I beg to move,
That this House
believes that all advice prepared by the Attorney-General on the legality of the war in Iraq should be published in full.
The wording of the motion is tightly drawn, but for further clarity I should say that this debate is not about whether one was for or against the conflict in Iraq. As was explained to the House, my colleagues in Plaid Cymru and the Scottish National party were against military action in Iraq before it started because we were not persuaded that the war was justified. We did not believe that either dossier displayed any credible threat, immediate or otherwise, from the tyrant Saddam, and that remains our opinion. There was no justification for the war then: ergo, there is a real question about the legality of the action that was taken. That is the issue on which we hope to concentrate this afternoon.
As the motion makes plain, we are calling for the Government to publish the advice or advices of the Attorney-General, because without such publication it will not be possible fully to inform the debate. Incidentally, both the Prime Minister and the Foreign Secretary have described the debate and the disagreement as "legitimate." If we accept that the debate is legitimate, surely it is part of the function of Ministers of the Crown to inform it fully and apprise Parliament of all facts that are germane to the issue. That is beyond contradiction. In calling for the publication of the advice or advices, we call on the Government to inform the House.
"I believe we should be absolutely clear about how Ministers should account, and be held to account, by Parliament."
Paragraph 5 on page 1 states:
"The code should be read against the background of the overarching duty on Ministers to comply with the law including international law and treaty obligations."
Ministers are expected to observe the seven principles of public life, which include openness. The code states:
"Holders of public office should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands."
The code therefore provides that Ministers should be as open as possible with Parliament and the public, refusing information only when that is considered to be in the public interest.
When considering the disclosure by Ministers of Law Officers' opinions, it is helpful to consult "The Law Officers of the Crown" by J. Ll. J. Edwards. The chapter of the 1964 edition entitled "Attorney-General's Fiat and Responsibility to Parliament" states on page 259:
"When Parliament is faced with situations involving the disclosure of the contents of the Law Officer's opinions to departmental Ministers, it is surely impossible to be dogmatic and to assert either the principle of absolute confidentiality, or on the other hand, a rule requiring the government to reveal in full or in part the content of the opinions. There may be circumstances, as exemplified by the Belfast Riots and the Archer Shee cases, in which everything is to be gained by telling the House all the facts."
It continues on page 260 that
"the better constitutional convention is the flexible rule expressed in Erskine May".
The rule states:
"The opinions of the Law Officers of the Crown, being confidential, are not usually laid before Parliament or cited in debate . . . But if a Minister deems it expedient that such opinions should be made known for the information of the House, he is entitled to cite them in debate.'"
Page 261 of Edwards states:
"Intransigence on the part of Ministers or Members of the Commons when issues of this nature arise for debate is not calculated to enhance the prestige of Parliament or the administration of justice. So far as the Attorney-General and the Solicitor-General are concerned, in suitable cases sufficient reason should be given to convince the House of Commons that the Law Officer has considered all the relevant factors and has reached his decision with that impartiality of judgement which is the ultimate strength and protection of the constitutional independence of the Law Officers of the Crown."
There are several examples of the disclosure of Law Officers' advices. For example, Law Officers' advice on the compatibility of the Commonwealth Immigrants Act 1968 has been publicly available in the Public Record Office since 1998. Their advice on the legality of proposed merchant shipping legislation and its compatibility with European law, as disclosed to the courts in the Factortame litigation, is available in the House of Lords Record Office. In a written answer on
"In 1993, Law Officers' advice relevant to the subject matter of the Arms to Iraq inquiry was disclosed to the Scott inquiry."—[Official Report, House of Lords,
Hon. Members may remember that the advice was published in its entirety as an annexe to the report.
The Government's amendment refers to a hard-and-fast convention. I do not know on what evidence they base that. There is no hard-and-fast, time-honoured convention.
My hon. Friend is doing a sterling job through his revelations. We have been told for several weeks that it is not the convention to reveal the Attorney-General's advice. My hon. Friend has explained that such advice has been disclosed in the past and, dare I say it, on issues that appear to be less important than going to war with Iraq.
