Advice on the legal basis for military action

¶431. The Inquiry has reviewed the debate that took place within the Government and how it reached its decision.

¶432. The circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory.

¶433. It was not until 13 March 2003 that Lord Goldsmith advised that there was, on balance, a secure legal basis for military action.

¶434. In the letter of 14 March 2003 from Lord Goldsmith's office to No.10, which is addressed in Section 5 of the Report, Mr Blair was told that an essential ingredient of the legal basis was that he, himself, should be satisfied of the fact that Iraq was in breach of resolution 1441.

¶435. In accordance with that advice, it was Mr Blair who decided that, so far as the UK was concerned, Iraq was and remained in breach of resolution 1441.

¶436. Apart from No.10's response to the letter of 14 March, sent the following day, in terms that can only be described as perfunctory, no formal record was made of that decision and the precise grounds on which it was made remain unclear.

¶437. The Inquiry was told, and it accepts, that it would have been possible at that stage for the UK Government to have decided not to go ahead with military action if it had been necessary to make a decision to do so; or if the House of Commons on 18 March had voted against the Government.

¶438. Although, when resolution 1441 was adopted, there was unanimous support for a rigorous inspections and monitoring regime backed by the threat of military force as the means to disarm Iraq, there was no such consensus in the Security Council in March 2003. If the matter had been left to the Security Council to decide, military action might have been postponed and, possibly, avoided.

¶439. The Charter of the United Nations vests responsibility for the maintenance of peace and security in the Security Council. The UK Government was claiming to act on behalf of the international community "to uphold the authority of the Security Council", knowing that it did not have a majority in the Security Council in support of its actions. In those circumstances, the UK's actions undermined the authority of the Security Council.

¶440. A determination by the Security Council on whether Iraq was in fact in material breach of resolution 1441 would have furthered the UK's aspiration to uphold the authority of the Council.

¶The timing of Lord Goldsmith's advice on the interpretation of resolution 1441 441. Following the adoption of resolution 1441, a decision was taken to delay the receipt of formal advice from Lord Goldsmith.

¶442. On 11 November 2002, Mr Powell told Lord Goldsmith that there should be a meeting some time before Christmas to discuss the legal position.

¶443. On 9 December, formal "instructions" to provide advice were sent to Lord Goldsmith. They were sent by the FCO on behalf of the FCO and the MOD as well as No.10.

¶444. The instructions made it clear that Lord Goldsmith should not provide an immediate response.

¶445. When Lord Goldsmith met Mr Powell, Sir David Manning and Baroness Morgan (Director of Political and Government Relations to the Prime Minister) on 19 December, he was told that he was not, at that stage, being asked for his advice; and that, when he was, it would be helpful for him to discuss a draft with Mr Blair in the first instance.

¶446. Until 7 March 2003, Mr Blair and Mr Powell asked that Lord Goldsmith's views on the legal effect of resolution 1441 should be tightly held and not shared with Ministerial colleagues without No.10's permission.

¶447. Lord Goldsmith agreed that approach.

¶448. Lord Goldsmith provided draft advice to Mr Blair on 14 January 2003. As instructed he did not, at that time, provide a copy of his advice to Mr Straw or to Mr Hoon.

¶449. Although Lord Goldsmith was invited to attend Cabinet on 16 January, there was no discussion of Lord Goldsmith's views.

¶450. Mr Straw was aware, in general terms, of Lord Goldsmith's position but he was not provided with a copy of Lord Goldsmith's draft advice before Cabinet on 16 January. He did not read it until at least two weeks later.

¶451. The draft advice of 14 January should have been provided to Mr Straw, Mr Hoon and the Cabinet Secretary, all of whose responsibilities were directly engaged.

¶452. Lord Goldsmith provided Mr Blair with further advice on 30 January. It was not seen by anyone outside No.10.

¶453. Lord Goldsmith discussed the negotiating history of resolution 1441 with Mr Straw, Sir Jeremy Greenstock, with White House officials and the State Department's Legal Advisers. They argued that resolution 1441 could be interpreted as not requiring a second resolution. The US Government's position was that it would not have agreed to resolution 1441 had its terms required one.

¶454. When Lord Goldsmith met No.10 officials on 27 February, he told them that he had reached the view that a "reasonable case" could be made that resolution 1441 was capable of reviving the authorisation to use force in resolution 678 (1990) without a further resolution, if there were strong factual grounds for concluding that Iraq had failed to take the final opportunity offered by resolution 1441.

¶455. Until that time, No.10 could not have been sure that Lord Goldsmith would advise that there was a basis on which military action against Iraq could be taken in the absence of a further decision of the Security Council.

¶456. In the absence of Lord Goldsmith's formal advice, uncertainties about the circumstances in which the UK would be able to participate in military action continued, although the possibility of a second resolution remained.

¶457. Lord Goldsmith provided formal written advice on 7 March.