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The blame for the Iraq war lies with our supine cabinet

Why did our ministers not question the attorney general's legal advice?

Peter Hennessy
Monday February 28, 2005
The Guardian


Who would have thought that 13 pages of paper would so come to haunt Tony Blair? Yet the full version of the opinion drawn up by the attorney general, Lord Goldsmith, about the legality of a military attack on Iraq will, I suspect, come to rank in recent British history only with the protocol enshrining the Anglo-French-Israeli collusion before the invasion of Suez in 1956. Sir Anthony Eden instructed his cabinet secretary to burn the British copy of that protocol.

Tony Blair has long been irritated by what he sees as a malign British obsession with procedure rather than results. In the past he has publicly dismissed such debate about the nuances and due processes of government as a kind of anorakry. Here he is in the House of Commons in July 2000 on the significance of the ministerial code, formerly known as questions of procedure for ministers: "No one will be better governed through finetuning the ministerial code. Those are good issues for academics and constitutional experts, but they are not the big issues that parliament should debate when we consider our role in modern society."

The Butler report placed such matters as proper procedure right at the heart of Blair's prime ministerial "role in the modern society". On July 20 2004, six days after Butler was published, Blair was on his feet in the Commons undertaking to implement its procedural recommendations. The constitutional anorak suddenly fitted the prime ministerial shoulders. "Prior to the war," he said, "meetings were held with an informal group, including the foreign and defence secretaries, the chief of the defence staff, the head of the Secret Intelligence Service, the chairman of the JIC, and my foreign policy adviser. In any future situation, such a group, which brought together the key players required to work on operational military planning and developing the diplomatic strategy, will operate formally as an ad hoc cabinet committee."

In his report, Lord Butler showed that the government's fundamental shift in the spring of 2002 from a policy of containing Saddam Hussein to one designed "to enforce disarmament" was not based on any new development in the current intelligence picture on Iraq. Similarly, in the run-up to the war, Goldsmith (who eventually judged it legal without a further, specific UN resolution authorising the use of force) warned his ministerial colleagues that "there would be no justification for the use of force against Iraq on grounds of self-defence against an imminent threat".

One of the impressive aspects of the Butler report was the way his committee followed the intelligence trail into the attorney general's office and assessed the degree to which it did or did not shape his advice to the prime minister's group on Iraq and to the cabinet.

The attorney general's legal opinion has not been published in full. All parliament has been given is a written answer from Goldsmith, with an accompanying summary prepared by the Foreign Office, dated March 17 2003. The Butler committee has seen the opinion in full. What we did not know until Butler appeared before the select committee on October 21 2004 was that initially the government had been unwilling to show it to Butler's committee of privy counsellors.

As Butler put it: "There were moments when we had a bit of tension with the government about whether they were going to disclose documents to us. One of the examples of that was the attorney general's legal opinion. Had we gone public and said, 'We think this is relevant to our committee and the government will not give use access to it,' we would have had huge public and media support. That was an important leverage on the government."

Butler's revelation was striking in itself. But it also suggested that Goldsmith's opinion, which led to the resignation of Elizabeth Wilmshurst, the FO's foremost expert on the legality of military operations, was even more finely balanced than we had thought.

Missing from the Butler report is the information that it was not ministers who requested that final legal opinion from Goldsmith. It was the senior military and top civil servants in the Ministry of Defence who did so.

Can the full cabinet really have tested Goldsmith's opinion when, as Butler reported, the attorney general set out his view on the legal position to the cabinet on March 17 2003, by producing and speaking to the written answer he gave to parliament on that date? I doubt it.

For me, this and the other accumulations of failures to scrutinise and question in the privacy of the cabinet room amounts to a dereliction of cabinet government comparable only to 1956. Then Eden's cabinet did not press him at the height of the Suez crisis on the significance of his telling them that "from secret conversations which had been held in Paris with representatives of the Israeli government, it now appeared that the Israelis would not alone launch a full-scale attack against Egypt".

From these remains you did not need a background in British intelligence to sniff out the collusion between the UK, France and Israel, which Eden subsequently flatly denied in the Commons. For me, Goldsmith's March 2003 opinion on the legality of the Iraq war remains the fault-line under the Blair government. Like the permanent stain of Suez on Eden's reputation, it will not be eradicated from the memory of the Blair premierships for generations to come.

The ultimate systems failure in both instances occurred at proper, formal cabinet meetings. If the full cabinet will not take on a dominant prime minister in full cry, there is no other part of the system of government that can compensate for such supineness. The Commons, even if it is permitted a specific vote on peace and war (as it was in 2003), is not going to possess a range and detail of knowledge comparable to that of ministers.

In the Commons last July, Blair promised to tighten up his procedures if, heaven forbid, he should contemplate leading his country into another war of pre-emption. It was a welcome recognition that Butler's concerns were justified. But can it make any difference if cabinet ministers will not, in a phrase beloved of Roy Jenkins, "rise to the level of events"?

With a few big exceptions in the cabinet room, such as Gordon Brown and John Prescott, power and place come courtesy of Blair alone. "Tony wants" usually means that "Tony gets". Will the Butler report really change those ingrained habits on the part of the dispenser and the receivers of patronage? Only, I suspect, if the engines of war are cranked up once more.

Political Quarterly

Peter Hennessy is Attlee professor of contemporary British history, Queen Mary, London. This is an edited version of an article in the current issue of the Political Quarterly www.blackwellpublishing.com