A note on privacy
The standard definition of a conspiracy is ‘a secret plan by a group to do something unlawful or harmful’. The first working term is ‘secret’. This then raises the question of whether a collective action is protected by positive or malign secrecy. In the language of our times, secrecy is usually a pejorative term, whereas confidentiality, which also involves blocked communication, is generally affirmative.
In the early nineteenth century, the doctrine of official confidence was beginning to take form. In my case history, David Urquhart was accused by Palmerston in 1837 of breaching official confidence by leaking diplomatic documents to the press. Urquhart rightly responded that contemporary Cabinet ministers were leaking widely, and that the charge was hypocritical. At best it was before its time. Over the course of the nineteenth century, the convention grew that areas of collective government activity, not just in foreign affairs, particularly the conduct of Cabinet meetings, could rightly be concealed from public knowledge. The early drafts of what became the first Official Secrets Act of 1889 focussed on the issue of official confidence.
This notion of legitimate confidentiality subsequently spread to cover wide areas of Government decision-making. Amongst the ‘class-based exemptions’ of the 2000 Freedom of Information Act is ‘Information relating to the formation of government policy, ministerial communications, advice from government legal officers, and the operation of any ministerial private office.’ The most contentious issue in the first decade of the Act’s operation has been the demand to see the Attorney General’s advice to the Cabinet over the Iraq war. The Information Commissioner invoked the public interest clause to override the exemption, and having lost several appeals, the Government exercised, for the first time, its reserve powers under the Act to prevent the release of the information. Doubtless similar arguments have been taking place behind the scenes at the Hutton inquiry.
The Blair Government’s decision to join the American invasion of Iraq was, by any definition, a collective action. It was also, by any definition, a plan. Whether it was a conspiracy does not depend on its secrecy, or confidentiality. It depends on the final terms, ‘unlawful’ and ‘harmful’. It is because critics argue that the decision was both unlawful and harmful, that its secrecy becomes operationally important. In this case, the public interest test in the legislation, which is there, in summary, to protect the broader values of the democratic process, determined that the secrecy was impermissible. In effect, by the definition we are using, the Information Commissioner was alleging that the decision to go to war was potentially a conspiracy. Small wonder that Blair protested his ruling so vigorously, and that in his Memoirs he denounces the entire Freedom of Information Act, which, together with the decision to allow a vote to ban fox-hunting, he regards as the two great errors of his time as Prime Minister.