ON THE ATTORNEY GENERAL'S ADVICE TO THE GOVERNMENT ON THE INVASION OF IRAQ
Updates down the page - latest March 23rd 2005

FEB 26TH 2005
Such has been the abuse of logic in the current debate on whether or not the Attorney General should publish his confidential advice to the government that clarification is now required.

First of all it is clear that up until now, those in favour of it being published have been confined to those who were against the policy of using military action to enforce the UN resolutions. They were 'against the war'. They remain 'against the war' on principle. If they can show that the opinion of the Attorney General was ambiguous, they believe that this can justify their own position. They are desperate to justify their own position because they are now in a very tight spot for the following reasons:
That does not lead to a wide choice of happy futures for those who have staked their reputation on opposing the removal of Saddam and his regime, but if they can claim that the law actually forbade them voting for the war, they can salvage some personal self respect. That is why they are desperate to show that the Attorney General's advice was conditional on, for example, the actual discovery of significant WMD the existence of which had been denied by Saddam. Their claim is that this condition would make the war (a) illegal and (b) therefore wrong. They may well be incorrect on both counts. Whether the Attorney General should now break with precedent and publish his advice is not to be based on their requirements anyhow.

First of all, we need to understand that experts in law are not automatically experts about the law and its role in human society. To understand the latter requires a very wide knowledge of history, biology, sociology, philosophy that some lawyers might possess but most probably do not, even if they rise to positions of some eminence. It is quite distinct from a detailed knowledge of particular branches of national or international law.

There was no existing international law to permit the removal of Saddam Hussein, so the role of law in this instance was confined to enumerating the steps that should be taken to make sure that Saddam was aware of the international requirements and how to comply. There was no law provision for regime change. When Saddam had attacked Kuwait it is significant that the Security Council authorized the removal of Saddam's forces from Kuwait, and this was what permitted the attack on his resources within Iraq but not his removal. The decision to proceed in March 2003 with enforcement of the conditions laid down in all the UN resolutions was therefore an executive decision of the coalition governments. The advice that was required from the Attorney General was whether he considered that the requirements of the UN had been made clear to Saddam. It would also be relevant that he had been given sufficient time to comply with the requirements.

There is therefore no question of the Attorney General 'authorizing' the war or declaring it legal. His advice was confined to an opinion that the mandatory and essential demands of the Security Council had been ignored, and that those members of the security council who took the UN seriously enough to enforce its will on a global issue of major importance, as a last resort after 12 years of seeking a peaceful method, could not realistically be accused of illegal activity by so doing. His advice could be right, it could be wrong, as it is only advice on the likely judgment of an international court on the subject should such a court be called upon to make a judgment. Nobody can decide on the legality of a war. It is a matter of judgment and the values you estimate war is essential, at the time, to preserve for the future.

There is therefore no possibility that any revelation of the Attorney General's opinion, or changes of mind, or conditions relating to the actual existence of discoverable WMD can have any bearing on the correctness of the decision to proceed. The law in this area can only deal with certain things on the basis of past experience and offer guidance for the future. Many generations have been taught from an early age that the law is for the guidance of wise men and the obeyment of fools. This saying is much misunderstood as denigrating the law. This is far from the truth. It is to foster respect for the law by recognizing its limitations. The law, like a computer program, has no intelligence. It cannot protect the future. It can only provide a level playing field on a temporarily acquired platform. It's fundamentals remain but its applications and refinements evolve, because any law, once know to those it regulates, can be manipulated to work against its own ends. This is a fundamental property of biological systems and is true of their epiphenomena.

However, the prima donnas who are trying to restore their consciences or save their reputations have made such a noise and so confused the public that even those who understand the above, and those who agree with the decision to enforce the UN resolutions, may eventually come to the opinion that it is now necessary to lance this artificial boil by publishing the A.G.'s opinion. If so, we shall have sunk even further towards rule by the media, which we mistake for democracy.

MARCH 23rd 2005
It is now more than likely that further details of the Attorney General's advice will be revealed and the only point of any interest is whether or not his advice was his geniune opinion, as that is what his position as Attorney General demanded of him. He was appointed to that position on the basis of his reputation and knowledge. There is no internal contradiction if his advice was initially that a further resolution should have been required, but later that it was right to proceed without it.  If an executive authority discovers that an institution that should authorize action has become corrupted or influenced to the extent that it cannot carry out its function, it has to proceed according to the last sound, logical and uncorrupted decision that has been arrived at.

As the moment for decision arrived, and it was established that Saddam would not accept the offer to resign and go into exile, it was the judgement of the UK government that President Chirac, regardless of the actual words he cafefully used at the time, would never lift France's veto on the military enforcement of resolution 1441, of which one requirement was the release from Saddam's control of all those responsible for WMD programmes and their dismantlement, so that they could speak openly. This would have enabled Iraqis to rise up against him, Chemical Ali etc, so he was never going to comply. It would also have caused a civil war in Iraq. There is therefore no doubt that the Attorney General, having first advised that a further resolution was required (if he had not, how could they have tried to get one?), changed his mind when it was obvious that this resolution would be vetoed by France and voted against by others who would not face the facts.

There is no doubt that the government's assessment of the above was correct in every detail, even though their assessment of how to deal with the Sunni majority and insurgents after the invasion, and what would happen, was incorrect. That no WMD were found was irrelevant. The Foreign Office legal advisor who resigned was not dealing with anything other than the idealised, theoretical legal situation which did not exist, so her resignation is not relevant to reality, which governments have to deal with, either. The action of the government was honest and responsible in proceeding with the removal of Saddam Hussein and his regime. With the passage of time this has become increasingly obvious.