Live Blog – 26 January 2010

Tuesday 26 January 2010

(There were four evidence sessions today, scheduled for 10:00 – 11:30, 11:30 – 13:00, 14:00 – 15:30 and 15:30 – 17:00.)

Topic: (The inquiry now only lists witnesses by relevant role, rather than by topic area.)

Sir Michael Wood, Legal Adviser, Foreign and Commonwealth Office, 2001 – 2006

David Brummell, Legal Secretary to the Law Officers, 2001 – 2004

Elizabeth Wilmshurst, Deputy Legal Adviser, Foreign and Commonwealth Office, 2001 – 2003

Margaret Beckett MP, Secretary of State for Foreign and Commonwealth Affairs, May 2006 – June 2007

Today’s hearing, as it happened

Today’s witnesses are Sir Michael Wood, Legal Adviser, Foreign Office, 2001–06; David Brummell, Legal Secretary to the Law Officers, 2001-04; Elizabeth Wilmshurst, Deputy Legal Adviser, Foreign Office, 2001–03; and the Rt Hon Margaret Beckett MP, Foreign Secretary, May 2006 – June 2007.

Most attention will focus on Wood and Wilmshurst, but as Andrew Sparrow says, we already know that they will say that they thought the war was illegal. Brummell’s evidence could also be significant because, as I revealed a year ago, there is no evidence to support the government’s claim that attorney general Lord Goldsmith told him that he had changed his mind before a famous meeting with two Blair allies at which he was allegedly bullied into changing his mind. Will Brummell back the official line?

Please accept our apologies. The site crashed at lunchtime today and it took a while for our hosts to get it back up.

If you missed out on live coverage, you can catch up on the Guardian’s excellent live blog.

12.19 Brummell does not agree that AG was not involved in policy making. Up to 7 March, he had very much provisional views. I entirely agree with Wood that it did not give rise to a right to use force, until we had seen Iraq’s response.

12.15 Goldsmith took same approach as previous AG

12.11 Brummell’s statement seems to point to it being unusual that the AG would seek external advice on international law when there is expertise in the foreign office.

12.08 They are back with Brummell, who has provided a witness statement. Discussion of legality of No Fly Zones. Precarious case, especially in South.

11.56 Wood has finished ten minute break. Aside from confirming that he thought the war illegal, Wood’s strongest criticism is that the AG was not asked for advice early enough. The Inquiry largely failed to go into this. Did the AG initially oppose the war? The other thing to come out of it is that in the meantime Jack Straw rejected the advice of his own legal adviser and in fact acted to the contrary.

11.55 Limited discussion of duties of occupying powers. Wood thought the internal legal processes on this worked well.

11.53 Chilcot asks about point of detail. Was a new decision needed on a material breach, e.g. that there was a continuing breach? Wood says there were new ones as there were failures to co-operate fully with inspectors, even though Blix said co-operation was continuing.

11.49 Was the law upheld? Wood says it was taken seriously. Would not have gone to war if the advice had been otherwise. I was of a different legal view but once the AG had spoken, that was the government’s view. My chief complaint/problem with the way these things came about was the question of timing. The AG should have been asked at an earlier stage and given advice. His formal advice came late but as you will have seen from the papers his views were known throughout. Prashar fails to pick this up!!!! Discussion of role of AG, which Wood supports. “Could have worked well”.

11.47 Discussion of Wilmshurst resignation. Knew her views. Prashar asks why Wood did not resign. Did briefly consider but decided to carry on. Did not find himself having to defend the decision. Quickly moved to other matters.

11.45 Prashar asks if Wood was aware that AG’s PQ was being used to present advice to Cabinet. Didn’t know but not surprised by it.

11.42 Prashar asks about Wood’s involvement on 16 March in drafting of parliamentary answer and Straw’s “foreign office note”. Also drafted Q&A note. Also there was a non lawyer who prepared a detailed description of the negotiating history of 1441. “I was more or less on the sidelines because my views were known… I don’t think I had a major part.” By this stage we were in the advocacy mode rather than advice/decision mode. Says PQ was largely the attorney’s work.

11.40 Discussion of Straw’s view of what would trigger use of force under 1441. Wood and Straw took different views. Wood says there were plenty of reports from Blix saying that there were breaches.

11.37 Freedman looks at Straw’s letter to AG Feb 03. He had said that if 1441 was meant to require a second resolution, it would have said so. Wood has no problem with this as he is informing AG from his point of view as a negotiator.

11.35 Discussion of difference between material breach and flagrant violation. Freedman asks about Wood’s advice to AG in December 2002. “It was the view in the Foreign Office that it would be better to write it” without coming to or seeking a clear view. Came from Straw. Wood did not disagree. Gave clear advice at other times.

11.25 Discussion of whether govt got what it wanted out of 1441 as Greenstock has claimed. Wood thinks that a decision of the SC was needed. Discussion of revival argument and Desert Fox 1998. Wood appears to support revival argument.

11.23 Was Wood happy with ambiguity? He wanted government to be clear about the legal position. What was said in public was less important, as long as it didn’t expressly contradict his view and AG’s view.

11.19 Freedman is asking about post 1441 and Straw’s statement to commons: 1441 does not stipulate a second resolution. Is this more definite? Wood says it is still quite subtle. No complaints. Freedman asks if it moves us along. Wood does not think it is so definite as to box us into a position of saying a second resolution is not necessary.

11.15 Going back to pre-1441 Gilbert asks about Straw’s request for advice, which went to NO 10, who asked “why has this been put in writing?” !!!!! He is now summarising this advice.

