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Advice on the legal basis for military action, November 2002 to
March 2003
detailed
advice the same Legal Adviser had proffered to the Attorney
General”.145
It
was
“incorrect
to claim that there was ‘no doubt’ about the position” because two
views had
been set
out in Mr Wood’s letter of instructions to Lord Goldsmith on 9
December 2002
and the
issue “was at the heart of the debate on lawfulness”. That, “In
turn and in part …
depended on
the ‘negotiating history’”, of the resolution.
372.
Mr Straw
subsequently told the Inquiry that, if Mr Wood had thought
there was
“no doubt”,
that was what he should have written in the instructions to Lord
Goldsmith
of 9
December.146
The
purposes of that document and Mr Wood’s minute of 24
January
“were the
same, to offer legal advice and … the legal advice he had offered …
was
contradictory”.
In Mr Straw’s view he was “entitled to raise
that”.
373.
The
evidence set out in this Report demonstrates that Mr Wood
fully
understood
that Lord Goldsmith’s response to the letter of instruction
of
9 December
2002 would provide the determinative view on the points at
issue
and he
was not seeking to usurp that position.
374.
Mr Wood
had referred to the need to seek Lord Goldsmith’s advice
on
several
previous occasions and it should not have been necessary to
reiterate
the point
in every minute to Mr Straw.
375.
Until Lord
Goldsmith had reached his definitive view, FCO Legal
Advisers
had a duty
to draw the attention of Ministers to potential legal risks; and
Lord
Goldsmith’s
minute of 3 February confirmed that duty.
376.
Mr Wood’s
advice to Mr Straw was fully consistent with views
previously
expressed
by Lord Goldsmith.
377.
Lord
Goldsmith’s response, insisting on the duty of Government lawyers
to
provide
frank, honest and, if necessary, unwelcome legal advice without
fear of
rebuke from
Ministers, was timely and justified.
378.
In his
‘Supplementary Memorandum’, Mr Straw wrote that
the:
“… decision
was one for the Attorney General alone – a fact to which no
reference
was made
nor qualification offered in the Legal Adviser’s minute to me
…”147
“It would
surely be a novel, and fundamentally flawed, constitutional
doctrine that a
Minister
was bound to accept any advice offered … by a Departmental Legal
Adviser
as
determinative of an issue, if there were reasonable grounds for
taking a contrary
view. Such
a doctrine would wholly undermine the principles of personal
Ministerial
responsibility
and give inappropriate power to a Department’s Legal
Advisers.”
145
Statement,
February 2010, ‘Supplementary Memorandum by the Rt Hon Jack Straw
MP’.
146
Public
hearing, 8 February 2010, page 16.
147
Statement,
February 2010, ‘Supplementary Memorandum by the Rt Hon Jack Straw
MP’.
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