My hon. Friend knows that many of those who lead our armed forces in Iraq wanted unambiguous advice up to five days before the start of the conflict. Only then did they receive two lines of advice from the Attorney-General. Surely my hon. Friend's comments and our knowledge of the war present a case that it is crucial for Ministers to answer. Perhaps they will take the opportunity to intervene on my hon. Friend to explain why the advice has not been published.
My hon. Friend speaks for himself and makes an important point. There is great anxiety in not only the House but the public arena about the reason for not producing the advice or advices.
I am worried about the Government's stance. Apart from setting what appears to be a precedent for the Government to extract what is expedient for them from the document and make only that public, thereby applying soundbite politics again, the precise subject matter of the advice and its context are worrying.
Does the hon. Gentleman agree that the precedent, which the amendment mentions, was broken by the Government's selectively sharing some of the advice? Does he further agree that there is no difference in principle between sharing part of the advice, as the Government have done, and sharing all of it, as the rest of us want?
The hon. Gentleman is right. It is an added concern, which has recently been widely mentioned. There is no distinction, although there are more examples of such actions in the past.
Treasury counsel—senior, independent counsel—would have received a set of instructions when advising the Attorney-General. Their accuracy or veracity is key. If counsel were ill informed or, perchance, misled about a key component of the instructions, the advice would be flawed from the start. In the case that we are considering, the instructions would undoubtedly have set out the Government's case for war. It is fundamentally important to establish whether the instructions contained references to the infamous 45-minute claim. If they did, and counsel accepted them as valid, the whole basis of the advice could have been flawed or skewed from the beginning.
Furthermore, did the Government argue that the 12-year-old United Nations resolutions were extant? Was that presented to counsel as an undisputable fact? Again, if so, the advice could have been skewed from the beginning.
I shall go into detail about that later, but I shall also deal with the point briefly now. Counsel's advice would undoubtedly include the instructions, because he or she would have to base his opinion firmly on the facts before him or her at the time. Given that the hon. Gentleman is a lawyer, I am surprised by his intervention. Perhaps it shows why he is here and not in practice.
I am surprised by that response, because clearly a set of instructions to counsel is distinct from the advice that is tendered in response to them. The hon. Gentleman is completely misleading the House with that suggestion.
The hon. Gentleman is a questionable parliamentarian as well.
We want to know whether the Government stated as a fact that the 12-year-old UN resolutions were extant. That is why the question that Mr. Marshall-Andrews put to the Prime Minister last Wednesday, which echoes my remarks, was hugely significant. He asked:
"The Attorney-General has provided three written replies to the effect that he did not rely on any facts in Government dossiers when reaching his opinion that Iraq had failed to disarm. In those circumstances, what factual material was he given by the Government from which he could draw that conclusion?"
I am making the same point. The Prime Minister's response was:
"The Attorney-General was given whatever material he required to make his decision, but the basis of the decision was that Iraq continued in material breach of UN resolutions. I must tell my hon. and learned Friend that in respect of resolution 1441 there was a whole series of things that Iraq was supposed to do under Saddam Hussein . . . The point, surely, is that the Iraq survey group has already found that there was a failure to disclose proper information to the United Nations inspectors and that there was a series of activities and programmes in breach of UN resolutions, so it is completely obvious that Iraq was in material breach of resolution 1441."—[Hansard, 3 March 2004; Vol. 418, c. 895.]
Many of us throughout the House thought that that reply was insufficient and, in fact, not a little demeaning, considering the seriousness of the question and its subject.
I refer in passing to a further case in point. It is our understanding that in the Katharine Gun case, which collapsed on
I thought so. Is not all this pettifogging? Is it not far more important that Saddam Hussein is in custody and that Iraq is liberated and moving towards democracy and prosperity? If the hon. Gentleman and his nationalist allies had had their way, Saddam Hussein would still be in power, killing and torturing hundreds of thousands of people.
There is more to it than that. If the right hon. Gentleman were in the Old Bailey facing a charge of breaching the Official Secrets Act 1989—which is apparently what he wants to happen to his one-time friend Clare Short—he would not call legal niceties pettifogging. Those niceties are the bulwark that ensures that our rights are preserved. If the right hon. Gentleman thinks so little of them, after so many years in this House, I despair.
