A.26/01 Parliamentary Commissioner Act 1967
Report by the Parliamentary Commissioner for Administration (the Ombudsman) to Mr Tony Worthington MP of the results of an investigation into a complaint made by Mr Bowen Wells MP
1. Mr Wells complains that the Foreign and Commonwealth Office (FCO) have failed to provide him with information which he believes he is entitled to under the Code of Practice on Access to Government Information (the Code). My investigation began in February 2001, when I received the comments of the Permanent Secretary of FCO. I have not put into this report every detail investigated by my staff, but I am satisfied that no matter of significance has been overlooked.
2. On 12 July 2000 the Minister for Europe wrote to Mr Wells about an interview that Mr Wells, in his capacity as Chairman of the House of Commons Select Committee on International Development (the Committee), had given to the BBC about the Ilisu Dam project in Turkey following publication of a report by the Committee on the subject. (For general background about this project, see Annex A.) The Minister said that the Committee had been wrong to suggest that FCO had not raised questions about the proposed dam's effect on the issue of human rights. Mr Wells replied on 13 July. He quoted responses made by both the Minister for Trade and the Chief Executive of the Export Credits Guarantee Department (ECGD) when giving evidence to the Committee on 1 February which, according to Mr Wells, contradicted what the Minister for Europe had said in his letter. Mr Wells went on to ask to see all the correspondence between FCO and the Department of Trade and Industry (DTI) concerning the Ilisu Dam up to 1 February 2000.
3. The Minister for Europe replied on 19 September. He said that, under the Code, correspondence between Government departments was not normally disclosed; and that he saw no need to depart from that practice on this occasion. No Code exemption was cited. On the same day the Secretary of State for Trade and Industry wrote to Mr Wells attaching the Government's response to the Committee's report. In noting Mr Wells's information request he said that he hoped that the correspondence between Mr Wells and the Minister for Europe, in addition to the Government's response to the report, had clarified the question of FCO advice concerning human rights issues arising from the Ilisu Dam project.
4. On 4 October Mr Wells replied to the Minister for Europe. He said he was unclear from the correspondence he had received from the Secretary of State for Trade and Industry whether or not the documentation he had asked for would be made available. He went on to say that, in his view, the Minister had not interpreted the Code correctly and asked him to reconsider his decision, adding that he was sure that they could reach an agreement which would allow access to the documents on a secure and confidential basis.
5. The Minister for Europe replied to Mr Wells on 17 October. He said that, under Exemption 2 of the Code, confidential correspondence forming part of the deliberative process between Government departments was not normally disclosed because this would harm the frankness and candour of internal discussion. He also said that he did not consider that the public interest in releasing the information sought by Mr Wells outweighed the harm that would be caused should it be disclosed. He went on to say that the Secretary of State for Trade and Industry, in his letter to Mr Wells dated 19 September, had been referring to correspondence between the Minister for Europe and the Committee, not correspondence between FCO and ECGD; and that the Government's position remained unchanged.
The Permanent Secretary's comments
6. With his response to the complaint, the Permanent Secretary of FCO enclosed copies of four letters between FCO and DTI which in his view demonstrated that FCO had raised concerns, including human rights, about the Ilisu Dam project. These were: i) a letter from the Foreign Secretary to the Secretary of State for Trade and Industry dated 2 December 1999; ii) a letter from a FCO official to an ECGD official dated 24 May 1999; iii) a letter from the then Minister for Europe to the then Minister for Trade dated 31 March 1999; and, iv) the then Minister for Trade's response to that letter dated 5 May 1999. The Permanent Secretary said that it was clear from this correspondence that FCO had raised concerns about the Ilisu Dam as early as March 1999, and particularly the key human rights issue of resettlement. However, these letters alone did not paint the whole picture: there had also been meetings, and many telephone conversations, between officials at which FCO had made similar points.
7. The Permanent Secretary said that the origin of Mr Wells's complaint was the Minister for Trade's evidence to the Committee on 1 February 2000; and that in his evidence the Minister had said that, to the best of his knowledge, no Government Department had raised human rights concerns about the Ilisu Dam. This misapprehension had been corrected in the Government's reply to the report in October 2000. The Minister had subsequently clarified his position in a letter to Mr Wells on 24 January 2001.
