Revealed: the rush to war
Wednesday February 23, 2005
The attorney general, Lord Goldsmith, warned less than two weeks before the invasion of Iraq that military action could be ruled illegal.
The government was so concerned that it might be prosecuted it set up a team of lawyers to prepare for legal action in an international court.
And a parliamentary answer issued days before the war in the name of Lord Goldsmith - but presented by ministers as his official opinion before the crucial Commons vote - was drawn up in Downing Street, not in the attorney general's chambers.
The full picture of how the government manipulated the legal justification for war, and political pressure placed on its most senior law officer, is revealed in the Guardian today.
It appears that Lord Goldsmith never wrote an unequivocal formal legal opinion that the invasion was lawful, as demanded by Lord Boyce, chief of defence staff at the time.
The Guardian can also disclose that in her letter of resignation in protest against the war, Elizabeth Wilmshurst, deputy legal adviser at the Foreign Office, described the planned invasion of Iraq as a "crime of aggression".
She said she could not agree to military action in circumstances she described as "so detrimental to the international order and the rule of law".
Her uncompromising comments, and disclosures about Lord Goldsmith's relations with ministers in the run-up to war, appear in a book by Philippe Sands, a QC in Cherie Booth's Matrix chambers and professor of international law at University College London.
Exclusive extracts of his book Lawless World are published in today's Guardian.
Lord Goldsmith warned Tony Blair in a document on March 7 2003 that the use of force against Iraq could be illegal. It would be safer to have a second UN resolution explicitly sanctioning military action.
"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," writes Mr Sands.
The government has refused to publish the March 7 document. It was circulated to only a very few senior ministers. All Lord Goldsmith gave the cab inet was a later oral presentation of a parliamentary answer issued under his name on March 17.
This appears contrary to the official ministerial code, which states that the complete text of opinions by the government's law officers should be seen by the full cabinet.
On March 13 2003, Lord Goldsmith told Lord Falconer, then a Home Office minister, and Baroness Morgan, Mr Blair's director of political and government relations, that he believed an invasion would, after all, be legal without a new UN security council resolution, according to Mr Sands.
On March 17, in response to a question from Baroness Ramsay, a Labour peer, Lord Goldsmith stated that it was "plain" Iraq continued to be in material breach of UN resolution 1441.
"Plain to whom?' asks Mr Sands. It is clear, he says, that Lord Goldsmith's answer was "neither a summary nor a precis of any of the earlier advices which the attorney general had provided".
He adds: "The March 17 statement does not seem to have been accompanied by a formal and complete legal opinion or advice in the usual sense, whether written by the attorney general, or independently by a barrister retained by him".
Separately, the Guardian has learned that Lord Goldsmith told the inquiry into the use of intelligence in the run-up to war that his meeting with Lord Falconer and Baroness Morgan was an informal one. He did not know whether it was officially minuted.
Lord Goldsmith also made clear he did not draw up the March 17 written parliamentary answer. They "set out my view", he told the Butler inquiry, referring to Lord Falconer and Baroness Morgan.
Yet the following day, March 18, that answer was described in the Commons order paper as the attorney general's "opinion". During the debate, influential Labour backbenchers and the Conservative frontbench said it was an important factor behind their decision to vote for war.
Robin Cook, the former foreign secretary and leader of the Commons, yesterday described the Guardian's disclosure as alarming. "It dramatically reveals the extent to which the legal opinion on the war was the product of a political process." he said.
The case for seeing the attorney general's original advice was now overwhelming, Mr Cook added. "What was served up to parliament as the view of the attorney general turned out to be the view of two of the closest aides of the prime minister," he said.
Sir Menzies Campbell, the Liberal Democrat foreign affairs spokesman, said the government's position had been seriously undermined. "The substance of the attorney general's advice, and the process by which it was partially published, simply do not stand up to scrutiny," he said.
Sir Menzies added: "The issue is all the more serious since the government motion passed by the House of Commons on March 18 2003, endorsing military action against Iraq, was expressly based on that advice."
He continued: "The public interest, which the government claims justifies non-publication of the whole of the advice, can only be served now by the fullest disclosure."
Lord Goldsmith twice changed his view in the weeks up to the invasion. He wrote to Mr Blair on March 14 2003, saying it was "essential" that "strong evidence" existed that Iraq was still producing weapons of mass destruction.
The next day, the prime minister replied, saying: "This is to confirm it is indeed the prime minister's unequivocal view that Iraq is in further material breach of its obligations."
