Internal advice at the national
audit office raised doubts about the basis for refusing disclosure of its
report into Britain’s Saudi “Al Yamamah” arms deal.
The advice, released under the freedom of information act (FOIA), concluded that the main reason given for non-disclosure “might be hard to sustain.”
An official at the policy unit of the national audit office (NAO), Mark Dawson, drew up the advice for a colleague with responsibility for the Al Yamamah report.
The colleague, Tim Banfield, wanted advice in 2003 over the prospect of the parliamentary commissioner for administration, or ombudsman, investigating the refusal of the ministry of defence (MoD) and foreign and commonwealth office (FCO) to release the report under the code of practice on access to government information, which was the predecessor to FOIA.
A FOIA Centre consultant, as far back as 2000, and at least one other person had asked relevant government departments for the report under the code, although the NAO itself was not subject to the non-statutory “openness” guidelines.
The NAO audits government departments’ spend-ing. In 1992, it completed its report on the MoD’s accounts in 1990-1991 dealing with its role in the supply of Tornado aircraft and other equipment to Saudi Arabia under the multi-billion pound Al Yamamah agreement that has been running since 1985. Al Yamamah has long been embroiled in bribery allegations.
The report went to the cross-party parliamentary public accounts committee (PAC). MPs on the committee agreed not to publish the report on the grounds that publication would breach confidential arrangements between the UK and Saudi governments. It is the only NAO report to remain confidential.
The MoD and NAO refuse to disclose the report under FOIA, claiming that releasing it would breach parliamentary privilege, as well as prejudicing international relations and commercial interests.
The parliamentary privilege claim is crucial be-cause it is an “absolute” exemption under FOIA. Unlike the latter two claims, there is no requirement on a public body to consider whether there is greater public interest in releasing the report than in maintaining secrecy.
Dawson writes in a section headed “parliamentary privilege” in his advice, dated July 17, 2003: “The NAO’s original report, and PAC’s deliberations thereon, would constitute formal proceedings of parliament and therefore, before disclosing it publicly, the MoD (or the NAO) would have to consider the possible implications of contempt or parliament, by reversing a decision of a select committee of parliament not to publish the report on grounds of confidentiality.
“However, this argument might be hard to sustain.”
But he thought that other arguments, such as the harm of publication to international relations and commercial interests, were stronger. He writes: “I would have thought that [the MoD] would be able to construct a fairly strong case against disclosure.”
“In particular, the argument about international relations has always been the argument used by both the NAO and government in the past against disclosure, and even if the ombudsman did recommend MoD disclose the report… [it] might not only have to seek the NAO’s consent but also the Saudi government’s.”
The advice also raises the possibility that the ombudsman might conclude that some of the information should be released.
He writes: “It is possible that in the case of Al Yamamah, if granted access to the NAO report and other MoD documents, the ombudsman might consider that some of the information could be released without harm.”
However, the MoD and NAO has so far refused to release any part of the report.
Another version of this article first appeared in The Daily Telegraph.
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