Three reasons why the Mandelson disclosure exercise will be a shock for the government

Ministers and officials usually are in control of disclosure exercises - but here they will not be - and why that matters

Governments like to stay in control of what information is made public.

While from time to time some ministers (and a few officials) leak materials to journalists and others, the general ethos is that the government knows best about what information should be made public.

Manifestations of this ethos, at least in the United Kingdom, range from obstructive press offices, bland parliamentary answers, and cynical Freedom of Information non-disclosure decisions, to broadly applied categories of “commercially sensitive” and “national security” exemptions.

One of the core features of the government of the United Kingdom is secrecy - habitual, routine, casual secrecy.

Ministers and officials may be funded by the public and are supposed to act in the public interest, but the public are not to know what goes on - unless it suits ministers and officials.

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But sometimes governments lose control over what documents and other information are made public.

And when that happens it is always an interesting political and sometimes even constitutional moment.

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An experienced government lawyer once said that the art of public inquiries and public law litigations is to first control the parameters of the disclosure obligations and to then control the exemptions and sequencing of the disclosure.

This is why the government is usually so good at public inquiries and litigation where disclosure is mandated - the government has experience, skills and objectives when it comes to disclosure exercises.

Whenever you hear some demand for a judge-led public inquiry into this or that, you have to realise the government is actually quite good at dealing with managing such things.

(And this is in addition to the fact that judges and barristers heading inquiries tend not be experienced investigators - most of them spend their careers dealing with cases prepared for them by others. They can be very good at asking questions, but the questions they ask are of evidence usually compiled by someone else.)

Put simply: if you control the terms of reference and then the flow of information, you often control the outcome of most inquiries and of many court cases.

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The Mandelson disclosure exercise mandated by the House of Commons is a severe shock to this settled order of information flows - and this is for three reasons.

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First, the terms of reference are broad - it would seem that thousands of documents are caught.

These broad terms of reference came from the government panicking when faced with a parliamentary “humble address” motion. Ministers suddenly agreed to terms of reference which must have horrified officials and government lawyers.

The final version of the address voted on by members of parliament was (broken up for sense and emphasis added):

That an humble Address be presented to His Majesty, that he will be graciously pleased to give directions to require the Government to lay before this House

all papers relating to Lord Mandelson’s appointment as His Majesty’s Ambassador to the United States of America,

including but not confined to

• the Cabinet Office due diligence which was passed to Number 10,

• the Conflict of Interest Form Lord Mandelson provided to the Foreign, Commonwealth and Development Office (FCDO),

• material the FCDO and the Cabinet Office provided to UK Security Vetting about Lord Mandelson’s interests in relation to Global Counsel, including his work in relation to Russia and China, and his links to Jeffrey Epstein,

• papers for, and minutes of, meetings relating to the decision to appoint Lord Mandelson,

• electronic communications between the Prime Minister’s Chief of Staff and Lord Mandelson, and between ministers and Lord Mandelson, in the six months prior to his appointment,

• minutes of meetings between Lord Mandelson and ministers in the six months prior to his appointment,

• all information on Lord Mandelson provided to the Prime Minister prior to his assurance to this House on 10 September 2025 that ‘full due process was followed during this appointment’,

• electronic communications and minutes of all meetings between Lord Mandelson and ministers, Government officials and special advisers during his time as Ambassador,

• and the details of any payments made to Lord Mandelson on his departure as Ambassador and from the Civil Service

except papers prejudicial to UK national security or international relations which shall instead be referred to the Intelligence and Security Committee of Parliament.”

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Significantly the specified examples of information are non-exhaustive - that is the effect of the magic words “including but not confined to”.

One can only imagine the horror of officials and government lawyers when they saw the terms of the motion passed.

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Second, the government lost control over who would make the exemption decisions.

What the government would normally say is that it is the cabinet to decide which material was “prejudicial to UK national security or international relations”.

But this time, the decision will be made by the Intelligence and Security Committee of Parliament (ISC) - comprised of Parliamentarians.

And as this blog set out yesterday, the ISC has already prescribed a detailed process - outside of the government’s control:

Cuttingly, the ISC tells the government that is rare for whole documents needing to be withheld.

So not only is the government facing the broadest terms of reference, it has also has lost control over the exemptions.

And then it gets worse.

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The third reason why this disclosure exercise will be a shock for the government is that the disclosures are not being made to a court or an inquiry where barristers can then seek to shape what is is publicly determined about what is disclosed.

There is no judge or inquiry head that can be persuaded to gloss over what the disclosures say or don’t say.

There will be no judgment or report for ministers to point to and assert they have been “cleared”.

Instead the disclosures will be to parliament and thereby to the public at large.

There may be no contexts for the texts, no nuanced explanations, no adjudicated exonerations.

Just documents for all to see, for all to post and re-post, and for all to form and share opinions about.

Raw documents released directly into the wild.

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You can see why in the United States the federal government has kept control over the disclosure of the Epstein files, regardless of what Congress has said.

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(Disclosure - I am a former central government Freedom of Information lawyer.)

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