Publish or be damned

Editorial

The Independent

25 March 2005

A brutal prospect now faces the British Government. It is that unless and until it publishes the full documentation behind the legal advice to go to war in Iraq, the impression will grow that it took the country into an illegal war, threw its troops into battle and at the cost of the lives of tens of thousands of civilians on the basis of a false prospectus and fluctuating advice from its senior law officer.

It's a quandary entirely of Tony Blair's own making. Yesterday in the Commons, the Foreign Secretary, Jack Straw, repeated the old mantras that convention demands that legal advice be always kept discreet and that the advice of the Attorney General was finally clear and unequivocal. But what he also accepted was that Lord Goldsmith's advice had changed in the weeks immediately prior to the war for reasons he refused to divulge.

This is no mere matter of legal niceties or party politics. We are talking here not of some minor government political embarrassment or policy point. We are talking of a country going to war and the reasons it did so. The question of the legality of that war and the Attorney General's advice was absolutely crucial to the willingness of the armed forces to undertake the campaign, of parliament's support for it and of the public's acceptance of so drastic and terrible a step.

The point of the Attorney General's advice, given finally in a summary parliamentary answer on 17 March, is that it (alongside the evidence of Saddam Hussein's weapons of mass destruction) was used to convince the country to undertake a step they might very well have refused if they had known the full facts.

The decision to go to war had been made early on. Once it was made, the Prime Minister turned to his legal officers, and his intelligence chiefs, to find the reasons to justify that decision and give him legal cover.

We now know, thanks to the evidence before the Butler review as well as the letter of resignation of the Foreign Office lawyer, Elizabeth Wilmhurst, finally revealed this week, that the Government's legal officers initially took the view that an invasion of Iraq could not be legally justified on either grounds of self defence or on the basis of the resolutions of the United Nations, without further authority from the Security Council.

"My views," said Ms Wilmhurst in a paragraph deliberately blanked out by the Government when it released the letter in which she said she could not go along with a war she regarded as illegal, "accord with the advice that has been given consistently in this office before and after the adoption of UN Security Council resolution 1441 and with what the Attorney General gave us to understand was his view prior to his letter of 7 March."

It is that 13-page letter of 7 March that the Government refuses to release, although we know, partly from the evidence to Lord Hutton, that it was full of caveats about the war. Those doubts led the Attorney General to insist that the Government put in writing its assurance that there was real proof that Saddam Hussein was in breach of the terms of the UN resolutions demanding he disarm.

His advice, in the words of the Hutton report, "did require 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."

Ten days later, Lord Goldsmith gave his final verdict in a written answer to Parliament shorn of all caveats and any doubts that the Government did have the authority of the UN to go to war.

What changed his mind in those 10 days? No new evidence of Saddam's intentions or weaponry had been found. The UN inspectors said they needed more time. A second resolution was failing.

Jack Straw says that a lawyer has a right to change his mind or to firm-up his opinions. Robin Cook, the former Foreign Secretary, suggests that it was not the evidence but the failure of a second resolution and the US military timetable that was forcing the legal advice to back it.

At this stage we can't know, not for certain. All we do know is that this country went to war on the basis of intelligence that proved to be deeply flawed, if not deliberately manipulated, and a legal advice that mysteriously altered from the equivocal to the certain in the last days before the invasion.

Only full disclosure can begin to answer some of the questions raised by that enterprise. Parliament can insist on publication, so can the Information Commissioner, charged with overseeing the Freedom of Information Act. Both should act now. This is too important an issue to be pushed aside with cavils about precedent and the proprieties of an election that has yet to be called.