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Baroness Symons of Vernham Dean: My Lords, with the leave of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Foreign Secretary in response to a Private Notice Question on the legal questions around Iraq. The Statement is as follows:
"Let me take the two parts of the Question in turn. First, the circumstances surrounding Ms Wilmshurst's letter to the Foreign and Commonwealth Office legal adviser of 18 March 2003. Elizabeth Wilmshurst was one of the deputy legal advisers at the Foreign and Commonwealth Office. As is now well known, she submitted her resignation on 18 March 2003 because she disagreed,
"The Foreign and Commonwealth Office received a number of requests for the text of Ms Wilmshurst's letter under the Freedom of Information Act after it came into force on 1 January this year. These requests were initially refused, mainly because much of the content of Ms Wilmshurst's letter contained personal data, the disclosure of which would have contravened the first data protection principle under Section 40 of the Act.
"Following the publication in the Guardian on 23 February of a number of quotations from the letter, we took the view that disclosure of this information would no longer contravene the first data protection principle. We therefore disclosed the letter yesterday. Two sentences were, however, omitted by the Foreign and Commonwealth Office from the document because their content concerned the provision of legal advice in relation to the use of force against Iraq. Regardless of whether these references were accurate, this information was covered by exemptions in the Act which apply to confidential legal advice (Section 42(1)), the formulation or development of government policy (Section 35(1)(a)), and some was also covered by exemptions for ministerial communications (Section 35(1)(b)) and law officers' advice (Section 35(1)(c)).
"It was entirely proper for the Government to withhold information under these provisions of the Act. Indeed, when the Freedom of Information Bill was being debated in the House, I can recall no suggestion from any side that the Government's legal advice should not be exempt from disclosure.
"Let me now turn to the second aspect of the question, the Attorney-General's opinion on the legality of military action in Iraq. This whole question is covered extensively in the report of the noble Lord, Lord Butler, Intelligence on Weapons of Mass Destruction at paragraphs 366387, and I commend those paragraphs to the House. Ms Wilmshurst gave evidence to the Butler inquiry, and the substance of her position, then as now, is covered in paragraph 376 of the report.
"In the light of Saddam Hussein's failure to comply with his obligations set out in UNSCR 1441 of November 2002, the United Kingdom, the United States and Spain tabled in February 2003 a further draft resolution in the UN Security Council posing tough but attainable tests for Iraq. This gave Saddam Hussein the final opportunity to comply, which was offered by Resolution 1441.
"I attended a series of Ministerial Security Council meetings in the early months of 2003, the last on 7 March 2003. As I said in my speech to the Security Council on that day, not a single member of the Security Council disputed that Saddam was in material breach of his obligations under SCR 1441 and the preceding resolutions. He had not fully complied with the obligations laid out in SCR 1441 and previous resolutions.
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"The Attorney-General made clear in his Written Answer of 17 March 2003 his genuinely and independently-held view that military action in Iraq was lawful on the basis of Saddam's breach of the existing UN resolutions. As he said then, authority to use force against Iraq derived from the combined effect of UN Resolutions 678, 687 and 1441. A large majority in this House supported on 18 March 2003 the Government's Motion before the House to take military action against Iraq".
Lord Howell of Guildford: My Lords, I am grateful to the Minister for repeating the Statement made by the Foreign Secretary in the other place. It strikes me as slightly ironic that it was the Freedom of Information Act and the provisions under Section 40 that apparently led to the reluctant revealing of the letter and then to the revealing later in the day of the paragraph in the letter. It raises a question in my slightly sceptical mind as to whether the Freedom of Information Act will lead to more freedom of information in the long run. It does not seem to have had a very good start.
I am quite surprised that the noble and learned Lord the Attorney-General is not in his place. He is a Member of your Lordships' House and this matter directly concerns him. So, whoever in government decided to make the Statement, it would have been reasonable to expect his attendance here. Obviously it was not considered reasonable on the government Benches.
The fact that now emergesI do not think the Government deny thisis that the missing paragraph shows very clearly that the Attorney-General changed his assessmentor his judgment or his viewin the weeks before he reached his final view. Reference has been made to the Butler report but I can see nothing in that reportneither in paragraph 376 or anywhere elseto indicate that he changed his mind or that there was an evolution of views, to put it kindly, which led to his final prognostication.
Faced with the very serious matter of going to war, it would have been better for the Government if the noble and learned Lord the Attorney-General had put all his assessments before the House. I know that it was private legal advice to the Government and that there is a customwhich I understandof keeping private such advice, but there have been several precedents for bringing this kind of advice out into the open.
The Minister and I have argued slightly as to whether "several" means "numerous", as I perhaps rashly claimed, or whether it just means "several", but on three or four occasions in the past century or so an Attorney-General has felt it right to present all his advice to both Houses and to the public. That would have helped in this case, particularly as one of the main planks in the argument of the justification for warnamely, that there were weapons of mass destructionturned out to be non-existent. There were no weapons of mass
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destruction, so it was therefore all the more important to set out the views of the Attorney-General on why he thought the war was justified.
