Government reveals why legal advice on Iraq action changed

Out-Law News | 25 May 2006 | 2:27 pm | 6 min. read

The Cabinet Office today revealed why the Attorney General's legal advice on military intervention in Iraq changed over a 10-day period in 2003, following an Enforcement Order in support of claims under the Freedom of Information Act (FOIA).

Information Commissioner Richard Thomas served the Legal Secretariat to the Law Officers (LSLO) with the Notice which required the disclosure of some – but not all – of the information which had been requested under FOIA.

There had been 17 complaints to Mr Thomas over Government refusals to fulfil FOIA requests. The Notice dealt with all of them together.


On 17th March 2003, Attorney General Lord Goldsmith addressed Parliament in confident terms about the legality of action. "Authority to use force against Iraq exists from the combined effect of resolutions 678, 687 and 1441," he said in reference to UN resolutions.

Resolution 678, passed in 1990, authorised the use of force to eject Iraq from Kuwait and to restore peace and security. Resolution 687, passed in 1991, set out the ceasefire conditions after Operation Desert Storm and suspended the authority to use force under 678. And resolution 1441 was a determination by the Security Council in 2002 that Iraq "has been and remains in material breach" of resolution 687 because it has not fully complied with its obligations to disarm under that resolution.

The Attorney General argued that a material breach of 687 revived authority to use force under 678. But it subsequently became apparent that he had been much less certain about the legality of action in his advice to the Prime Minister just 10 days before addressing Parliament. Parts of that note of advice were leaked in March last year; and the Government made the full 13-page note public the following month.

In it, the Attorney General had written that "the language of resolution 1441 leaves the position unclear"; that "Arguments can be made on both sides"; and that "the safest course would be to secure the adoption of a further resolution to authorise the use of force".

The FOIA revelations

What was not known was why the Attorney General's answer to the question 'Is action legal?' changed, in effect, from 'maybe' to 'yes'. Today's publication provides some explanation.

The original advice of 7th March 2003 did include a qualification: "The legal analysis may, however, be affected by the course of events over the next week or so, e.g. the discussions on the draft second resolution. If we fail to agree on the adoption of a second resolution, we would need to consider urgently at that stage the strength of our legal case in the light of circumstances at that time".

The Disclosure Statement, made by the Cabinet Office and the Legal Secretariat to the Law Officers, narrates the events that followed.

"In the event, it became clear that a second resolution was unlikely to be forthcoming," they write. "Nevertheless, negotiations at the UN Security Council continued throughout the week. Throughout this period, the Attorney General continued to reflect on the legal arguments."

The Statement explains that, on 11th March, the Attorney General attended a meeting at Downing Street. The Chief of the Defence Staff said he would need a clear indication of the legal position for the purposes of his directive to members of the Armed Forces. The next day, the Legal Adviser to the Ministry of Defence wrote to the Legal Secretary to the Law Officers, following up on the Chief of Defence Staff's comment. The letter made clear that if the Attorney General has advised that he is satisfied that action would be legal, the Chief of Defence Staff would give his order committing UK forces. Then the Treasury Solicitor told the Attorney General that a clear statement on the lawfulness of military action was required, both for the military and the civil service.

According to the Statement, "The Attorney General recognised therefore that he needed to indicate his clear view as to whether military action would be lawful and that the Government would need to set out its position publicly."

On 13th March the Attorney General consulted his Legal Secretary. "It was clear to the Attorney that there was a sound basis for the revival argument in principle," explains the Statement. "The question was whether the conditions for the operation of the revival doctrine applied in this case."

The Statement continues:

"As the Legal Secretary recorded at the time, the Attorney confirmed in that discussion that, after further reflection, having particular regard to the negotiating history of resolution 1441 and his discussions with Sir Jeremy Greenstock and the representatives of the US Administration, he had reached the clear conclusion that the better view was that there was a lawful basis for the use of force without a second resolution. The crucial point was that Operative Paragraph 12 of resolution 1441 did not stipulate that there should be a further decision of the Security Council before military action was taken, but simply provided for reports of further breaches by Iraq to be considered by the Council. The Attorney General made it clear that he had fully taken into account the contrary arguments as set out in his 7 March minute to the Prime Minister. In coming to the conclusion that the better view was that a further resolution was not legally necessary, he had been greatly assisted by the background material he had seen on the negotiation of resolution 1441."

It was agreed that the Legal Secretary would confirm to the Ministry of Defence Legal Adviser that military action would be lawful and that a statement setting out the Attorney's view of the legal position should be prepared.

On 14th March, the Legal Secretary sought the Prime Minister's confirmation (previously given orally) that "it is unequivocally the Prime Minister's view that Iraq has committed further material breaches as specified in paragraph 4 of resolution 1441". That confirmation came the next day. And in an internal Downing Street email, Baroness Morgan wrote that the Attorney was "happy with" this confirmation and that he would "make clear in the course of the week that there is a sound legal basis for action should that prove necessary."

The Attorney General's statement to Parliament followed.

The Disclosure Statement concludes: "Other than the documents referred to in this statement, the Cabinet Office and Legal Secretariat to the Law Officers hold no further information from the period 7 to 17 March 2003 relating to the preparation of the Attorney General's Parliamentary Answer on 17 March 2003."

An "exceptional, complex and sensitive" FOIA case

The Information Commissioner said today that the Notice demanded the substance of information which led to, or supported the views, which were made public by the Attorney General in his statement to Parliament on 17th March 2003. It did not require the publication of information which was preliminary, provisional or tentative or which may reveal legal risks, reservations or possible counter-argument.

Mr Thomas described the case as "exceptional, complex and sensitive."

"The Freedom of Information Act creates a presumption of disclosure, but the Act also creates important and separate exemptions relating to advice from the Attorney General, ministerial communications, the development of government policy, legal professional privilege, and prejudice to international relations," he said.

He continued:

"I was satisfied that at least one of the exemptions applied to all the requested information. I was then required to balance competing public interest considerations. The Notice sets out my reasoning in full.

“My conclusion is that the balance of the competing public interest tests calls for disclosure of the recorded information which led to, or supported, the concluded views which were made public by the Attorney General in his 17 March Statement. As the government chose to outline an unequivocal legal position, on such a critical issue at such a critical time, the balance of the public interest calls for disclosure of the recorded information which lay behind those views. By this means the public can better understand the background and rationale behind that published Statement and the extent to which reliance upon those final conclusions was in fact justified.

“But I have also concluded that the arguments for maintaining the exemptions are sufficiently powerful that the balance of the competing public interests does not require the disclosure of those parts of the requested information which were of a preliminary, provisional or tentative nature or which may reveal legal risks, reservations or possible counter-argument. Nor is disclosure needed where it would prejudice the UK’s relations with other countries.”

He said the nature of the documentation in this case makes it impossible or extremely difficult to publish redacted text to meet the requirements of the Freedom of Information Act. The Enforcement Notice therefore required a Disclosure Statement to be published meeting specified parameters. The Disclosure Statement had to include the substance of those parts of certain documents, as notified to the LSLO, which fall within these parameters.

The Commissioner said he is satisfied that the Disclosure Statement meets his requirements.