UK Military Action in Iraq: Declassified Documents

Robert Courts Excerpts

Wednesday 13th December 2023 Westminster Hall

[The Solicitor General (Robert Courts)]

It is a great honour and pleasure to serve under your chairmanship this evening, Mr Dowd. I thank hon. Members and right hon. Members who have been kind enough to welcome me to my role. I look forward to working with them on this issue and many others, and to serving the House in this role. The hon. Member for Kingston upon Hull East (Karl Turner) and I know each other well from maritime matters already, and I am confident that we will have, as ever, the constructive relationship that the House would expect.

May I start by also extending my commiserations to all those who have been affected—families, friends, British personnel and civilians? We deal with enormously sensitive and tragic historic matters here, and while we will talk about some of the detail of disclosure matters and decisions that were taken, we should never lose sight of the fact that, at the beginning and end of the story, are people whose lives have been irrecoverably changed, and in some cases ended. I know that the House will join me in recognising that.

The hon. Member for Kirkcaldy and Cowdenbeath (Neale Hanvey) secured this debate to discuss the declassification of documents arising from UK military action in Iraq in 1998, and indeed the action itself. He has opened a number of matters before us regarding the merits of that action. Of course, I have to start by saying at the outset that these are historic matters that have been subject to exhaustive and detailed examination in other places, as he will know and to which I refer him. These were matters for many Administrations ago, and not ones that this Government can comment on in the merits. Today, I would like to deal with some of the issues around the disclosure of the documents, which are things that I, as Solicitor General, can comment on. I hope to be able to offer some constructive comments there, and then invite the hon. Gentleman to assist me in some other areas.

I would like to deal with some of the process of the declassification of historic records and to discuss the convention relating to Law Officer advice, which is relatively understood but departed from in some circumstances, such as the ones that the hon. Gentleman has mentioned. I will also mention some of the changes that have been made post Chilcot. Of course, Chilcot’s terms of reference did not include the area that the hon. Gentleman specifically refers to today; none the less, coming afterwards there were some changes in the way that Parliament and Government approach those matters, and I will address some of them today.

In relation to UK military action in Iraq in 1998, certain documents, including advice from Law Officers, have been declassified and released to the National Archives. I understand that the hon. Member has shared a link with the Department, which covered some documents that he wanted to discuss today. My understanding is that those particular documents have in fact now been declassified and are now open for public review—I think that is the case and I am grateful to him for confirming it. The catalogue goes through an updated process, and I think that is the position with those documents now.

The hon. Gentleman asked me to comment on why some specific documents were not available. I apologise that I am not able to give him the answer to that right now, but if he were to write to me and draw my attention to the specific documents he referred to, I will be able to give him an answer and either point him to where they are or give him an explanation of why I cannot. Of course, it is for the Cabinet Office, rather than the Attorney General’s Office, to take a view on whether documents should be disclosed, and whether in full or with redactions for any reason. I make that request and offer at the outset; I hope to be able to give him some assistance.

I will make some comments on the framework for disclosure, which may be of assistance. The Public Records Act 1958 placed Government Departments under an obligation to identify public records with historic value and to make arrangements for their permanent preservation. It imposed a duty to open these records after the passage of 50 years. That 50-year rule was reduced to 30 years by the Public Records Act 1967 and further reduced to 20 years by the Constitutional Reform and Governance Act 2010. Departments may retain records, subject to the approval of the Secretary of State for Culture, Media and Sport, and the Freedom of Information Act 2000 placed a duty on Departments to justify whether records transferred to the National Archives should remain closed to the public. However, the general rule is that material that is 20 years old becomes public records.

There have been a number of bespoke bodies responsible for the physical housing of this material, but since 2008 it has been the National Archives. As I have mentioned, there is a framework based on the exemptions for disclosure. That is contained in the Freedom of Information Act 2000 and determines whether material transferred to the National Archives should be open to the public.

There are several exemptions that are not time-limited. Those include: national security; defence; international relations, or information provided in confidence by other states or international organisations or courts; the economy; criminal investigations; parliamentary privilege; health and safety; and environmental information. A number of those exemptions will require the Department that owns the information to carry out a balancing exercise as to whether it is in the public interest to disclose that material. That requires consultation across Whitehall and other bodies, and the outcome of that test is subject to the approval of the Secretary of State for Culture, Media and Sport, who is advised by the Advisory Council on National Records and Archives.

There is a separate scheme—the security and intelligence instrument—which is approved by the Secretary of State for Culture, Media and Sport and which governs information relating to the security and intelligence agencies. That information is retained in the relevant Departments, and information retained by way of the instrument has to be re-reviewed every 10 years. Regardless of how retentions or disclosures are made, anyone is able to challenge such disclosures or retentions by submitting a freedom of information request to the National Archives for closed material or to the originating Department for retained material. I hope that has been helpful to the House with regard to the procedure for the disclosure of such records and gives an overview of the position.

The second point that I would like to spend a minute or two on is the Law Officers’ convention; I know that the House will be familiar with it, but it is worth rehearsing in a little bit of detail. Some of the aspects that the hon. Member for Kirkcaldy and Cowdenbeath has been speaking about do indeed refer to legal advice that was given at the time, or even to the advice of the Law Officers. In this case, some of that material, as he knows, is available in the National Archives.

As a general rule, there are clear and well-understood reasons for not disclosing legal advice, and there are specific considerations around advice that is given to the Government by Law Officers. They may not be relevant to the context or background of this debate—which is about a historic matter and in any event that advice has been published—but, simply for completeness, it is usual practice that advice given by Law Officers and the advice that has been sought, or indeed the fact that advice has been sought, is not disclosed. That is the Law Officers’ convention and that is reflected in the ministerial code. The fact that Law Officers have or have not advised must not be disclosed outside Government without their authority.

It is only in narrow circumstances that that convention has been waived, and that has been with the consent of the Law Officers. As the hon. Gentleman knows, perhaps the clearest example was the legal basis for the invasion of Iraq in 2003. I know that the House will understand that the very clear reason for the convention is that, as with any client-lawyer relationship, it is to enable the Government to seek legal advice in private without fear of adverse inferences being drawn from the content of the advice or indeed from the fact that advice has been sought in the first place. It means that the Government are not discouraged from seeking advice in certain cases, or pressured to seek advice in inappropriate cases, and it protects that relationship, as with any client-lawyer relationship.

The third point that I will spend a few moments talking about, before I leave some time for the hon. Gentleman to respond, is on Chilcot. There have been a number of changes after Chilcot, which of course was a major inquiry after the 2003 invasion. Operation Desert Fox is outside the scope of the Chilcot terms of reference, but the report does cover the use of military force by the UK and US in Iraq in 1998, including documentary evidence and witness testimony, so some matters can be dealt with in there. If the hon. Gentleman will forgive me, I will not go into the details that were discovered in terms of the merits, but there have been a number of changes since. There is a Chilcot checklist to support decision making, the National Security Council was established to help with the decision-making process, and Law Officers have to be consulted in good time. There are a number of ways in which the situation has changed since the time he talked about.

The hon. Member for Tiverton and Honiton (Richard Foord) asked me about the Cabinet manual. A convention has developed that before troops are committed, the Commons is given the opportunity to debate the matter, which the Government have acknowledged in the past. Although the general convention remains as it is, there has been some amendment of points since then.

I apologise for running over slightly, Mr Dowd. I want to leave the hon. Member for Kirkcaldy and Cowdenbeath some time to respond, but I hope I have dealt with the questions he wanted me to; he can of course come back to me if not.

[Peter Dowd (in the Chair)]

The hon. Gentleman has 30 seconds if he wishes.