Following much speculation an extract of the Attorney General Lord Goldsmith's legal advice to the Prime Minister on March 7th 2003 concerning the legality of the war has been leaked to Channel Four. Tony Blair has previously refused all demands to publish the advice, leading to much suspicion that Goldsmith's confidential advice questioned the legality of the war. This secret advice was not even shown to other cabinet members at the time.

In the leaked extract Lord Goldsmith can only be described as definitively nailing his colours to the fence. This is strange, considering that ten days later he presented an unequivocal case for the legality of the war to Parliament, stating that "authority to use force against Iraq exists from the combined effects of [UN] resolutions 678, 687 and 1441.”.

The leaked statement is as follows. I have emphasised in bold the key statements as I see them. The non-italicised inserts are my comments:-

26. To sum up, the language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the [UN Security] Council as to the legal effect of the resolution. Arguments can be made on both sides. A key question is whether there is in truth a need for an assessment of whether Iraq’s conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 [Operative Paragraph 4] such that the basis of the cease-fire is destroyed. If an assessment is needed of that situation, it would be for the Council to make it. A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has predetermined the issue. Public statements, on the other hand, say otherwise.

27. In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force.
[...]
The key point is that it should establish that the Council has concluded that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.

28. Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.

29. However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider very carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity. [On the day that this advice was given Hans Blix reported to the UN that progress had made with the Iraqis, who were co-operating fully with the weapons inspectors]

30. In reaching my conclusion, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a “reasonable case” does not mean that if the matter ever came before a court I would be confident that the court would agree with the view.

I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained. [That's cleared that up then...]

However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and Parliamentary scrutiny of the legal issue was nothing as great as it is today.

31. The analysis set out above applies whether a second resolution fails to be adopted because of a lack of votes or because it is vetoed. As I have said before, I do not believe that there is any basis in law for arguing that there is an implied condition of reasonableness which can be read into the power of veto conferred on the permanent members of the Security Council by the UN Charter. So there are no grounds for arguing that an “unreasonable veto” would entitle us to proceed on the basis of a presumed Security Council authorisation. In any event, if the majority of world opinion remains opposed to military action, it is likely to be difficult on the facts to categorise a French veto as “unreasonable“[So that blows that particular excuse out of the water]. The legal analysis may, however, be affected by the course of events over the next week or so, eg, the discussions on the draft second resolution. If we fail to achieve the adoption of a second resolution we would need to consider urgently at that stage the strength of our legal case in the light of circumstances at the time.


The reason all this is important now is not so much to do with whether one agrees with the war or not, but whether one cares about Parliamentary probity. On the day of the Iraq war debate in Parliament there were serious doubts as to whether the motion would be passed. Many Labour MPs were convinced to vote in favour of the war on the back of promises from the Prime Minister that the case for war was not in doubt, both in terms of the evidence of a clear and present threat and in terms of its legality. Following exhaustive investigations it has been shown that the first claim was, if not based on lies, at least based on unreliable intelligence bolstered by government spin. Today's revelation now indicates that MP's would appear to have been left in the dark on the legality issue as well. If the Attorney General's doubts had been in the public domain at this time it is very likely that the motion in favour of the war would not have been passed. This would most likely have led to Tony Blair's resignation and thrown the whole issue of the war into question.

Is it coincidence that today the Conservatives have started their "Tony Blair lied about the War" poster campaign today? Is it coincidence that the Charles Kennedy has said today that he wouldn't use the word "Liar", but instead demanded the publication of the Attorney General's advice in order to clear the matter up? If so, it's a very handy coincidence for the opposition parties. The big question now is how many people care enough to change the way they'll vote. There could be some life in this election campaign yet.