Andrew Gilligan

Why did the Attorney General change his advice?

Andrew Gilligan can confirm, for the first time, that five months before the invasion of Iraq the Attorney General’s advice to the government was that regime change was illegal

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Andrew Gilligan can confirm, for the first time, that five months before the invasion of Iraq the Attorney General’s advice to the government was that regime change was illegal

Hasn’t it been an exciting few months to be a lawyer? Once they just sat quietly in offices with stripey wallpaper and dado rails, sending out the bills. Now almost every couple of weeks, it seems, they hold the fate of the government in their hands. Lord Hutton may have missed his big chance, but the newspapers have transferred their hopes to the almost equally improbable figure of the Attorney General, Lord Goldsmith, and his advice on the lawfulness of the war with Iraq. The tabloids are printing snatched pictures, not of white-trash pop starlets, but of the middle-aged former deputy legal adviser at the Foreign Office. The nation’s best-known legal luvvies are once again to be found in all major TV studios: Lord Lester of Herne Hill! Rabinder Singh QC! Baroness Kennedy of The Shaws! Everybody except Lord Goodman (at this point a colleague has reminded me that Lord Goodman is dead. That would explain it.)

The purpose of all the excitement is, of course, to discover what Lord Goldsmith’s legal advice was, and whether it changed in the run-up to the war. Was the Attorney General, shall we say, ‘subconsciously influenced’ to alter his judgment? The government is not telling. But today, for the first time, one of the people who worked closely with Lord Goldsmith before the invasion confirms on the record that his legal advice did indeed change, and did indeed become more favourable to war.

Michael Foster, the Labour MP for Hastings and Rye, was Lord Goldsmith’s parliamentary private secretary until the eve of the conflict, when he became one of several ministerial aides to resign in protest. He has now returned to the Attorney General’s side, and is once again serving as his PPS. This week Mr Foster told The Spectator that in late September 2002, five months before the outbreak of hostilities, Lord Goldsmith advised the government in clear terms that a war to topple Saddam Hussein would be illegal. ‘He was asked the question — would regime change be lawful per se, and he said no, it wouldn’t.’

Mr Foster insists that Lord Goldsmith’s advice that autumn was ‘independent’ of his later view, in March 2003, that a war of regime change would be legal after all. The difference, he says, is that in November 2002 the UN had passed a further resolution, 1441, offering Iraq a ‘final opportunity’ to disarm. Iraq had failed to comply. That failure ‘revived’ an earlier authorisation to use force under resolutions 687 and 678, 13 and 12 years old respectively, and passed in relation to the first Gulf war. ‘There were two different questions, two quite separate pieces of advice,’ he says. ‘The first question was, is regime change alone a legal ground for conflict; the answer’s no. But with the UN resolutions, together with the breach of Saddam in complying, was that legal? Answer, yes. He [Lord Goldsmith] was asked two separate questions on two separate occasions and he answered them.’

This does not, however, seem to be entirely the case. I understand that there were many elements in common between Lord Goldsmith’s two sets of advice. The autumn 2002 paper did say there were some circumstances under which military action was legal under resolutions 687 and 678 — for instance, with the bombing raids of 1993 and 1998. It also raised the prospect that force could be used to implement the new resolution then under discussion at the UN — the one that became resolution 1441. These arguments became the basis on which the Attorney General ruled in March that the war was legal. Critically, however, his advice in September was rather more equivocal.

Other sources familiar with the evolution of Lord Goldsmith’s legal thinking — not Mr Foster — say that the Attorney General provided further advice in writing at least twice in early 2003 before his final determination in March. This advice is described as ‘not bullish’ on the subject of whether 1441 was sufficient authority for action. One source characterised it as saying: ‘There is a perfectly decent argument that 1441 could justify the war. Here is the argument. But it is unlikely to succeed in court.’

That is certainly the view of the vast majority of international lawyers. Lord Alexander QC, a former chairman of the Bar Council, accused Lord Goldsmith of ‘scraping the bottom of the legal barrel’. To rely on a UN resolution passed in 1990 as the basis for a war in 2003, which the Security Council refused to authorise in 2003, was ‘risible’.

Did the Attorney General have any doubts on the eve of war that conflict would be legal without a second UN resolution? I asked Mr Foster. There was a short pause. ‘Well, I don’t know precisely. I mean, he didn’t — when he came to a decision, I was satisfied that what he said was robust and complete.... He’s the sort of individual who would not be cavalier about an advice of that nature. If he said it was lawful, he wouldn’t have compromised. I’ve no evidence that he was equivocal.’

Were there any nuances in his final advice? ‘Always remember that advice is comprehensive — it deals with issues that may not go to what lawyers call the ratio of the decision. And that’s why it would not be appropriate to publish an advice which contains perhaps other things that aren’t relevant to the decision, but may be relevant to all sorts of other confidential and security issues.’ What sort of things? ‘It may deal with relationships with third parties.’ The Americans? ‘I don’t know.’

