Iraq Inquiry: Legal basis for UK action ‘far from satisfactory’

The Iraq Inquiry was asked to consider whether it was right and necessary for the UK to invade Iraq in March 2003, and whether the UK could and should have been better prepared for what followed.

The full report, which is over 2.6 million words long, is available from the Iraq Inquiry website.

The Inquiry has not expressed a view on whether military action was legal, as Sir John said this could only be resolved by a properly constituted and internationally recognised court.

However, he told a press conference today: “We have, however, concluded that the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory”.

Section 5 of the report examines, over 169 pages, advice on the legal basis for military action between November 2002 and March 2003.

The Attorney General Lord Goldsmith’s formal advice of 7 March 2003 advised that the “safest legal course would be to secure a second resolution” of the UN Security Council (UNSC).

He concluded that “a reasonable case can be made that resolution 1441 was capable of reviving the authorisation in resolution 678 without a further resolution”.

However, he wrote that he was not confident that a court would agree with the view that a further UNSC decision was not necessary.

Pressed to give a more clear-cut answer on the lawfulness of military action, he concluded on 13 March 2003 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.

David Brummell, legal secretary to the Law Officers, in a letter of 14 March to Matthew Rycroft, private secretary to then-Prime Minister Tony Blair, said an “essential part of the legal basis for military action without a further resolution of the Security Council” was that there is “strong evidence that Iraq has failed to comply with and co-operate fully in the implementation of Resolution 1441”.

He added: “The Attorney General understands that it is unequivocally the Prime Minister’s view that Iraq has committed further material breaches as specified in paragraph 4 of resolution 1441, but as this is a judgment for the Prime Minister, the Attorney would be grateful for confirmation that this is the case.”

Mr Rycroft replied on 15 March to “confirm that it is indeed the Prime Minister’s unequivocal view that Iraq is in further material breach of its obligations”, but the report said it was “unclear what specific grounds Mr Blair relied upon in reaching his view”.

In his advice of 7 March, Lord Goldsmith said the views of United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) and the International Atomic Energy Agency (IAEA) would be highly significant in demonstrating hard evidence of non-compliance and non-co-operation.

However, the report said there was no reference to their views in the correspondence between Mr Brummell and Mr Rycroft - only Mr Blair’s.

Facing calls from the media to clarify the Government’s legal position during the second week of March, Lord Goldsmith and Mr Brummell agreed to prepare a statement setting out the Attorney General’s view.

The report says that 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”.

That statement was presented to Parliament and to Cabinet on 17 March 2003, where ministers were asked to confirm the decision that the diplomatic process was at an end and that the House of Commons should be asked to endorse the use of military action.

According to the report, none of the Government ministers who had read Lord Goldsmith’s 7 March advice asked him at this meeting to explain why his legal view of resolution 1441 had changed.

The report adds: “There was little appetite to question Lord Goldsmith about his advice, and no substantive discussion of the legal issues was recorded.”

The report states that Cabinet was not misled, but Lord Goldsmith “should have been asked to provide written advice which fully reflected the position on 17 March, explained the legal basis on which the UK could take military action and set out the risks of legal challenge”.

This advice “should have addressed the significance of the exchange of letters of 14 and 15 March and how, in the absence of agreement from the majority of members of the Security Council, the point had been reached that Iraq had failed to take the final opportunity offered by resolution 1441”.