The Report
of the Iraq Inquiry
“Normally,
a Law Officer’s opinion is not disclosed. It was in fact,
impossible in these
circumstances
not to disclose what my conclusion was, because the clamour
to
know …
would have been frankly impossible to avoid. So I knew that I would
have to
make some
sort of statement as to what my position was. So that is the point
about
the
Parliamentary answer.”352
814.
Parliamentary
Questions and Parliamentary Committees after 2003 sought
to
probe
whether Lord Goldsmith’s Written Answer to Baroness Ramsey on 17
March
constituted
the Attorney General’s advice, and by implication, whether the
Government
had waived,
in the case of the legal advice on the basis of military action in
Iraq, the
convention
that neither the fact that the Attorney General had advised nor the
content
of that
advice were disclosed.353
815.
In his
responses, Lord Goldsmith was always very careful to point out
that
Baroness
Ramsey had asked for, and he had provided, his view of the legal
basis for
the use
of force, not his advice.354
816.
The FCO paper,
‘Iraq: Legal Basis for the Use of Force’, stated that the legal
basis
for the use
of force in Iraq was the revival of the authorisation in resolution
678.355
817.
Specifically,
the paper stated that in resolution 1441:
“… the
Security Council has determined –
(1) that
Iraq’s possession of weapons of mass destruction (WMD)
constitutes
a threat
to international peace and security;
(2) that
Iraq has failed – in clear violation of its legal obligations – to
disarm; and
(3) that,
in consequence, Iraq is in material breach of the conditions for
the
ceasefire
laid down by the Council in SCR 687 at the end of hostilities in
1991,
thus
reviving the authorisation in SCR 678.”
818.
Referring to
the Security Council’s power under Chapter VII of the Charter
to
authorise
States to take military action, the paper set out the occasions
during the 1990s
when action
had been taken on the basis that Iraq’s non-compliance had broken
the
conditions
of the cease-fire in resolution 687 and the authority to use force
in resolution
678 had
been “revived”, as the “legal background” to resolution
1441.
352
Public
hearing, 27 January 2010, pages 198-199.
353
House of
Lords, Official
Report, 6
November 2003, column 129WA; House of Lords, Official
Report,
28 February
2005, column 1WA; House of Lords, Constitution Committee,
Minutes of
Evidence, 22
March
2006, Q41;
House of Lords, Constitution Committee, Minutes of
Evidence, 22 March
2006, Q41, Q241.
354
House of
Lords, Official
Report, 6
November 2003, column 129WA; House of Lords, Official
Report,
28 February
2005, column 1WA; House of Lords, Constitution Committee,
Minutes of
Evidence, 22
March
2006, Q41;
House of Lords, Constitution Committee, Minutes of
Evidence, 22 March
2006, Q41, Q241.
355
Paper FCO,
17 March 2003, ‘Iraq: Legal Basis for the Use of
Force’.
146