I am going to the Home Affairs Committee in a moment, so I will be unable to listen to the rest of the debate. Does the hon. Gentleman accept that, for many of us, the question of human rights in Iraq was not a petty, unimportant issue, but that we considered human rights there and in Kosovo in the same light? As I remember it, the nationalist parties opposed intervention in Kosovo, as they did in Iraq. If a regime such as Saddam's, as my right hon. Friend Mr. Foulkes has said, is responsible for the murder of hundreds of thousands of people over the years, why should we in the House of Commons oppose military action to end such tyranny?
No one in this House, I imagine, would ever have supported the Saddam regime. No one in my party has ever said anything of the kind, and no one ever would. However, the remit of this debate is to look at the legal process and to see where Parliament fits into that process, if at all.
The hon. Gentleman has a long history of consistency on this subject, and I take his point on board. I fully agree.
Given that we are a signatory to the International Criminal Court, surely the question of whether the war was legal is not pettifogging, but goes to the heart of whether we support in principle and in practice the framework of international law.
The hon. Lady is absolutely right. I add that, at a time when allied forces are quite properly trying to bring normality back to Iraq, one index of that normality will be the rule of law. How can we impose the rule of law on Iraq when we ignore, at our peril, international law in its entirety? That does not make a great deal of sense.
Has the hon. Gentleman had a chance to read Hans Blix's statement on the way in which he was removed from Iraq while still undertaking weapons inspection, and replaced by the Iraq survey group, which did not find any weapons of mass destruction? Mr. Blix is concerned that the real aim of the United States and Britain was always to go to war, rather than to achieve some kind of peaceful resolution to what was obviously a serious situation.
I agree with the hon. Gentleman, who knows that we opposed the war from the beginning.
I return to the theme of the debate, which is fairly tightly drawn, to pursue the question of the Attorney-General's advice. If his advices were to be published in full, the matter might be laid to rest. As I said earlier, counsel invariably sets out in its advices the precise facts on which its instructions are based. The advice takes shape as those facts are assimilated and the law applied. That is why this question is of such huge import. Some might say that in publishing the advice, the Government would open a Pandora's box and give rise to such claims being made day in, day out. The answer to that is that there will be a discretion, as at the moment, but that what makes the present case so compelling is the consequence of the advice given, and the question of whether Members of Parliament were adequately informed of what was going on when the House voted on the matter some time ago. We need to pursue that because otherwise we will from now on be given only what the Prime Minister considers to be good for us, which cannot be right in any democracy. My party would resist that at all costs.
Another cardinal point in favour of publishing the advice in full is that this was the first occasion on which UK forces went to war almost solely on the basis of intelligence. Lord Boyce, the then Chief of the Defence Staff, was so concerned that a few days before—
On how many occasions was the intelligence dossier referred to during the debate on
I shall refer briefly to resolution 1441 later. Frankly, I cannot say precisely how many times the dossier was referred to. Perhaps the right hon. Gentleman will do so if he catches your eye later, Mr. Deputy Speaker—heaven preserve us.
Days before the conflict began, Lord Boyce demanded an "unequivocal legal authority" for the invasion of Iraq. This is, therefore, an important issue.
The admiral demanded that before the Attorney-General's view was published. What I am really puzzled by is the fact that none of those who oppose the case for the legality of the war addresses the Attorney-General's argument. Will the hon. Gentleman do that now? The Attorney-General said that the Security Council had decided—[Interruption.]
The hon. Gentleman makes my case for me. How can I argue about the full advice if I have not seen it? That is a fairly obvious point.
The hon. Gentleman does not need the full advice. All he has to do is address the logic of the Attorney-General's argument. Does he refute the fact put forward by the Attorney-General that the Security Council had decided that Iraq was in breach of resolution 1441; that in so being, it was in breach of resolution 687; and that being in breach of 687 invoked the right to use force as expressed in resolution 678? That is the only fact that the hon. Gentleman needs to make his argument.
It most definitely is not, with great respect to the hon. Gentleman. In a few moments, I shall deal with the three resolutions, albeit in a fairly short time. Frankly, it is not enough for the hon. Gentleman simply to disclose something written on a sheet of A4 paper that purports to be the Attorney-General's full advice—
I shall come to the logic. If the hon. Gentleman will bear with me, I will deal with that point in a moment.
