Parliamentary and Health Service Ombudsman / Improving Services / Selected Cases / Access to Official Information / Investigations Completed July 2004

Lord Lester asked to be told when the Government had first sought legal advice about the legality or otherwise of a possible invasion of Iraq. The Foreign and Commonwealth Office said that it was not their practice to disclose when or whether particular legal advice had been given and that information concerning government legal advice was exempt from disclosure under Exemptions 2 and 4(d) of the Code. After Lord Lester sought a review of their decision they maintained that Exemption 2 applied to the information sought, but said that they were no longer relying on Exemption 4(d). The Ombudsman found that Exemption 2 could not be applied to the date sought, but she accepted that, in principle, it could be applied to the additional information which would need to be released to put that date in context. However, having applied the harm test, she found that the public interest in disclosure outweighed the potential harm that might be caused by its release. The Ombudsman recommended that the information be released to Lord Lester and expressed her disappointment that the Foreign and Commonwealth Office felt unable to accept that recommendation.

1. Lord Lester complained that the Foreign and Commonwealth Office (the Department) had refused to supply him with information that should have been made available to him under the Code of Practice on Access to Government Information (the Code). I have not put into this report every detail investigated, but I am satisfied that no matter of significance has been overlooked.

The complaint

2. On 25 March 2004 Lord Lester asked, via a written question in the House of Lords, to be told when the Government had first sought legal advice about the legality or otherwise of a possible invasion of Iraq. In reply, the Minister of State for the Department said that it was not the practice to disclose when or whether particular legal advice had been given and that information concerning government legal advice was exempt from disclosure under Exemptions 2 and 4(d) of the Code. Lord Lester subsequently tabled three further questions, on 6 April 2004, which sought clarification of that answer, but the information sought remained unreleased. Following those responses Lord Lester wrote to the Minister of State on 20 April 2004, under the Code, to seek a review of the decision not to release the information. He reiterated that he was not asking to see the nature of the advice, merely to know when it had been sought: he added that he did not believe that either of the exemptions cited could justify a refusal to provide information relating solely to a date. Following a holding reply dated 25 May 2004, the Minister of State replied substantively on 18 June 2004. She apologised for the delay in replying and said that, on review, the Government now no longer sought to rely on Exemption 4(d) as justification for refusing to release the information requested. It remained, however, the Government’s view that Exemption 2 did still apply as disclosure of the information could harm the frankness and candour of internal discussion, a view that had been reached in full consideration of any public interest there might be in having the information released. The Minister of State also said 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. Following receipt of that reply the Member wrote to me on behalf of Lord Lester, on 7 July 2004, asking me to investigate his complaint. I issued my statement of complaint on 4 August 2004.

Department’s comments on the complaint

3. In providing his comments on the complaint, in a letter dated 24 September 2004, the Permanent Secretary of the Department said that the issues raised by Lord Lester’s request were complex and had required wide consultation and consideration. He said that, following the original refusal of the information, the matter had been considered again at review stage. It had then been decided that Exemption 4(d) could no longer be applied to the information but that Exemption 2 was still appropriate. The Permanent Secretary noted that the letter of 18 June 2004 had also drawn attention to the information already in the public domain, to the effect that the possibility of taking legal action as a way of enforcing Iraq’s compliance with United Nations resolutions was already under consideration in the spring of 2002: it was not his view that the public interest required the release of anything more specific beyond that. He noted that the Butler report, which was published in July 2004, had, exceptionally, included a number of detailed references to Government legal advice in relation to the war but that the report had not covered the issue raised by Lord Lester. The Permanent Secretary went on to say that it would in fact be difficult to provide a straightforward answer to Lord Lester’s question given that legal aspects of Iraq’s position had been more or less continuously under consideration since the invasion of Kuwait in 1990. Having said that, it was in fact possibleto identify a particular date which, it could reasonably be argued, furnished an answer to the question raised. However, release of the date on its own would be misleading: it would be necessary to release other information in order to put that date into context. That information was covered by Exemption 2 and it was the Department’s view that the release of that information would not be in the public interest. The Permanent Secretary reiterated the point made in the letter of 18 June 2004 to the effect that the release of information such as that sought by Lord Lester might well inhibit others from seeking timely legal advice in the future.

The Code

4. In the preamble to part II of the Code, under the heading ‘Reasons for confidentiality’, it states: ‘The following categories of information are exempt from the commitments to provide information in this Code. In those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available. References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available.’

5. I have considered the following exemption in part II of the Code as part of my investigation of this complaint. Exemption 2 is headed ‘Internal discussion and advice’ and reads: ‘Information whose disclosure would harm the frankness and candour of internal discussion, including:

• proceedings of Cabinet and Cabinet committees;

• internal opinion, advice, recommendation, consultation and deliberation;

• projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;

• confidential communications between departments, public bodies and regulatory bodies.’

