FOIA Centre news: Lord Lester’s battle for date of legal advice on Iraq

There is a continuing culture of secrecy in parts of Whitehall. That was the message of Lord Lester to a parliamentary select committee reviewing the freedom of information act (FOIA) during its first year of full implementation in the UK.
The Liberal Democrat peer gave an account to the house of commons constitutional affairs committee of how he battled to find out the date on which the government first sought and obtained legal advice about the legality of the invasion of Iraq.
In evidence published by parliament, but subject to corrections, he said: “The lack of candour and public disclosure in this matter suggests that there is a continuing culture of secrecy in parts of Whitehall, coupled perhaps in this case with a desire to avoid political embarrassment about the date when the prime minister first contemplated participating in the invasion of Iraq and sought legal advice.”
In 2004, before FOIA was fully implemented, he tabled a parliamentary question seeking the information. The foreign and commonwealth office (FCO) replied by saying that it was the government’s practice neither to disclose when, whether nor by whom any particular legal advice was given. It relied on exemptions in the code of practice on access to government information that preceded FOIA.
“I asked for an internal review of the decision not to disclose the information. I reiterated that I was not asking to see the nature of the advice, merely to know when it had been sought. I also explained that I did not believe that either of the exemptions cited could justify a refusal to provide information relating solely to a date.”
He said that the FCO continued to withhold the information because disclosure could “harm the frankness and candour of any discussion”, saying that “disclosure of the date or fact of a request for legal advice might act as a disincentive to others to seek such advice in future because of the assumptions that might be drawn, whether correctly or otherwise, from the fact of such advice having been sought.”
The parliamentary commissioner for administration investigated his complaint of maladministration. “The ombudsman upheld my complaint and recommended that the FCO should release the date when the government first sought legal advice about the invasion of Iraq.
“She said in her report: ‘I think it is clear that there is a public interest in information relating to any aspect of the legality of the invasion of Iraq. Does that public interest, in this case, outweigh any harm that might be caused by the release of the information sought? I think that it does.’
“‘It seems to me implausible to suggest that legal advice would not be sought by ministers or officials simply because of the possibility that the date on which it had been sought might be released into the public domain: that would seem to me a wholly disproportionate response.’”
“Despite the ombudsman’s unequivocal conclus-ion… the FCO refused to accept her recommend-ation and did not release the date of the advice.”
Lester then made a request for the same inform-ation under FOIA in February 2005.
“On March 16 and April 8, 2005, I received letters from the FCO informing me that the department needed extra time to comply with my request, stating in each case that this was necessary to apply the public-interest test before taking a decision on disclosure. The second letter anticipated that the FCO would write to me by April 22, 2005.
“On April 25, 2005, I received a further letter from the FCO stating, for the third time, that extra time was required. I replied asking for an internal review and, in light of the delay and unsatisfactory handling of my request, I also lodged a complaint with the information commissioner.
“On May 5, 2005, the FCO responded to my req-uest for an internal review and explained the reasons why the revised estimate was considered to be reasonable and in compliance with FOIA.
“The FCO explained that the exemption in section 35 (formulation of government policy) of FOIA applied to the information I requested and that they were obliged to consider whether the public interest in maintaining the application of the exemption outweighed the public interest in disclosure.
“The FCO explained further that in the present case, the assessment of the relative strength of the competing considerations was complex and time-consuming and required considerable consultation across a range of government departments. The FCO concluded that an estimated completion date of May 20, 2005 was reasonable.”
“On May 20, 2005, I received a letter from the FCO informing me that still further time was required to respond. The FCO explained that extra time was needed to apply the public-interest test before taking a decision on disclosure, citing the section 35 exemption and section 10 (time for compliance with request) of FOIA.
“On June 3, 2005, I received a substantive reply. However, the FCO provided me with information concerning a government official who had sought legal advice on her own initiative about remarks made by President Bush. This did not satisfy my request, which was for the date when the government first sought legal advice about the legality of the invasion of Iraq.
“On June 22, 2005, I wrote to the information commissioner to request a review of the FCO’s handling of my request and the unsatisfactory answer provided. On the same date I wrote to the FCO asking them to comply with my request and to give me the information I had requested.
“On October 5, 2005, on the advice of the inform-ation commissioner’s office, I wrote to the FCO to request a second internal review. By November 23, 2005, I had still not heard anything from the FCO, despite the fact that the letter had stated that they would aim to respond within 20 working days. I therefore wrote a further letter requesting a progress report on the review.
“As a result of this request, in December 2005, a senior FCO official telephoned me seeking clarification of exactly what information I sought. I explained that what I sought to know is the date upon which the government first decided to seek legal advice about the legality of the invasion of Iraq.
“On January 17, 2006, I wrote to the senior FCO official outlining the history of my request.”
“I expressed the hope that he or his colleagues would at last provide me with the necessary information, or that the information commissioner would intervene to provide me with an effective remedy.
“On February 20, 2006, I received a substantive response from the FCO.
