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Lord Peter Goldsmith and the legal advice row


military chiefs asked, on March 13 2005, for a definitive statement about the legality of the war in Iraq

Philippe Sands QC, an international law professor, suggests in his book Lawless World: America and the Making and Breaking of Global Rules that Lord Goldsmith had warned Tony Blair in a document on 7 March 2003 that the use of force against Iraq could be illegal. The government even prepared a legal team to be able to defend its case, if legal action was taken against the UK over the war.
On 10 March, military chiefs asked for a definite statement about the legality of the war and on 13 March Lord Goldsmith met Lord Falconer and Downing Street adviser Baroness Morgan. "After that Downing Street proceeded to set out his [Lord Goldsmith's] view in a parliamentary answer which was then published on 17 March," said Mr Sands.


There was no formal legal opinion by the Attorney General beyond his one-page written parliamentary answer


25 March 2005 ~ "....as at 21st March 2005 , his professional fees in relation to work connected with the conflict in Iraq amounted to approximately £46,000 (excluding VAT),” said Lord Goldsmith about Professor Christopher Greenwood QC's "work" on Iraq. See Scotsman ( Lord Goldsmith is a commercial lawyer with no experience of international law. He turned to Professor Christopher Greenwood of the London School of Economics, who was known to support the invasion.)

25 March 2005 ~ Richard Norton Taylor in the Guardian (below) charts the course of the Attorney General's changing mind.
..Autumn 2002 According to Butler report, Goldsmith concludes "there would be no justification for use of force against Iraq on grounds of self-defence against imminent threat". .became...
March 13 2003 Goldsmith sees Lord Falconer and Baroness Morgan, two of Blair's closest advisers, at an unminuted Downing Street meeting, and expresses his now "clear view" that war would be lawful under resolution 1441. Read in full

25 March 2005 ~ Simon Jenkins' article: Just do what the PM wants http://www.timesonline.co.uk/article/0,,1059-1540649,00.html Extracts:

24 March 2005 ~ "The letter shows definitively that Elizabeth Wilmshurst was not the only Foreign Office lawyer to disagree that invading Iraq would be legal. Indeed she says that view was given "consistently" by her department. Her views are shared by many international lawyers from around the world..." Independent

23/24 March 2005 ~ Fascinating new evidence revealed by Channel 4. Part of a minute by Elizabeth Wilmshurst - in effect a resignation letter - was released under the Freedom of Information Act, with the crucial paragraph - on Lord Goldsmith's changed position – censored. But Channel 4 News has the missing details. The censored paragraph

shows that Lord Goldsmith did, in the view of at least one honourable member of the FO, change his advice to suit the government's wishes. For the government now to say that it had "withheld that key paragraph in the public interest - to protect the privacy of the advice given by the attorney general"
Liberal Democrat MP Sir Menzies Campbell told Channel 4 News: The government didn’t withhold it in the public interest, it withheld it in the government’s interest.”
Read Mrs Wilmshurst's letter in full

19 March 2005 ~ David Shayler says he plans to stand against Tony Blair in Sedgefield. It was Mr Shayler, the former MI5 officer jailed for revealing state secrets, who gave this spirited defence of Katherine Gun last year after she publicised the e-mail from the National Security Agency in Washington suggested spying on the seven swing vote countries at the UN, votes crucial to winning the eventually un-won second resolution committing the world to war in Iraq. He said, "She acted gallantly and honourably to expose an illegal operation... the 1989 Official Secrets Act remains a cancer in the body politic....In the case of Katharine Gun, the Attorney General and the man who employs him, the Prime Minister, risked being enormously embarrassed by the disclosure of legal advice regarding the Iraq war... " To jail her, the Government would have had to reveal the legal advice upon which they went to war. As John Chapman wrote in the Guardian a year ago,


PQ on 1 Mar 2005

http://www.parliament.the-stationery-office.co.uk/pa/cm200405/cmhansrd/cm050301/text/50301w16.htm#50301w16.html_sbhd1

SOLICITOR-GENERAL

Iraq

Mr. Cash: To ask the Solicitor-General what involvement (a) the Lord Chancellor and (b) Baroness Morgan had in preparation of the reply to the parliamentary question tabled by the hon. Member for Stone to the Prime Minister on 11 March 2003 on the legal basis for military intervention in Iraq to which the Attorney-General referred in evidence to the Butler Inquiry on 5 May 2004; and if she will make a statement. [218964]

Mr. Grieve: To ask the Solicitor-General where and in what buildings, the written statement made to Parliament on 17 March 2003 setting out the legal basis for the war in Iraq was prepared; and by whom. [219422]

The Solicitor-General: The Attorney-General's written answer of 17 March 2003, Official Report, column 515W, which I relayed to the House, was drawn up in the office of the Attorney-General. Those involved were the Attorney-General and myself, two officials in our office, three officials from the Foreign and Commonwealth Office and Christopher Greenwood QC. The draft was also discussed with the then Lord Chancellor, Lord Irvine of Lairg. The Attorney-General was fully involved throughout the drafting process and personally finalised and approved the answer.

No other Minister or official was involved. In particular, neither Baroness Morgan of Huyton nor Lord Falconer of Thoroton, nor any official in the Prime Minister's office had any involvement whatever in the
 
1 Mar 2005 : Column 1075W
 
drafting of the answer. The Attorney-General has never said that they did so. As the Attorney-General has always made clear, he set out in the answer his own genuinely held, independent view that military action was lawful under the existing Security Council resolutions.

