3.5 |
Development of UK strategy and options, September to November 2002
–
the
negotiation of resolution 1441
not those
of lawyers in the FCO or in UKMIS New York, and (iii) the nature of
the
negotiations,
I do not consider that there would have been any significant
change
in the
course of the negotiation, or the wording of the eventual
resolution.”407
1070.
The Inquiry
was given divergent views on the question of whether it
would
have been
appropriate for there to have been more direct links between the
FCO
Legal
Advisers and the Legal Counsellor in New York.
1071.
The
different reporting arrangements under which the Legal Counsellor
in
New York
reports to the Head of the Mission rather than to the FCO Legal
Adviser
in London,
and the reasons for that, are understandable.
1072.
But given
the importance of resolution 1441 and the complex
legal
considerations,
and notwithstanding Sir Michael Wood’s position that the
general
practice at
that time was that the advice of the Law Officers was not sent to
posts
overseas,
direct discussions between Mr Wood (or Mr Grainger on his
behalf) and
Mr Macleod
of the drafts during the negotiation could have ensured a
common
understanding
of, and advice on, the legal effect.
1073.
Sir Michael
Wood wrote that he:
“… did not
recall discussing the negotiation of SCR 1441 with Sir
Jeremy
Greenstock
or Iain Macleod, though we were … seeing many of the same
papers.
Direct
contact was not necessary since … legal advice was fully
incorporated
into the
instructions … Lawyers in New York and London played quite
different
1074.
Sir Michael
Wood added:
“Nor in my
view would it have been appropriate for Iain Macleod and me to
have
conducted
some sort of ‘back channel’ discussion among lawyers on the
course
of the
negotiations and the ever‑changing texts. It would have
short‑circuited
the regular
process for feeding in combined policy and legal considerations
into
the
instructions sent to New York. And, in the particular circumstances
of this
negotiation,
it would have risked crossing wires, and might even have been
seen
as interfering
in matters of great political sensitivity.”409
1075.
Sir Franklin
Berman, who preceded Sir Michael as the FCO Legal
Adviser,
provided
the Inquiry with his thoughts on the processes followed in
negotiating resolution
1441; he
did not seem to share that concern.410
1076.
Acknowledging
that, unlike in London, as a member of the Mission the
legal
adviser
answers to and takes instructions from the Head of Mission, Sir
Franklin
407
Statement,
15 March 2011, page 10.
408
Statement,
15 March 2011, page 9.
409
Statement,
15 March 2011, page 9.
410
Submission
Berman, 7 March 2011, ‘The process for giving and receiving Legal
advice’.
385