Government hides truth about the war in Iraq behind FoI deal

Some
things in life just won’t go away, will they? And right now the Verruca
Theory of Politics is painfully evident. You think you can ignore
things, you think they’ll somehow go away or become manageable or
neither you nor anybody else will carry on caring very much. Then the
pain comes back worse, more acute, than ever.

It’s evident on all sides. Gerry Adams and the IRA. He himself
famously said to a heckler at a rally outside Belfast City Hall one
weekend: “They haven’t gone away, you know.” But he can hardly have
expected their presence to put himself and his party so firmly on the
backfoot after the horrors outside Magennis’s Bar and the bloody death
of Robert McCartney.

And so it is with Tony Blair, the Attorney
General and the war. It won’t go away. In fact, every time he appears
to feel it’s alright and that he’s finally in the clear – back it comes
more painful than ever.

This time it was the éminence grise,
Elizabeth Wilmshurst, a Foreign Office career lawyer – one of the very
best, by all accounts. She does not give television interviews. All we
see in this electronic age of saturation coverage is that grainy still
of her bustling either to or from the work she loved. She doesn’t talk.
But boy, does she write! Everybody knew that her letter of resignation
was out there, but it took the lumbering force of our new Freedom of
Information Act to pin it down. Or at least pin most of it down.

Because,
this being Britain, we actually have a Fair Amount of Freedom of
Information Act, rather than the real deal. National security forbids
full disclosure but – as Jack Straw repeatedly told the Commons in
endless different ways last week – so does confidential legal advice.

On all fronts this prime test case for the Act is crumbling week in, week out, for the executive.

First
of all, the idea of not disclosing the letter had become untenable
because of the general degree to which its contents had seeped, leaked
and generally dripped into the public domain.

So, the Act upheld disclosure in the public interest where before it had, apparently, not been in the public interest.

Yet
the key area of legal information and opinion, the real meat of this
case, remained censored. It was the good fortune of Channel 4 News to
be able to reveal the contents of the key paragraph that had been
redacted: a legal obfuscation meaning simply blacked out, censored.

The
paragraph read: “My views [that the war was an unlawful act of
aggression] accord with the advice that has been given consistently in
this office [the Foreign Office legal department] before and after the
adoption of UN security council resolution 1441…”

So, the whole
Foreign Office legal outfit saidthe war was illegal before and after
the UN deliberations. Nothing in New York changed their view. She goes
on to write that this was specifically the view shared at the top, by
the Attorney General himself, Lord Goldsmith: “…and with what the
Attorney General gave us to understand was his view prior to his letter
of 7 March.”

There it is, you might say, in black and white. So,
somewhere along the line, the Attorney General appeared to have changed
his mind/had his mind changed for him and wound up telling Parliament
that invading Iraq was fine by him.

So, leaving aside the small
matter of whether or not this country killed tens of thousands of
people as part of a major act of international criminality, this good
old-fashioned bit of journalism surely erodes the case further for
keeping legal advice secret “in the public interest”?

If the
Freedom of Information Act were subject to the “three strikes and
you’re out” legal principle, the Attorney General would surely be
drinking his final draught in the Last Chance Saloon. First, the
principle of withholding the letter falls. Second, the attempted
censorship is blown apart and third, the independent watchdog will now
investigate whether or not the advice on war should remain secret.

The
Information Commissioner, Sir Richard Thomas, is investigating a number
of complaints from individuals and media organisations dismayed at the
refusal of the Government to tell us why it took us to war, in law.

Coming
as it did last week, in the wake of the release of the Wilmshurst
letter, we should all be happy, right? Well, no, actually. All of a
sudden, no sooner than announcing the inquiry, Sir Richard also lets it
be known that he’s done a deal with the Government before he’s even
started. There’s nothing about this in the Act. Nothing was said about
this in the run-up to it. Nothing since it began in January.

All
of a sudden, faced with its sternest possible test – war and why it
happened – a onesided deal has been struck. He calls it a “memorandum
of understanding” with the Department of Constitutional Affairs. Are
the complainants enjoined into this cosy-sounding arrangement? No.
Isn’t he supposed to be independent?

Yes. Does this “understanding” cover all public bodies or just central government?

Yes, you’ve got it – just central government.

It
gets worse. If Sir Richard finds the Government’s been naughty
withholding info, will he just say so? Er, no. In fact, he will tell
the naughty department first, in secret and without telling the
complainant, in order to ascertain how they feel about being found out.

So,
even with a supposed Freedom of Information Act in place, don’t hold
your breath for the Government to explain why it went to war and how
the Attorney General came to decide that the invasion was just dandy,
after months of believing it to be illegal.

Or possibly, just
possibly, as Sir Richard delves away inside his cosy-sounding world of
private understandings, the Verruca Theory may come to the fore in the
pain of an election battle. The obvious reality may dawn on the
executive that non-disclosure simply breeds everything from doubt and
suspicion through to outright belief that the Attorney General was
nobbled just as surely as the dossier proved dodgy.

They could
publish and be damned, but at least assuage this nagging pain, which
gets more biting every time it returns, as it surely will.

Alex Thomson is chief correspondent on Channel 4 News

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