The hon. Gentleman said that a key issue was that the decision to go to war was taken on the basis of intelligence. Is not another key issue the fact that the decision was, at the Government's own request, taken by this House, this Parliament? That was wholly unprecedented, and in order to persuade Parliament to back them the Government saw fit to place before Parliament a large amount of material, including part of the Attorney-General's advice.
That is absolutely right, but I take exception to being given only a part of anybody's advice.
Some apologists will say that legal professional privilege might apply in supporting non-disclosure, but in my view it would not apply in this instance. The Government are concerned about the lack of trust with which the public treat politicians in general and the Government more specifically. How can they expect to build up that relationship when they behave in this way? How is a member of the public expected to engage, if he or she is not allowed to see fully what is going on?
The Government have talked extensively about freedom of information and openness. There was even talk of another Freedom of Information Act. That must have been nothing but spin, in the light of the Government's record in general and of this episode in particular. I hope that the Government will change their mind about producing the full advice to Dr. Ann Abraham, the parliamentary ombudsman. Failure to do so would be to undermine her office completely.
I shall now deal with the point raised by Mr. MacDonald. The Attorney-General believed that resolutions 678 and 687 were both revived, and that 1441 would allow for military action, as was anticipated by resolution 678. He believed therefore that there was automaticity in resolution 1441 and a trigger for action. However, that is not what was understood by the combined ranks of the Governments of France, Germany and Russia. I would suggest that such mass misunderstanding is rare in international diplomacy.
I will, but I want to make this the last intervention that I take. I must make some progress.
I am grateful to the hon. Gentleman. Is it not the case that resolution 1441 was passed only because of assurances that there was no automaticity?
The hon. Lady is right; that is precisely the point that I was trying to make.
Following the adoption of resolution 1441, the United Kingdom's ambassador to the United Nations said:
"There is no 'automaticity' in this Resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required under operational paragraph 12."
Turning to what the Attorney-General has made known, we find that he said that resolution 678 authorised force against Iraq. I do not disagree with that. However, that force related only to Kuwait—[Interruption.] Well, that is what he has said in the information that he has given us. He said that resolution 687 set out ceasefire conditions, then somehow came to the conclusion that those two old resolutions, which were specifically drawn up to authorise action in Iraq following the invasion of Kuwait—
No, I have already explained that I must make some progress.
Many experts believe that the Attorney-General's argument is flawed, because although resolution 678 authorised military action, using the diplomatic language "all necessary means", that referred specifically to military action to free Kuwait. Resolution 687 marked the permanent ceasefire. It did not adopt or preserve the right to use force set out under resolution 678, although such words did appear in paragraph 4 of resolution 686. Rabinder Singh, QC, said in his opinion of
Further, resolution 687 states that the Security Council
"decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region."
That clearly suggests that the Security Council will remain seized of the matter and will itself decide what further steps might be required for the implementation of that resolution. We must remember that both resolutions 678 and 687 were specific to the matter of Kuwait. It is therefore difficult to follow the Attorney-General's thesis in the material with which he has graced us. That is, that those resolutions somehow authorise the use of force. In my submission, according to their wording it is impossible to accept an implicit authorisation for the use of force without a further resolution, because the Security Council remained seized of the matter.
At this juncture, I could cite the opinions of many respected international lawyers who would agree that such authorisation was not and is not revived. This aspect of the argument has been debated before and the ground has been well covered. To be fair, some respected lawyers have also given a differing opinion, but they are in a small minority. There is, as the Prime Minister and the Foreign Secretary have said, a legitimate debate. Over the weekend, the Prime Minister urged us—in new Labour parlance—to find closure on that debate and to move on.
Sir Adam Roberts, professor of international relations at Oxford university, recently said that there was, in principle, a possible case for the lawfulness of resorting to war, but that the US and UK Governments had overstated the Iraqi threat. On the question of whether the Attorney-General's advice should be published, however, he said:
"Of course I'd like to see the full advice. What we have seen of the Attorney-General's advice does not deal with the key question of why the situation was deemed so urgent that inspectors had to be withdrawn and forces sent in."
