Was the Iraq war a declared war that demonstrated an existential threat to the United Kingdom against which the public had to be consulted? Lord Hennessy in his testimony to the Post Legislative Scrutiny of the Freedom of Information Act 2000 quite disingenuously made the argument that there is no greater decision than for the Cabinet to choose between war and peace, which creates the ultimate public interest override. He was arguing that the public interest in disclosing such decisions, overrode any defence arguing that it should be withheld.
What makes his testimony important are three things. First, it is connected to the public interest arguments justifying the News of the World’s and other journalist’s behaviour. Second, it misunderstands what it means to declare war. Third, it is wrong.
We have to begin with the fundamental political point without which nothing else in the testimony can be sustained. What does it mean to declare war? Is war the highest decision for the state against which gives the public interest an irrefutable argument for disclosure? The argument is that the war is done in the public’s name. The act commits the public to such a degree that it can override any public interest argument for withholding the information. If the public interest (defence of the realm) justifies the war, then the same interest justifies disclosing the reason for that war in the public interest.
On the surface, the argument has a certain simple seductive logic. What is done in our name, as the public, should be disclosed for the same reason. The reason for the act is the same as that disclosing the act. Yet, this misunderstands two central, interconnected points that change the public interest argument.
Public interest for war is not the same as public interest for freedom of information
First, the two acts are not interchangeable. The decision to go to war is not the same as a decision to disclose the decision making for that decision. To make this argument would be to equate the public interest in freedom of information with the public interest in war. . Yes, both are “public interest” but their impact, context, and antecedents are not comparable. Only at the most abstract level is the public interest the same. Second, the public interest to justify the war, while important, is not the highest public interest decision. The decision for war is important, but it is not the highest or most important decision for the state. A state has to have a higher purpose than war, a purpose that justifies the war. As such, the higher purpose embodies and serves the public interest. The higher purpose is the principles for which any regime is constituted.
The public interest is not a suicide pact
Second, the argument or the public interest cannot override the public interest. What that means is that the public interest is not a suicide pact. The public interest cannot justify its own destruction and this means that the higher principles need to be considered. As mentioned above, the principles of the regime are not simply the public interest, even in a democracy. The public will, the public interest, in what the state does is limited by the state to the extent that it embodies right reason. In other words, the public interest, even if it wanted to, could not declare that 2+2=5. The public interest would be wrong. However, this does not mean that the public interest is bound by mathematics rather that it is bound by reason as expressed through political decision-making within a cultural and historical context. If it is not bound as such, and embodying something higher than the public interest, then decent politics is impossible. To put it differently, but directly, such a view (that the highest good is determined by the public interest) denies the possibility of justice.
Declaring war changes a state’s internal and external political status.
The second issue is that Hennessy’s argument failed to understand what it means to declare war. Hennessy makes the commonly mistake to describe Iraq as a declared war. Were Iraq to be a declared war, it would have put Britain into a different political relationship with the international system. To put it differently, states have rarely declared war in the last 60 years. War is an absolute state. The political status of state changes internally and externally. The political relationship changes with the international system. For example, in the United States a declaration of war would engage over 130 different laws that delegate power to the president and the federal government. The same laws are not engaged with an authorisation for military force, which brings us to the situation in the United Kingdom.
The same situation that occurs in the United States can be seen in the United Kingdom. Only the Monarch can declare a state of war and peace, it is not for the government to decide this issue. In this situation, the public interest is secondary to the Monarch’s interest. One could argue that in such a situation, the Monarch is expressing the public interest. Yet, Hennessy’s argument avoids this point and assumes that the public interest is embodied in what the government does. Yet, the public interest is more than what the government decides. It is also more than what remains when the government is not involved. What we see is that Hennessy’s argument does not have the same force because the UK did not declare war. The use of force is a less portentous event, which we can see because the government and not the Monarch decided.
What does this have to do with the Leveson Inquiry?
Hennessy’s flawed arguments about the public interest are linked to the Leveson Inquiry. As mentioned above, the public interest arguments raise concerns over the possibility of justice. The newspapers, in particular News of the World, defended their illegal activities and their morally questionable practices on the basis they were in the public interest. Yet, to sustain that argument, the newspapers have to claim to act in pursuit of the highest good. By that, I mean there has to be a higher purpose beyond their claim to the public interest. They have to make a claim for justice. Yet, they have not made the claim. What has happened is that their interest became the public interest. They have inverted the political process. In doing this, they have undermined decent politics. In other words, the papers substituted their organisational interests for the public interest. They claimed all their acts were for the public interest. In doing so, they separated the public, in particular the political regime, from the higher political purpose. By determining the limits of the public interest through their corrupt behaviour, the press corroded politics. The public interest was separated from the higher good, the concept of justice.
What the Leveson Inquiry has to restore justice. If justice is possible, the Inquiry will have to reconnect the public interest to it. If it cannot, we face a stunted political future leading to anarchy or tyranny, where decent democratic politics is no longer possible.
- Empty Archives: hollow men and the fear of accountability? (lawrenceserewicz.wordpress.com)
- Whistleblowing: in the public interest? (idseye.com)
- Four questions Robert Jay failed to ask Rebekah Brooks and why they matter (lawrenceserewicz.wordpress.com)