Ultimately, when we have to go to war to try to make this a more stable and better world, as was the aim, one has to ask whether the Government, the Attorney-General and the Minister really believe that the United Nations and its resolutions are the sole source of international legitimacy on which everything else depends. Do they believe that? We managed in Kosovo without UN resolutions and there have been other warsand no one welcomes themwhen it became necessary to take action, through a coalition of democracies, and it was not possible to wait for the full procedures of the UN to be completed.
Was that the reason the Attorney-General changed his mind? Did he realise, first, that it would be good to obtain UN cover; and, secondly, that the second resolution was not forthcoming from the UN? There has to be more frankness and candour on these matters than there has been so far.
War is based on trust. I want to live in a society where we trust our government, of whatever colour and party, but that commodity seems in very short supply in this case. The time has come for a good deal clearer exposition of why we are involved and what we are trying to achieve, much of which I applaud. We must have clear, firm and honest reasons.
Lord Thomas of Gresford: My Lords, I, too, am grateful to the Minister for repeating the Statement. Does she agree that the legality of the war is an importantif not vitalissue? Does she further agree that if it was a crime of aggression, as Ms Wilmshurst contended, it affects not only the political leaders but also the military leaders, and that was the reason for the concern of the Chief of the Defence Staff prior to the invasion to ensure that he was acting legally? After all, Field Marshal Keitel, the head of the German forces, was executed at Nuremberg.
Does the noble Baroness agree that we can exclude as justification for the invasion the issues of self-defence, pre-emptive strike, humanitarian intervention and regime change? The Attorney-General has never argued that those were the justifications. He has always argued that the invasion was justified in the enforcement of the UN resolutions of 1990 and 1991namely, those referred to by the noble Baroness in the StatementResolutions 678 and 687.
This issue was discussed in a memorandum by Professor Christopher Greenwood, QC, who is often thought to be the only academic to support the Government in this matter. He argued that Resolution 678 could still authorise military action in a memorandum that was placed in evidence by the Select Committee on Foreign Affairs. His opinion was dated 24 October 2002. He said:
"it is open to the Security Council to determine that Iraq continues to be in breach of the ceasefire conditions in Resolution 687 and that that breach involves a threat to international peace and security which peaceful means have failed to resolve".
But the machinery that he referred to in his opinion was that although it might not necessarily require a Security Council resolution, it could be done by means of a presidential statementthat is, the President of the United Nationswhich would require a consensus in the Security Council.
"Moreover, a resolution stipulating that Iraq must take certain steps by a prescribed date could (depending on its wording) mean that the Council was determining that failure by Iraq to take such steps was a breach threatening international peace and security".
It was for that reason that the Government, with the support of the United States and other governments, in the autumn of 2002 attempted to get into Resolution 1441 the trigger words which would authorise military action on behalf of the United Nations. Without such authority, the war and the invasion would be clearly illegal. But the Government failed to get those words into Resolution 1441 and it ended up as a simple warning of the serious consequences of continued violation of Iraq's obligations. It did not say, as Professor Greenwood had suggested could be a justification, that the failure by Iraq to take such steps would be a breach threatening international peace and security.
Because it did not say that, there was a move in the spring of 2003 to obtain a second resolution to justify military action. That was withdrawn because the jury of international opinion could not be persuaded that an invasion was justified. I have taken the position on a number of occasions that it cannot be argued that when the Government and the United States Government invaded Iraq they were acting as agents for the United Nations, which had refused to give them that specific authority.
This was in February and March. We now know from Ms Wilmshurst's letter that the view taken by the Attorney-General on 7 March was very much as I have expressed it. What was the change of circumstance between 7 March and 17 March which could possibly alter the basis of the Attorney-General's opinion? I, too, regret that the Attorney-General is not in his place to enlighten us upon this.
The Minister referred to the Butler report, which reveals an exchange on 14 and 15 Marchand therefore between 7 and 17 Marchbetween the Attorney-General and the Prime Minister. On 14 March, two days after the Chief of the Defence Staff had asked the Attorney-General for legal advice about the legality of the war, the Attorney-General sought confirmation from the Prime Minister that,
"it is indeed the Prime Minister's unequivocal view that Iraq is in further material breach of its obligations, as in Operative Paragraph 4 of UNSCR 1441, because of false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq to co-operate fully in the implementation of the resolution".
That being received on 15 March, the Attorney-General changed his position, clearly, and on 17 March gave the advice that the invasion was legal. But of course the machinery that Professor Greenwood had suggested was not employed. There was no return to the Security Council to ask the president to do what Professor Greenwood suggested he could do and make a presidential statement. The wording of Resolution 1441 clearly did not cover the situation that arose.
Is it not obvious, as we have said all along, that the invasion of Iraq was illegal and that consequently, as Miss Wilmshurst advised, it was a crime of aggression, and remains so? That surely is the legal position. It has serious consequences that the Government have never taken on board.
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