Lord Goldsmith's advice of 7 March 2003

¶458. Lord Goldsmith's formal advice of 7 March set out alternative interpretations of the legal effect of resolution 1441. He concluded that the safer route would be to seek a second resolution, and he set out the ways in which, in the absence of a second resolution, the matter might be brought before a court. Lord Goldsmith identified a key question to be whether or not there was a need for an assessment of whether Iraq's conduct constituted a failure to take the final opportunity or a failure fully to co‑operate within the meaning of operative paragraph 4, such that the basis of the cease‑fire was destroyed.

¶459. Lord Goldsmith wrote (paragraph 26): "A narrow textual reading of the resolution suggested no such assessment was needed because the Security Council had pre‑determined the issue. Public statements, on the other hand, say otherwise."

¶460. While Lord Goldsmith remained "of the opinion that the safest legal course would be to secure a second resolution", he concluded (paragraph 28) that "a reasonable case can be made that resolution 1441 was capable of reviving the authorisation in resolution 678 without a further resolution".

¶461. Lord Goldsmith wrote that a reasonable case did not mean that, if the matter ever came to court, he would be confident that the court would agree with this view. He judged a court might well conclude that OPs 4 and 12 required a further Security Council decision in order to revive the authorisation in resolution 678.

¶462. Lord Goldsmith noted that on a number of previous occasions, including in relation to Operation Desert Fox in Iraq in 1998 and Kosovo in 1999, UK forces had participated in military action on the basis of advice from previous Attorneys General that (paragraph 30) "the legality of the action under international law was no more than reasonably arguable".

¶463. Lord Goldsmith warned Mr Blair (paragraph 29):

"... 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 failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non‑compliance and non‑co-operation ... the views of UNMOVIC and the IAEA will be highly significant in this respect."

¶464. Lord Goldsmith added:

"In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non‑co-operation and non‑compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity."

¶465. Mr Straw, Mr Hoon, Dr John Reid (Minister without Portfolio and Labour Party Chair) and the Chiefs of Staff had all seen Lord Goldsmith's advice of 7 March before the No.10 meeting on 11 March, but it is not clear how and when it reached them.

¶466. Other Ministers whose responsibilities were directly engaged, including Mr Gordon Brown (Chancellor of the Exchequer) and Ms Short, and their senior officials, did not see the advice.

Lord Goldsmith's arrival at a "better view"

¶467. At the meeting on 11 March, Mr Blair stated that Lord Goldsmith's "advice made it clear that a reasonable case could be made" that resolution 1441 was "capable of reviving" the authorisation of resolution 678, "although of course a second resolution would be preferable". There was concern, however, that the advice did not offer a clear indication that military action would be lawful.

¶468. Lord Goldsmith was asked, after the meeting, by Adm Boyce on behalf of the Armed Forces, and by the Treasury Solicitor, Ms Juliet Wheldon, in respect of the Civil Service, to give a clear‑cut answer on whether military action would be lawful rather than unlawful.

¶469. On 12 March, Mr Blair and Mr Straw reached the view that there was no chance of securing a majority in the Security Council in support of the draft resolution of 7 March and there was a risk of one or more vetoes if the resolution was put to a vote.

¶470. There is no evidence to indicate that Lord Goldsmith was informed of their conclusion.

¶471. Lord Goldsmith concluded on 13 March that, on balance, the "better view" was that the conditions for the operation of the revival argument were met in this case, meaning that there was a lawful basis for the use of force without a further resolution beyond resolution 1441.

The exchange of letters on 14 and 15 March 2003

¶472. Mr David Brummell (Legal Secretary to the Law Officers) wrote to Mr Matthew Rycroft (Mr Blair's Private Secretary for Foreign Affairs) on 14 March:

"It is an essential part of the legal basis for military action without a further resolution of the Security Council that there is strong evidence that Iraq has failed to comply

with and co‑operate fully in the implementation of resolution 1441 and has thus failed to take the final opportunity offered by the Security Council in that resolution. The Attorney General understands that it is unequivocally the Prime Minister's view that Iraq has committed further material breaches as specified in [operative] paragraph 4 of resolution 1441, but as this is a judgement for the Prime Minister, the Attorney would be grateful for confirmation that this is the case."

¶473. Mr Rycroft replied to Mr Brummell on 15 March:

"This is to confirm that it is indeed the Prime Minister's unequivocal view that Iraq is in further material breach of its obligations, as in OP4 of UNSCR 1441, because of 'false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure to comply with, and co‑operate fully in the interpretation of, this resolution'."

¶474. It is unclear what specific grounds Mr Blair relied upon in reaching his view.

¶475. In his advice of 7 March, Lord Goldsmith had said that the views of UNMOVIC and the IAEA would be highly significant in demonstrating hard evidence of non‑compliance and non‑co‑operation. In the exchange of letters on 14 and 15 March between Mr Brummell and No.10, there is no reference to their views; the only view referred to was that of Mr Blair.

¶476. Following receipt of Mr Brummell's letter of 14 March, Mr Blair neither requested nor received considered advice addressing the evidence on which he expressed his "unequivocal view" that Iraq was "in further material breach of its obligations".

¶477. Senior Ministers should have considered the question posed in Mr Brummell's letter of 14 March, either in the Defence and Overseas Policy Committee or a "War Cabinet", on the basis of formal advice. Such a Committee should then have reported its conclusions to Cabinet before its members were asked to endorse the Government's policy.

Lord Goldsmith's Written Answer of 17 March 2003

¶478. In Parliament during the second week of March, and in the media, there were calls on the Government to make a statement about its legal position.

¶479. When Lord Goldsmith spoke to Mr Brummell on 13 March, they agreed that a statement should be prepared "setting out the Attorney's view of the legal position which could be deployed at Cabinet and in Parliament the following week".

¶480. The message was conveyed to No.10 during the morning of 15 March that Lord Goldsmith "would make clear during the course of the week that there is a sound legal basis for action should that prove necessary".

¶481. The decision that Lord Goldsmith would take the lead in explaining the Government's legal position to Parliament, rather than the Prime Minister or responsible Secretary of State providing that explanation, was unusual.

¶482. The normal practice was, and is, that the Minister responsible for the policy, in this case Mr Blair or Mr Straw, would have made such a statement.