8. The Permanent Secretary said that Mr Wells's request to the Minster for Europe had been considered in accordance with the Code, but that, after due consideration, it was concluded that the correspondence should not be released, as it fell within Exemption 2 of the Code. He said that the release of written ministerial exchanges on policy issues would clearly harm the frankness and candour of internal discussion. He went on to quote the Cabinet Office Guidance on Interpretation of the Code (the Guidance). This says, "1/4by its very nature this type of information will often be particularly sensitive. Because of this, it is important that departments consider the effect that disclosure might have on future internal discussion. It is not possible to consider a request for this type of information in isolation without considering the overall harm that might result to the internal decision-making process. It is not the intention to change or undermine the long-established conventions protecting the confidentiality of the internal decision-making process."
9. The Permanent Secretary said that, while he accepted that there was a legitimate public interest in whether or not these concerns had been taken into account by the Government, he did not think that any such public interest in disclosure outweighed the harm which would be caused to the frankness and candour of internal discussion. In any event, that interest had been met when, in a statement on 21 December 1999, the Secretary of State for Trade and Industry had said that he was minded to give approval for export credit cover for the Ilisu Dam project provided that four key concerns were addressed: resettlement of the local population, water quality, downstream flows, and the archaeological heritage at Hasenkeyf.
10. The Permanent Secretary added that, following the Committee's report, the formal Government response (which was published on 24 October) specifically addressed the issue of whether or not FCO had raised questions about the Ilisu Dam and its effect on the human rights of those in the region. As a result, the public had been informed both of the Government's position and, in general terms, of the contacts that had taken place between FCO and DTI on this issue.
11. The Permanent Secretary went on to say that FCO had considered whether or not their response to Mr Wells should be any different because Mr Wells was a member of the Committee. The terms of reference for the Committee were to examine the expenditure, administration and policy of the Department for International Development (DFID); it was therefore not obviously the case that the release of this information was essential to enable the committee to fulfil that task. In addition, if select committees found that the powers given to them by the House were insufficient, they had the opportunity of recourse to the House for a remedy. He added that consideration had also been given to the release of the correspondence in confidence to the Committee, and that the relevant request by Mr Wells had been treated as a review under the Code. However, while he accepted that information often was provided in confidence to select committees, it was considered that in this instance the public interest did not outweigh the risk of harm to the frankness and candour of internal discussion. Furthermore, he said that the provision of confidential and classified information to select committees was not generally undertaken by the Government under the aegis of the Code, but as a function of Ministers' responsibilities to Parliament, which ran wider.
12. Finally, the Permanent Secretary said that, in addition to Exemption 2 of the Code, he considered that Exemption 1(b) ('Information whose disclosure would harm the conduct of international relations or affairs') also applied to some of the correspondence, of which the Foreign Secretary's letter to the Secretary of State for Trade and Industry was an example.
13. On 24 January 2001 the Minister of Trade wrote to Mr Wells regarding his complaint. He said that the complaint had arisen because of Mr Wells's concern about the apparent contradiction between his own evidence to the Committee and the position taken by the Minister for Europe. The Minister for Trade said that in his response to the Committee he had been referring to possible human rights issues going beyond those of Turkish citizens directly affected by the Ilisu Dam project. He went on to assure Mr Wells that FCO had, in all its dealings with ECGD on this issue, stressed the importance of environmental, social and regional issues, including human rights implications for the local population, particularly in respect of resettlement, loss of property and compensation. These concerns were shared by ECGD; and that was why DTI had commissioned a 'Stakeholders Report', which was published in December 1999. They had also been reflected in the Secretary of State's announcement that he was "minded" to support UK participation in the project, subject to four conditions dealing with resettlement, water treatment, downstream flows and cultural and archaeological heritage. He said that FCO had been closely involved in the setting of the terms of reference for the 'Stakeholder's report', and had also been active in advising ECGD on the environmental, social and regional issues relating to these four key conditions. The Minister for Trade said that it was the Secretary of State's hope that the correspondence between the Minister for Europe and Mr Wells (combined with the Government's response to the Committee's report) had clarified the question of FCO advice about human rights issues.
