Clare Short / The Independent – 2005-03-30 23:38:44
http://comment.independent.co.uk/commentators/story.jsp?story=618099
LONDON (March 9, 2005) — Following the recent controversy about the Attorney General’s advice, I have gone over in detail the process by which he gave his advice on the legality of the war. I have concluded that he failed to comply with the Ministerial Code when giving his advice to the Cabinet and that he misled the Cabinet about his legal advice.
The Ministerial Code lays down that: “The Code should be read against the background of the overarching duty on Ministers to comply with the law, including international law and treaty obligations.”
When the Attorney came to the Cabinet on 17 March, the text of what purported to be his advice was distributed around the table. He began to read it out. There were murmurings indicating that he did not need to read it as members of the Cabinet could read it for themselves. I then attempted to initiate a discussion. I asked why it was so late and whether he had changed his mind. No discussion was allowed. The paper he provided was then published as an answer to a parliamentary question.
I was very surprised by the advice, but I accepted it as the official and authoritative advice of the Attorney. I said at the time: “The Attorney General has made clear that military action would be legal under international law. Other lawyers have expressed contrary opinions.
But for the UK Government, the Civil Service and the military, it is the view of the Attorney General that matters and this is unequivocal.” But I am afraid that the advice was not, in truth, unequivocal. It had been hedged around with qualifications. But none of this was revealed to the Cabinet or to Parliament.
The Butler Report
The evidence provided by the Butler report shows that he was not wholly honest with the Cabinet. The report provides details of the complex process through which his advice developed.
Butler tells us that prior to the adoption of UN Resolution 1441 the Attorney concluded that “there would be no justification for the use of force against Iraq on the grounds of self-defence against imminent threat”.
The Butler report confirms what I heard from my officials that after the passage of 1441 and following disagreement among Foreign Office legal advisers, all concerned agreed that the final word would belong to the Attorney.
Butler also tells us that in the weeks following the adoption of the resolution, the Attorney General had a number of discussions with the Prime Minister and Foreign Secretary about whether 1441 was sufficient to authorise the use of force, and that he talked with our ambassador to the UN and in February 2003 met members of the US administration.
Butler says that he informed the Prime Minister’s advisers of his view at a meeting on 28 February 2003 and that his office asked him to put these views in writing, which he did in a formal Minute to the Prime Minister on 7 March 2003. None of these exchanges or the content of the minute were reported to the Cabinet.
This is very significant because the Attorney failed to share his concerns with the Cabinet and to describe how he came to be persuaded of the legality of war.
Butler informs us that his minute required the Prime Minister, in the absence of a further UN Security Council resolution, to be satisfied that there were “strong factual grounds for concluding that Iraq had failed to take the final opportunity to comply with its disarmament obligations under relevant resolutions of the Security Council and that it was possible to demonstrate hard evidence of non-compliance and non-co-operation with the requirements of Security Council Resolution 1441, so as to justify the conclusion that Iraq was in further material breach of its obligations”.
Information Was Kept from the Cabinet
All of this was kept from the Cabinet, although at this time I was reading telegrams of Dr Blix’s reports to the Security Council indicating increased co-operation from the Iraqi regime. Butler tells us that on the basis of the Attorney’s advice, military campaign objectives were drawn up, making it clear that the objective was to bring about Iraq’s disarmament in accordance with its obligations under UN Security Council resolutions.
Butler tells us that the Attorney then informed Lord Falconer and Sally Morgan at a meeting on 13 March that in his view it was lawful under Resolution 1441 to use force without a further UN resolution, but on 14 March, after the breakdown of negotiations at the UN, his Legal Secretary wrote to the Prime Minister’s Private Secretary seeking confirmation that “it is unequivocally the Prime Minister’s view that Iraq was in material breach of its obligations under 1441”.
The Prime Minister so confirmed, and the Butler inquiry was informed that the Prime Minister relied on intelligence and other sources including Unmovic information. None of this was reported to Cabinet and it is notable that the Prime Minister was reaching dubious conclusions about factual questions without any Cabinet discussion. I was at the time reading accounts of Unmovic’s reports which did not point to this conclusion.
I have therefore made a complaint under paragraphs 22 and 23 of the Ministerial Code. Paragraph 23 provides that “When advice from the Law Officers is included in correspondence between Ministers, or in papers for the Cabinet or Ministerial Committees, the conclusions may if necessary be summarised, but if this is done, the complete text of the advice should be attached.”
My view is now that by failing to reveal his full legal advice and the considerations that underpinned his final advice, the Attorney misled the Cabinet and therefore helped obtain support for military action improperly. This is a very serious matter in relation to the war in Iraq, the integrity of his office, his own integrity and the proper working of UK constitutional arrangements.
The Right Honourable Clare Short, a British Labour Party politician, was Secretary of State for International Development in the Blair government from May 2, 1997 until her resignation on May 12, 2003.
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