I Took the Government to Court to Uncover Britain's Role in an Indian Massacre

In March, as Downing Street rolled out the red carpet for the Saudi Crown Prince to make arms deals worth billions, another murky chapter in British foreign policy unfolded in the secure basement of a London courthouse.

For three days, some of the government’s top diplomats gave evidence. One official was so senior that his testimony was interrupted for a meeting with the Prime Minister. Most witness evidence was heard in secret, with only a handful of sessions open to the public.

The case centred on a freedom of information (FOI) request that I had made on New Year’s Eve, 2014, for files about UK foreign policy on India from 1984 – one of the darkest chapters in India’s modern history. At that time, the country’s Sikh minority, who mostly live in the northern state of Punjab, felt increasingly marginalised from the central government. Sikh dissidents fortified their faith's holiest site, the breathtaking Golden Temple complex in Amritsar. In response, the Indian army launched Operation Blue Star to clear out the temple. Hundreds, if not thousands, of civilians were killed in the crossfire. I wanted to investigate any role British foreign policy may have had in the incident.

The papers were due for release under the "30 year rule", whereby the government makes secret files public after three decades. But when I went to the National Archives to read them, I was told that the Cabinet Office was keeping the documents under lock and key. The only way to gain access was through FOI.

But why would the British government want to keep its files from the period secret?

In January of 2014, I had found letters at the National Archives that revealed Margaret Thatcher sent an SAS officer to Amritsar months before Operation Blue Star, to advise the Indian army how to clear out the Golden Temple. The letters were interspersed with dozens of telegrams stressing the importance of selling India weapons and helicopters worth billions. My discovery caused David Cameron, who was then Prime Minister, to launch an investigation.

It was carried out by his Cabinet Secretary (the top civil servant), Sir Jeremy Heywood. The Heywood Review, as it became known, spent a whirlwind fortnight going through "all relevant files" from the episode, before concluding that the SAS advice had "limited impact" and was not motivated by arms deals.

Sikh groups and the Labour Party didn’t buy it, and branded the Heywood Review a whitewash. They were dismayed at how few files from the incident were declassified.

It was for this reason that, on the eve of 2015, I made my FOI request for the next batch of files. I found it hard to take the conclusions of the Heywood Review at face value. After all, in the 1980s, India was one of top three customers for British arms, sometimes outspending Saudi Arabia. Parliament’s Sikh MPs warned VICE that there was a "cover-up" going on. So how could the government claim that Britain had almost nothing to do with the massacre?

My FOI request ran into difficulties almost immediately. The Cabinet Office sat on it for around six months. Eventually, they decided to release some of the files, with key bits censored, and keep one file completely secret. Full disclosure would damage diplomatic relations with India, they said.

The classified file was marked "top secret" and came from the Joint Intelligence Committee (JIC), which includes the heads of MI5, MI6 and GCHQ. These agencies are exempt from the Freedom of Information Act, they said. But JIC papers are important for democratic debate. It was a JIC briefing that showed Blair was warned invading Iraq would increase the Al-Qaeda threat to Britain.

I appealed and was eventually given a hearing date at the information tribunal, where an independent judge would hear my case. The delays gave me time to find pro-bono representation from a firm called KRW Law. I needed their help, because the government was spending thousands on two barristers, including the QC Jonathan Swift – one of the biggest names in the legal game. For almost a decade, Swift was the "Treasury Devil", an arcane legal title for the government’s go-to barrister, their first port of call in any litigation.

At the hearing, it soon emerged who made the original decision to keep the file secret. It was Augustus James Ulysses Jaspert, director of security and intelligence at the Cabinet Office. Jaspert is now governor of the British Virgin Islands, so instead Philip Barton took the stand. Barton was private secretary to Tony Blair and John Major, and is now Director General of security at the Foreign Office. Crucially, he has chaired the Joint Intelligence Committee (JIC, pronounced "Jick" by those in the know). In fact, Barton is so important that all he could say in open court was his job description. After that, I was turfed out, along with my lawyers and half a dozen Indian journalists who had come to cover the hearing.

Despite the secrecy, the judge ruled that some of Barton’s evidence could be declassified – as it contained, for instance, a description of the JIC which was already available on Wikipedia. The description made clear that the JIC also includes the heads of government departments like the Foreign Office and DFID, which are subject freedom of information.

My counsel argued that just because the security agencies sat on the JIC, it did not mean all its paperwork should stay secret. Indeed, other JIC files have been released to the National Archives, and the judge should be careful of making the JIC more secretive than it already is.

As the hearing rolled on, we were drip-fed more of Barton’s evidence. He explained how the security agencies were "fused" into the process of writing JIC papers. As a result, he said, "It is not possible (especially now) to separate the discussion of elements of the papers into information received from section 23 bodies [the intelligence agencies] and information received from other sources." So Barton did not know whether a "substantial portion" of the information in the file came directly from the intelligence bodies, but we would have to assume that it did.

He also claimed that disclosure would allow people to tell not only what intelligence Britain held, but also what it did not hold. His barrister even cited "the Donald Rumsfeld analysis, the known knowns and known unknowns" – referring to a famous piece of sophistry from the US defence secretary about lack of evidence of Iraqi WMDs before the 2003 invasion.

The government’s other witness tried to demonstrate how releasing the files would damage diplomatic relations with an important trade partner. Owen Jenkins spent three years as the Foreign Office’s director of South Asia and Afghanistan, and was framed as the government’s India expert. In his witness statement, he highlighted how "Indian companies are collectively the third largest foreign investor in the UK, employing around 110,000 people". In apocalyptic terms, he said that "significant harm" to UK-India relations would undermine "those within the UK who work for Indian companies". He may as well have told the judge that my FOI request could cause Tata Steel to sack staff at Port Talbot. Releasing 30-year-old files on British arms sales to India could now cause Indian companies to scrap British jobs in the UK.

Ridiculous as this argument may sound, it was a telling sign of the UK’s new place in the world, post-Brexit and post-Empire. In a moment of honesty, the Foreign Office was acknowledging how far the balance of power has shifted from the days when the East India Company was able to destroy Indian industry to enrich itself. Now, we cannot even declassify dusty documents without fear of sparking a recession.

As frightening as Jenkins' statement sounded, he was far less alarming under cross-examination. It did not help his case when it emerged that the Foreign Office had not consulted the Indian government about whether it objected to the release of the files. In fact, it had not even consulted them before David Cameron launched the Heywood Review in 2014, an episode which merely "surprised" the Indian authorities and did "no lasting damage" to UK-India relations. So much for job losses.

Importantly, the Congress Party, which held power in India in June of 1984, and at the time of the Heywood Review, was no longer in office when I made my FOI request. Its rival, Narendra Modi’s BJP, had won an unprecedented majority. Media reports suggest that Modi’s government has a neutral line on my FOI request, and does not object to disclosure. Some BJP politicians have even demanded disclosure. This led the Judge, Murray Shanks, to remark, "Would it have prejudice [to international relations] if new government was thrilled to bits by this disclosure?"

Some of Jenkins' evidence sounded paternalistic, especially when he claimed that the Indian government only has "some understanding of FOI among a limited group of people". As such, he said the Indian government would not understand the release of diplomatic cables that they would have expected to remain private. My counsel pointed out that India has its own Right to Information Act, which has been in force for as long as the UK’s Freedom of Information Act.

By the end of the hearing, the government’s case in open court sounded shaky to say the least. What was clear was the government’s determination to keep things under wraps, with even the proceedings themselves largely taking place in secret.

The judge has reserved judgment and we await his decision.

@pmillerinfo