Following publication of the Chilcot Report, we consider the government’s legal advice on the Iraq war from the point of view of an instructing solicitor taking counsel’s advice on whether to proceed to trial.
The Chilcot Report is comprehensively damning. But it is worth focusing on its conclusions about the advice received by the government to justify the legality of going to war. It specifically did not conclude that the war was unlawful. But it concluded that the circumstances in which it was decided that there was a legal basis for UK military action were “far from satisfactory”.
As a commercial litigation solicitor, I am used to obtaining and deploying the opinions of suitably chosen and properly instructed barristers. I am used to assisting clients come to a decision based on the terms in which those opinions are expressed.
The government was required to do the same thing with the advice of its chief legal adviser the attorney-general, Lord Goldsmith QC. So what should have been made of Lord Goldsmith’s opinion on the legality of the Iraq war?
The “advice” dated 7 March 2003, was originally released under considerable political pressure and was, it must be accepted, an eloquent and clear analysis of the issues and deployment of the arguments. But as a counsel’s opinion, giving a clear view of the law, it was certainly not adequate to found a decision to proceed along particular lines and follow a specific course of action.
Its core conclusion was “I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution”. The government later seized on the next paragraph which required that the evidence of Iraqi non-cooperation and non-compliance be sufficiently compelling.
That is sort of factual question to which counsel often require an answer in order to reach a definitive view. However, the opinion did not state that the availability of such evidence was going to render military action against Iraq lawful. In its context, counsel was saying that such evidence was needed to sustain the argument deployed as a “reasonable case”.
The opinion was not one which affirmed the legality of military action. To say that a “reasonable case can be made” is, in my experience, no more than an assertion that a court will give an argument respectable consideration and not throw it out straight away.
To advise a client to adopt a course of action based on it, would require a great deal more. The subtly oblique barristerial language appears again in paragraph 30 of his advice:
“...reasonable case does not mean that if the matter ever came before a court I would be confident that a court would agree with that view”.
As Chilcot points out at para 558 of Chapter 5 of the Report:
“Lord Goldsmith’s advice did not present the ‘reasonable case’ as stronger or ‘better’ than the opposing case.”
And at 559:
“Nevertheless in making that judgment, Lord Goldsmith took responsibility for a decision that a reasonable case was sufficient to provide the legal basis for the UK Government to take military action in Iraq.”
As things turned out, this opinion was not the final iteration of the government’s elaborately constructed legal justification for going to war. Lord Goldsmith refined his formulation of the “reasonably arguable” point on 13 March. He informed his officials that, after “further reflection”, the “better view” was that there was a legal basis for the use of force without a further resolution. This was duly minuted.
It appears that he had been asked for a “yes or no” answer and since this is sometimes what lawyers give if asked on the basis of huge qualifications as to issues of underlying fact, he gave it. He sought assurances from Mr Blair that there was evidence of further “material breaches” by Iraq. Thus what was presented as a conclusion of law was in fact a qualified opinion based on instructions as to the underlying facts.
This is tantamount to counsel being put on the spot and advising: “yes, you will win, if the Court accepts your evidence”.
There followed an exchange of letters on 14th and 15th March between the Attorney General’s office and the Prime Minister’s office which reflected Mr Blair’s view of the facts. This correspondence led to a written answer on 17 March which recorded legal advice and which was taken as the advice to justify war. It was no such thing and Chilcot soundly criticises this as not being an appropriately nuanced updating of the carefully argued 7 March opinion.
As a standalone opinion, the 7 March advice was nothing like a justification for the action and I fail to see how any experienced lawyer could have interpreted it as such.
If I were interpreting it for a client, I would say that counsel really needs to firm up his view. And in fact I would suggest that counsel was, in the coded language of the bar, advising against action.
No-one would pursue litigation on the basis of advice that “a reasonable case can be made”. It is no wonder that the Chilcot report described the subsequent machinations to justify action as “far from satisfactory”.