The Report
of the Iraq Inquiry
380.
In the
subsequent hearing, Mr Straw told the Inquiry he had responded
to Mr Wood
because:
“… where I
disagreed with him was that he had the right over and above
the
Attorney
General to say what was or was not unlawful … it is a most
extraordinary
constitutional
doctrine that, in the absence of a decision by the Attorney
General
about what
was or was not lawful, that a Departmental Legal Adviser is able to
say
what is or
is not unlawful.”148
“But in the
absence of a decision by the Attorney General … there has to be
doubt.
That was
what I thought was strange, and, as I say, he is fully entitled to
send me
the note. I
never challenged his right to do that, and if I may say so, there
is some
suggestion
in the notes that I ignored the advice. I never ignore advice. I
gave it the
most
careful attention.”149
382.
Sir Franklin
Berman, Sir Michael Wood’s predecessor as the FCO Legal
Adviser,
wrote:
“I have to
confess (once again) to some astonishment at seeing a former
Foreign
Secretary
implying in recent evidence to the Inquiry that he was not bound by
legal
advice
given to him at the highest level, but was entitled to weigh it off
against other
legal views
as the basis for policy formulation. If Ministers begin to think
that they
can shop
around until they discover the most convenient legal view, without
regard
to its
authority, that is a recipe for chaos.”150
383.
As Lord
Goldsmith remarked in his letter of 3 February, the remedy in
case
of dispute
was to ask for his opinion, but he did not at that stage have
Mr Blair’s
agreement
to share his draft views.
384.
Mr Straw’s
evidence makes clear his concern that Lord Goldsmith
should
not at that
stage take a definitive view without fully considering the
alternative
interpretation
advocated by Mr Straw and set out in his letter of 6 February
2003.
385.
The balance of
the evidence set out later in this Section suggests that
neither
Mr Straw
nor Mr Wood had, by 29 January, seen Lord Goldsmith’s draft
advice of
14 January.
386.
In his
‘Supplementary Memorandum’ Mr Straw pointed out “the huge
difference
between the
normal run of the mill legal advice on usual issues and legal
advice on
whether it
was legal for the United Kingdom to take military
action”.151
That was
“why,
on all
sides, this issue was so sensitive”.
148
Public
hearing, 8 February 2010, page 11.
149
Public
hearing, 8 February 2010, page 14.
150
Statement,
7 March 2011, paragraph 8.
151
Statement,
February 2010, ‘Supplementary Memorandum by the Rt Hon Jack Straw
MP’.
70