Philippe Sands: So what was the real Iraq advice?

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Bit by bit a fuller picture is emerging as to the circumstances in which the legal advice on the war in Iraq was received and acted upon. During the course of the past week, contributions by the Prime Minister and the Cabinet Secretary, Sir Andrew Turnbull, have provided more information, but without providing a greater degree of reassurance as to the integrity of governance.

Bit by bit a fuller picture is emerging as to the circumstances in which the legal advice on the war in Iraq was received and acted upon. During the course of the past week, contributions by the Prime Minister and the Cabinet Secretary, Sir Andrew Turnbull, have provided more information, but without providing a greater degree of reassurance as to the integrity of governance.

In my book Lawless World, I set out the circumstances in which the Attorney General gave equivocal legal advice on 7 March 2003, in a 13-page minute to the Prime Minister. This indicated that it would be safer to have a second UN Security Council resolution that clearly authorised the use of force. It also recognised that without a second resolution the use of force against Iraq could be found to be illegal by an international court. Just 10 days later, the Attorney General set out a different view in an answer to a parliamentary question. This presented an unequivocal view that force would be lawful without a second resolution.

Last Thursday, under questioning from the Labour chairman of the Public Administration Committee, Sir Andrew is reported to have stated that the answer to the parliamentary question was the "definitive statement" of the Attorney General's views. Even more significantly, he reportedly told the Committee: "There is not a longer version of that advice. There is no other version." This appears to confirm - for the first time - that the Attorney General never revised in writing the formal legal advice he gave to the Prime Minister on 7 March 2003.

If this account is correct, then it would appear that Britain went to war without the Attorney General having given written and formal legal advice that fully supported the view set out in the answer to the parliamentary question. A further statement from the Prime Minister seemed to confirm that the Attorney General's final advice was given only orally and never reduced into writing. That would be truly astonishing, reflecting adversely on the conduct of government in this country.

Equally important is the lateness of the Attorney General's advice. On Friday The Independent reported Sir Andrew as having indicated to the Public Accounts Committee that there was not enough time for Lord Goldsmith to prepare a fuller statement because it was required quickly, when it became clear there would be no second resolution in the Security Council. That claim is hopeless.

The legal questions on which the Attorney General had to advise were whether the authorisation to use force against Iraq under Security Council resolutions 678 and 687 could revive on a material breach by Iraq of its WMD obligations, and if so whether the determination of a material breach was a matter for the Security Council or Britain and the US alone. Those questions could have been answered at any time after resolution 1441 had been adopted, in November 2002. They could have been answered in January or February 2003, as I understand the Foreign Office legal advisers wanted.

For reasons unknown, the Prime Minister chose to wait until the last possible moment to ask his Attorney General to give formal written advice, when British troops were already amassed on Iraq's borders. The Prime Minister must take responsibility for having left it so late. There can be no justification for any claim, as Sir Andrew appears to have done, that the Attorney General may have run out of time.

The Prime Minister needs to clarify the facts and bring an end to the confusion surround his government's various accounts of the circumstances in which legal advice, or opinion, or views were given and acted upon. In the public interest, he should publish all the advice in full. Further delay serves only to undermine trust and confidence in his government.

Philippe Sands QC is Professor of Laws at University College London and author of Lawless World: America and the Making and Breaking of Global Rules

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