11 days that led Britain to war

Each drip of information about the legal advice behind the Government's decision to commit Britain to the invasion of Iraq has only fuelled suspicions about the road to war, say Raymond Whitaker and James Hanning. But each attempt by Downing Street to block the release of any documents moves the focus from the Attorney General and back to the doors of No 10, where the fateful decisions were taken
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Indy Politics

Jack Straw has emerged remarkably unscathed from all the inquests into the Iraq war, despite having served as a senior Labour cabinet minister since 1997. He was not called to give evidence to the Hutton inquiry into the death of David Kelly and, although he did appear before the Butler inquiry into intelligence failures before the war, that was behind closed doors.

Jack Straw has emerged remarkably unscathed from all the inquests into the Iraq war, despite having served as a senior Labour cabinet minister since 1997. He was not called to give evidence to the Hutton inquiry into the death of David Kelly and, although he did appear before the Butler inquiry into intelligence failures before the war, that was behind closed doors.

So the Foreign Secretary must have been rather bemused to find himself at the dispatch box in the House of Commons on Thursday, more than two years after the start of hostilities in Iraq, still trying to damp down the fires of speculation over how we were led into war. Not only has the Government failed to dispel suspicions that it misused intelligence about Saddam Hussein's alleged weapons of mass destruction to make the case for attacking Iraq, but a new conflagration has sprung up over the legality of the war. The more information that emerges about both issues, the clearer it becomes that they are intertwined.

Earlier this month a book by Philippe Sands QC, an international lawyer in Cherie Booth's Matrix chambers, charged that the Attorney General, Lord Goldsmith, changed his legal advice on the eve of war. Last week's disclosure of the resignation letter of Elizabeth Wilmshurst, who quit as deputy legal adviser to the Foreign Office the day before the conflict began, forced Mr Straw to admit that Professor Sands was right.

The resulting controversy has focused attention on an 11-day period in March 2003, when Lord Goldsmith twice put his legal advice in writing. The first document, dated 7 March and seen by only a handful of ministers and officials, was 13 pages long. It is reported to have argued that the case for war might not stand up in court. The second, circulated to the Cabinet on 17 March and published as a parliamentary answer the same day, consisted of only 337 words in nine paragraphs. It declared unequivocally that the war was legal. What happened in that period to bring about such a transformation? The search for the answer has led to persistent demands that the first document should be made public: resisting those pressures was what brought Mr Straw to the Commons on Maundy Thursday.

Since her resignation Ms Wilmshurst has kept her counsel, apart from a statement making it clear that she considered the war illegal. The parts of her letter released under the Freedom of Information Act put it more strongly - she called the war a "crime of aggression" - but the most crucial paragraph was blacked out. Not for long: within hours Channel 4 News revealed that it said Lord Goldsmith "gave us [the Foreign Office legal team] to understand" that he agreed war would be illegal without a new resolution by the UN Security Council.

In fact the Attorney General had already told Downing Street advisers on 28 February 2003 that his views were shifting, and he was asked to put them in writing, which he did on 7 March. That was when Ms Wilmshurst and her colleagues found out about the change.

But the most devastating sentence of her letter - clearly the reason the Government wanted to censor it - was the final portion of the blacked-out paragraph, which said that since 7 March the legal view of the Attorney General "has of course changed again into what is now the official line". Ms Wilmshurst was one of the few people to have seen both of Lord Goldsmith's pronouncements: this confirmed widely held suspicions that at the moment it became clear the Security Council would not endorse war, he altered his long-held views to declare that no such endorsement was necessary.

In parliamentary terms Mr Straw made a masterly job of defending this muddle, accusing his opponents of creating a smokescreen while deploying one of his own. Lord Goldsmith had changed his advice because the facts had changed, he argued, relying on the hotly disputed claim that France had threatened to veto any new UN resolution.