14. Mr Wells replied on 29 January 2001. He said that the letter of 24 January simply repeated information that had already been provided: in his view the Government's evidence remained inconsistent and unclear, and only an examination of the relevant correspondence between FCO and DTI/ECGD could allay his concerns.
The Code of Practice on Access to Government Information
15. Exemption 1, which concerns 'Defence, security and international relations', covers:
a) Information whose disclosure would harm national security or defence.
b) Information whose disclosure would harm the conduct of international relations or affairs.
c) Information received in confidence from foreign governments, foreign courts or international organisations.
16. Exemption 2, which concerns 'Internal discussion and advice', covers:
'Information whose disclosure would harm the frankness and candour of internal discussion, including:
- proceedings of Cabinet and Cabinet committees;
- internal opinion, advice, recommendation, consultation and deliberation;
- projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;
- confidential communications between departments, public bodies and regulatory bodies.
In this context it should be noted that the second paragraph of Part II of the Code states that:
'1/4References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available...'
17. The complaint, as put to this Office by Mr Wells, requested copies of all correspondence between FCO and DTI concerning the Ilisu Dam up to 1 February 2000. However, I must point out that the Code gives no right of access to documents: the right, subject to exemption, is only to information. Both I and my predecessor have, however, taken the view that the release of actual documents is often the best way of making available information that we are recommending for disclosure.
18. In response to the statement of complaint, FCO provided this Office with copies of four key letters between FCO and DTI/ECGD, which directly concerned the Ilisu Dam project (see paragraph 6) and offered to make their files on this issue available to my staff. My staff subsequently established that FCO held some 25 files relating to the Ilisu Dam project. One of these files concerned ministerial visits; five others contained correspondence between FCO and other interested parties, such as MPs and their constituents; and a further ten files were directly attributable to the Ilisu Dam project. In addition, my staff also examined in detail five files derived from FCO's Economic Relations department; three files from FCO's Environmental Policy department; and one file from the department concerned with human rights policy issues. Since Mr Wells's complaint concerned all correspondence between DTI and FCO up to 1 February 2000, my investigation has concentrated on files relating to that period: much of the material on the files is, of course, subsequent to that date.
19. In particular, the investigation has concentrated on correspondence directly between FCO and ECGD/DTI rather than correspondence from the many other departments and bodies with an interest in this matter which may have been copied to them. In addition to normal written correspondence, my staff have also examined a large number of telex messages transmitted between the British Embassy in Ankara and FCO. As I understand it, these messages, although addressed to FCO, are automatically distributed to relevant interested parties, including DTI and ECGD. My investigation has established that, from 13 January 1999 (when FCO appear to have first been copied into the discussions about Ilisu) onwards, FCO were heavily involved at both Ministerial and official level in the development of policy on this issue; and I have considered all these papers in reaching a judgement.
20. As well as looking at this material, I have taken into account the information already in the public domain. The question whether the Government should support the Ilisu project by means of providing export credit support to Balfour Beatty has been much debated. It has been the subject of Parliamentary Questions and debate in the House of Commons, and has been considered by both the House of Commons Trade and Industry Committee and the House of Commons International Development Committee. The reports of those two committees have been published, as have the responses of the Government to them. There has been considerable discussion in both the written and broadcast media. The four conditions identified by the Secretary of State for Trade and Industry in his statement of 21 December 1999, which would need to be met before Government support might be forthcoming, have been widely reported. I have noted that, following this statement, FCO received several hundred letters from members of the public and other interest groups, to which they replied setting out the Government's position: I have no doubt that other Departments with an interest in this matter also received such letters. I start my consideration of this complaint by noting, therefore, that Government policy about the Ilisu Dam is an acknowledged matter of public interest, and that the Government's attitude is a matter of public record.
21. In arguing the case for withholding the information requested by Mr Wells, FCO have quoted two Exemptions: 2 and 1(b). FCO have confirmed that the weight of their argument rests mainly on Exemption 2, which I will consider shortly. They have claimed, however, that some information contained in the documents sought comes within Exemption 1(b), which deals with information whose disclosure would harm the conduct of international relations or affairs. FCO have argued that there is information in papers covering certain matters involving Her Majesty's Government and Turkey which, if disclosed, could cause harm. I am satisfied that, to the extent that there is such information in the papers I have examined (and in my view there is comparatively little), the release of that information could cause harm of the kind suggested by FCO. I therefore accept that such information should not be disclosed.