11.13 Chilcot asks if government more widely was failing to fold legal advice into policy as happened in FCO. Wood says he does not know what was happening but AG’s advice was very late.

11.10 Lyne refers to “problem” that AG had not yet been asked to give advice? It was certainly a problem for me in the FCO. Didn’t have a clear view from AG but knew what he was thinking. Govt really needed advice, even if they didn’t want it. Lyne asks if they had deliberately not been asking for advice? Wood says it was clear that AG would give advice if asked but not asked. Lyne asks Wood to be precise. Not asked or asked not to? Wood says there was a reluctance to get advice.

11.06 Straw’s response to Goldsmith. (this is not yet published). Three weeks later. Straw said that legal advisers should set out full range of views. Wood says that he wrote a long letter once to the AG with both views but most of his notes were operational. Lyne asks if Wood’s letter had come down on one side? Wood says it had been made clear to him that he should leave the matter open and not seek advice. Not unusual in this context.

11.05 Now looking at Goldsmith’s response to Straw’s reply. Wood very pleased that AG had written in these terms. Supportive of role of government lawyers. Repeats that he has not yet give advice but will do in due course “that is part of the problem”.

11.04 Wood says that it was at the end it was up to AG.

11.03 I have to say it is pretty astonishing that the government would declassify documents this late. But the Inquiry probably asked for it by asking very late.

11.01 How often would Foreign Secretary reject advice? Only time. Is international law uncertain? It can be but not in this case. Pretty clear. Where I would strongly disagree is the implication of the following. Because there is usually no court one can be more flexible. Wood thinks lack of court means that lawyers have to be more scrupulous, because it cannot be tested.

10.54 They’re back. Chilcot apologises for a rather sudden series of declassifications. Lyne says the govt had just agreed to declassification of relevant documents. Minute 24/1/03 to Straw; Straw’s reply 29 Jan; AG 3 Feb to Straw; Straw’s reply 20 Feb.

Re advice to Straw’s private sec 24/1 on meeting with C Powell. Straw aware of Wood’s advice that new resolution would be required. Wood says Straw was so wrong in what he told Powell that he had to draw it to his attention. How did he react? Straw took view that Wood was being dogmatic, international law vague, used to going ahead against legal advice. “amicable” discussion”. Then Straw wrote back. Quite an unusual step but not taken amiss. Straw notes advice but does not accept it. I am as committed as anyone to international law and obligations but it is an uncertain field. There is no international court … case arguable one .

10.51 My quick flick through the documents show that Goldsmith told Brummell in the morning that he had come to a firm decision and met Morgan and Falconer that evening. I’m now not clear why the Cabinet Office could not have said this at the time. Perhaps they didn’t have Goldsmith’s diary?

10.41 Chilcot says they have just learnt that further documents have been declassified. 10 minute break to look at them.

10.38 Lyne asks about thinking behind UK explanation of vote (“no automaticity in resolution/ UK expect SC to meet responsibilities)? My guess is that it was to keep open our options without upsetting other countries. Automaticity seems to have an entirely different meaning. Lyne asks about SC meeting for discussion/meeting responsibilities – would it imply that a discussion was necessary? Wood says it is subtly worded. Could argue the opposite. Negotiators thought this was right. Possibly misleading.

10.32 Wood does not think the failure of the French to get 1441 to require (explicitly) a new SC decision is not a strong argument for saying that it was not necessary. Wood is explaining that he does not think the negotiating history, as reported, is particularly reliable as a guide. He describes the views of France etc after the resolution was passed. Court would give little weight to private conversations as recorded by one side. Would give more weight to public statements.

10.31 Wood thinks the SC has to decide whether there had been a material breach that was sufficiently grave to authorise a use of force.

10.29 Lyne is asking about Wood’s view after 1441. Wood thought that it would not authorise the use of force without a further decision of the Security council.

10.22 Prashar is just referring to the Straw conversation below. Wood was obviously quite concerned by what he saw Straw saying. Didn’t think Straw misunderstood legal postion. Just making sure everyone was clear about the position.

10.21 Wood is saying that before UNSCR he made clear consistently that there was no basis for the use of force.

10.20 One document says that in March 2002 or earlier Jack Straw told Colin Powell that he felt entirely comfortable making a case for military action to deal with Iraq’s wmd.

10.17 Prashar asks if Wood was ever asked specifically to give advice about regime change in Iraq. He cannot remember being asked that question and by whom. Can remember when we first looked at the general question of the use of force prior to 1441. Was pretty straightforward and uncontroversial.

10.27 The Inquiry has also published a note of the meeting at Downing St on 11 March 2003, where a clear view was requested of Goldsmith.

10.25 Prashar now asks about Wood’s letter to Straw in October 2002. 1441 is being negotiated. Wood was watching Straw very carefully. One or two points where he said things it might have been better if he had not said them in public. Might box in attorney general. Prashar asks if Wood discussed this with Straw directly? Doesn’t remember.

10.16 Here are the new documents

10.12 Discussion of input of FCO legal officers into attorney general’s office. Discussion of FCO input into UK mission at UN.

10.08 They are discussing Wood’s role and Iraq in that context. It very quickly got to a crisis situation. Put together a team, including Wilmshurst. Wood says he was not asked to advise Blair directly on Iraq.

10.03 the Inquiry is publishing witness statements and will be declassifying some documents today and perhaps some more tomorrow. It’s not there yet.

10.00 Sir John Chilcot says they will be considering the legal issues relating to the war, including the process by which advice was provided to the government.

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