On the question of legality, Malcolm Shaw, QC, professor of law at Leicester university, said:
"On the basis of intelligence we had at the time and publicly available knowledge, there was a credible and reasonable argument in favour of the legality of the war."
When asked about disclosure of the full advice, however, he said:
"I don't see why not. There's no constitutional bar to doing so."
Nick Grief, professor of law at Bournemouth university and a specialist in international law, said that he did not believe that there was a legal basis. As to the publication of the Attorney-General's advice, he said, "Definitely." James Crawford, professor of international law at Cambridge university, is unclear as to the legality. On the disclosure of the Attorney-General's advice, however, he said:
"If the war was conducted in private, there would be every case for hiding the advice. If it's going to be fought with public funds, in public and expending the lives of members of the public, then it should be published".
Lord Alexander, QC, did not believe the war to be lawful, and on the question of the Attorney-General's advice, he said:
"Yes. I want to do justice to the Attorney General's arguments. This was the most important legal opinion given in the last quarter of a century. The Attorney has already published a summary. So why not publish the whole text. There's no legal distinction between the two."
Those are five distinguished international lawyers who have differing views on the first question, but are unanimous on the question of the publication in full of the Attorney-General's advice.
To conclude, I emphasise that the House will be asked to divide this evening on the specific motion before it. Despite the opinions held by me and my colleagues, it is not meant to be a further vote on the war. The question before the House is whether the Attorney-General's advice on Iraq should be published in full. Those who believe in informed democratic debate, freedom of information and transparency in government should have no problem joining us in the Lobby this evening. I urge every right hon. and hon. Member to consider the matter carefully and to support the motion.
I beg to move,
That this House
notes the long-standing convention, followed by successive governments, that the advice of the Law Officers is given in confidence and is not disclosed publicly;
notes, however, the Answer given in the House of Lords by the Attorney General on 17th March 2003 which set out his view of the legal basis of the use of force against Iraq, and the letter of the same date from the Secretary of State for Foreign and Commonwealth Affairs to the Chairman of the Foreign Affairs Committee giving more detail of the legal position;
and believes that the priority now for the Government is to help the Iraqi people rebuild Iraq.
I am grateful to the Welsh nationalists and Scottish nationalists for using their time for this debate. Mr. Llwyd began by telling the House that he would confine his argument to the case for publication of the legal advice. As his speech went on, however, he developed his case into an argument about the nature of the legal advice as to whether the war was legally justified. At the end of his speech, he provided the astonishing and illuminating revelation that when two or more lawyers are gathered together and consider the same question, they almost always disagree.
On this issue, from the very start, there have patently been legitimate disagreements about whether, in the event of there not being a second resolution—a point with which I will deal later—it would have been and was lawful to take military action against the Saddam Hussein regime in the circumstances that we found last spring. I respect those arguments, but I wholly resist the insinuation in the hon. Gentleman's speech that the Attorney-General, and Ministers reflecting his view, have somehow not been straightforward with the House about the nature of the legal advice that he gave or that we received.
As the amendment states, a long-standing convention exists that the advice of the Law Officers to Ministers is given in confidence and should not be published. I have never thought, however, that precedent alone is sufficient justification for anything, and, of course, the Government, like all our predecessors, have been prepared to depart from previously accepted conventions when there has been a good reason. The bigger question is therefore why there are strong substantive arguments in favour of this convention, now and for the future.
First, a general principle applies to all relationships between lawyers and those whom they advise that the advice that they offer must in principle be given in confidence. If we want our societies to be based on the rule of law, as we do, we must have properly qualified lawyers who are subject to high standards of professional integrity. To be effective, lawyers require the confidence of their clients. All of us who have practised—even for a short while, as I did—know that there could and would be no effective relationship if the advice that we gave, which must sometimes not be the advice that our client would wish to hear, was disclosable to the other party in civil proceedings or to the court or the defence in criminal proceedings, or was made publicly available. If that were so, our system of justice as a whole would suffer.
