Chilcot Special: The government did not like the advice of government lawyers

I regarded the invasion of Iraq as illegal, and I therefore did not feel able to continue in my post. I would have been required to support and maintain the Government’s position in international fora. The rules of international law on the use of force by States are at the heart of international law. Collective security, as opposed to unilateral military action, is a central purpose of the Charter of the United Nations. Acting contrary to the Charter, as I perceived the Government to be doing, would have the consequence of damaging the United Kingdom’s reputation as a State committed to the rule of law in international relations and to the United Nations.

Elizabeth Wilmshurst, former Deputy Legal Adviser to the FCO
18 January 2010

What an extraordinary session of the Iraq Inquiry.  I watched all the testimony of Sir Michael Wood, David Brummell and Elizabeth Wilmshurst.  I was struck by much of the evidence, but two statements by Sir Michael Wood stood out.

“He (Straw, who was then Foreign secretary) took the view that I was being very dogmatic and that international law was pretty vague and that he wasn’t used to people taking such a firm position,” said Wood.

“When he had been at the Home Office, he had often been advised things were unlawful but he had gone ahead anyway and won in the courts.”

Sir Michael Wood said this was “probably the first and only occasion” that a minister rejected his legal advice in this way.

The Guardian report gives a flavour of the proceedings: Guardian

While the main event on the legal side will be Lord Goldsmith’s testimony tomorrow it is already clear that the principal legal adviser to the Foreign & Commonwealth Office, Sir Michael Wood, maintained a consistent line of advice that war with Iraq without a second UN resolution was illegal and that he had rejected the government’s argument that resolution 1441 – passed in November 2002 – requiring Saddam Hussein to disarm was a sufficient basis for military action.

It is very clear that this advice was not to Jack Straw’s taste and, equally clear that it was not to the prime minister’s taste.  Lord Goldsmith, effectively, had to intervene to say that government lawyers were perfectly entitled to give advice inconsistent with government policy!  We know that Lord Goldsmith is believed to have changed his mind, but more particularly, Elizabeth Wilmshurst highlighted the fact that the government seemed to be reluctant to call for formal advice until very late in the run up to the war – when, she suggested, it would then be  difficult for the Attorney to have advised the government that the  conflict was unlawful without a second resolution at that stage . It would, she said, have handed Saddam a massive PR advantage.

Elizabeth Wilmshurst did state there was no substantive difference between her views and the attorney general’s pre-7 March. I did enjoy Wilmshurt’s response when Sir John Chilcot asked  if it made  a difference that Jack Straw himself is a qualified lawyer?.  Elizabeth Wilmshurt replied…“He is not an International Lawyer”. Rather sums it up, I think?

Note for the “Send Blair to The Hague” brigade

Unfortunately for those who wish to see Tony Blair led away in handcuffs to stand trial – this is unlikely to happen. Elizabeth Wilmshurst stated that while the ICC has jurisdiction now in relations to ‘crimes of aggression’, it cannot be applied retrospectively. [See: #Iraqinquiryblog ]

I am doing a podcast with Carl Gardner, ex government lawyer in Tony Blair’s administration and author of the Head of Legal blog following Lord Goldsmith’s evidence tomorrow.

7 thoughts on “Chilcot Special: The government did not like the advice of government lawyers

  1. Today’s testimony looks very damaging to the government. It also destroys Straw’s claim to have been a rather unwilling participant in the whole thing.

    Interestingly, had the inquiry been a bit more “switched on” it might have asked Straw about a dossier which he issued in late 2002 detailing human rights abuses perpetrated by the Iraqi regime. He expressly linked this to the question of weapons inspections and thus the possibility of war.

    Following a video presentation including images of torture victims and children killed in gas attacks on the Kurdish town of Halabja in 1988, Straw declared that the report was necessary so “people understand the comprehensive evil that is Saddam Hussein”.

    He added, “He has got these weapons of mass destruction, chemical, biological and probably nuclear weapons which he has used in the past against his own people as well as his neighbours and could almost certainly use again in the future.”

    Hardly the actions of an unwilling participant who agonised over his position are they?

    I think Wilmshurst gave a good answer re Straw being a lawyer and, of course, Goldsmith is not an international lawyer either! Straw was called to the bar (as were many traditionally since it was always a useful entree to many places). He cannot have practised extensively since he was in politics from the early 1970s onwards and has been an MP since 1979.

  2. Slowly, but surely, the house of cards is falling; the Cabinet can ‘get their stories straight’ as much as they like, it’s going to be people like Wilmshurst that shine light into the dirty gutter.

    When is Clare Short due to appear? Because on the evidence of this article, written by her in November, it could be *really* explosive http://bit.ly/aaWhVB Campbell’s Diaries make clear that they didn’t like Short, so I can’t see her having any compunction about wielding the baseball bat.

    ObiterJ – BBC now saying that ‘Doctors may see Kelly post-mortem report’ http://bit.ly/c3Y1l9

  3. Pam – many thanks. I note that Lord Hutton wishes to see some conditions restricting the use and publication of the report to any legal proceedings.

    Hopefully, Clare Short will be called. Of course, she remained in the government during the Iraq War as her resignation letter stated:

    http://news.bbc.co.uk/1/hi/uk_politics/3019983.stm

    There is quite a bit of having trying to have it both ways with Clare Short. I really opposed the war but stayed in the government for honourable reasons. I am not sure that this ought to wash but she seems to have mostly got away with it.

    Now had Short resigned like Robin Cook and civil servant Elizabeth Wilmshurst then the pack of cards might have come tumbling down sooner.

    I wonder who in the pack were the Aces, Kings, Queens and Jacks?

    In a rather different deck of cards, various Iraqis had their own cards allocated to them. Recently executed Chemical Ali was the King of Spades.

  4. I have put this on my blog:
    Charon QC as ever provides excellent coverage of the Iraq Inquiry. He notes the following exchange between the Chair and today’s witness:

    I did enjoy Wilmshurt’s response when Sir John Chilcot asked if it made a difference that Jack Straw himself is a qualified lawyer?. Elizabeth Wilmshurt replied…“He is not an International Lawyer”. Rather sums it up, I think?

    I understand that Straw was a practising barrister from 1972 to 1974 only. He remains a door tenant of Valios Boardman Chambers at 4 Bream Buildings (or at least he appears on their door as such). He became special adviser to Barbara Castle in 1974 and I note that from 1971 to 1974 he was a member of the Inner London Education Authority and Deputy Leader from 1973 to 1974.

    He therefore probably did not practice very much in his limited 2 year career.

    This probably puts a gloss on the idea that the former Foreign Secretary and current Lord Chancellor is to be considered a qualified lawyer.

    http://ofinteresttosomelawyers.blogspot.com/

  5. Perhaps the next time Jack Straw appears before an inquiry he can put forward a story that lasts a little longer before it collapses.

  6. Some very interesting information here, and a very interesting blog too.

    I will have to bookmark this and stop by more often.

    thanks.

    BUGYS – as you can see.. I have edited your ridiculous attempt to get free advertising / SEO / Google juice from my blog by removing your URL to your lawyer website. Do this again and I will re-direct readers to a dodgy porn site. I do not appreciate people making ridiculous comments like this on my blog to get a free ride. If you wish to advertise on my magazine – ask. I may even let you.

    Charon

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