Mr. Tyrie: To ask the Solicitor-General (1) what discussions the Attorney-General had with respect to drafting the written answer of 17 March 2003, Official Report, House of Lords, column WA2; [219444]

(2) what advice the Attorney-General received, and from whom, prior to the writing of the written answer of 17 March 2003, Official Report, House of Lords, column WA2; [219445]

(3) whether the Attorney-General's written answer of 17 March 2003, Official Report, House of Lords, column WA2, was written by the Attorney-General. [219446]

The Solicitor-General: I refer the hon. Member to the reply I gave to the hon. Member for Stone (Mr. Cash) on 1 March 2005 (218964).

 

March 13 2005 ~ The A4 War: What have the Attorney General and the Prime Minister got to hide?

Independent Was the paper used by Tony Blair to justify war a legal 'view', a legal 'opinion' or a definitive 'statement'? By Raymond Whitaker
"......When the Cabinet met on 17 March 2003, two days before the first bombs fell on Baghdad, all it saw was the nine-paragraph statement, shorn of all caveats, which was also issued on the same day as a parliamentary answer.
Why was this later statement produced? Because senior military officers, led by the Chief of Staff, Sir Michael Boyce, demanded an assurance that their troops would not find themselves charged with war crimes if Iraq was invaded. .." Read in full


March 12 2005 ~ MPs urge Bar Council to investigate advice on war

Independent The Attorney General is facing a damaging inquiry by the barristers' ruling body after the revelation by the country's most senior civil servant that Britain went to war on the basis of one page of legal advice. MPs have lodged a formal complaint with the Bar Council, which regulates barristers, and asked for an investigation into Lord Goldsmith's conduct in offering his "definitive advice" on the legality of invading Iraq on a single page of A4. It came as the Government confirmed yesterday it would not release the legal advice for war despite a request to review its decisions.
Yesterday, Clare Short, the former international development secretary, was also told her complaint about the Attorney General's presentation of legal advice - with no supporting documentation - would be investigated by the council's complaints commissioner. .... "I am told the inquiry will be independent," she said. ....
the revelation by Sir Andrew Turnbull, the Cabinet Secretary, that a short parliamentary answer by the Attorney General was the "definitive advice" on the war sent to the Prime Minister and that there was "no other version". Jack Straw was also under pressure after MPs claimed he "misled the Commons" over the legal advice on the war..." Read in full


March 11 2005 ~ Another body blow hits the questionable case for conflict

http://news.independent.co.uk/uk/politics/story.jsp?story=618880
"Tony Blair appears to be sinking deeper and deeper into a hole of his own making over the legal case for war in Iraq. Yesterday's admission by the Cabinet Secretary that there was no formal legal opinion by the Attorney General beyond his one-page written parliamentary answer is remarkable. It provides further evidence that corners were cut in the rush to war, and is bound to fuel criticism that the advice of the most senior law officer was manipulated for political reasons. " Read in full


March 10 Guardian http://politics.guardian.co.uk/iraq/story/0,12956,1434144,00.html

Goldsmith misled cabinet on Iraq says Short

Backing for military action 'obtained improperly'

Richard Norton-Taylor and David Pallister
".... Lord Goldsmith came under added pressure to explain his position when the prime minister contradicted his account of a parliamentary answer used by ministers to make the case for war.
Tony Blair told MPs that the cabinet did not need a full text of the attorney's legal advice - as required by the ministerial code of conduct - as Lord Goldsmith had explained it in an oral presentation.
In response to a question from the Plaid Cymru leader, Elfyn Llwyd, Mr Blair told MPs: "The attorney general came to the cabinet and gave his opinion in detail and was there able to answer any queries that people raised about it."
He added: "If it is being said that somehow the legal opinion of the attorney general is different from the attorney general's statement to this house that is patently absurd." Read in full


http://news.independent.co.uk/uk/politics/story.jsp?story=618151

Blair broke code to keep war advice from Cabinet

MPs clamour for inquiry as row flares again over legality of Iraq invasion

 
By Marie Woolf, Chief Political Correspondent

09 March 2005

Tony Blair is facing calls for a formal investigation after it emerged that he breached the official code of conduct for ministers by failing to show the Attorney General's full advice on the legality of the Iraq war to the Cabinet....."

See below
http://comment.independent.co.uk/commentators/story.jsp?story=618099

How ministers were misled on the legality of Iraq invasion

Clare Short

09 March 2005

Following the recent controversy about the Attorney General's advice, I have gone over in detail the process by which he gave his advice on the legality of the war. I have concluded that he failed to comply with the Ministerial Code when giving his advice to the Cabinet and that he misled the Cabinet about his legal advice.

See below

http://news.independent.co.uk/uk/politics/story.jsp?story=618149

A controversy that still damages Blair

By Andrew Grice, Political Editor

09 March 2005

........Philippe Sands, a QC in Cherie Blair's Matrix Chambers and professor of international law at University College London, last month published a book shining fresh light on the legal advice given to Mr Blair in the run-up to war by Lord Goldsmith, the Attorney General. On 7 March 2003, Lord Goldsmith warned that the use of force might be judged illegal without a second United Nations resolution approving military action, Professor Sands wrote. By 13 March, he had changed his mind.

What happened in between? Lord Goldsmith denies claims that he was "leant on". But Lord Butler's inquiry last July disclosed that he sought, and was given, an assurance by Mr Blair that Saddam Hussein was still in breach of existing United Nations resolutions. See below


Richard Norton-Taylor in the Guardian March 3

"The attorney who passed the buck"


27 February 2005 ~
Herald

"... Iraq has not faded away quietly.

At the core of Blair’s problem is the issue he cannot avoid: the legality of his decision to unquestionably support the Bush administration in going to war in Iraq when virtually all international legal advice warned there was no justification for doing so. ....legal evidence that would brand Blair a potential war criminal .... the publication next week of Lawless World....a detailed account of how the attorney general, Peter Goldsmith, changed his mind on the legality of the war within a crucial 10-day period .."


