It is reported in the Guardian today that: An explosive transcript of one of Tony Blair’s final conversations with George Bush before the invasion of Iraq may be suppressed by the coalition government, Whitehall sources have confirmed. […]
“Yo, Blair!” We may never know whether this greeting featured in telephone calls as well as at international summits Image reproduced under Creative Commons Licence
An explosive transcript of one of Tony Blair’s final conversations with George Bush before the invasion of Iraq may be suppressed by the coalition government, Whitehall sources have confirmed.
How will the Government do this, given that the Information Tribunal has already ruled that the transcript should be released under the Freedom of Information Act 2000? Normally, when a court or tribunal rules against the government, that’s that: the rule of law requires that everyone – including, indeed especially, the government – must respect the judiciary’s decision on the matter. But the Freedom of Information Act – in section 53 – contains a “ministerial override” power, which allows the Government to refuse to release information even if it has been ordered to do so.
Take, for instance, the Bush-Blair transcript case. The Government argued that the Freedom of Information Act did not require the transcript to be released. It relied, in part, on section 27, which says:
Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
(a) relations between the United Kingdom and any other State,
(b) relations between the United Kingdom and any international organisation or international court.
As the Information Tribunal explained, this raises two essential questions:
(i) would disclosure of the information be likely to prejudice international relations;
(ii) if so, does the public interest in maintaining the exemption outweigh the public interest in disclosing it.
The Tribunal, following careful consideration of the matter, concluded that the public interest in releasing the information narrowly outweighed the public interest in keeping it serret. But in such circumstances it is, as explained above, open to the Government to refuse to disclose the information if it believes that it has “reasonable grounds” to disagree with the Tribunal.
In his memoirs, Tony Blair – whose government introduced the Freedom of Information Act – says (revealing an apparent inability to count):
Freedom of Information Act. Three harmless words. I look at those words as I write them, and feel like shaking my head ’til it drops off. You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.
Like most politicians, then, Blair realised – too late – that freedom of information serves opposition parties better than governing ones. But the existence of the ministerial veto provides some comfort to the latter. Whether a “Freedom of Information Act” with a built-in power of government override is a contradiction in terms is, however, another matter.
Aimed at students taking a range of public law modules, Public Law combines comprehensive coverage of the subject with depth of analysis. Written in an accessible style, it is the UK’s best-selling textbook in the field. The fourth edition of the book, written by Mark Elliott and Robert Thomas, was published by Oxford University Press in 2020.
Mark Elliott
Public Law for Everyone is written by Mark Elliott. Mark is Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge, and a Fellow of St Catharine’s College, Cambridge. He also served, from 2015 to 2019, as Legal Adviser to the House of Lords Select Committee on the Constitution. Mark can be found on Twitter as @ProfMarkElliott. Many of his research papers can be downloaded via his SSRN author page. Views set out on this blog are expressed in a purely personal capacity.
Aimed at students taking a range of public law modules, Public Law combines comprehensive coverage of the subject with depth of analysis. Written in an accessible style, it is the UK’s best-selling textbook in the field. The fourth edition of the book, written by Mark Elliott and Robert Thomas, was published by Oxford University Press in 2020.
Common Law Constitutional Rights
Published by Hart in 2020 and edited by Mark Elliott and Kirsty Hughes, Common Law Constitutional Rights examines the extent to which the common law can and does protect constitutional rights, taking recent UK Supreme Court jurisprudence on this matter as a point of departure.
Administrative Law
Administrative Law is a leading text on English administrative law. The fifth edition, written by Mark Elliott and Jason Varuhas, was published by Oxford University Press in 2017. The book combines carefully selected excerpts from key cases and other materials with detailed commentary and analysis.