What was the process of assessing the legality of the war?

The question of how the then attorney general, Lord Goldsmith came to advise that the war would be legal is the one on which the Inquiry has so far shed a great deal of light, perhaps more than on any other issue.

The process and the questions

On 17 March 2003, three days before the invasion, Goldmith published a written parliamentary answer stating unequivocally that UK participation would be legal, based on UN resolutions. The former government stated that this constituted legal advice given to the Cabinet from its top law officer but the status of this advice has been questioned by legal experts.

In 2005 the government published (following a partial leak) a full legal opinion given by Goldsmith on 7 March 2003. This is acknowledged by all parties to have been more equivocal than the written parliamentary answer. During the Inquiry evidence has emerged showing that for some time before February 2003 Goldsmith held the view that the war would not be legal unless the UN Security Council reached a further decision.

A key issue for the Inquiry is therefore how and why Goldsmith came to change his mind. In addition to the legal issues, this includes the question of an appropriate process to assess was followed and whether Goldsmith was in a position to reach an objective conclusion. This will necessarily address allegations that he was pressured to change his mind but should also ask whether the traditional role of the attorney general is inherently subject to conflicts of interest, as some have argued.

The government has refused to state when it first asked Goldsmith to give a formal legal opinion on the legality of the proposed invasion. But the Inquiry has now revealed the differing opinions Goldsmith expressed at various times during the process. It has sought to establish how and why this happened.

In addition, the Inquiry will need to establish the flow of information to and from Goldsmith during this time. It is far from clear what he was told about the intelligence on wmd but it has emerged during the Inquiry that Cabinet ministers beyond Blair’s inner circle were not told about his views.

Key Evidence

Published contemporaneous written evidence

Hearing transcripts and witness statements

Submissions to the Inquiry

See also: Digest analysis of the changing legal advice.

The role of the attorney general

The attorney general is a minister in the government and the government’s chief law officer and is also required to advise ministers on the legality of their proposed actions. This dual role has been the subject of some controversy and it has been argued that it involves an inevitable conflict of interest.

The Inquiry may need to ask, in the light of Goldsmith’s role in the war, whether this apparent conflict of interest is sustainable.

Was Goldsmith objective?

Goldsmith’s presence at a meeting on 23 July 2002 at which the proposed invasion of Iraq was discussed calls into question his objectivity. The Downing Street memo records that Goldsmith advised that there was no legal case for a war based on regime change, self defence or humanitarian intervention and that relying on UN Security Council Resolution 1205 from 1998 “would be difficult”. He added: “The situation might of course change.”

Did Goldsmith know about the plan for regime change?

There is a great deal of evidence that the policy objective that Tony Blair and other ministers were seeking to achieve was the removal of Saddam Hussein’s regime. The Inquiry will need to ask whether Goldsmith was aware of this and whether he was misled on the issue.

The Downing Street memo suggests that Goldsmith was aware that regime change was the government’s objective. However, the Butler Review suggests that in March 2003 Goldsmith was shown the government’s military campaign objectives, which “made it clear that the Government’s overall objective for the military campaign was to bring about Iraq’s disarmament”.

Was Goldsmith sidelined?

During the Inquiry, evidence has emerged in both witness testimony and contemporaneous documentary evidence that Blair excluded Goldsmith from key discussions and dissuaded him from giving advice. Panel members have asked whether this was appropriate.

Was Goldsmith’s advice ignored?

Evidence has also emerged that Blair took actions that went against express advice from Goldsmith, particularly in promising President Bush in January 2003 that Britain would take part in the invasion even without a further determination from the UN Security Council, which Goldsmith thought necessary at that time.

What was Goldsmith told about the intelligence and why?

The Butler Review states at para 367 that “The Attorney General was briefed on relevant intelligence issues in September 2002 and February 2003.” It is not clear what the purpose of this briefing was. It is arguable that intelligence was not relevant to his consideration of the legal issues. In his opinion of 7 March and subsequently, Goldsmith made clear that it was for Blair to determine whether Iraq was in “material breach” of its obligations.

Surprisingly, given that it was specifically looking at “the role of intelligence in assessing the legality of war”, Butler does not state what Goldsmith was told, for example whether the briefing in September 2002 was on the basis of the JIC assessments or the dossier. The Inquiry will need to see a record of the two briefings.

Was the Cabinet told about Goldsmith’s doubts?

Whether or not Goldsmith did advise before 7 March that the invasion would be illegal, it is clear that his advice on that date was equivocal and it appears that his doubts were not shared with the entire Cabinet. Read more

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