25 February 2005 ~

" The attorney general, Lord Goldsmith, this evening forcefully rejected accusations that Downing Street had drafted a parliamentary answer summarising his advice

to the government on the legality of the Iraq war. In a written statement, he rejected claims that the answer of March 17 last year had been drafted in No 10 by Lord Falconer ...Earlier today Tony Blair angrily rejected repeated calls for the government's legal advice on the Iraq war to be published in full, after a member of Lord Butler's inquiry (Michael Mates) broke ranks to demand the document now be aired. ." Read in full - Guardian


25 February 2005 ~

the attorney general's advice had been "tailored to political convenience".

The Guardian published evidence Lord Goldsmith gave to the Butler inquiry where the attorney general said a parliamentary answer - presented by ministers as his legal opinion of the case for war - was drafted by Lord Falconer and Baroness Morgan, Mr Blair's director for political-government relations. .... Lord Lester QC, the Liberal Democrat peer and human rights lawyer, said the attorney general's advice had been "tailored to political convenience". http://www.guardian.co.uk/Iraq/Story/0,2763,1425046,00.html


24/25 February 2005 ~

the allegation that Lord Goldsmith's summary of his advice - the full details of which have still not been released by the government - was written by others, including members of Mr Blair's political staff, was "disturbing and extraordinary".

"...The shadow attorney general, Dominic Grieve, said the allegation that Lord Goldsmith's summary of his advice - the full details of which have still not been released by the government - was written by others, including members of Mr Blair's political staff, was "disturbing and extraordinary". .... Elizabeth Wilmshurst, resigned before the war saying that an attack had no legal legitimacy and would amount to a "crime of aggression". Guardian - read in full


24 February 2005 ~

'Lord Goldsmith warned Mr Blair in a document on 7 March 2003 that the use of force against Iraq could be illegal.

Mr Sands wrote: "So concerned was the Government about the possibility of such a case that it took steps to put together a legal team to prepare for possible international litigation." See today's Independent on the continuing pressure on Mr Blair to publish the legal advice on which he took Britain to war in Iraq. Lord Goldsmith's insistence that,"The parliamentary statement was genuinely my own view and I was not leaned on to give that view. It is nonsense to suggest that No 10 wrote the statement" is sounding increasingly lame.


23 February 2005 ~

How could the attorney general have been prevailed upon to lend Britain's name to such a weak and dismal argument?"

"..... Lord Goldsmith was later "asked the question - would regime change be lawful per se, and he said no, it wouldn't". .."
A fascinating extract from Lawless World: America and the Making and Breaking of Global Rules by Philippe Sands in today's Guardian "... The attorney general's published opinion - that a non-existent authority to use force can "revive" at the behest of three of the 15 members of the security council -makes a mockery of the UN system. How could the attorney general have been prevailed upon to lend Britain's name to such a weak and dismal argument?" Read in full


14 February 2005 ~

Attorney General 'distanced himself from war advice

Attorney General 'distanced himself from war advice "Only after receiving a written reassurance from No 10 that it is "indeed the Prime Minister's unequivocal view that Iraq is in further material breach of its obligations" did the Attorney General deliver his legal backing for the war to Parliament on 17 March." Independent So there we are. The Attorney General appears to be rattled - particularly perhaps since Kofi Annan has said that the invasion was illegal. It was Mr Blair and no one but Mr Blair who decided, in the face of advice and warnings, to take this country to war. A letter from 16 professors of international law from Oxford, Cambridge, and London universities, as reported in The Guardian 7 March 2003, warned him: "On the basis of the information publicly available, there is no justification under international law for the use of military force against Iraq."


Attorney General conceded doubts over legality of war

Independent By Paul Waugh, Deputy Political Editor 04 March 2004

The Attorney General's secret legal advice on Iraq conceded that a key United Nations resolution on the issue did not automatically authorise war, a government memo has suggested. See below

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MORE

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http://news.independent.co.uk/uk/politics/story.jsp?story=618151

Blair broke code to keep war advice from Cabinet

MPs clamour for inquiry as row flares again over legality of Iraq invasion

 
By Marie Woolf, Chief Political Correspondent

09 March 2005

Tony Blair is facing calls for a formal investigation after it emerged that he breached the official code of conduct for ministers by failing to show the Attorney General's full advice on the legality of the Iraq war to the Cabinet.

MPs demanded that Sir Andrew Turnbull, the Cabinet Secretary, launch an immediate inquiry into whether Mr Blair and the Attorney General, Lord Goldsmith, flouted the code.

Politicians from all parties seized on a written answer from the Prime Minister as an admission that cabinet ministers should have been given Lord Goldsmith's full legal opinion before Britain went to war.

The former cabinet minster Clare Short stepped into the row yesterday when she accused Mr Blair and Lord Goldsmith of flouting the code. In a letter copied to the Prime Minister and Sir Andrew, Ms Short accused Lord Goldsmith of failing "to comply with the ministerial code when giving your advice to the Cabinet".

She said: "I am afraid that it is now clear to me that by failing to reveal your full legal advice and the considerations that underpinned your final advice, you misled the Cabinet and therefore helped obtain support for military action improperly. This is a very serious matter in relation to the war in Iraq, the integrity of your office, your own integrity and the proper working of UK constitutional arrangements."

The former international development secretary added: "The logic flows to Blair but I am starting with the Attorney General. There should be a proper system of investigation of complaints under the ministerial code." The Attorney General's office said it had not seen Ms Short's letter but would respond when it arrived.