6. Although Exemption 4(d) was withdrawn by the Department at the review stage it might nevertheless be helpful for completeness to include it here. Exemption 4 is headed ‘Law enforcement and legal proceedings’ and part (d) covers:

‘information covered by legal professional privilege.’

Assessment

7. I consider first the way in which this request was handled. Lord Lester’s requests for the information he sought came initially through a series of Parliamentary Questions. Following his failure to obtain the information through those Parliamentary Questions, Lord Lester wrote to the Minister of State on 20 April 2004 to seek a review. The Minister of State sent a holding reply on 25 May 2004, in which she said that the review process had required extensive consultation and that it would not therefore be possible to respond within the twenty working day target. The Minister of State provided her substantive response on 18 June 2004. While this is well outside the recommended timescale, the Department did keep Lord Lester informed of the position: I recognise also that this was a far from straightforward request about which, I accept, substantial consultation would have been necessary. Thus, while an earlier reply would clearly have been preferable, I offer no criticism of the Department in this instance.

8. I now consider the information itself. In their response of 18 June 2004 the Department made it clear that they were no longer relying on the use of Exemption 4(d). This assessment therefore considers only Exemption 2. That exemption is specifically designed to protect information the disclosure of which would harm the frankness and candour of internal discussion: typically, internal opinion, advice and recommendation. The essential information sought in this case, however, does not fall into any of those categories: it is factual information, a date. The applicability or otherwise of Exemption 2 to factual information has formed a key element of a number of investigations carried out by my Office, most notably in the case on which my predecessor reported in November 2001 (Access to Official Information: Declarations Made Under the Ministerial Code of Conduct, HC 353). In that case, which dealt with information about the number of occasions on which Ministers in the Home Office had made declarations of interest in relation to various parts of the Ministerial Code of Conduct, my predecessor took the view that, while it might be possible to apply that exemption to the content of those discussions, it could not be applied to factual information in the form of a number. That view of Exemption 2 has been endorsed by my Office in subsequent investigations. I note that, in reply to one of Lord Lester’s Parliamentary Questions, the Minister of State said: ‘There is nothing in Exemption 2 of the Code of Practice on Access to Government Information which requires disclosure of the date of any information in cases where that information may itself be withheld.’ That, technically, may be the case. But, in this case, the information sought is the date itself: there is no wider information beyond the actual date that has been asked for. I do not therefore find that Exemption 2 can be applied to the information sought.

9. However, the Department have gone on to argue that, even if they were to release the date, they could not do so without providing additional information in order to put that date into context and that any such additional information would fall within Exemption 2. They have also said that, were information of this kind to be released on a regular basis, it might have the effect of inhibiting the seeking of timely legal advice for fear that the fact that such advice had been asked for might find its way into the public domain. I need to consider these arguments. The information held by the Department which, they say, would have to be released in order to put the date into context consists of a press release and an internal minute. By definition, a press release is a public document so the question of an exemption does not apply. The internal minute contains, I accept, information covered in principle by Exemption 2. That, therefore, brings into play the public interest test. 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?

10. I think that it does. I do not propose to recommend the release of the information contained in the internal minute: in any event it has not been asked for. But I find it difficult to understand what harm might be caused by the Department, in releasing the date of this minute, saying that it had been written because statements made in a particular press release (the essential details of which, as they form part of a public document, could easily be repeated) suggested to them that it might be sensible to obtain legal advice in respect of those statements. That would be a perfectly natural, in fact an entirely responsible, judgment for a Department to make and I cannot see the seeking of legal advice in this context as anything other than a justifiable piece of precautionary administration. Nor do I believe that the release of such information would inhibit Ministers or officials from seeking such information in future cases. 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 to be a wholly disproportionate response to a recommendation, made by my Office in one specific case, that information relating to a date should be released. In saying that I perhaps need to emphasise that this recommendation is made in respect of the circumstances of this case only: it is not meant to be interpreted as a precedent for the release of similar information in the future. Each case, as I and my predecessors have often said before, must be judged on its individual merits. I therefore recommended that the Department release to Lord Lester the date on which, in their view, it would be most accurate to say that legal advice about invading Iraq had first been sought and to explain what had prompted the seeking of that advice. In reply, the Department said that they were unable to agree with this conclusion. They took the view that Exemption 2 could cover factual information, as disclosure of the information sought could in this case harm the frankness and candour of internal discussion. They went on to say that, even if they were to provide additional information in order to put the date into context, others might nevertheless draw different, and inaccurate, conclusions. Finally, they reiterated the point that the release of information of this nature might act as a deterrent to others seeking frank and timely legal advice in the future.

Conclusion

11. I have found that the Code exemption cited by the Department could not be applied to the information sought by Lord Lester. I therefore upheld his complaint and recommended that the information be released to him, with whatever other details might be necessary in order to put that information into context. I am disappointed that the Department have found themselves unable to accept this recommendation.

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Last updated: 16 June 2005