The same day, Lord Boyce got the unequivocal advice he says he was after in a two-line note from the attorney gen eral's office. The extent of concern among military chiefs is reflected by Gen Sir Mike Jackson, head of the army, quoted by Peter Hennessy, professor of contemporary history at Queen Mary College, London. "I spent a good deal of time recently in the Balkans making sure Milosevic was put behind bars," said Sir Mike. "I have no intention of ending up in the next cell to him in the Hague."
Mr Sands records that Lord Goldsmith visited Washington in February 2003 when he met John Bellinger, legal adviser to the White House National Security Council. An official later told Mr Sands: "We had trouble with your attorney, we got him there eventually."
A spokeswoman for Lord Goldsmith said yesterday: "The attorney has said on many occasions he is not going to discuss process issues". The March 17 parliamentary answer was the "attorney's own answer", she said adding that he would not discuss the processes of how the document was drawn up.
The Department for Constitutional Affairs said it could not say if Lord Falconer had a role in drawing up the answer.
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(fwd) Ministers defy call to end secrecy
Ombudsman attacks 'lamentable' failure to reveal financial interests of government members
David Leigh and Rob Evans
Thursday February 17, 2005
The government has been criticised for defying a freedom of information ruling that ministers should disclose their private financial interests.
Ann Abraham, the parliamentary ombudsman, brands the government's refusal to comply with her final finding "lamentable" and says she is "deeply disappointed" by ministers' behaviour.
In a strongly worded report to be published soon, she finds the government guilty of maladministration and lists instances of obstruction and defiance, laying the blame firmly at the door of the Cabinet Office, which is controlled by the prime minister.
Ministers have fought a four-year battle to hide their private interests. Financial or family connections can lead to them being banned by Whitehall from making certain decisions.
This kind of conflict led to the downfall of Peter Mandelson over his home loan and David Blunkett was forced to resign after failing to declare that his position as home secretary was being used to help his lover's nanny get a visa.
The ombudsman said the information should be released "not only for general reasons of good governance but to avoid any suspicion of improper ministerial influence".
As long ago as last October, she sent her final report to the government, ruling that ministers should disclose details of potential conflicts between their public duties and their private interests, stretching back to 1999.
Ministers are required to accept her recommendation within three weeks under a promise the government made, following previous rows, to stop obstructing her work.
But the government has refused to meet that promise. In her report she writes: "Despite a number of reminders, I am deeply disappointed that I have not received a substantive response to my recommendation."
She says the government's conduct of the case "has been lamentable ... and it is clear to me that responsibility for their joint shortcomings lies primarily with the Cabinet Office".
Mr Blair is one of those failing to release a list of financial interests.
Rejecting any right to secrecy, the ombudsman writes: "There is a very considerable degree of public interest in the way in which ministers conduct themselves and their business ... That public inter est in such matters has intensified in recent years in a climate where greater openness about conflicts between the public and private interests of ministers is increasingly seen as a desirable end in itself."
She criticises "the substantial lack of cooperation" with her investigation.
A complaint was originally lodged by the Guardian, which requested the facts in 2001 under the "open government" code. Ms Abraham was responsible for adjudicating freedom of information complaints until the relevant act came into force this year.
The Cabinet Office said: "This case raises a number of complex issues and is taking longer than we would wish."
The government was considering similar requests under the new act and planned to provide a full reply.
The Tories have complained that in the run-up to the expected general election ministers are perverting the Freedom of Information Act by rushing out historical documents damaging to Conservatives, such as the 1992 Black Wednesday papers, while clamping down on the release of files about the current government.
Maurice Frankel, director of the Campaign for Freedom of Information, said: "The government has got to bite the bullet and understand that this act is not just about releasing material about school admissions. It includes politically uncomfortable information as well."
In her report, the ombudsman says a minister would be justified in withholding only details "which were of a personal nature and which were deemed not to impinge on his ministerial duties".
New ministers are required to give a full list of their personal interests to a top civil servant, so that the official can advise them.
Lord Falconer, the constitutional affairs minister, had tried to stop the ombudsman even investigating the complaint. He signed a "gagging certificate" claiming disclosure could harm the "safety of the state or otherwise [be] contrary to the public interest".
The Guardian successfully contested the gag in the high court.
This week ministers also defied Ms Abraham's demand that they reveal the date on which they sought legal advice on invading Iraq.