Neither Compelling, nor Attractive

Professor Peter Crisp

Friday 8th JulyAs the advice to invade Iraq comes under the spotlight with Sir John Chilcot’s report, Professor Peter Crisp assesses the evidence on the legality of the decision: 

Chapter 5 of Sir John Chilcot’s caustic report on the Iraq Inquiry analyses and discusses the legal basis for the Iraq war. The chapter gives extraordinary and unprecedented insight into the legal process which led to the decision to invade Iraq as well as a remarkably detailed account of how the then Attorney General, Lord Goldsmith, came to change his mind on the legality of a possible conflict and, in his words, to give the “green light” to the invasion.

In an example of English understatement at its most lethal, Chilcot in his 6 July statement writes:

“…the Inquiry has not expressed a view on whether military action was legal. That could, of course, only be resolved by a properly constituted and internationally recognised Court. We have, however, concluded that the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.”

So what exactly was “far from satisfactory”? The key findings are set out in the executive summary of the report and reveal a number of truly startling facts about the legal basis for war. I shall restrict myself to discussion of three issues.

Firstly, although the invasion began on 20 March 2003 it was not until 13 March that Lord Goldsmith finally advised that there was, on balance, a proper legal basis for military action. This delay was deliberate: having being instructed to advise, Lord Goldsmith was then told to hold off on giving his advice.

Lord Goldsmith had been formally instructed in December 2002 on behalf of the FCO, the MOD as well as No.10 to advise on the legality of a war. Those instructions made it clear that Lord Goldsmith should not provide an immediate response.

It is unusual, to say the least, for a client to determine the timing of his lawyer’s advice and it seems that Lord Goldsmith’s advice was deliberately delayed to such a point when for him to have found the conflict unlawful would have been politically and diplomatically very difficult if not impossible.

Secondly, Chilcot is clear that Lord Goldsmith was pressured into revising his initial, unhelpful advice. The Attorney General’s provisional view had been that the war would be unlawful without a second UN Security Council resolution.

However, Lord Goldsmith’s formal advice of 7 March set out alternative interpretations of the legal effect of UN resolution 1441. While Lord Goldsmith remained “of the opinion that the safest legal course would be to secure a second resolution”, he qualified his advice and stated that a reasonable case could be made that a further UN resolution would not be required. There would however have to be significant and compelling evidence of material breach.

In so qualifying his advice, Lord Goldsmith made it clear that a reasonable case did not mean that if the matter ever came to court, he was confident that the court would agree with this view. This is of course the classic lawyer’s approach to risk management: “My view is X but I cannot rule out Y.”

Concern was then raised that the advice did not offer a clear indication that military action would be lawful and Lord Goldsmith was asked to give a clear-cut answer on whether military action would be lawful.

Lord Goldsmith concluded on 13 March that, on balance, the “better view” was that the conditions for the operation of the revival argument were met in this case, meaning that there was a lawful basis for the use of force without a further UN resolution.

For the Attorney General to change his mind so dramatically when under pressure to give a “yes” or “no” answer does not mean that his change of heart was not genuine. It does however bring into question whether his duty as a lawyer to give impartial, independent advice, was compromised by the fact that as a politician he knew the negotiations for a second UN resolution were going badly, as well as by the persistent demand of the Prime Minister for an unequivocal answer.

Perhaps the most shocking revelation of Chapter 5 is Lord Goldsmith’s simple unquestioning acceptance of Tony Blair’s assertion that Iraq was in further material breach of its obligations because of ‘false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure to comply with… this resolution’. Should not the Attorney General at least have asked to see the evidence which lay behind this assertion?

Thirdly, Tony Blair appears to have treated the Attorney General as his own personal legal advisor: “Lord Goldsmith told the Inquiry that he viewed Mr Blair as ‘ultimately’ the client for his advice.” This was despite that the fact that the Attorney General’s role is to advise the whole government not just the Prime Minister.

All the Cabinet saw was the text of Lord Goldsmith’s Written Answer to Baroness Ramsey setting out the legal basis for military action which stated the Government’s legal position but failed to explain the legal basis of the conclusion that Iraq had failed to take “the final opportunity” to comply with its disarmament obligations offered by the UN resolution.

In conclusion, initial unhelpful advice was rejected by Tony Blair. Revised, helpful, though qualified, advice was accepted but not shared, even with the Cabinet. Most wretchedly of all, we can now see that the actual advice relied on for the legality of the invasion is neither compelling nor attractive.

A last thought: reading Chapter 5 of the Chilcot report one is struck by how persistently and robustly Tony Blair and Jack Straw questioned and challenged the legal advice they received.  One cannot help but reflect that had they applied similar effort to challenging the intelligence they had received about Saddam Hussein’s military capabilities, this country might never have gone to war with Iraq.

*Professor Peter Crisp, is Dean of BPP University Law School and a barrister specialising in Land Law.