eve of war had been properly considered. A decision is expected in January.

Addressing the final day of a three-day Information Tribunal hearing in south London, the Cabinet Office's counsel Jonathan Swift appealed for minutes from cabinet meetings on 13 March and 17 March 2003 not to be disclosed to the public.

The two meetings were the only two full cabinet discussions on the then Attorney-General Lord Goldsmith's advice that it was legal to go to war in Iraq.

The cabinet took the decision to go to war at the 17 March meeting, a day before the parliamentary debate took place and three days before British troops were in action in Iraq.

Mr Swift told the hearing that the issue of disclosure was one of "substance" and referred to "knowledge of who said what and who said how much about what on what occasion".

He believed more than adequate public scrutiny had been afforded to the issue and outlined the damage he thought disclosure would bring.

He said "a general risk of disclosure would do serious harm" to the decision-making process.

He argued that if the minutes were published "cabinets are likely to be more cautious how they approach the matter in the cabinet setting" when it came to "war and peace decisions".

Information Commissioner Richard Thomas's counsel, Timothy Pitt-Payne, said the minutes were the "most important record" that existed "to understand the deliberative process" behind the discussion of Lord Goldsmith's legal advice.

He said the case for releasing the documents in the public interest was "a very strong one," as "cabinet needs to be willing to test and challenge robustly proposals put forward".

He suggested the minutes could help answer whether the cabinet challenged the legal papers from the Attorney-General and whether they asked to see a background briefing.

He said the question to ask was if there was "a serious failure of cabinet government".

Mr Pitt-Payne said the disclosure of the minutes would be "highly material" to helping answer those questions.

He outlined what he said were existing threats to free and frank cabinet discussions, such as secret press briefings from colleagues, leaks and memoirs.

He said the "curtain of secrecy is permeable" already and that an "objective and comprehensive record" was preferable to "partial and self-serving" accounts.

Campbell regret

On Tuesday the Cabinet Secretary Sir Gus O'Donnell told the Information Tribunal deputy chair Chris Ryan that he thought the disclosure of the minutes could impede free and frank future discussions.

He argued that it would be possible to infer which minister said what, even though no views expressed during discussions are attributed in the minutes, according to Times journalist Sam Coates who was at the hearing.

Accounts of the March meetings already exist in at least five memoirs that have been published, including Tony Blair's former communications director Alastair Campbell's account of his time in Downing Street, The Blair Years.

Sir Gus, who had the job of vetting Mr Campbell's book, said that he regretted it being published at all and that he had been against its release, especially as Mr Campbell had been a special adviser and not a minister.

But he argued rules to stop publication would be tricky to create as it would difficult to come-up with penalties for non-compliance.

He said, in the end, it was the author's responsibility.

A Tribunal Services spokesperson told the BBC: "We anticipate a decision in January."

If the Tribunal rejects the government's case, Ministers can appeal.

"Ministers are most unlikely to give in... They could either use a special provision of the Freedom of Information Act to overrule the Tribunal for the first time," according to BBC's Martin Rosenbaum "or they could appeal to the High Court".

Should the onward appeal to the High Court fail, the final route of appeal is the House of Lords.

Evidence 'proves' insufficient cabinet discussion of Iraq war legality

Revelation emerges as government appeals against order to release minutes of two cabinet meetings in March 2003

Chris Ames, Thursday November 27 2008 17.29 GMT

Gordon Brown tonight faces fresh calls for an Iraq inquiry following the emergence of documentary evidence that "proved" there was insufficient cabinet discussions on the legality of going to war.

The revelation emerged in a court hearing today when the government was appealing against an order to release the minutes of two cabinet meetings, on March 13 and 17 2003, immediately before the start of the invasion.

Jonathan Swift, counsel for the Cabinet Office, revealed that it was part of the commissioner's case that the minutes of March 17 "proved the absence of sufficient discussion".

It is already known that at the second meeting, the then attorney general, Lord Goldsmith, gave the cabinet the single-page text of a parliamentary answer declaring that an invasion of Iraq would be legal without a further United Nations security council resolution.

Ten days earlier Goldsmith had given Tony Blair, then prime minister, longer and more equivocal advice, which was not shown to the whole cabinet.

Timothy Pitt-Payne, counsel for Richard Thomas, the information commissioner, said the commissioner was not suggesting that the minutes would answer "one way or another" whether there was sufficient cabinet discussion of Iraq as the issue had been discussed at many previous cabinet meetings.

The meeting on March 17 was the cabinet's only opportunity to discuss Lord Goldsmith's advice before the start of the war three days later.

Pitt-Payne said that he would discuss the exact contents of the minutes during a closed session, but he added that they were "highly material" to the issue.

The revelation appears to back up the claim of Clare Short, former cabinet minister, that she was prevented from questioning Lord Goldsmith on his opinion and whether he had any doubts.

Sir Andrew (now Lord) Turnbull, former cabinet secretary, told a House of Commons committee in March 2005 that ministers "had a chance to ask questions" following an oral presentation from Lord Goldsmith.

Last week, Lord Bingham, a former senior law lord, described the invasion of Iraq as "a serious violation of international law and the rule of law".

William Hague, shadow foreign secretary, today said: "The more we find out about how Britain went to war in Iraq the stronger the case grows for a proper inquiry into origins and conduct of the war.

"There is growing evidence that the decision to go to war was taken in the context of a serious failure of the machinery of government and of cabinet government. The good conduct of Britain's foreign policy requires the urgent restoration of both.

"The sooner we learn the lessons of the past the sooner we can apply them. So if this government persist in rejecting the inquiry the next Conservative government will establish one as an early priority."

The Liberal Democrat foreign affairs, Ed Davey, said: "This revelation is a damning indictment of Blair, Brown and the whole Labour leadership who sat round that table. No wonder Clare Short decided to leave the Labour party.

"Not to consider fully such a critical piece of legal advice, on the eve of a major war, makes a total mockery of cabinet government. Tony Blair broke the unwritten rules of our constitution, yet nothing has been done by Gordon Brown to prevent this happening again.

"The case for a public inquiry has been strengthened yet again, and Gordon Brown should announce one in the Queen's speech."

The tribunal concerns the records of cabinet meetings in March 2003, which considered legal advice on the imminent invasion of Iraq.

Thomas ruled earlier this year that the formal minutes of these meetings should be revealed. The Cabinet Office is currently appealing to the tribunal.


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