“In order to help me understand their June 2005 response, the FCO explained the process by which the government obtains legal advice. They explained that government legal advisers frequently give advice, both orally and in writing, without formal requests for advice being made. Consequently, ‘it will often be difficult to pinpoint a date on which legal advice was first sought on a particular matter’.
“Furthermore, it is relatively rarely that a minister asks for legal advice on a particular point, because the legal dimensions of an issue will usually have been discussed in the papers by the government legal advisers, which the minister will have seen.
“The FCO explained that my request had therefore been interpreted as seeking the ‘date on which legal advice was first sought on the situation which culminated in the outbreak of hostilities in March 2003’, and the answer they had provided was not an attempt to evade providing an answer to my request, but was provided in good faith in the belief that it was the best answer they could give.
“The FCO explained further that my request had not specified that I was seeking information about when particular ministers first sought legal advice and, ‘if such a question were asked in relation to many governmental decisions, the answer might be that ministers themselves never sought advice. But this does not mean that the government did not seek legal advice, or that ministers did not receive legal advice.’
“The FCO stated that, in light of my letter of October 5 seeking a second internal review, it had become clear that I was seeking more specific information and it was for this reason that the senior Whitehall official had contacted me by telephone.
“As a result of that conversation, the FCO said that they now understood my request as being for the date when a request for legal advice was first made by the ‘prime minister, his office or officials on his behalf’.
“In view of this, the FCO concluded that they should deal with my request for internal review by providing a new response to the ‘re-formulated question’.
“The FCO considers that the information that best suits my ‘updated request’ is February 21, 2002.
“On this date, an official in the Cabinet Office commissioned inter-departmental advice on Iraq for ministers, including the prime minister. This advice is summarised in paragraphs 259-269 of the Butler review of intelligence on weapons of mass destruction and was provided to ministers in early March 2002. This commission included a request for a paper from the FCO on the legality of possible military action against Iraq.
“Furthermore, as referred to in paragraph 287 of the report of the Butler review, the prime minister chaired a meeting of ministers and officials on July 23, 2002 to discuss the options for dealing with Iraq’s non-compliance with its UN obligations.
“During the course of this meeting, the issue of the legal basis for possible military action arose and further work on the legal issues was commissioned.”
So, Lester finally received his answer, but he found it a torturous process. “The service I have received in relation to my FOIA request has been wholly unsatisfactory.
“The FCO stated that they would reply to my request of February 15, 2005 within 20 days. It has taken over a year for them to do so. In their letters of March 16, April 8, April 25 and May 5, 2005, the FCO explained that the delay was due to the extra time needed to apply the public-interest test before taking a decision on disclosure.
“This cannot be considered a reasonable excuse for a delay of four months, particularly in view of the fact that the ombudsman had previously found that the public interest in disclosing the information outweighed any harm that might be caused and had recommended disclosure.
“The lack of any meaningful response from the FCO to my attempts to gain disclosure of the information through the FOIA complaint mechanism over five months was similarly unreasonable and a further example of maladministration.
“When I finally received a substantive commun-ication from the FCO in December 2005, it was in the form of a telephone call from a senior official seeking ‘clarification’ of my request. I was surprised to find that my question, to which I had been seeking an answer since March 2004 needed further clarification.
“This purported need to ‘clarify’ or ‘reformulate’ my request, as detailed in the final letter of February 20, 2006, can only be interpreted as an obfuscation of what was a question formulated in simple terms and demonstrates the secrecy and delaying tactics which have characterised the Government’s treatment of my request.
“In the White Paper, ‘Your right to know’ (Decemb-er 1997), the government set out the aims of the proposed freedom of information bill: ‘Unnecessary secrecy in government leads to arrogance in governance and defective decision making.
“‘The perception of excess secrecy has become a corrosive influence in the decline of public confidence in government. Moreover, the climate of public opinion has changed; people expect much greater openness and accountability from government than they used to.’
However, he said that the “government’s repeated refusal to disclose basic information on a matter of considerable public importance” showed “a pattern of maladministration”.
Further details dating the change in legal advice on Iraq to the government from the attorney general, Lord Goldsmith, were subsequently revealed following the intervention of the information commissioner, Richard Thomas.
The commissioner issued the attorney general’s office with an enforcement notice ordering it to provide a narrative of events that details the stages in Goldsmith’s change of view that was already known to have taken place over a 10-day period in March 2003.
Goldsmith had given a 13-page legal advice to Tony Blair on March 7, 2003, which eventually leaked after the government suppressed even its existence, saying that he did not support America’s claim that an invasion of Iraq was legal without a second United Nations resolution authorising it.
He said that it would be “safer” to obtain a second resolution; otherwise, he was not confident a court would back an invasion.
However, Goldsmith told his legal secretary on March 13, 2003 that he had changed his mind “after further reflection” and discussions with Sir Jeremy Greenstock, the then UK ambassador to the UN, and “representatives of the US administration”.
According to the narrative, “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 attorney general made it clear that he had fully taken into account the contrary arguments as set out in his March 7 minute to the prime minister.”
He told parliament in a written answer four days that his opinion was that an invasion would be legal.

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