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Times letters March 5 2004

Attorney-General's advice on the legality of Iraq war

From Lord Lester of Herne Hill, QC

Sir, My colleague, Paul Goulding, QC, describes the case for publication of the Attorney-General’s advice as “deeply flawed”, and those (like me) who make that case as guilty of “cynical opportunism” (letter, March 4).

He rightly reminds us that it is important to keep confidential the communications between a client (the Government) and its legal adviser (the Attorney). But the general rule is subject to legal and political exceptions. For example, the law officers’ advice on the legality of proposed merchant shipping legislation with European law was disclosed to the courts in the Factortame litigation, and is available to the public (in the House of Lords Records Office). The advice given by the law officers about the compatibility of the Commonwealth Immigrants Bill 1968 has been publicly available in the Public Record Office since 1998.

The true position is that the constitutional convention can be and has been varied to suit the political convenience of the government. In the present case, the Government published a bare summary of the Attorney’s final advice to justify going to war against Iraq. It chose to put a part of his advice into the public domain (in Mr Goulding’s terms, a “waiver of privilege”), but has consistently refused to disclose the full reasons.

I am not aware that any previous government has used the law officers’ legal advice in this way. What makes the case for disclosure so compelling is the subject-matter of the advice (the use of war powers), the context (seeking to persuade Parliament of the case for war), and the fact that senior Foreign and Commonwealth Office legal advisers doubted the legality of invading Iraq without a clear United Nations resolution.

Publication would not lead to “irresistible claims for publication of future advices”. It would enable Parliament and the public to be properly informed of the whole of the Attorney’s advice. The public interest is not well served when ministers respond (in the American humorist Ring Lardner’s phrase): “Shut up, he explained.”

Yours sincerely,
Blackstone Chambers,
Blackstone House,
Temple, EC4Y 9BW.
March 4.

From Mr P. E. Crapnell Sir,

Although I’m but a humble solicitor may I respectfully remind Mr Paul Goulding that legal professional privilege does not apply to advice given in furtherance of an illegal purpose.

Further, on his analogy, is not the nation as a whole the client of the Attorney-General, and thus entitled to have things explained in a little more detail?

Yours faithfully,
Knowle, Brockley Grove,
Hutton, Essex CM13 2JJ.
March 4.

From Mr Alastair Meeks

Sir, The courts have been reviewing the extent of privilege in cases which concern the claims against the Bank of England by creditors of BCCI (Bank of Credit and Commerce International). In those cases, the courts have made it clear that privilege extends only as far as legal advice, and not to other advice given.

Will the Government therefore release all those non-privileged parts of the Attorney-General’s advice, such as those which concern matters of presentation? Given this Government’s record, these might be quite extensive — and illuminating.

Yours faithfully,
Floor 2,
24 Epworth Street, EC2A 4DL.
March 3.

From Dr Richard Taylor, MP for Wyre Forest (Independent)

Sir, The Government surely understands that to regain the electorate’s trust it must publish the Attorney-General’s advice on the legality of the Iraq war.

Similar lack of openness by government contributed to my election in 2001. I discovered that advice from local NHS civil servants to the Department of Health, that in this case led to the downgrading of Kidderminster Hospital, was always confidential.

The longstanding convention, or rule, that advice to government, whether legal or political, is never disclosed must be challenged if openness in government is to mean anything.

Yours faithfully,
House of Commons.
March 3.

From Mr Roderick Davidson

Sir, Surely it is time that someone leaked the Attorney-General’s advice. How else is the man in the street to know what is going on?

Yours truly,
Coach House, Clifton Down Road,
Bristol BS8 4AG.
March 2.