I agree with that statement in its entirety. Is it not the case, however, that the Government, as the client, chose to waive at least part of their privilege in relation to the document, because they chose to publish a summary of the Attorney-General's advice rather than simply stating, "It is the Government's view that . . . "? Why did the Government do that? Was it not in fact to back up their position, which ought therefore to make them reconsider whether the full advice should not be made available now, given the circumstances that have arisen?
On a number of previous occasions, Governments, including those of the hon. Gentleman's party, have made available to the House the outline opinion of Law Officers. For example, in relation to Maastricht, which some of my hon. Friends will remember well, the then Labour Opposition moved an amendment to ensure that we could sign up to the social chapter. Along with many arguments put forward there was the argument that if we signed up to the social chapter, and overturned the protocol which the Major Government had signed up to, we would not be able to ratify the whole Maastricht treaty, and we were told that that argument was made on the basis of legal advice. A Minister then came to the House rather shamefacedly and told us that, by the way, that was wrong, and that, after all, we could, if we wished, remove the opt-out from the social chapter and still sign up to and ratify the Maastricht treaty. On that occasion, the Foreign Secretary came to the House and gave an outline of the basis for the subsequent opinion, which is very similar to that which I gave the House on
To Mr. Grieve, whom I respect, I say that if the Conservative party is serious about getting into office, about which I have grave doubts, it ought to think one, two, three, four and many more times before going down the opportunistic route of backing the Scottish and Welsh nationalists. I have been through all the speeches made this time last year and previously. I can remember no occasion whatever—not one—on which Conservative Front-Bench spokespeople demanded to see the full text of the Attorney-General's advice. What I do remember, for sure, is that people had legitimate legal arguments about that advice. I also remember a very good speech, which was not in agreement with the Government, by Mr. Hogg, in which he said:
"I do not speak of the legalities. I have read what the Attorney-General said about that matter and I do not feel competent to express a view as to whether he is right or wrong, but I am competent to say this: many distinguished lawyers—as distinguished as the Attorney-General—will take a contrary view."
That is certainly true. He continued:
"In any event, if I am honest, I do not think that legalities go to the root of the matter. The real question is whether it is right—right expressed in moral terms."—[Hansard, 18 March 2003; Vol. 401, c. 796.]
He then disagreed with what the Government were doing, and I entirely respect him for that. Lest there be any doubt, however, it is of course absolutely essential that although morality was at the heart of what we were doing, Governments must be satisfied that what they do is also legally correct. At the heart of the argument last year was the question of whether or not it was morally and politically right to take military action, and that remains the case.
The legal arguments were rather important, and I am grateful to the Foreign Secretary for reminding us of the days when he used to support disclosure of such matters, but he did less than justice to what my hon. Friend Mr. Llwyd said about the opinion of major international lawyers. The point was not that they disagreed about the conflict, but that although they disagreed about the conflict, they agreed that the Attorney-General's advice, in its full form, should be disclosed. If the Foreign Secretary resents the insinuation behind that, he has the remedy of publishing the advice.
I accept that if a private individual seeks legal advice, he or she has a right to ensure that it remains confidential. If I may state the obvious, however, a Government are not a private individual but a democratically elected, accountable body. How can accountability be retained if a Government will not provide the people with the information on which they have made a decision? How can there be accountability and democratic government if they will not provide Members of Parliament with that information so that they can vote in a particular way?
I want to make some progress first.
Should those principles apply to Government, or are there such differences in the nature of Government that we should make an exception to that general rule? I do not suggest that, for many if not most purposes, the nature of Government is comparable to that of a private individual or corporation; and because we live in a democracy, Governments must be significantly more accountable for their actions than private individuals or corporations—and rightly so. But Governments, Ministers and senior officials need legal advice in the same way as private individuals and corporations. Ministers have an overwhelming duty to act lawfully, and, as I know from my time at the Home Office, Governments are frequently parties in legal actions. I therefore suggest that the same considerations apply in this particular instance.
Those arguments, moreover, have been accepted by the House as a whole. The hon. Member for Meirionnydd Nant Conwy referred to freedom of information. I well remember the great debates on freedom of information, because it was my party that promised at the time of the 1997 general election that we would introduce a freedom of information Act—and my party that introduced the Freedom of Information Act 2000, which provides a far more extensive right of disclosure than exists in virtually any other European country outside Scandinavia.
