Philippe Sands: The smoking 'squib'

The Prime Minister called the revelations about the Attorney General's war advice a damp squib. But they raise concerns of the gravest constitutional significance

The publication of the Attorney General's 7 March 2003 legal advice to the Prime Minister is significant for two reasons: first, for what it tells us about the legality of the war, and second, for what it shows about decision-making processes in the Government of Tony Blair.

The publication of the Attorney General's 7 March 2003 legal advice to the Prime Minister is significant for two reasons: first, for what it tells us about the legality of the war, and second, for what it shows about decision-making processes in the Government of Tony Blair.

On legality, the 7 March document confirms that the only formal written legal advice from Lord Goldsmith was to the effect that war without explicit Security Council authorisation was no more than "reasonably arguable". Moreover, it also seems to say that if the matter were ever to come to a court, it is more likely than not that the Government would lose. I have always thought that the arguments for the legality of the war were far, far weaker than even this advice allows. But I accept that the 7 March advice is a balanced and reasonable document that sets out the issues in a proper and fair way and reaches a plausible conclusion. It is not, however, a green light for war. I can see why the military would have taken one look at this document and concluded that it would not be willing to go to war on such a shaky legal foundation. That is why the document could not be shown to the Cabinet or to Parliament.

On process, publication of the full document establishes that there was indeed a huge gap between the Attorney General's 7 March advice and the 17 March "view" that he set out in the answer to a parliamentary question. The advice is equivocal and replete with important caveats. The parliamentary answer, on the other hand, is clear and unambiguous. The second document obviously reflects a wholly different view from the first. The two documents describe very different consequences if the Government were to proceed to war without a second Security Council resolution.

By way of example: on 17 March the Attorney General unequivocally told the House of Lords that "a material breach of Resolution 687 revives the authority to use force under Resolution 678". But only 10 days earlier he would go no further than accept that a "reasonable case" could be made that resolution 1441 could "in principle" revive the authorisation to attack Iraq.

For any minister to say - as has been said at the very highest levels of government - that this does not amount to a change of view is to enter Orwellian territory. Now that we know there was a change, the crucial question is: why did it occur? On the answer to that question now hinge the reputations of the Attorney General and the Prime Minister.

The change could have occurred because there was some new fact, or because the views on the law had become that much clearer, or because of extraneous pressures.

No new legal argument emerged in the 10-day period. In fact, as this newspaper reports today, the Prime Minister would have been aware of the Foreign Office legal advisers' concerns more than a year before the war began. No barrister I have spoken to within the past few days believes it possible that the raft of caveats could simply have melted away to reveal a final view of so high a degree of certainty. What possible new fact might have emerged?

In Parliament, Jack Straw argued last month that the crucial new fact was the collapse of the negotiations for a second resolution. This is a particularly hopeless bootstraps argument: it says, in effect, that we didn't need a second resolution because we couldn't get one. No one has bought that claim, and it is now abandoned.

A second possible new fact is the emergence of evidence that would allow the Government to conclude unequivocally that Iraq was not complying with its obligations under 1441 or co-operating with the UN weapons inspectors. On this issue, the change between the two documents is enormous, and it has rightly been focused on. In his 17 March statement, the Attorney General says that it is "plain" that Iraq has failed to comply. But only 10 days earlier he had cautioned the Prime Minister "to consider very carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling". This strongly suggests that he did not consider that the material then available was "sufficiently compelling".

What new evidence emerged between 7 and 17 March? As far as we know, there was none which could support the case for war. On 7 March, Hans Blix reported that although Iraqi co-operation was not complete, it was accelerating. The Attorney describes Mr Blix's views as "highly significant", yet it is clear that those views were ignored by the Prime Minister. Blix himself told us last week that it could not be said that the evidence of Iraqi non-compliance was "compelling", even if it existed at all. And the Joint Intelligence Committee had not been asked by the Prime Minister to assess anything after 18 December 2002. The Butler report was pointed in its criticism of this failure.

A third possible new fact has been raised by the Attorney General's claim, late last Wednesday evening. His statement said that that the military and the Civil Service "needed me to express a clear and simple view whether military action was lawful or not". Faced with this request, the Attorney General could have declined to go any further, on the grounds that the issues raised were complex and not capable of being refined by stripping out the essential caveats. Or he could have given a confidential and private response, which was not made available to the Cabinet or to Parliament. Yet he chose another route, acceding to a request to answer a Parliamentary Question. He did not have to answer it. Or he could have answered it by providing a copy of the summary set out in paragraphs 26-31 of his advice. Instead, he set out a truncated response that did no more than answer the question: what is the best possible legal argument for a war in Iraq without a second Security Council resolution?

This is what has now got him and the Prime Minister into their present difficulties. The answer to the parliamentary question is misleading because it aimed to create the impression that war was clearly and unambiguously lawful. The parliamentary answer was an instrument of persuasion, in the same category as the dubious dossiers on weapons of mass destruction.

The publication of the real legal advice - the 7 March document - makes that clear. The fact that the Prime Minister was willing to play so fast and loose with the presentation of legal advice - and the fact that the Attorney General was willing to go along - raises concerns of the greatest constitutional significance. Surely the Government will not want this issue to drag on into the next parliament. To avoid that, it should commit itself to a proper and full explanation of what happened during those 10 days.

Philippe Sands QC is professor of law at University College London and author of 'Lawless World' (Allen Lane)