A number of ministers have resigned for breaching the code, which sets out how ministers should behave. Mr Blair's apparent breach emerged after Simon Thomas, a Plaid Cymru MP, asked the Prime Minister whether he was "required under the ministerial code of conduct to show full legal advice from the Attorney General relating to matters before the Cabinet to each member of the Cabinet."

Mr Blair did not deny he was required to show full legal advice to his colleagues but referred Mr Thomas to the part of the code relating to "the conduct of cabinet business" and "advice received from the law officers". It says when a summary of legal advice is given to ministers, the full advice should be attached. "When advice from the Law Officers is included in correspondence between Ministers, or in papers for the Cabinet or Ministerial Committees," the code says, "the conclusions may if necessary be summarised but, if this is done, the complete text of the advice should be attached."

A Downing Street spokesman said: "As far as the legal advice on Iraq is concerned he has behaved properly at all times."

Mr Thomas said the reply was an "admission" from Mr Blair that he was in breach of the code. He added: "It puts him in the frame. For the first time you see through the cracks in his defences and he has had to admit he has breached the code. I am writing to Sir Andrew asking him to investigate and to the Prime Minister saying, you have breached the code."

Sir Menzies Campbell, the Liberal Democrats' foreign affairs spokesman, said: "On the face of it, the Prime Minister was in breach of the ministerial code. The unsatisfactory nature of events is illustrated by the fact that the guardian of that code is the Prime Minister himself."

Cabinet members were not shown the full advice before the decision was made to go to war. They were given a presentation by the Attorney General and a copy of his parliamentary answer about his advice.

Lord Goldsmith told the House of Lords that the written answer setting out his views on the legality of war was "a summary of my view of the legal position, rather than a detailed consideration of legal issues".

In his introduction to the code, Mr Blair said the code was crucial to "the bond of trust between the British people and their Government". It is the Prime Minister himself who is the watchdog and must initiate investigations into the code.


http://comment.independent.co.uk/commentators/story.jsp?story=618099

How ministers were misled on the legality of Iraq invasion

Clare Short

09 March 2005

Following the recent controversy about the Attorney General's advice, I have gone over in detail the process by which he gave his advice on the legality of the war. I have concluded that he failed to comply with the Ministerial Code when giving his advice to the Cabinet and that he misled the Cabinet about his legal advice.

The Ministerial Code lays down that: "The Code should be read against the background of the overarching duty on Ministers to comply with the law, including international law and treaty obligations."

When the Attorney came to the Cabinet on 17 March, the text of what purported to be his advice was distributed around the table. He began to read it out. There were murmurings indicating that he did not need to read it as members of the Cabinet could read it for themselves. I then attempted to initiate a discussion. I asked why it was so late and whether he had changed his mind. No discussion was allowed. The paper he provided was then published as an answer to a parliamentary question.

I was very surprised by the advice, but I accepted it as the official and authoritative advice of the Attorney. I said at the time: "The Attorney General has made clear that military action would be legal under international law. Other lawyers have expressed contrary opinions. But for the UK Government, the Civil Service and the military, it is the view of the Attorney General that matters and this is unequivocal." But I am afraid that the advice was not in truth unequivocal. It had been hedged around with qualifications. But none of this was revealed to the Cabinet or to Parliament.

The evidence provided by the Butler report shows that he was not wholly honest with the Cabinet. The report provides details of the complex process through which his advice developed. Butler tells us that prior to the adoption of UN Resolution 1441 the Attorney concluded that "there would be no justification for the use of force against Iraq on the grounds of self-defence against imminent threat". The Butler report confirms what I heard from my officials that after the passage of 1441 and following disagreement among Foreign Office legal advisers, all concerned agreed that the final word would belong to the Attorney.

Butler also tells us that in the weeks following the adoption of the resolution, the Attorney General had a number of discussions with the Prime Minister and Foreign Secretary about whether 1441 was sufficient to authorise the use of force, and that he talked with our ambassador to the UN and in February 2003 met members of the US administration. Butler says that he informed the Prime Minister's advisers of his view at a meeting on 28 February 2003 and that his office asked him to put these views in writing, which he did in a formal Minute to the Prime Minister on 7 March 2003. None of these exchanges or the content of the minute were reported to the Cabinet.

This is very significant because the Attorney failed to share his concerns with the Cabinet and to describe how he came to be persuaded of the legality of war. Butler informs us that his minute required the Prime Minister, in the absence of a further UN Security Council resolution, to be satisfied that there were "strong factual grounds for concluding that Iraq had failed to take the final opportunity to comply with its disarmament obligations under relevant resolutions of the Security Council and that it was possible to demonstrate hard evidence of non-compliance and non-co-operation with the requirements of Security Council Resolution 1441, so as to justify the conclusion that Iraq was in further material breach of its obligations".

All of this was kept from the Cabinet, although at this time I was reading telegrams of Dr Blix's reports to the Security Council indicating increased co-operation from the Iraqi regime. Butler tells us that on the basis of the Attorney's advice, military campaign objectives were drawn up, making it clear that the objective was to bring about Iraq's disarmament in accordance with its obligations under UN Security Council resolutions.

Butler tells us that the Attorney then informed Lord Falconer and Sally Morgan at a meeting on 13 March that in his view it was lawful under Resolution 1441 to use force without a further UN resolution, but on 14 March, after the breakdown of negotiations at the UN, his Legal Secretary wrote to the Prime Minister's Private Secretary seeking confirmation that "it is unequivocally the Prime Minister's view that Iraq was in material breach of its obligations under 1441". The Prime Minister so confirmed, and the Butler inquiry was informed that the Prime Minister relied on intelligence and other sources including Unmovic information. None of this was reported to Cabinet and it is notable that the Prime Minister was reaching dubious conclusions about factual questions without any Cabinet discussion. I was at the time reading accounts of Unmovic's reports which did not point to this conclusion.

