Executive Summary of the Iraq Inquiry


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Advice on the legal basis for military action


The Inquiry has reviewed the debate that took place within the Government and how it reached its decision.

The circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory.

It was not until 13 March 2003 that Lord Goldsmith advised that there was, on balance, a secure legal basis for military action.

In the letter of 14 March 2003 from Lord Goldsmith's office to No.10, which is addressed in Section 5 of the Report, Mr Blair was told that an essential ingredient of the legal basis was that he, himself, should be satisfied of the fact that Iraq was in breach of resolution 1441.

In accordance with that advice, it was Mr Blair who decided that, so far as the UK was concerned, Iraq was and remained in breach of resolution 1441.

Apart from No.10's response to the letter of 14 March, sent the following day, in terms that can only be described as perfunctory, no formal record was made of that decision and the precise grounds on which it was made remain unclear.

The Inquiry was told, and it accepts, that it would have been possible at that stage for the UK Government to have decided not to go ahead with military action if it had been necessary to make a decision to do so; or if the House of Commons on 18 March had voted against the Government.

Although, when resolution 1441 was adopted, there was unanimous support for a rigorous inspections and monitoring regime backed by the threat of military force as the means to disarm Iraq, there was no such consensus in the Security Council in March 2003. If the matter had been left to the Security Council to decide, military action might have been postponed and, possibly, avoided.

The Charter of the United Nations vests responsibility for the maintenance of peace and security in the Security Council. The UK Government was claiming to act on behalf of the international community "to uphold the authority of the Security Council", knowing that it did not have a majority in the Security Council in support of its actions. In those circumstances, the UK's actions undermined the authority of the Security Council.

A determination by the Security Council on whether Iraq was in fact in material breach of resolution 1441 would have furthered the UK's aspiration to uphold the authority of the Council.

The timing of Lord Goldsmith's advice on the interpretation of resolution 1441

Following the adoption of resolution 1441, a decision was taken to delay the receipt of formal advice from Lord Goldsmith.

On 11 November 2002, Mr Powell told Lord Goldsmith that there should be a meeting some time before Christmas to discuss the legal position.

On 9 December, formal "instructions" to provide advice were sent to Lord Goldsmith. They were sent by the FCO on behalf of the FCO and the MOD as well as No.10.

The instructions made it clear that Lord Goldsmith should not provide an immediate response.

When Lord Goldsmith met Mr Powell, Sir David Manning and Baroness Morgan (Director of Political and Government Relations to the Prime Minister) on 19 December, he was told that he was not, at that stage, being asked for his advice; and that, when he was, it would be helpful for him to discuss a draft with Mr Blair in the first instance.

Until 7 March 2003, Mr Blair and Mr Powell asked that Lord Goldsmith's views on the legal effect of resolution 1441 should be tightly held and not shared with Ministerial colleagues without No.10's permission.

Lord Goldsmith agreed that approach.

Lord Goldsmith provided draft advice to Mr Blair on 14 January 2003. As instructed he did not, at that time, provide a copy of his advice to Mr Straw or to Mr Hoon.

Although Lord Goldsmith was invited to attend Cabinet on 16 January, there was no discussion of Lord Goldsmith's views.

Mr Straw was aware, in general terms, of Lord Goldsmith's position but he was not provided with a copy of Lord Goldsmith's draft advice before Cabinet on 16 January. He did not read it until at least two weeks later.

The draft advice of 14 January should have been provided to Mr Straw, Mr Hoon and the Cabinet Secretary, all of whose responsibilities were directly engaged.

Lord Goldsmith provided Mr Blair with further advice on 30 January. It was not seen by anyone outside No.10.

Lord Goldsmith discussed the negotiating history of resolution 1441 with Mr Straw, Sir Jeremy Greenstock, with White House officials and the State Department's Legal Advisers. They argued that resolution 1441 could be interpreted as not requiring a second resolution. The US Government's position was that it would not have agreed to resolution 1441 had its terms required one.

When Lord Goldsmith met No.10 officials on 27 February, he told them that he had reached the view that a "reasonable case" could be made that resolution 1441 was capable of reviving the authorisation to use force in resolution 678 (1990) without a further resolution, if there were strong factual grounds for concluding that Iraq had failed to take the final opportunity offered by resolution 1441.

