Tuesday, 9 September 2008

Less truth comes out

I've just come across a new (and I think unreported) "open" decision by the Information Tribunal, dismissing the Campaign Against Arms Trade's (CAAT) attempt to secure the release of two memorandums of understanding (MoU) relating to the Al Yamamah Saudi Arms deal.

I wrote about the hearing in March on Comment is Free. My main point then was that the government's attempts to save Saudi embarrassment were as counterproductive as the attempts to stop the SFO investigation into bribes paid to Prince Bandar.

The Ministry of Defence has won this case as well but received a kicking in the process. The Tribunal was very critical of the Treasury Solicitor's presentation of evidence, which threw a spanner in its schedule for the hearing:
we hope that in future no Tribunal will be faced with documentation that is not presented properly in a form that can assist its understanding by the Tribunal
The Tribunal was also critical of the government's alleged attempt to secure the permission of the Saudi government to release confidential documents. This appears to have resembled the description put forward by former diplomat Carne Ross, a witness for CAAT:
"In my experience what tends to happen is that the FCO will say
something like:

'There is this awful Tribunal in London that is threatening to release these documents, don't youthink this will be a very bad idea?'

to which the foreign interlocutor is likely to respond:

'Yes, that would be a bad idea, please report that to London.'
The Tribunal observed:
We have had the benefit of considering contemporary documentation in closed session and we are able to say in this open decision that in our view the approach adopted by MoD in consulting the KSA was unsatisfactory. We consider that at the very least it should have been put neutrally to the KSA and that only if KSA asked what was the attitude of MoD should that have been indicated.
The "open" decision is a version of the decision that can be published without giving away secret information, including the information that is in dispute. Surprisingly, the Tribunal made clear that there is no "smoking gun" showing corrupt conduct in the Al-Yamamah deal:
If either MoU revealed evidence of such conduct, we would expect to have attached significant additional weight to the public interest in disclosure, when balancing it against the public interest in maintaining the exemption. However, we have had the advantage of reading the MoU and we can say in this open decision that there is nothing in either of the documents that would support such a conclusion.
Compare that to the Information Commissioner's decision in my latest case on the dossier:
There is therefore a strong public interest in a degree of exposure of the circumstances of the dossier’s production, because that would facilitate public understanding of and participation in the debate about alleged Iraqi weapons capability and intentions, and promote accountability and transparency of the bodies responsible for producing the dossier and for taking decisions on the basis of its contents. The latter point would of course be of even greater significance if there was evidence that the dossier was deliberately manipulated in order to present an exaggerated case for military action, particularly as its intended audience included Parliament itself.
Like the Tribunal, the Commissioner could easily have stated that such evidence is not to be found in the papers, but chose to leave open a strong suggestion that it is.

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