The Sketch: Legality is what the best lawyer says it is

'Taking instructions from the PM' means the opposite of what it means in normal life

I've consulted enough QCs in my litigious life to know how to find out how good your case is. You brief them with your opponent's case as if it were your own. The advice comes back very unfavourably to your own interest. When you explain the situation, the QC then comes to "the better view" and he gets the business.

Through most of the year before the war, Lord Goldsmith believed a second resolution was needed to legalise war. At the last minute he "considered the true meaning of 1441" and by great good fortune for his client, the Prime Minister, this "better view" provided the justification that was wanted.

Between Resolutions 1441, 687, 678 and 1205 there was enough room to reach any conclusion – and if Lord Goldsmith had been working for Beijing he would doubtless have come to "an even better view".

Roderick Lyne asked what would have happened to Tony Blair if he, the Attorney General, had declared that war would be illegal.

Goldsmith declared that such consequences carried no weight with him. They were not legal questions. The crucial thing was "the correct legal view". Yes, that was the right answer. And who is to say he wasn't telling the truth? You? Me? Prove it.

We can't because we'd need to argue the case, and to do that we'd need words, and we'd also want them to mean certain things. But they won't. They'll mean what Lord Goldsmith wants them to mean.

What does "take instructions from the Prime Minister" mean? The opposite of what the words mean in normal life. Less technically, what does "consider" mean? It seems simple but we have vulgar minds. Goldsmith said: "There were at least three different interpretations of 'We will meet again to consider' – actually, four." And if you threw another £100,000 of legal exegesis at it you could find half a dozen more meanings.

The resolution that the Foreign Office legal head, Sir Michael Wood, said was "clear" was so freaked with ambiguities it could mean what the French or what the US wanted it to mean. Two entirely different things.

When Goldsmith couldn't make the resolution's words mean what he wanted he retired to new ground – the intention of the people who had written them. Private conversations with our negotiators – unwitnessed and unrecorded – persuaded him that the French had been defeated and knew they'd been defeated.

At one moment he's down at an almost quantum level with the wording; the next he's outside the perimeter fence looking in at the compound where the negotiations are taking place. No one has the agility, the scale, the largeness of mind, to follow him from one end of this spectrum to the other.

Legality is what the best lawyer says it is.

simoncarr@sketch.sc

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