Until that time, No.10 could not have been sure that Lord Goldsmith would advise that there was a basis on which military action against Iraq could be taken in the absence of a further decision of the Security Council.

In the absence of Lord Goldsmith's formal advice, uncertainties about the circumstances in which the UK would be able to participate in military action continued, although the possibility of a second resolution remained.

Lord Goldsmith provided formal written advice on 7 March.

Lord Goldsmith's advice of 7 March 2003

Lord Goldsmith's formal advice of 7 March set out alternative interpretations of the legal effect of resolution 1441. He concluded that the safer route would be to seek a second resolution, and he set out the ways in which, in the absence of a second resolution, the matter might be brought before a court. Lord Goldsmith identified a key question to be whether or not there was a need for an assessment of whether Iraq's conduct constituted a failure to take the final opportunity or a failure fully to co-operate within the meaning of operative paragraph 4, such that the basis of the cease-fire was destroyed.

Lord Goldsmith wrote (paragraph 26): "A narrow textual reading of the resolution suggested no such assessment was needed because the Security Council had pre-determined the issue. Public statements, on the other hand, say otherwise."

While Lord Goldsmith remained "of the opinion that the safest legal course would be to secure a second resolution", he concluded (paragraph 28) that "a reasonable case can be made that resolution 1441 was capable of reviving the authorisation in resolution 678 without a further resolution".

Lord Goldsmith wrote that a reasonable case did not mean that, if the matter ever came to court, he would be confident that the court would agree with this view. He judged a court might well conclude that OPs 4 and 12 required a further Security Council decision in order to revive the authorisation in resolution 678.

Lord Goldsmith noted that on a number of previous occasions, including in relation to Operation Desert Fox in Iraq in 1998 and Kosovo in 1999, UK forces had participated in military action on the basis of advice from previous Attorneys General that (paragraph 30) "the legality of the action under international law was no more than reasonably arguable".

Lord Goldsmith warned Mr Blair (paragraph 29):

"... the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-co-operation ... the views of UNMOVIC and the IAEA will be highly significant in this respect."

Lord Goldsmith added:

"In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-co-operation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity."

Mr Straw, Mr Hoon, Dr John Reid (Minister without Portfolio and Labour Party Chair) and the Chiefs of Staff had all seen Lord Goldsmith's advice of 7 March before the No.10 meeting on 11 March, but it is not clear how and when it reached them.

Other Ministers whose responsibilities were directly engaged, including Mr Gordon Brown (Chancellor of the Exchequer) and Ms Short, and their senior officials, did not see the advice.

Lord Goldsmith's arrival at a "better view"

At the meeting on 11 March, Mr Blair stated that Lord Goldsmith's "advice made it clear that a reasonable case could be made" that resolution 1441 was "capable of reviving" the authorisation of resolution 678, "although of course a second resolution would be preferable". There was concern, however, that the advice did not offer a clear indication that military action would be lawful.

Lord Goldsmith was asked, after the meeting, by Adm Boyce on behalf of the Armed Forces, and by the Treasury Solicitor, Ms Juliet Wheldon, in respect of the Civil Service, to give a clear-cut answer on whether military action would be lawful rather than unlawful.

On 12 March, Mr Blair and Mr Straw reached the view that there was no chance of securing a majority in the Security Council in support of the draft resolution of 7 March and there was a risk of one or more vetoes if the resolution was put to a vote.

There is no evidence to indicate that Lord Goldsmith was informed of their conclusion.

Lord Goldsmith concluded on 13 March that, on balance, the "better view" was that the conditions for the operation of the revival argument were met in this case, meaning that there was a lawful basis for the use of force without a further resolution beyond resolution 1441.

The exchange of letters on 14 and 15 March 2003

Mr David Brummell (Legal Secretary to the Law Officers) wrote to Mr Matthew Rycroft (Mr Blair's Private Secretary for Foreign Affairs) on 14 March:

"It is an essential part of the legal basis for military action without a further resolution of the Security Council that there is strong evidence that Iraq has failed to comply with and co-operate fully in the implementation of resolution 1441 and has thus failed to take the final opportunity offered by the Security Council in that resolution. The Attorney General understands that it is unequivocally the Prime Minister's view that Iraq has committed further material breaches as specified in [operative] paragraph 4 of resolution 1441, but as this is a judgement for the Prime Minister, the Attorney would be grateful for confirmation that this is the case."