I have therefore made a complaint under paragraphs 22 and 23 of the Ministerial Code. Paragraph 23 provides that "When advice from the Law Officers is included in correspondence between Ministers, or in papers for the Cabinet or Ministerial Committees, the conclusions may if necessary be summarised, but if this is done, the complete text of the advice should be attached."

My view is now that by failing to reveal his full legal advice and the considerations that underpinned his final advice, the Attorney misled the Cabinet and therefore helped obtain support for military action improperly. This is a very serious matter in relation to the war in Iraq, the integrity of his office, his own integrity and the proper working of UK constitutional arrangements.


http://news.independent.co.uk/uk/politics/story.jsp?story=618149

A controversy that still damages Blair

By Andrew Grice, Political Editor

09 March 2005

Whenever Tony Blair thinks Iraq is fading as an issue, it returns. With each new act of insurgency in Iraq or renewed question about the way he took Britain to war, the shadow returns.

After the elections in Iraq in January there was cautious optimism among Mr Blair's allies that democracy could spread through the Middle East, but the picture has been clouded by continuing problems in Iraq and by renewed doubts about the legality of the war.

Philippe Sands, a QC in Cherie Blair's Matrix Chambers and professor of international law at University College London, last month published a book shining fresh light on the legal advice given to Mr Blair in the run-up to war by Lord Goldsmith, the Attorney General. On 7 March 2003, Lord Goldsmith warned that the use of force might be judged illegal without a second United Nations resolution approving military action, Professor Sands wrote. By 13 March, he had changed his mind.

What happened in between? Lord Goldsmith denies claims that he was "leant on". But Lord Butler's inquiry last July disclosed that he sought, and was given, an assurance by Mr Blair that Saddam Hussein was still in breach of existing United Nations resolutions. Not all of Professor Sands' allegations stood up. He suggested that the Attorney General's parliamentary statement endorsing the use of force - a crucial factor in persuading Cabinet ministers and MPs to back the war - was drafted by two close Blair allies, Lord Falconer of Thoroton, then a Home Office minister, and Baroness Morgan of Huyton, the Downing Street director of external relations.

Lord Goldsmith dampened down this allegation, which appears to have been based on an erroneous transcript from the evidence he gave in private to the Butler committee.

But doubts remain about the legal authority for war, not least because the Government has doggedly refused to publish the full 13-page document submitted by Lord Goldsmith on 7 March. Ministers take refuge in the long-standing tradition that the law officers' opinion should remain confidential. They rejected a request by The Independent and others for the advice to be released under the new Freedom of Information Act, arguing that disclosure could prevent the Attorney General giving frank advice to the Government in future.

Doubts persist that the 7 March document may have contained damaging caveats. Certainly, opinion among government lawyers was divided. Elizabeth Wilmshurst, deputy legal adviser at the Foreign Office, resigned, attacking the planned intervention in Iraq as a "crime of aggression".

Lord Goldsmith has also been criticised for relying on an expert opinion from Christopher Greenwood QC, professor of international law at the London School of Economics. Critics say he was among a minority in his field to endorse the invasion.

Today The Independent discloses yet another twist in the tale. The 7 March document, sent to Mr Blair, is believed to have been seen by only a small number of ministers, including the Foreign Secretary Jack Straw and the Defence Secretary Geoff Hoon, whose service chiefs were demanding a legal green light. Crucially, the cabinet meeting on 17 March was given only the two-page parliamentary statement by Lord Goldsmith. After written questions by MPs it emerged yesterday that, under the ministers' code of conduct, the Cabinet should have seen the Attorney General's full advice as well as his summary.

The evasions and the contradictions do not end there. The Government may try to wriggle off the hook by claiming Lord Goldsmith's statement to Parliament was not a summary of his legal advice. He said on 25 February this year: "The [parliamentary] answer did not purport to be a summary of my confidential legal advice to government."

Yet in November 2003, the Attorney General said in another written answer: "This statement was a summary of my view of the legal position, rather than a detailed consideration of the legal issues. The statement was nevertheless consistent with my detailed legal advice."

The "Iraq effect" is still there on the doorstep, Labour officials report from the election front line. The issue is wider than the military intervention, with some voters expressing concern they have "lost" their Prime Minister to foreign affairs and others seeing "Iraq" as shorthand for their loss of trust in Mr Blair. The real "Iraq effect" will be measured on 5 May.


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http://www.guardian.co.uk/Iraq/Story/0,2763,916078,00.html

Attorney general: war is legal

Staff and agencies
Monday March 17, 2003

A series of UN security council resolutions provides the legal basis for military action against Iraq, the government's top law adviser said today.

The attorney general, Lord Goldsmith, said in a written parliamentary answer that the authority to use force against Iraq stemmed from the combined effect of resolutions 678, 687 and 1441.

Lord Goldsmith stated: "All of these resolutions were adopted under chapter VII of the UN charter which allows the use of force for the express purpose of restoring international peace and security."

The actual advice passed by the attorney general to the prime minister has not been made public, but the official response given today reverses previous speculation that Lord Goldsmith may fail to find legal justification for an attack.

In his written answer, Lord Goldsmith stated: "In resolution 678 the security council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.

"In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the security council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area.

"Resolution 687 suspended but did not terminate the authority to use force under resolution 678.

"A material breach of resolution 687 revives the authority to use force under resolution 678.

"In resolution 1441 the security council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution.

"The security council in resolution 1441 gave Iraq 'a final opportunity to comply with its disarmament obligations' and warned Iraq of the 'serious consequences' if it did not."

