Part I: Was the Iraq war legal? Reflections on the Attorney-General’s advice to the prime minister

The main importance of the 13-page ‘advice’ of the Attorney-General on the legality (or lack of it) of going to war against Iraq without a second UN resolution authorising it, given to the prime minister on 7 March 2003, lies in the harsh and unforgiving light it sheds on the same Attorney-General’s ‘opinion’, published 10 days later on the 17th, in which he set out his apparently unreserved and categorical view that even without a second resolution, the war would be legal. It’s not that he ‘changed his mind’ in those intervening 10 days. On the 7th, he set out the arguments for and against legality, warning that the arguments against might well prevail if the issue came to a court, and laying down the conditions needing to be satisfied if there was no second resolution but the war took place and an argument had to be constructed for its lawfulness. Contrary to widespread speculation before the full text was at last released on 28 April 2005, the 7 March 2003 advice doesn’t come down on one side or the other as to legality: it sets out the arguments on both sides, and concedes that “I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution”, about as guarded a conclusion as can be imagined from even the most recklessly confident lawyer (which by all accounts Lord Goldsmith is not). By the 17th, the attempt to secure a second resolution has collapsed (not because of any French threat to veto it, but because a clear majority of the Security Council’s members disagreed with it): Lord Goldsmith has asked the prime minister whether his test for the legality of a war without that resolution is satisfied – i.e. that “there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. … we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. … the views of UNMOVIC and the IAEA will be highly significant in this respect”: and Mr Blair has replied that that test is indeed satisfied, meaning that he has “strong factual grounds” and “hard evidence” that Iraq has failed to get rid of its WMD, despite a report by the chief UN weapons inspector on the 7th that Iraq has begun to cooperate, that a number of missiles have been destroyed, and that the inspectors still can’t find any WMD. We now know, of course, how much credence should have been attached to Mr Blair’s “hard evidence” that Iraq still had WMD and had failed to comply with UN resolutions requiring Saddam to get rid of them.

In the light of Mr Blair’s assurance, then, the Attorney-General at last comes off the fence and declares that in his independent, unpressurised opinion the war will be legal. Ignorant of the overwhelming doubts, qualifications and warnings in the advice of ten days earlier, the Cabinet, parliament and much of public opinion accepts this categorical declaration of legality, and Britain goes to war.

Ministers are thus correct in arguing that the Attorney-General did not “change his mind” between 7 and 17 March 03. What did happen was that he finally made up his mind. But there remains a fatal inconsistency between the 7 March advice and the 17 March opinion: in the first, Goldsmith acknowledges the highly arguable character of the case for legality, warning that the contrary case will be regarded by many as at least equally strong, and indeed quite likely to prevail in a court of law (and this is regardless of the strength or otherwise of the ‘evidence’ of Iraqi non-compliance). In the second, he sets out the argument for legality shorn of any warning that it is highly debatable and that it might well be rejected if the issue were to come to court. The point about inconsistency is lucidly and powerfully set out in an article in the Guardian of 29 April 2005 by Lord Goodhart, the LibDem spokesman for constitutional affairs. It’s obligatory reading for those who want to find a way through the fog of allegations and counter-allegations about the probity of the prime minister’s conduct in this affair.

There are perfectly sound reasons for insisting that in general the advice of the Law Officers to the government should not be published: the possibility of publication could well inhibit any Attorney-General from giving frank and politically inconvenient advice on intensely controversial issues, an essential part of his functions. But there can be no excuse for having withheld from the cabinet, parliament and the country the fact that Goldsmith had advised the prime minister in such clear language that the case for the legality of a war without a second resolution was so iffy that if it had to be argued in court, it might well fail. The Attorney-General’s ‘opinion’ of 17 March was stated as if the arguments for legality were firm and unambiguous, thus providing a reliable legal basis for going to war – and the cabinet and parliament accepted it as such. Yet the secret advice of the 7th shows that it was nothing of the sort. Lord Goldsmith had been unwilling to go further than saying that he accepted that “a reasonable case can be made that resolution 1441 is capable in principle” of being interpreted as reviving the authority for the use of force given by the Security Council ten years earlier in the completely different context of Iraq’s invasion of Kuwait.

Just as the secret intelligence evidence for Iraq’s WMD was deliberately misrepresented by the prime minister as being firm and conclusive when in fact he knew it to be patchy and sporadic, so the Attorney-General’s opinion that the war would be legal was deliberately misrepresented by the prime minister as firm and conclusive, by his suppression of the all-important caveats and warnings in the 7 March advice. Neither the flimsy intelligence nor the hesitant and qualified opinion on legality justified a decision to go to war. The extent of the flimsiness of the intelligence and the qualified nature of the legal justification were concealed from parliament and the country, and probably even from the rest of the Cabinet, in order to secure endorsement of a decision which Mr Blair had actually taken a year earlier at his fateful meeting with President George W Bush. Suppressio veri, the suppression of the truth, is morally indistinguishable from lying.

There are two other interesting and significant aspects of the 7 March advice that are worth airing. I discuss them in Part II below.

For the full text of the Attorney-General’s advice of 7 March 2003 on Iraq war legality, in readable form, not requiring you to download a PDF file, please see on my website. The original is available (in a poor photocopy of the typescript, in PDF format) on the No. 10 Downing Street website.

Brian Barder
29 April 2005