5 |
Advice on the legal basis for military action, November 2002 to
March 2003
“Both of
them in a sense were saying the same thing. They were saying, ‘We
are
potentially
at risk personally if we participate’, or, in the case of the Civil
Service,
‘assist in
war, if it turns out to be unlawful, and therefore, we want to know
whether
the
Attorney’s view is yes or no, lawful’.
“That
seemed to me to be actually a very reasonable approach for them to
take …”283
705.
Lord Goldsmith
told the Inquiry that he:
“… very
quickly saw that actually this wasn’t satisfactory from their point
of view.
They
deserved more … than my saying there was a reasonable
case.
“So,
therefore it was important for me to come down clearly on one side
of the
argument or
the other, which is what I proceeded to do.”284
706.
Lord Goldsmith
added:
“… until
the Civil Service and the … Services said they wanted this clear
view, I
was working
… I take full responsibility for this, but it was with the approval
of my
office on
the basis that saying there was a reasonable case was a green
light. It was
sufficient
for the Government, and if the Cabinet and, as it turns out, the
House of
Commons,
took the view that it was the right thing to do, then we had done
enough
to explain
what the legal basis was and to justify it.
“But when
they came with their request, I then saw that actually that wasn’t
fair
on them.”
707.
Asked how the
case had suddenly become stronger, Lord Goldsmith
replied:
“It is the
decision you make about it. You make a judgment. You say ‘I’m asked
to
advise
whether there is a reasonable case’, and you examine all the
evidence and
you say,
‘Yes there is a reasonable case’. You don’t need to go any further,
and in
that
respect, I can see with hindsight, that I was being overly
cautious.
“Then
somebody says to you, ‘Actually, I don’t want to know whether you
say there
is a
reasonable case, I want to know whether or not you consider that it
will be
lawful.’
“Well, I
regard that as a different question and you then have to answer
it.”285
708.
Asked why he
was able to give the Armed Forces a more certain answer
without
providing
more legal arguments, Lord Goldsmith replied:
“Well, not
on the basis of more legal argument, but on the basis of asking a
different
question.
This is, in a sense, why I’m saying ‘with hindsight’. I would have
liked to
283
Public
hearing, 27 January 2010, pages 183-184.
284
Public
hearing, 27 January 2010, page 171.
285
Public
hearing, 27 January 2010, page 172.
127