Lord Goldsmith's statement continued: "The security council also decided in resolution 1441 that, if Iraq failed at any time to comply with and co-operate fully in the implementation of resolution 1441, that would constitute a further material breach.

"It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach.

"Thus, the authority to use force under resolution 678 has revived and so continues today.

"Resolution 1441 would in terms have provided that a further decision of the security council to sanction force was required if that had been intended.

"Thus, all that resolution 1441 requires is reporting to and discussion by the security council of Iraq's failures, but not an express further decision to authorise force."


"...the hapless Attorney-General, Lord Goldsmith, was rushed forward ... to refute almost all legal opinion and invent an eccentric interplay between resolutions 678, 687 and 1441..." Simon Jenkins on March 19th 2003 http://www.timesonline.co.uk/newspaper/0,,2734-615675,00.html

Bin Laden's laughter echoes across the West

Simon Jenkins

As of tomorrow, Britain will be at war with an Arab country that offers no threat to it or to anyone. British troops will be fighting an action which the UN would have declared unlawful if asked. Now we can only hope they win fast.
.........
For all his references to terrorism and September 11, Mr Blair has been starkly unable to establish Saddam as a terrorist threat. He may have been exasperated by the UN Security Council’s refusal to cow before his friends in Washington, but the fact is that despite fierce armtwisting it did not cow. One reason was sheer American ineptitude in daily deriding the UN, its inspectors and anyone seeking peaceful disarmament. This swung world opinion against the much-desired “second resolution”, boosting Saddam and undermining Mr Blair.
This destroyed the two pro-American coalitions forged after September 11, 2001 and again before last autumn’s Resolution 1441. Both were real achievements of British diplomacy, and Washington’s hamfisted wrecking of them will rank among the fiascos of international relations. Small wonder Mr Blair shuddered after condemning France when a backbencher referred to America’s 75 vetoes on Middle East resolutions. Washington received hardly a mention in his speech. This was suddenly a very British war.
UN backing for a war was perfectly possible with tact and with time. It received neither. Instead the hapless Attorney-General, Lord Goldsmith, was rushed forward on Monday to refute almost all legal opinion and invent an eccentric interplay between resolutions 678, 687 and 1441 to deny the fact that last year’s coalition was forged on the explicit understanding that war was for the Security Council to determine. Knowing America’s intent, the Government would have been more honest to leave the UN in the gutter from the start. Instead it is sustained only on the broken-backed morality of Clare Short. ........."


Jan 212004 ~ Prosecutors at the International Criminal Court are considering a request by an international body of lawyers to try the Prime Minister for alleged war crimes during the invasion of Iraq. Independent " A report alleging illegal deployment of cluster bombs and weapons using depleted uranium was handed to Luis Moreno-Ocampo, the court's chief prosecutor in The Hague, yesterday. He will decide whether to begin a formal investigation which could include questioning of Lord Goldsmith, the Attorney General, and Geoff Hoon, the Secretary of State for Defence. If he concludes that a prosecution has a "reasonable prospect of success", the case will go before the pre-trial chamber of the court, which has the power to try individuals and governments for war crimes. No case has been made against the US administration because America has not signed the treaty that established the court. The report was written by eight international lawyers after a "war crimes inquiry" in London last November heard evidence from eye-witnesses and expert witnesses and leading counsel.

The panel concluded there was enough evidence for the prosecutor to investigate members of the Government for alleged crimes against humanity and war crimes during the conflict and occupation. They said that he should investigate the use of cluster bombs in urban areas, and whether attacks had been launched on non-military targets.They also want the prosecutor to look into attacks on media targets and whether weapons were used which caused excessive loss of life or injury to civilians."


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Attorney General conceded doubts over legality of war

Independent By Paul Waugh, Deputy Political Editor 04 March 2004

The Attorney General's secret legal advice on Iraq conceded that a key United Nations resolution on the issue did not automatically authorise war, a government memo has suggested.

A Foreign Office memorandum, giving detailed reasons behind Lord Goldsmith's opinion, made clear that there was no "automaticity" in resolution 1441 to justify the use of force.

The resolution, passed in November 2002 by the UN Security Council, gave Saddam Hussein a final opportunity to comply with disarmament demands and has been used by Tony Blair as legal cover for last year's war .

The Foreign Office memo, which has been submitted to a Commons select committee, was seized on by critics as evidence that important caveats in the legal advice were excluded from the summary published by the Government.

The controversy emerged as Mr Blair came under fire again in the Commons yesterday for refusing to publish the Attorney General's opinion in full. Charles Kennedy, the Liberal Democrat leader, said that unless the full advice was made public there was a danger that voters would think it had been "sexed up".

After pressure from military chiefs, the Attorney General published a short summary of his legal opinion on 17 March, three days before the war began. The 358-word summary gave a rough outline of the case for military action, stating that UN resolution 1441 authorised the use of force because it revived earlier resolutions passed at the end of the Gulf War in 1991. No further UN resolutions were needed, the summary suggested.

But on the same day that the summary was published, Jack Straw, the Foreign Secretary, wrote a little-noticed letter to the Foreign Affairs Select Committee, including what he described as a paper which gave more detail. The paper makes the point that earlier UN resolutions 687 and 687 from the Gulf War allowed force to be used against Iraq. The advice goes on to state that UN resolution 1441 warned of "serious consequences" if Iraq failed to comply with its disarmament obligations.

In a passage that in effect agrees with arguments made at the time by critics such as France and Russia, the Foreign Office paper adds: "It is important to stress that SCR 1441 did not revive the 678 authorisation immediately upon its adoption. There was no 'automaticity'. The resolution afforded Iraq a final opportunity to comply and it provided for any failure by Iraq to be 'considered' by the Security Council." The paper goes on to argue that the lack of automatic force of 1441 "does not mean that no further action can be taken without a new resolution" of the Security Council.

