5 |
Advice on the legal basis for military action, November 2002 to
March 2003
“I can see
… that, with hindsight, I was being overly cautious in expressing
it in
this way,
but that was the precedent that had been used and I went along with
it.
Not ‘I went
along with it’, I followed the same practice.”218
565.
Asked about
his advice to Mr Blair that he could not be confident that a
court would
agree with
the view that there was a “reasonable case”, Lord Goldsmith
replied:
“I think …
I’m explaining what I mean by ‘reasonable case’, and this is – if
you
like – the
‘yes, but’ point. I wanted to … underline to the Prime Minister
that I
was saying
that reasonable case is enough. I’m saying it is a reasonable
case.
So that
is the green light … but I want to underline, ‘Please don’t
misunderstand,
a reasonable
case doesn’t mean of itself that, if this matter were to go to
court,
you would
necessarily win’. ‘On the other hand, the counter view can
reasonably
566.
Ms Adams told
the Inquiry that, when she arrived in Lord Goldsmith’s office,
one
of her
predecessors had already put together a file of previous Law
Officers’ advice on
the use of
force over the last “ten years or so” which “contained all the key
advice on the
revival
argument”.220
In her
view, “it was self-evident from this file, that there had been
a
number of
occasions when the Law Officers had … endorsed … military action on
the
basis of a
reasonable case”.
567.
Addressing
Lord Goldsmith’s reference to precedent, Ms Adams
stated:
“It wasn’t
a precedent in the sense of something that had to be followed; it
was a
precedent
in the sense of something which had, as a matter of fact, taken
place.”221
568.
Asked if the
term “reasonable case” had a meaning in international law, Ms
Adams
told the
Inquiry that it did not, it was:
“… one
which can be reasonably argued. Obviously, it has to have a
reasoned basis
to it
because otherwise it is not going to be reasonable to a court.
There has to be
a reasonable
prospect … of success for this argument, but it doesn’t mean to
say
it is
the better legal opinion. That would be my
interpretation.”222
569.
The Inquiry
has seen the advice from the Law Officers on the use of
force
described
by Ms Adams, in which the formulation “respectable legal argument”
is used.
570.
Asked whether
there was any significant difference between a “reasonable
case”
and a
“respectable legal argument”, Lord Goldsmith wrote that he
preferred the former,
though he
treated “respectable case” as amounting to the same test in
practice, and
“certainly
not a higher test”.223
218
Public
hearing, 27 January 2010, pages 170-171.
219
Public
hearing, 27 January 2010, pages 173-174.
220
Public
hearing, 30 June 2010, page 43.
221
Public
hearing, 30 June 2010, page 45.
222
Public
hearing, 30 June 2010, page 45.
223
Statement,
4 January 2011, paragraph 6.1.
103