It is little wonder the government struggled so hard to keep secret the attorney general's March 7 advice on the legality of war. It is, in more ways than one, an extremely troubling document. The extracts we publish today bear little relation - in tone or content - to the so-called summary which was presented to both cabinet and parliament as they weighed up the morality and legality of going to war in Iraq just 10 days later. The March 17 document was stripped of all the nuances, qualifications and caveats contained in the March 7 opinion. It could not conceivably be regarded as a summary of the earlier advice. Both cabinet and parliament were - to put it at its mildest - kept unforgiveably in the dark. It looks rather worse than that: it looks as if they were deceived.
The documents that we publish this morning are part of the 13-page legal advice which the attorney general wrote at a point when the British government was still straining to drum up support for a second UN security council resolution against Saddam Hussein's regime. The purpose of Lord Goldsmith's advice was to explain the legal effects of UN security council resolution 1441, passed the previous autumn. The issues at stake were, first, whether an Iraqi failure to comply with the inspection regime established under 1441 constituted a material breach of its international obligations following the 1991 Gulf war; and, second, whether such a breach would authorise war against Iraq.
The documents reveal the kind of balanced legal advice that it is Lord Goldsmith's job to supply to the government. He reports, as the Butler inquiry has previously said, that arguments can be made on both sides as to whether, on its own, a breach of 1441 can be held to justify war. The safest course, he says, would be to obtain a second and more explicit resolution. Without that second resolution, the argument for war based on 1441 alone would "only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity". Great care would be needed in proving that was the case, particularly because of what Hans Blix and his inspectors were reporting. A court might find that 1441 was an inadequate basis for war. In any event, there would be no legal grounds for saying that a veto by France (or anyone else) of any second resolution could be classed as unreasonable - and thus as an implicit legal sanction for action under 1441 itself.
Nobody reading this could possibly conclude that the attorney general's view of the law on March 7 was categorical. That was why Britain's service chiefs, on reading the full 13 pages, immediately demanded an unambiguous legal statement that our soldiers would not be at risk of prosecution as war criminals. A week later, the chiefs got what they asked for, in private, after an exchange of letters and views between the law officers, the defence ministry and Downing Street. On March 17, Lord Goldsmith then published a written parliamentary answer setting out his - absolutely categorical - view of the legal basis of war against Iraq. On March 17, the cabinet voted for war, in the attorney general's presence, but without the benefit of being able to see, or interrogate, his March 7 opinion. It was already absurd for the government not to publish the documents in the case. It is now indefensible. The public is entitled to know what changed in those 10 days, and why. Only then will it be possible to judge where collective and individual responsibility lay and whether the cabinet, MPs and the nation were misled.
According to our ICM poll today only a minority of voters find Tony Blair trustworthy. Large minorities consider him both slippery and a liar. Until the matter of the legality of war is resolved, Mr Blair's reputation will remain deep in the shadow of the doubts exposed in the poll.
© 2005 Guardian Unlimited
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