Government ordered to reveal Iraq legal advice

Law Editor,Robert Verkaik
Monday 01 February 2010 01:00

The Government's most senior legal advisers broke the law by refusing to tell The Independent who was given crucial advice about the treatment of prisoners during the war in Iraq, the Freedom of Information watchdog has ruled.

Baroness Scotland and her predecessor Lord Goldsmith twice breached Labour's flagship right-to-know legislation in refusing to say who was briefed on the application of the Human Rights Act in the run up to the war. Human rights lawyers now want the Chilcot inquiry to consider the effect of Lord Goldsmith's advice after the start of conflict in 2003.

Baroness Scotland, the Government's most senior legal adviser, has been ordered by the Information Commissioner to tell The Independent whether the Army, the Foreign Office and the Ministry of Defence were warned about human rights laws.

The question of what advice was given and to whom is deemed essential by human rights groups, who have argued that the advice may have helped create a culture of abuse in detention centres.

In 2007 the first British soldier convicted of a war crime was jailed for a year and dismissed from the Army after being convicted of mistreating Iraqi civilians, including the hotel worker Baha Mousa, who died of his injuries at the hands of British soldiers. Today the MoD is investigating 47 more allegations of torture and abuse in relation to operations in Iraq.

The Deputy Information Commissioner, Graham Smith, ruled that while the actual advice should not be disclosed, it was in the public interest for the Attorney General to confirm who received it. He also said that by taking nearly six months to respond to The Independent's request, the Attorney General had breached the Information Act. Under the legislation she should have replied in 20 working days.

Mr Smith said: "There is a clear public interest in knowing whether the advice which the Attorney General [gave] was ... disseminated to the bodies that would have had the greatest need for [it], i.e. the MoD, FCO and Armed Forces. It could [also] be argued that any failure to communicate such advice should be revealed ... to ensure transparency of what could be seen as flaws in the Government's decision-making process."

Baroness Scotland now has 35 days toact. A spokesman said that she was still considering the ruling.

When The Independent first reported the existence of Lord Goldsmith's human rights advice in 2007, he wrote to the paper saying it was wrong to "assert that I advised that the rights of detainees in Iraq could be ignored". But human rights lawyers argue that correspondence suggests the legal advice did not offer the highest standards of protection to captured Iraqis. Last week Lord Goldsmith told the Chilcot inquiry that his advice on the legality of war had changed just weeks before the conflict began.

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