Rather remarkably, Mr Foster says he still doesn’t know either whether Lord Goldsmith supported the war or not. ‘Remember the Attorney doesn’t decide on the justification of anything; he just decides on the legality of any course of action the government might choose to adopt. I made clear when I resigned that it wasn’t his legal advice which troubled me.... The Attorney has never expressed a view as far as I am aware on the [political] justification for war.’ What did he say to you when you resigned? ‘He respected my view. Not agreed with my view; he didn’t agree with me or disagree with me.’

If Mr Foster has cleared some of the mystery around Lord Goldsmith’s full views, an even better source is the Attorney General himself. By using the technique, almost lost to contemporary journalism, of examining closely everything which Lord Goldsmith has actually said, it is possible to establish some fairly clear pointers. And they do not bode entirely well for the government.

Only last week the Attorney General appeared to hint that his views had indeed changed. Speaking in the House of Lords after the dropping of the prosecution of Katharine Gun, the GCHQ whistleblower, he told peers (my italics): ‘At the time we started military action, it was my own considered and honest view that military action was lawful, based on the repeated failure of Saddam Hussein and his regime to comply with multiple United Nations resolutions.... I believe that was the position at the time we engaged in action. I believe today it was the correct legal position.’

More interesting still is Lord Goldsmith’s legal warning to the Prime Minister, written on 26 March 2003 and leaked in May, casting doubt on the lawfulness of the reconstruction of occupied Iraq without a new UN resolution. The obvious question arises: if the Attorney believed that merely rebuilding Iraq, a relatively benign undertaking, required a fresh and specific resolution of the UN, how could he say that invading it did not?

Best of all, however, is paragraph six of that same memorandum, unnoticed in the debate so far, which is the closest Lord Goldsmith has ever publicly come to disclosing one of his crucial caveats on the central question of the war. ‘As you know,’ he writes, ‘any military action pursuant to the authorisation in resolution 678 must be limited to what is necessary to achieve the objectives of that resolution, namely Iraqi disarmament, and must be a proportionate response to that objective’ (my italics). Was a full-scale war and wholesale regime change a proportionate response to the level of Iraq’s armament, and the scale of Iraq’s threat? What had Lord Goldsmith been told that persuaded him that regime change war was proportionate, as he had not believed before?

Sir Franklin Berman, a former chief legal adviser to the Foreign Office, believes that the issue of proportionality is indeed important. ‘I think inevitably proportionality does enter into the debate. The decision to commit the armed forces to a major conflict is a big decision; it raises the question of the strength of the analysis, both factual and legal, that is needed to justify action of this kind. In this case there is the additional question, if it is established, that there was Security Council authorisation for a further use of force, what force it was that the Security Council had authorised. We have never, to my recollection, been told how an arguable justification to use force on the UN Security Council’s behalf becomes transmuted into an entitlement to launch a full-scale attack with the declared aim of overthrowing the government of a sovereign state.’

The former foreign secretary, Lord Owen, has said that Iraq could be Tony Blair’s Suez. The legal comparisons between the two crises are instructive, if not exact. Anthony Eden, too, used his attorney general, Sir Reginald Manningham-Buller, as a human shield for the conflict’s legality. Only 30 years later did it emerge that Sir Reginald had actually warned that the Suez operation was illegal. Lord Goldsmith is not in this position; even his fiercest critics pay tribute to his integrity. But there is a clear view among international lawyers that some crucial element is missing from our knowledge. Somewhere along the line, the story does not stack up.

Downing Street’s argument that the law officers’ advice can never be disclosed may be good enough to fend off the press — at least until the next anti-war protester lands up in court. But it is historically shaky. The government has published its law officers’ advice at least five times in the past, most recently in the Factortame shipping case. The parliamentary rulebook, Erskine May, states explicitly that ‘if a Minister deems it expedient that such opinions be made known for the information of the House, he may cite them in debate’.

As with his arguments on WMD, the Prime Minister is impaled on a self-built hook. He might have been better off doing a President Bush, and asserting that the nebulous concept of international law wasn’t really terribly important. Instead, once again, Mr Blair has found himself defending a position which virtually no independent expert any longer supports.

It is a little-known fact that, in 1990, the then Peter Goldsmith QC took Baghdad’s shilling. He fought, in vain, to prevent the UK assets of the Iraqi Central Bank from being frozen after the invasion of Kuwait. The Attorney General now describes that case, which he was obliged to take under the rules of the Bar, as the low point of his career. It is to be hoped, for Tony Blair’s sake, that Lord Goldsmith’s latest foray into Iraq does not end up as another low, a late result for Saddam.

Andrew Gilligan is defence and diplomatic editor of The Spectator.