Mr Straw's main line of defence was the principle that legal advice to the Government is never disclosed, although there are one or two precedents for doing so. But his stance was weakened by the redaction in Ms Wilmshurst's resignation letter: once the contents of the blacked-out paragraph became known, few would accept that it had been deleted for anything but political reasons. As for wider issues, "if anyone had concerns about the legal basis for the war, Mr Straw did not answer them," said Sir Stephen Wall, who until last year was Tony Blair's European affairs adviser.

Sir Stephen is among those who believe that Lord Goldsmith can only dispel the suspicion that he changed his advice to suit the politics by publishing his advice. "Given the doubts, the Attorney General is the only person who can answer them," he said.

The more we learn about events between 7 March and 17 March 2003, the more doubts there are. It is clear that as war approached and efforts to get a second resolution through the Security Council became ever more frantic, there were repeated consultations between Lord Goldsmith and No 10. Most attention has focused on a meeting he had there with Lord Falconer and Baroness Morgan on 13 March, the day after Admiral Sir Michael Boyce, the chief of the defence staff, had demanded a clear answer on whether the war would be legal.

The Attorney General told the Prime Minister's two advisers that he had come to the "clear view" that war would be legal under UN resolution 1441, passed the previous November, and other resolutions dating back to the first Gulf war. The timing appeared all too convenient - but Lord Goldsmith was also at Downing Street two days earlier, on 11 March. What was he doing there, and who was he seeing? At that afternoon's press briefing, the Prime Minister's spokesman refused to say.

On 14 March there was another indication that Lord Goldsmith was working to a political timetable rather than a legal one: his new "clear view" that the war was legal was conveyed to the Ministry of Defence, apparently in response to the concerns expressed by Sir Michael. But the Attorney General made it clear that his view would only be valid if Iraq was in continuing "material breach" of UN resolutions - ie, was hiding WMD - and on the same day he sought confirmation from No 10 that this was so.

The Prime Minister's private secretary wrote back on 15 March to supply the required confirmation - based, we now know, on faulty intelligence. Lord Goldsmith's officers passed this on to the MoD. Why the Attorney General did not wait until he was sure of his ground before giving military chiefs the answer they were seeking is another mystery in the affair.

Last week a parliamentary answer also produced the information that on 13 March, Christopher Greenwood QC was retained to advise the Attorney General on legal issues connected to the war. Professor Greenwood was almost the only leading international lawyer who believed that even Resolution 1441 was not needed to justify a war, views he explained to the Commons Foreign Affairs Committee the previous October, before it was passed. The final document Lord Goldsmith produced on 17 March was more or less a summary of the memorandum presented to the FAC.

But even an authority as hawkish as this academic insisted that all peaceful means had to be exhausted before war was justified as a last resort, the Liberal Democrats have pointed out. "This flies in the face of the British Government's decision to take military action when there was still mileage in the UN inspection process under Dr Hans Blix," said the party's foreign affairs spokesman, Sir Menzies Campbell. No such qualifications were welcome in the days leading up to the war, however.

Lord Goldsmith's defenders insist that he is being blamed for the failings of others. "Like everyone else, I assume that he gave Blair the advice he needed," said a former Foreign Office minister. "The reality was that Blair had already decided on war. If Goldsmith had not conformed, he would have been sacked and a new Attorney General appointed."

A well-placed authority sympathetic to Lord Goldsmith agreed, saying: "You have to remember that the Prime Minister sees all the intelligence, everything, and he was the one who reassured Peter that Saddam was guilty of repeated breaches."

Almost unnoticed in last week's turmoil was the Government's response to last year's Butler report. In what Downing Street probably hoped would be the last words it would ever have to utter on the subject, it promised that it would handle intelligence more carefully in the future, and would change Mr Blair's style of "sofa government" to ensure that future meetings were minuted and civil servants kept in the loop.

But a former head of the Joint Intelligence Committee dismissed the changes, saying: "Any government that wants to manipulate the intelligence as shamelessly as this one did will find a way to bypass procedures. What went wrong was not an aberration of the system - the problem is Blair."