Nick Clegg rarely gets much coverage on his questions in the immediate aftermath of PMQs. Last week’s edition was no exception, but his question about the protocol which limits release of information by the Iraq Inquiry is starting to look like an ominous slow-burner.

Clegg’s charge, if you recall, was that the document contained nine separate reasons which could be used by the government to justify preventing the Inquiry from publishing information, not all of which had to do with national security. Moreover, Clegg said, Whitehall departments had an absolute veto over publication. Brown flatly contradicted Clegg as to the first point, saying his understanding was that only national security issues were laid out in the protocol. He did not detectably respond to Clegg’s second point.

Thanks to some helpful chap in the thread at Nick Robinson’s blog, I didn’t even have to google to find the text of the protocol Clegg brandished. Two things are clear from it – (1) Brown did indeed mislead the House in saying the protocol dealt only with national security objections and (2) the Iraq Inquiry is a toothless and pointless exercise. Spot the killer clause:

Publication of information

7. The Inquiry may release into the public domain, or make public reference to, information provided to it by HMG where the Inquiry and HMG have followed the procedures set out in paragraphs 8-13 below. These procedures are intended to avoid the release of any information the disclosure of which would, or would be likely to:

a. cause harm or damage to the public interest, guided by the normal and established principles under which the balance of the public interest is determined on grounds of Public Interest Immunity in proceedings in England and Wales including, but not limited to:

  • national security, defence interests or international relations;
  • the economic interests of the UK or any part of the UK;

b. endanger the life of an individual or otherwise risk serious harm to an individual;

c. make public commercially sensitive information;

d. breach the principle of legal professional privilege (LPP);

e. prejudice, in the case of legal advice (following any voluntary waiver of LPP) rather than material facts, the position of HMG in relation to ongoing legal proceedings;

f. breach the rules of law which would apply in proceedings in England and Wales under the provisions of Section 17 of the Regulation of Investigatory Powers Act 2000;

g. breach the rules of law applicable to disclosure of information by the Security Service, SIS or GCHQ, the third party rule governing non-disclosure of intelligence material, or other commitments or understandings governing the release of sensitive information;

h. breach the Data Protection Act 1988; or

i. prejudice the course or outcome of any ongoing statutory or criminal enquiry into matters relating to the information proposed for release.

It’s pretty clear that list reaches beyond national security. Economic interests and legal interests, as well as harm to individuals fall within its remit. Of course, a strong case could be made for the necessity of some of these clauses, but that’s not the point – the point is, the Prime Minister claimed in the House that none of them existed apart from the ones relating to national security, that is points (a)(first bullet point only) and arguably (g).

So, misleading the House aside, did you spot the razor blade buried in the candy floss, the bit which renders the Inquiry totally at the mercy of the government for all practical purposes? You’d hardly notice it, buried away at the end of point (g), would you – “breach… other commitments or understandings governing the release of sensitive information.” So that covers just about everything, up to and including “keep that email in which I decided to lie to the nation secret and  I’ll buy you a pint.”

Of course, that clause could be read differently. It could be read as  “breach the rules of law applicable to… other commitments or understandings governing the release of sensitive information.” Oh, rules of law. Well, that’s ok then, isn’t it? That doesn’t cover dodgy backscratching agreements.  But – sigh - if only we knew for certain that was how the clause was to be interpreted. It’s a list of items, see. So how do we know when the opening clause stops, and the list starts? Is it after “breach” that the list begins or is it after “breach the rules of law applicable to”?

Pity no-one on the drafting committee thought to make that crystal clear, really, isn’t it. Very odd, for such clever chaps.

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