The attorney who passed the buck
Revelations about the legality of war ignore one crucial aspect
Thursday March 3, 2005
It is becoming increasingly clear that in his final written advice on the war, the attorney general, Lord Goldsmith, warned Tony Blair that British participation in an invasion of Iraq could be ruled illegal. The advice was given in a 13-page paper on March 7 2003, less than two weeks before British troops joined the invasion of Iraq. The attorney said Britain could find itself arraigned in an international court and found guilty. So worried was the government that it gathered a group of lawyers to prepare for litigation.
None of this was known to MPs when they voted for war on March 18. They were led to believe that the attorney's final legal advice was contained in a parliamentary answer the previous day. In it Goldsmith said it was "plain" Iraq was in breach of its UN disarmament obligations.
Though the answer was presented to MPs as the attorney's "opinion", Goldsmith now says it was no such thing. "The answer did not purport to be a summary of my confidential legal advice to government," he insisted in a statement last Friday contradicting remarks made by the prime minister. He told the House of Lords on Tuesday that his March 17 answer expressed only what he called his "view".
The Butler report records that the attorney had come round to that view - namely, that there was no need, after all, for a second UN resolution sanctioning military force - by March 13, when he shared it at an unminuted meeting at No 10 with Lord Falconer, then a Home Office minister, and Baroness Morgan, an aide close to Blair.
The government's hand was forced by a demand the previous day from Lord Boyce, then chief of defence staff, for "unequivocal" advice that the invasion would be lawful - a clear indication that the March 7 advice was equivocal. So concerned was the government to keep the March 7 advice under wraps that it initially refused to show it to the Butler committee. It gave way only after the committee threatened to go public over the refusal.
Instead of drawing up a fresh legal opinion, the evidence is that the attorney told colleagues informally that he had changed his mind. On March 14 - the day after he told No 10 about his new "view" - the attorney's legal secretary wrote to Blair's private secretary, asking whether it was "unequivocally the prime minister's view" that Iraq was in material breach of UN resolutions. It was "essential", No 10 was told, that "strong evidence" existed that Iraq was still producing WMD.
The following day the attorney's man received a reply from No 10 stating that was "indeed the prime minister's unequivocal view". The attorney's office dispatched a note to Boyce repeating Blair's view. Boyce accepted it, unaware of the machinations swirling around Whitehall.
An important aspect of the affair which has gone largely unnoticed is the Butler report's emphasis that the March 7 advice required Blair to be satisfied that there were "strong factual grounds" for concluding that Iraq was in breach of its obligations. The attorney in effect passed the buck to the prime minister, who gave assurances to the government's most senior law officer about Iraq's weapons programme based on intelligence reports.
The consensus in Whitehall was that for the security council to be convinced that Iraq was in breach, "proof would need to be incontrovertible and of large-scale activity". We now know there was no evidence, as far as Iraq's banned WMD programme is concerned, of any activity, and that the intelligence, as Blair admitted, was wrong.
The Butler report into how intelligence was used to make the case for war expresses "surprise" that John Scarlett's joint intelligence committee did not bother to look again at its assessment of Iraq's weapons programme in early 2003, even after UN inspectors found no evidence.
Nor did Mr Blair bother to ask the JIC to. It raises the suspicion the government did not want to know, for the JIC might have come up with awkward questions. It seems that just as the published Iraqi weapons dossier was shorn of caveats, so too was the attorney's view on the legality of the war, as expressed to parliament on March 17. This is a real, but awful, parallel. But while we now know the dossier was seriously misleading, we will not know whether the attorney's March 17 answer was seriously misleading until his full March 7 advice is published.
Earlier this week Lynne Jones MP asked Tony Blair whether the complete text of the attorney's opinion on the legality of the invasion of Iraq was seen by the full cabinet, as the official ministerial code requires it to be. With no hint of irony, he replied: "Information relating to internal meetings, discussion and advice and the proceedings of cabinet and cabinet committees is not disclosed as to do so could harm the frankness and candour of internal discussion."
· Richard Norton-Taylor is the Guardian's security affairs editor