Was the Iraq war legal? What the Attorney-General didn’t tell Parliament, and why
Did the Attorney-General change his advice to the government on the legality or otherwise of going to war against Iraq? (Probably not.) Why won’t the government publish his final revised opinion on which his parliamentary reply of 17 March 2003 was based? (Because it didn’t exist.) Why won’t they publish the earlier advice given 10 days earlier? (Because it could prejudice Britain’s case if the war’s legality is ever challenged in an international court.) Was the opinion in the parliamentary reply an accurate account of Lord Goldsmith’s own views? (Yes.) Was it a full account of his advice to the government? (No.) Was the omission of vital parts of that advice meant to mislead? (Yes.) Have we been here before? (Yes, indeed — twice!) Click here to read a likely explanation of what really happened, and why the government is being so coy about it.
Lord Goldsmith, Britain’s Attorney-General 
I think your interpretation makes a lot of sense; it even explains how Blair could describe the PQ as a summary of Goldsmith’s advice while Goldsmith himself denied it. The reasoning would have to be rather jesuitical – to the extent that Goldsmith was advising the government on what to do, his advice was that the war would be legal, so a bald statement to that effect was an accurate summary – but I think Blair’s quite as capable of this kind of semantic card-trick as, say, David Willetts. The alternative would be to believe that Blair doesn’t really care what he says as long as it gets him off the hook, and I’d rather not descend to that level of cynicism if I can avoid it.
Phil,
Thanks.
There are some interesting (but not necessarily new) points on all this in Peter Hennessy’s
Guardian article today (28 Feb 05), but I think it was written before Lord Goldsmith’s recent denials of the rumours about his ‘opinion’ of 17 March 2003 in the Lords Hansard having been written by Lord Falconer and Lady Morgan in No. 10.
Brian
What you say makes very good sense but it still leaves the question of why all this deceit was necessary. The only answer to that that I can see is that Blair had already promised Bush that he would deploy the British armed forces in his interest and support come what might, and that when a crisis did come, in the form of a lack of legality for the war, he preferred for some reason to stick to his secret commitment to a foreign power rather than take legality as his overriding principle. That is not the way a democratic prime minister should behave, and that is the real problem at the root of this whole sorry affair.
Peter
Peter,
I agree that what seems to have happened is that Tony Blair committed us to joining the US in going to war in Iraq well beforehand, probably in the firm belief that we would get Security Council authority for it when the time came; and when it turned out that Security Council authority was not forthcoming, he felt too far committed to Bush to be able to draw back and leave him, as it were, in the lurch. I also think, to be fair, that he genuinely thought it necessary to dismantle this rogue régime before it developed WMD and passed some of them on to international terrorists or otherwise allowed terrorists to get hold of them: and that it would be less costly and dangerous to grasp that nettle at once than to delay and have to do it later (by no means a far-fetched or ignoble analysis). But your comment seems to assume that the law officers were formally advising that without UN authority the war would be illegal, and that Blair chose to go to war regardless. I don’t believe that the record (incomplete as it is) can sustain that interpretation. The Attorney-General has consistently said that in his view the war was legal, for the reasons set out in his parliamentary reply of 17 March 2003, and it’s clear that in coming to this view he was relying at least in part on the advice of Christopher Greenwood QC whose corresponding view has been spelled out publicly, and whose advice the A-G has said he took. The reason for the refusal to make public the A-G’s formal written advice to the government is nothing to do with Blair’s prior commitment to go to war, in my view: the A-G was at all times probably giving it as his considered view that the war was legal, so there was no legal reason for Blair to consider having to go back on that commitment. The refusal to publish the full written advice, I believe, is because in addition to setting out the A-G’s firm view that the war would be legal, the opinion also reported the contrary view of the Foreign Office legal advisers (or some of them), who believed that it would be illegal without UN authority in a new resolution; and it probably also contained a warning that despite the A-G’s own opinion, it was quite possible that if the matter ever came before the International Court, the Court might rule that the war was illegal — with the implication in that event that those responsible for it might be vulnerable to a charge of having committed war crimes. The government would naturally be reluctant to publish legal advice containing that information and that warning, since if ever the issue were to come before an international court, it would provide ammunition for the case against Britain. In other words, you can’t infer from the refusal to publish the written opinion that in it the A-G necessarily took the view that the war would be illegal (he almost certainly didn’t), nor that Blair was determined to go to war even if his law officers were saying that it would be illegal to do so (we shall never know what he would have done if they had given him that advice, because it’s clear that they didn’t).
Brian
From Peter Harvey
<< The refusal to publish the full written advice, I believe, is because in addition to setting out the A-G's firm view that the war would be legal, the opinion also reported the contrary view of the Foreign Office legal advisers (or some of them), who believed that it would be illegal without UN authority in a new resolution; and it probably also contained a warning that despite the A-G's own opinion, it was quite possible that if the matter ever came before the International Court, the Court might rule that the war was illegal -- with the implication in that event that those responsible for it might be vulnerable to a charge of having committed war crimes. >>
I accept that but an honest businessman contemplating a new tax arrangement for his company would think twice if his lawyer told him that it might very well be held by the courts to be illegal, and if he had any sense he wouldn’t go ahead with the plan. Blair seems to have allowed the strength of his secret commitment to Bush to outweigh the political caution that he should have exercised with respect to his domestic position. And that is a *huge* blunder for which there can be no excuse.
Well, no-one could disagree with that, but remember that we’re only guessing at what the written opinion might or might not have said. If the warning was very guarded (“I’m personally convinced that the war will be legal and I formally advise you accordingly: but I can’t completely exclude the possibility, however remote, that if ever the issue were to be tested in an international court…”), Blair could be excused perhaps for acting on the firm advice rather than on the very guarded warning. It’s impossible to make a confident judgement without seeing the actual document, which I doubt if we’ll be allowed to do.
Brian
Anyone who thinks that Sir Humphrey Appleby’s and Jim Hacker’s conversations in “Yes Prime Minister” are removed from reality, would benefit from a careful walk along the white lines of the uncorrected oral evidence of Sir Andrew Turnbull-the Cabinet Secretary at the time the Attorney General’s advise popped up in Cabinet- given to the House of Commons Public Administration Committee.
The swordplay between the Chairman, Dr. Tony Wright, Gordon Prentice a committee member and Sir Andrew is straight out of a “Yes Prime Minister” script. Questions 202 to 220 are worth reading. After which you may agree with Gordon Prentice that these MP’s are “innocents abroad”
The whole shooting match can be found at http://tinyurl.com/6nwm8