Sir Menzies Campbell, the Liberal Democrat foreign affairs spokesman, said last night that the memo's admission that UN resolution 1441 gave no automatic authority for war was "extremely significant".

"A possible inference to be drawn from this document is that the Attorney General too shared the view that 1441 did not create 'automaticity'," he said. "We can't be sure, but it is yet another compelling piece of information justifying the publication of the whole of the Attorney General's advice." 4 March 2004 21:08


http://politics.guardian.co.uk/iraq/story/0,12956,1434144,00.html

Goldsmith misled cabinet on Iraq says Short

Backing for military action 'obtained improperly'

Richard Norton-Taylor and David Pallister

Thursday March 10, 2005

The Guardian

The crisis over the attorney general's conduct deepened yesterday when a former colleague accused him of misleading the cabinet about the legality of the invasion of Iraq.

Lord Goldsmith came under added pressure to explain his position when the prime minister contradicted his account of a parliamentary answer used by ministers to make the case for war.

Tony Blair told MPs that the cabinet did not need a full text of the attorney's legal advice - as required by the ministerial code of conduct - as Lord Goldsmith had explained it in an oral presentation.

In response to a question from the Plaid Cymru leader, Elfyn Llwyd, Mr Blair told MPs: "The attorney general came to the cabinet and gave his opinion in detail and was there able to answer any queries that people raised about it."
He added: "If it is being said that somehow the legal opinion of the attorney general is different from the attorney general's statement to this house that is patently absurd."

This contradicts statements by Lord Goldsmith, who has gone out of his way to insist that his parliamentary answer on 17 March 2003 on the legality of the war did not reflect his legal advice and was not even a summary of it.

Lord Goldsmith said in response to the Guardian last month that the parliamentary answer "did not purport to be a summary of my confidential legal advice to government".

The answer said it was "plain" that Iraq was still in breach of its UN disarmament obligations.

Yesterday Clare Short, a member of the cabinet at the time, accused Lord Goldsmith of misleading his government colleagues.

Mr Blair also misled MPs by saying the cabinet was able to ask Lord Goldsmith questions about his legal advice, she said.

In a letter to Lord Goldsmith, Ms Short said that at the March 17 cabinet meeting she had tried to initiate a discussion. But she claimed that she was told not to ask such questions "and no discussion was allowed".

She accused the attorney general of breaching the ministerial code by not giving the cabinet the full version of what is now believed to be his last official written legal advice on the war on March 7 2003.

This 13-page document, never published, is widely understood to have warned Mr Blair that British participation in the war against Iraq could be ruled unlawful by an international court.

The ministerial code states that "when advice from the law officers is included in correspondence between ministers ... the conclusions may if necessary be summarised but, if this is done, the complete text of the advice should be attached".

Ms Short said yesterday that Lord Goldsmith had failed to share his concern about the legality of the war with the full cabinet or tell it why, and how, he had changed his mind.

She told the attorney general: "I am afraid that it is now clear to me that by failing to reveal your full legal advice and the considerations that underpinned your final advice you misled the cabinet and therefore helped to obtain support for military action improperly."

That was a very serious matter, she told Lord Goldsmith, in relation to the "integrity of your office, your own integrity and the proper working of UK constitutional arrangements".

The attorney general's advice on the legality of the war is to come under separate scrutiny, as a group of London lawyers has called on the Bar Council to investigate whether he has broken the profession's code of conduct.

In a letter to the council's professional conduct and complaints committee, barristers from at least four chambers say that if as suggested Lord Goldsmith was politically influenced to amend his advice this may have contravened two sections of the code which deal with barristers' independence.

The lawyers add: "It is further suggested that [the attorney general] permitted a parliamentary answer to be given, in his name, which did not accurately reflect the contents of his advice."

The government has until tomorrow to respond to a Guardian request under the Freedom of Information Act to publish the attorney general's full legal advice on the war and the resignation letter of the deputy chief legal adviser at the Foreign Office, Elizabeth Wilmshurst.

If it refuses to respond the information commissioner, Richard Thomas, will conduct an independent review and has the power to order their release.


Copied from part of the page at http://www.channel4.com/news/2005/03/week_4/23_letter.html

a minute dated 18 March 2003 from Elizabeth Wilmshurst (Deputy Legal Adviser) to Michael Wood (The Legal Adviser), copied to the Private Secretary, the Private Secretary to the Permanent Under-Secretary, Alan Charlton (Director Personnel) and Andrew Patrick (Press Office):

    “1. I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678. I do not need to set out my reasoning; you are aware of it. [blanked out section]
      "My views accord with the advice that has been given consistently in this Office (the foreign office legal team office) before and after the adoption of UN security council resolution 1441 and with what the Attorney General gave us to understand was his view prior to his letter of 7 March. (The view expressed in that letter has of course changed again into what is now the official line.)"

    I cannot in conscience go along with advice - within the Office or to the public or Parliament - which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.

    2. I therefore need to leave the Office: my views on the legitimacy of the action in Iraq would not make it possible for me to continue my role as a Deputy Legal Adviser or my work more generally. For example in the context of the International Criminal Court, negotiations on the crime of aggression begin again this year. I am therefore discussing with Alan Charlton whether I may take approved early retirement. In case that is not possible this letter should be taken as constituting notice of my resignation.

    3. I joined the Office in 1974. It has been a privilege to work here. I leave with very great sadness.”

Channel 4 comments

: We reveal the missing words and ask why the government didn't want you to see them.

The document was released today under the Freedom of Information Act, with the crucial paragraph - on Lord Goldsmith's changed position – censored. But Channel 4 News has the missing details.

