Attorney General's advice on war in Iraq - a test case for the ministerial veto?

Lord Goldsmith, the Attorney General, yesterday confirmed that the Government would not release legal advice on the war on Iraq, despite a number of demands to access the papers under the UK Freedom of Information Act.

He denied that he had been 'encouraged' by Tony Blair to pronounce the war legal and stated that he was not proposing to disclose advice given confidentially within government: "It was my genuine and independent view that action was lawful under existing United Nations Security Council resolutions."

Menzies Campbell, the Liberal Democrat foreign affairs spokesman, said the legal advice "lies right at the very heart of the Government's case for military action against Iraq. I have no doubt that the public interest lies in publication of the whole of the advice, but I am equally sure that the Government will not want to run the risk of political embarrassment."

Goldsmith refuses to disclose Iraq legal advice (The Independent, 12 January 2005)

see also Falconer insists there will be safeguards on secrecy veto (Daily Telegraph, 1 January 2005) where the Lord Chancellor states "The whole Cabinet, we have decided, must agree before it [the veto] is used. Where it is used, detailed reasons have to be given to Parliament and those reasons and the use of the veto are susceptible to judicial review. It would be very exceptional."

However, the Department for Constitutional Affairs (DCA), which the Lord Chancellor heads, has not amended the UK FOI Act to enshrine the need for a collective Cabinet decision, arguing that it is not possible for technical reasons. Campaigners point out that the New Zealand FOI Act, which was studied by the DCA before the UK Act was drafted, originally had a ministerial veto to be used only in exceptional circumstances. But after 14 vetoes in four years, the legislation was amended to ensure that it could only be used on collective agreement. That was 17 years ago and the veto has not been used since.

Section 53 of the UK Act allows a Cabinet Minister and certain other bodies (UK law officers) to issue a certificate which will override a decision of the Information Commissioner that requires disclosure, creating a ‘ministerial veto’. This was a controversial aspect of the legislation and the Information Commissioner has stated that he will issue a special report to Parliament should the veto power be used.