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http://www.timesonline.co.uk/article/0,,1059-1540649,00.html March 25, 2005

Just do what the PM wants

Simon Jenkins

Don't blame the Attorney-General. He is caught up in a culture where loyalty takes over from truth

THE TRUEST remark about the legality of the Iraq invasion was made before it began by George W. Bush. Asked if he was worried about international law, he is said to have replied: “International law? I leave that to my lawyers.” Tony Blair does likewise. So why all the fuss over the mess in which the Attorney-General, Lord Goldsmith, finds himself? He is a lawyer working for Mr Blair as a government minister. At a crucial point before the invasion of Iraq, duty required him to change his mind. He changed it. Whether, as friends protest, he did so “genuinely, independently and with integrity” is not at issue. He changed it. As long as he refuses to say why, he must carry about the ball and chain of suspicion as to his motives.

Yesterday’s leak of the uncensored resignation letter of Elizabeth Wilmshurst, the Foreign and Commonwealth Office lawyer, leaves no doubt as to events. Throughout the winter of 2002-03 the view of government lawyers generally was that a further United Nations resolution was needed for an invasion to be lawful. Otherwise, as Ms Wilmshurst said, it would be a “crime of aggression”. Saddam Hussein was “in material breach” of Resolution 1441, albeit according to dud intelligence. He was thus vulnerable to “necessary measures”. But authority to take those measures lay with the UN Security Council, not No 10.

This opinion, at least of the Attorney-General himself, underwent a dramatic change after a visit to Washington, where lawyers reportedly “sorted him out”. A long, unpublished, paper on March 7 suggested that a second resolution might not be vital but would still be safer. When a resolution was not forthcoming, the Attorney-General paid another visit, this time to Downing Street to see Baroness Morgan of Huyton and Lord Falconer of Thoroton, Mr Blair’s aides. Mr Blair was now on the brink of war and desperate. On March 17 a legal statement was duly made to Cabinet and read out in Parliament stating the view that the invasion was now fine.

I can see the argument for keeping secret early advice to ministers in time of crisis, especially when it is subsequently overruled. But surely publishing the final, March 17, opinion would have hugely helped Mr Blair. When I suggested this to a senior official some time ago, I well recall his reply. The Attorney-General’s final advice would never be published, he said, for the simple reason that “it does not exist” . It was a “sofa memorandum”, cobbled together to calm the Chief of the Defence Staff and Labour backbenchers. It was a banana republic moment.

In other words, the Attorney-General was doing a political job. He could luxuriate in professional “independence” when a debate was still open. But once a decision was made, the lawyer’s task is to wipe the fingerprints, clean up the blood and drive the getaway car. This was no different from John Scarlett’s predicament at the Joint Intelligence Committee. He suddenly had to stop being a sceptical analyst and become an Alastair Campbell spin-doctor. The country was going to war and needed a “45-minute menace”. That March both intelligence and legal advice were being stretched beyond breaking. This was confirmed by two former Whitehall officials, the head of MI6 and Mr Blair’s European adviser, on the BBC on Sunday. That March, Downing Street had no call for professional tap-dancers. It needed shysters and gumshoes.

Before the Suez invasion, Anthony Eden likewise found himself beset with a doubting Attorney-General, a doubting defence minister and a doubting Foreign Office legal team. Most vociferous doubters were the Americans, demanding that Britain defer to the authority of the UN (those were the days). Eden duly turned to his more pliable Lord Chancellor for legal advice, and to an agreeable Oxford don, Arthur Goodhart. When he found his intelligence advice equally unhelpful, he turned to a friendly spy in Cairo, who assured him that Nasser would fall at the first bomb.

International lawyers were overwhelmingly hostile to the Iraq invasion. There was only one ostensibly independent voice cheerleading for Downing Street, Professor Christopher Greenwood, of the LSE. Last week it was revealed that he had received more than £50,000 for his services by Lord Goldsmith, a fact never revealed in his media appearances. So much for academic independence.

As the Hutton and Butler reports illustrated, those in the swirl (and pay) of government are bound to feel its influence in time of crisis. The Blair administration is highly political. It is not a place where independence of thought and advice is likely to shine. But then the same was said of the Thatcher Government. As the Suez parallel shows, any prime minister who has decided to go to war craves obedience.

Mr Blair decided to invade Iraq alongside America back in 2002, though he always denied it. He must have known he had dodgy intelligence and dodgy law. Yet he needed loyalty, like Lord Melbourne, the more desperately “when I am in the wrong”. Lord Goldsmith was there to follow him even into the murkiest depths of international jurisprudence.

The first duty of a public official may be “to tell truth to power”, but the second is loyalty. The Butler report accused Mr Blair of polluting the first duty with the second. Scientific independence failed when he capitulated to the beef producers during foot-and-mouth. Intelligence independence failed when Downing Street needed an “imminent threat” from Saddam. Legal independence failed on the morning of March 17, 2003. In each case loyalty took precedence over professional integrity.

Robust, independent, professional advice has always been crucial to sound administration. This is no longer the British way. Professionalism is corrupted by politics and as a result ministers use the media as their sounding board. But it is hard to blame the present Attorney-General for this. He is a monkey, not the organ-grinder.

simon.jenkins@thetimes.co.uk