An opinion from counsel is just that and no more – an "opinion". With many legal problems there is no black and white solution. The opinion expressed may depend on the facts of the case, and in some cases it is necessary to resolve differences between the judgments in other relevant cases.
As Attorney General, Lord Goldsmith was asked to advise the Government on the legality of invading Iraq without a second UN resolution. He ended up giving two opinions, a few days apart.
His first opinion was that this was a difficult area of the law and it would be safer to obtain a second UN resolution. There was nothing which stated that in no circumstances should the invasion take place. And there was nothing which stated in clear terms that even without a second resolution the invasion could be lawful.
There were clear warning bells which most experienced counsel would recognise with respect to the request for a further opinion.
It was a rush – the military at the highest level wanted a decision within the next few days. Things can always go wrong when counsel are placed under such pressure.
There was another complication. The two most senior lawyers in the Foreign Office, who were familiar with international law, had reached the clear decision that without the second resolution the invasion would be unlawful.
There was a clash of opinion at the highest level. The lives of thousands, as well as this country's relationship with its greatest ally, would depend on the outcome.
Where there is such a clash the matter is not resolved simply by taking the advice of the most senior counsel – particularly in a case like this, which was concerned with the highly specialised area of international law. It is probable that Foreign Office lawyers had greater experience of international law than Lord Goldsmith, whose main experience lay in commercial law. The obvious course to take was to obtain a second opinion from a Queen's Counsel who was a specialist in international law. There are several such experts.
In the case of such an important decision, counsel should refuse to give a final view until a second opinion is obtained. It is quite possible that a specialist QC could produce an opinion at short notice, and this is the course which should have been taken.
Where counsel has given an opinion but has since changed his mind, it is important that the reasons for the change are properly explained. The features of the first opinion which are no longer relied upon must also be explained.
After the opinion from the second QC has been obtained, it is for the client to make the final decision. In this case, however, given the pressure of circumstances and time, and the weight of the opinions expressed, most reasonable clients would probably have taken the safest course and decided that a second resolution was necessary before invading.
In his evidence the Attorney General now maintains that he changed his mind after discussion with US and UK diplomats, but the issue in fact depended on the wording of resolution 1441. The view being advanced by the Attorney General does not seem to have been accepted by the majority at the UN when the resolution was discussed.
Anthony Scrivener QC defended Saddam Hussein against the mass murder charges for which he was executedReuse content