22. I turn now to Exemption 2. In their response to the statement of complaint FCO have argued that releasing the information requested would harm the frankness and candour of internal discussion. They have also quoted the Guidance, in particular that part of it which recognises that this exemption will often be applied to material which is sensitive. The Guidance also recognises that permitting release of information of this kind in one instance might undermine the general principle that the internal decision-making process should remain broadly confidential. I recognise the strength of that argument. There is no doubt in my mind that the information sought by the complainant falls within the confines of Exemption 2.
23. The material I have examined consists partly of fact (much already in the public domain); but it also contains a great deal of advice, opinion, and comment in respect of a subject with wide implications. It is also a live issue: the Government has yet to decide whether or not to lend its support to the project. On that basis, there is clearly a powerful argument for saying that, in respect of a complex and highly sensitive issue on which Government policy is not yet finalised, the Government should continue to be allowed, as it were, to think in private. I am sympathetic to that argument, and to the point that releasing the correspondence between Departments might well affect the candour with which those debating similar issues in the future feel that they can record their views.
24. However, there seems to me to be substantial counter-arguments to that view in this particular instance. First, in considering the disclosure or otherwise of information under this Exemption, I have to evaluate the harm that might be caused by its release. That harm, if any, has to be balanced against the public interest that there might be in having that information disclosed. In this case, Mr Wells is anxious to establish whether or not FCO, in their representations about this issue, raised the question of human rights not only in respect of those directly affected by the construction of the dam in terms of their need for resettlement, but also in the wider context of the effect of the Ilisu Dam project itself on the general issues of human rights and conflict in that particular region of Turkey. In his view, the Government's responses to him and the Committee on this matter continue to reveal inconsistencies.
25. There is no doubt in my mind that there is a valid public interest in obtaining a clear answer to such a question; and, on balance, I believe that the public interest in this case outweighs any harm that might be caused by disclosure of that information. I am strengthened in this view by the fact that, since it became public knowledge that the Government had been asked to provide export credit support for this project, the Government has on many occasions placed its general assessments and judgements on the public record. It seems to me hard to argue, therefore, that the Government has not, to a very considerable extent, already recognised the degree of public concern raised by this issue and responded to it.
26. Secondly, I am also mindful that I have recently considered another case in which a request was made for information relating to the Ilisu Dam project (A.31/00: - Access to Official Information - Investigations Completed; April - December 2000 (HC126)). In that case I expressed the view that the wider public interest should override the provisions of Exemption 13 of the Code and that the information sought (relating to details of Balfour Beatty's application for export credit) should be released. Although, for legal reasons which took priority over my conclusions under the Code, I was unable in the end to agree the release of the information in that case, I do not believe that the public interest argument is any different in this instance.
27. Thirdly, it is relevant that Ministers have themselves volunteered statements about the content of the exchanges between departments. While I could see the force of an argument that there should be no disclosure (even though I would not accept it in this case) I see far less in what is, in effect, an argument for selective disclosure.
28. While I therefore accept that, in order to protect the confidentiality of the decision-making process (paragraph 23 above), the documents involving correspondence at Ministerial and official level should not themselves be released, I see no reason why the essential elements of the information sought by Mr Wells should not be released to him. Recognising the fact that the Code gives an entitlement only to information and not to documents, I have therefore prepared as an annex (Annex B) to this report a summary of the exchanges between FCO and DTI/ECGD in respect of human rights issues arising from the Ilisu Dam project which, in my view, will provide Mr Wells with the information he requires. I invited the Permanent Secretary to agree to the release of the information to Mr Wells on that basis. In reply, he said that he would be willing to agree to the release of the summary.
29. I have accepted the view of FCO that the actual documents sought by Mr Wells should not be released to him. FCO have, however, accepted that, under the Code, Mr Wells should be provided with the information that those documents contain, which is summarised in Annex B to this report. I regard this as a satisfactory outcome to a partially justified complaint.
M S Buckley
Parliamentary Commissioner for Administration
27 March 2001