The Scarlett letter
05 Nov 2008

Chris Ames identifies a worrying trend in the government’s latest refusal to release documents under the Freedom of Information Act

The government has blocked disclosure of a controversial email in which the current head of MI6 is alleged to have asked for new material to be inserted in a post-war report on Iraq’s weapons of mass destruction. The Cabinet Office’s refusal to release the document under the freedom of information act (FOIA) is the latest in a series of cases in which the government has cited potential damage to international relations.

The email was sent in March 2004 by John Scarlett, then chairman of the Joint Intelligence Committee, to the head of the Iraq Survey Group (ISG), Charles Duelfer. The ISG was tasked with finding evidence that Saddam Hussein had weapons of mass destruction – as alleged in the September 2002 dossier produced by Scarlett. According to Rod Barton, an Australian intelligence official and former weapons inspector who was a special adviser to the ISG, Scarlett asked for additional material to be added to the group’s report.

The Cabinet Office has admitted that it still has a copy of the email but blocked my request to release it last month. It has cited the exemption under Section 27 of the FOIA, ‘prejudice to international relations’, claiming that disclosure would damage Britain’s ability to protect and promote its interests abroad. It has not explained why such damage would occur, nor has it acknowledged the specific public interest in releasing the document.

In response to this refusal, Barton has told me: ‘I don’t see how the disclosure of the email would cause damage to international relations. I imagine their argument would be that it was commenting on an ally’s document and as a matter of course, such comments could not be released.’ But he pointed out that the email was commenting on a draft report that he had largely written himself, and of which large parts were subsequently published by the ISG.

Barton said he thought the Cabinet Office had refused to release the email ‘because of the embarrassment it would cause, particularly to one individual’. When the document’s existence was first revealed in August 2004, Number 10 failed to deny that Scarlett had asked the ISG to produce a misleading report. Instead it denied that there had been any question of ‘seeking to mislead the ISG’.

The Cabinet Office’s decision is the latest in a series of cases in which the government has used Section 27 to block release of potentially embarrassing documents. In some cases it has directly admitted that disclosure would cause embarrassment while in others it has argued that disclosure of information supplied by other countries or international organisations would have an adverse effect on future co-operation.

In February, it emerged that the information tribunal had allowed the Foreign Office to remove a reference to Israel’s weapons of mass destruction from the draft of the Iraq dossier written by FCO press secretary John Williams. The FCO’s evidence to the tribunal – and therefore the existence of the reference – was disclosed by the Guardian.

Following the tribunal’s decision, the information commissioner has allowed the Cabinet Office to censor two further documents relating to the Iraq dossier. One was part of a memorandum from Scarlett which appears to show the involvement of another country on the drafting process. The commissioner accepted the Cabinet Office’s claim that disclosure might damage ‘the trust within which confidential exchanges between the United Kingdom and other Governments takes (sic) place’.

The commissioner also decided in 2006 that elements of the paper trail showing how the attorney general came to decide that the Iraq war was lawful were exempt under Section 27.

Last week the tribunal ordered the FCO to publish documents going back to the 1960s showing the involvement of British diplomats in bribing Saudi officials and ministers to secure arms deals. But the tribunal allowed the FCO to conceal the names of the Saudis involved, some of whom remain in government today. It ruled that there was a ‘greater sensitivity’ around information relating ‘directly to those involved in the [Saudi Arabian Government]’. It accepted the FCO’s case that the documents may ‘continue to be directly relevant to those currently in power.’ Disclosure could therefore prejudice Britain’s ‘promotion or protection’ of its interests, including arms sales.

The case followed the tribunal’s decision that the Ministry of Defence was entitled to withhold three memorandums of understanding between Britain and Saudi Arabia, relating to the huge Al Yamamah arms deal. It ruled that the prejudice to international relations and UK interests abroad that would result from disclosure outweighed the public interest in releasing the documents.

The government’s increasing reliance on Section 27 follows a succession of decisions rejecting its use of the exemptions under Sections 35 and 36 of the act. These relate respectively to the government’s decision-making process and the potential of disclosure to inhibit free and frank behind-the-scenes advice. Both the commissioner and the tribunal appear happy to see ministers and officials embarrassed but unwilling to challenge them when they play the ‘national interest’ card.

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