Tony Blair is facing further questions over the legality of the war in Iraq after the Chilcot inquiry found that his cabinet’s decision to invade was made in circumstances that were “far from satisfactory”.
Although the inquiry did not reach a view on the legality of the war – saying this could only be assessed by a “properly constituted and internationally recognised court” – its damning assessment of how the decision was made will be taken by Blair’s critics to imply that the war was illegal.
The process for deciding that the war was legal is described as “perfunctory” by the inquiry, while “no formal record was made of that decision, and the precise grounds on which it was made remains unclear”.
The UK government claimed to act on behalf of the international community, the report states, “to uphold the authority of the security council knowing that it did not have a majority in the security council in support of such actions. In those circumstances, the UK’s actions undermined the authority of the security council.”
The UK would have upheld the UN’s authority far more effectively, the inquiry says, if it had waited until it had secured a second UN resolution explicitly authorising war on the basis that Saddam Hussein was in breach of UN resolution 1441.
Condemning the secretive process whereby the advice from the then attorney general, Lord Goldsmith, was compiled, the inquiry points out that Blair’s chief of staff, Jonathan Powell, first asked him to consider the legality of an invasion in December 2002. Powell told Goldsmith not to share his legal advice with ministerial colleagues without the permission of No 10.
The report says the advice provided on 14 January should have been shared with the cabinet secretary, Lord Turnbull, the defence secretary, Geoff Hoon, and the foreign secretary, Jack Straw, “since their responsibilities were directly engaged”.
Goldsmith attended cabinet on 16 January, two days after preparing his draft advice, but his advice was not discussed.
The report finds “it was not until 27 February after Lord Goldsmith had held further discussions about the need for a second UN resolution that Downing Street could have been sure that there was a legal basis for action”.
Even then, in his formal advice submitted on 7 March, Goldsmith concluded that the “safest course” would be to seek a second UN resolution, but “a reasonable case could be made [that] resolution 1441 was sufficient grounds”.
But he added this would require “hard evidence” of non-compliance, and non-cooperation with the initial resolution by Saddam, specifically by failing to take “his final opportunity” to cooperate with the UN weapons inspectors.
This advice was not shown to Gordon Brown, the then chancellor, or the international development secretary, Clare Short, but was shown to John Reid, the Labour party chairman and minister without portfolio.
At a ministerial meeting on 11 March, Admiral Boyce, on behalf of the armed forces, and the Treasury solicitor, Juliet Wheldon, acting on behalf of the civil service, “asked for a clear-cut answer on whether military action would be lawful rather than unlawful”.
A day later, on 12 March, Blair and Straw concluded there was no chance of securing a second UN security council resolution, and a day after that Goldsmith concluded on balance the war was legal without a second UN resolution. The inquiry finds there is no evidence that Goldsmith was informed that Blair had abandoned hope of a second resolution.
The inquiry is critical of what it describes as a perfunctory exchange of letters between the attorney general’s office and No 10 on 14 and 15 March in which Blair, at the request of the attorney general, gave his view that Saddam was not in compliance with UN.
It finds no assessment was made by Blair of the views of the UN weapons inspectors or the degree of cooperation by Saddam, even though Goldsmith had set this as the test of whether the war was to be lawful.
The inquiry concludes that “this issue should have been subject to a full discussion in the war cabinet on the basis of formal advice”. Chilcot said: “This is one of a number of occasions identified by the inquiry when policy should have been considered by cabinet committee and then discussed by cabinet itself.”
Although the cabinet discussed the legal advice on 17 March, the inquiry finds the cabinet were not informed of the legal uncertainties. The cabinet showed little appetite to question Goldsmith and no substantive discussion occurred.
The report concludes: “Given the gravity of this decision, cabinet should have been made aware of the legal uncertainties, 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.”
But it says: “Cabinet was not misled on 17 March and the exchange of letters between the attorney general’s office and No 10 on 14 and 15 March did not constitute, as suggested to the inquiry by Ms Short, a side deal.”Responding to the Chilcot report, Lord Goldsmith QC said: “As others have said, I pay tribute to all those who gave their lives and have been affected in any way by the conflict in Iraq.
“As I explained in my detailed evidence to the inquiry, it was my honestly held professional opinion that there was sufficient authority in UN security resolution 1441, together with resolutions 678 and 687, to go to war. This was my conclusion after an in-depth study of all the available information. I welcome the fact that there is nothing in today’s exhaustive report that challenges either my conclusion or the fact that this was my honestly held view.
“Sir John today expresses concern about the process by which my advice was obtained. I agree that process should be improved for the future. As I said in my evidence, I think that there ought to be a cabinet sub-committee to consider issues relating to the legality of government policy, and that legal advisers should be closely involved in the policymaking process.”