Our political correspondent Gary Gibbon reports:

A senior government lawyer says that the Foreign Office legal team thought - until just before the outbreak of war - that the Attorney General agreed with them - that war was illegal without a second UN resolution.

The evidence emerged after the government decided to publish the resignation letter from the former deputy legal adviser at the foreign office - Elizabeth Wilsmhurst.

Ms Wilmshurst resigned just before the outbreak of war claiming that war without a second UN resolution was a "crime of aggression" ...

But the government refused to release a key paragraph in the letter - Channel 4 News has obtained the missing section.

In the censored paragraph Ms Wilmshurst wrote: "My views accord with the advice that has been given consistently in this Office (the foreign office legal team office) before and after the adoption of UN security council resolution 1441 and with what the Attorney General gave us to understand was his view prior to his letter of 7 March. (The view expressed in that letter has of course changed again into what is now the official line.)"

The government said it had withheld that key paragraph in the public interest - to protect the privacy of the advice given by the attorney general. Liberal Democrat MP Sir Menzies Campbell told Channel 4 News: The government didn’t withhold it in the public interest, it withheld it in the government’s interest.”

Elizabeth Wilmshurst's resignation letter appears to support a serious and persistent charge against the government - that the Attorney General's legal advice changed dramatically and rapidly just when the government desperately needed it to.

As efforts to get a second resolution were flagging - On 7 March - lord Goldsmith produced a lengthy legal opinion arguing that a case could be made for war without a second reoslution - but - he warned - it could be seriously open to legal challenge.

On 13th March he told ministers war without a second UN resolution was legal - no question.

Former Labour Minister Clare Short, who resigned over the issue of the Iraq war toild Channel 4 News: “I think the government had to cover it up because it was so devastating.”

The attorney general's office said it would not comment further on Lord Goldsmith's decision making process.

Today also saw the government's formal response to Lord Butler's inquiry into intelligence on Iraq.

The government reveals the intelligence services have been shaken up with more resources, better checking of sources and more sharing of information between different branches of intelligence.

But there's still been no formal investigation into the political and legal path to war and tonight the government's version of events is yet again being seriously challenged.


The case for war

http://www.guardian.co.uk/Iraq/Story/0,2763,1445496,00.html

How Goldsmith changed his opinion

Richard Norton-Taylor
Friday March 25, 2005
The Guardian

March 18 2002

Sir David Manning, Tony Blair's foreign policy adviser, writes to prime minister confirming he has told Condoleezza Rice that "you would not budge in your support for regime change".

March 2002

Senior officials in Whitehall advise ministers that "regime change of itself" has "no basis in international law".

Mid-July 2002

At meeting of ministers, attorney general Lord Goldsmith confirms that claiming authorisation for use of force from UN security council will be difficult.

Autumn 2002

According to Butler report, Goldsmith concludes "there would be no justification for use of force against Iraq on grounds of self-defence against imminent threat".

Whitehall officials warn ministers that for the UN security council to take the view that Iraq is in breach of its disarmament obligations, "proof would need to be incontrovertible and of large scale activity. Current intelligence is insufficiently robust to meet this criterion."

November 8 2002

Security council adopts resolution 1441 warning that Iraq "will face serious consequences" if it fails to cooperate fully with weapons inspectors, but stops short of authorising use of force.

February 11 2003

Goldsmith meets John Bellinger, legal adviser to White House, in Washington. Bellinger reportedly says: "We had trouble with your attorney, we got him there eventually."

February 24 2003

The US, UK and Spain table a second UN resolution, arguing that Iraq is in further breach of resolution 1441. They win little support.

February 28 2003

Goldsmith tells Downing Street advisers he now believes a new UN resolution will not be necessary.

Foreign Office legal advice is that war would be illegal without a second UN resolution, according to a senior Foreign Office legal adviser, Elizabeth Wilmshurst (left). She says that was also what Goldsmith "gave to understand" was his view until March 7.

March 7 2003

At request of Downing Street Goldsmith puts advice in writing. Concludes no further UN resolution is needed, but court of law might differ and rule invasion illegal. Ministers set up legal team to prepare for possible international litigation.

March 12 2003

Admiral Sir Michael Boyce, chief of defence staff, asks prime minister for unequivocal statement on legality of war under resolution 1441.

March 13 2003

Goldsmith sees Lord Falconer and Baroness Morgan, two of Blair's closest advisers, at an unminuted Downing Street meeting, and expresses his now "clear view" that war would be lawful under resolution 1441.

March 14 2003

Goldsmith's office asks whether it is "unequivocally" Blair's view that Iraq committed further material breaches under resolution 1441 by refusing to disarm.

March 15 2003

Blair's office replies, saying it is. Boyce is told this in two-line note from Goldsmith's office

(The Butler report last year said Blair took into account "intelligence", since agreed to have been wrong, in coming to this view. The Butler review team also expressed their "surprise" that ministers did not at this time re-evaluate the quality of the intelligence when it became increasingly clear UN inspectors could find no banned weapons.)

March 17 2003

Goldsmith gives his name to parliamentary answer saying - on the basis of his advice from Blair - that it was "plain" Iraq remained in breach of 1441 and that use of force was therefore legal.

March 18 2003

Blair wins Commons vote on war with senior MPs referring to Goldsmith's assurances of previous day. wilmshurst resigns from Foreign Office.

March 19 2003

George Bush announces on TV (below) that invasion of Iraq has begun.

March 19 2005

Sir Andrew Turnbull, cabinet secretary, says that Goldsmith's parliamentary answer was the entirety of his final legal advice, contradicting Blair who had earlier called it a "fair summary" of his advice.