Mr Rycroft replied to Mr Brummell on 15 March:

"This is to confirm that it is indeed the Prime Minister's unequivocal view that Iraq is in further material breach of its obligations, as in OP4 of UNSCR 1441, because of 'false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure to comply with, and co-operate fully in the interpretation of, this resolution'."

It is unclear what specific grounds Mr Blair relied upon in reaching his view.

In his advice of 7 March, Lord Goldsmith had said that the views of UNMOVIC and the IAEA would be highly significant in demonstrating hard evidence of non-compliance and non-co-operation. In the exchange of letters on 14 and 15 March between Mr Brummell and No.10, there is no reference to their views; the only view referred to was that of Mr Blair.

Following receipt of Mr Brummell's letter of 14 March, Mr Blair neither requested nor received considered advice addressing the evidence on which he expressed his "unequivocal view" that Iraq was "in further material breach of its obligations".

Senior Ministers should have considered the question posed in Mr Brummell's letter of 14 March, either in the Defence and Overseas Policy Committee or a "War Cabinet", on the basis of formal advice. Such a Committee should then have reported its conclusions to Cabinet before its members were asked to endorse the Government's policy.

Lord Goldsmith's Written Answer of 17 March 2003

In Parliament during the second week of March, and in the media, there were calls on the Government to make a statement about its legal position.

When Lord Goldsmith spoke to Mr Brummell on 13 March, they agreed that a statement should be prepared "setting out the Attorney's view of the legal position which could be deployed at Cabinet and in Parliament the following week".

The message was conveyed to No.10 during the morning of 15 March that Lord Goldsmith "would make clear during the course of the week that there is a sound legal basis for action should that prove necessary".

The decision that Lord Goldsmith would take the lead in explaining the Government's legal position to Parliament, rather than the Prime Minister or responsible Secretary of State providing that explanation, was unusual.

The normal practice was, and is, that the Minister responsible for the policy, in this case Mr Blair or Mr Straw, would have made such a statement.

Cabinet, 17 March 2003

Cabinet was provided with the text of Lord Goldsmith's Written Answer to Baroness Ramsey of Cartvale setting out the legal basis for military action.

That document represented a statement of the Government's legal position – it did not explain the legal basis of the conclusion that Iraq had failed to take "the final opportunity" to comply with its disarmament obligations offered by resolution 1441.

Lord Goldsmith told Cabinet that it was "plain" that Iraq had failed to comply with its obligations and continued to be in "material breach" of the relevant Security Council resolutions. The authority to use force under resolution 678 was, "as a result", revived. Lord Goldsmith said that there was no need for a further resolution.

Cabinet was not provided with written advice which set out, as the advice of 7 March had done, the conflicting arguments regarding the legal effect of resolution 1441 and whether, in particular, it authorised military action without a further resolution of the Security Council.

Cabinet was not provided with, or informed of, Mr Brummell's letter to Mr Rycroft of 14 March; or Mr Rycroft's response of 15 March. Cabinet was not told how Mr Blair had reached the view recorded in Mr Rycroft's letter.

The majority of Cabinet members who gave evidence to the Inquiry took the position that the role of the Attorney General on 17 March was, simply, to tell Cabinet whether or not there was a legal basis for military action.

None of those Ministers who had read Lord Goldsmith's 7 March advice asked for an explanation as to why his legal view of resolution 1441 had changed.

There was little appetite to question Lord Goldsmith about his advice, and no substantive discussion of the legal issues was recorded.

Cabinet was not misled on 17 March and the exchange of letters between the Attorney General's office and No.10 on 14 and 15 March did not constitute, as suggested to the Inquiry by Ms Short, a "side deal".

Cabinet was, however, being asked to confirm the decision that the diplomatic process was at an end and that the House of Commons should be asked to endorse the use of military action to enforce Iraq's compliance. Given the gravity of this decision, Cabinet should have been made aware of the legal uncertainties.

Lord Goldsmith should have been asked to provide written advice which fully reflected the position on 17 March, explained the legal basis on which the UK could take military action and set out the risks of legal challenge.

The advice should have addressed the significance of the exchange of letters of 14 and 15 March and how, in the absence of agreement from the majority of members of the Security Council, the point had been reached that Iraq had failed to take the final opportunity offered by resolution 1441.

The advice should have been provided to Ministers and senior officials whose responsibilities were directly engaged and should have been made available to Cabinet.


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