We had many debates at that time about the balance between disclosure and the public interest in non-disclosure so that government could continue. That was always going to be an issue. Big questions were raised about the extent to which background papers available to Ministers, such as Cabinet Committee papers, should be made available. But I do not recall, and I have checked carefully today, a single occasion on which there was any objection to the exemption in respect of legal professional privilege—what became section 42 of the Act—or, more directly, in respect of what became section 35(1)(c), concerning the provision of advice by any of the Law Officers or any request for the provision of such advice. There was consensus throughout the House, and in the other place, that provision of such advice ought to be protected.
The Foreign Secretary should bear it in mind that the Attorney-General is not a mere lawyer, and that the Government are not a mere client. The right hon. Gentleman's analogy with legal professional privilege is, I think, gravely defective. Does he not agree that the Attorney-General is in a unique position, in that he is personally accountable for giving advice of this kind? He is not collectively responsible even to the Cabinet, and he is accountable to Parliament. That lies at the heart of much of what we are discussing today.
I certainly agree with that. As I have said, I am not arguing that Governments are in the same position as private individuals or private corporations. I am arguing, however, that if government is to operate effectively, legal professional privilege is essential. As the hon. Gentleman knows all too well, were he ever to become a Law Officer in a future Conservative Government, it would be essential to his operation on behalf of his client. At least, the hon. Member for Beaconsfield accepts that.
The construction of the Freedom of Information Act reflects the distinction between legal professional privilege in general and advice from Law Officers, or a request for such advice, in particular; but I argue on both bases. As I have said, the argument was accepted by all parties in Parliament, and it has also been accepted by leaders of the Bar. Those of us who keep in touch with our former colleagues in the Bar Council, its professional body, know that it is not slow in coming forward to criticise the Government when it disagrees with us. It does that frequently. I therefore hope that weight will be attached to the views of its chairman, Stephen Irwin QC, who went on record nine days ago to say:
"It is of great importance that confidential advice should remain open to Government.
If future Governments—whether Labour, Conservative or whatever—feel that confidential legal advice on matters of major importance might be made public they may not ask for that advice when they need to, or may not reveal all the facts to their advisers.
Were this advice to be published, it would leave future Governments of whatever hue in difficulty when it comes to obtaining confidential legal advice on major matters of public or international law. That would clearly be against the public interest."
Mr. Irwin added:
"Whether you talk to his political opponents, his political friends, judges or anybody in the law, what is completely clear is that the Attorney-General has enormous integrity and great determination to support the rule of law."
Those of us who know our right hon. and learned Friend the Attorney-General know that that testimonial is entirely deserved. Yes, the man is independent, and rightly so. Yes, he quite often tells us that which we may not wish to hear, but in doing so, he is upholding the finest traditions of his office and defending the interests of Parliament.
To the hon. Member for Meirionnydd Nant Conwy, let me say that it is one thing to argue that lawyers sometimes disagree among themselves. We have learned this afternoon that they do, and as a former member of their profession I must say, "Thank God they do." Far fewer lawyers would be employed if they always agreed. That is the gravamen of what the hon. Gentleman said this afternoon, but he also suggested that the Attorney-General was disagreeing with himself—that he could somehow have presented the House with a clear statement of his conclusions, yet his advice would have been wholly contrary to that. He knows that that is completely untrue. The hon. Member for Beaconsfield nodded in affirmation when I read out the testimonial about the Attorney-General, recognising his integrity and professionalism. If the hon. Member for Meirionnydd Nant Conwy is not arguing that the Attorney-General is disagreeing with himself, what the devil is he arguing?
I speak as a member of the Bar, and I have the highest regard for the Attorney-General. In no circumstances would I impugn his integrity. What I am saying is that he is gagged.
That, too, challenges his integrity. Decisions about the release of the Attorney-General's advice are a matter for the Attorney-General. I hope that, on reflection, the hon. Gentleman will withdraw that insinuation as well.
On a point of order, Madam Deputy Speaker. The Foreign Secretary has just alleged that the disclosure of the Attorney-General's advice is a matter for the Attorney-General, and he implied that it was a matter for him alone. As you well know, page 389 of "Erskine May" clearly states that the question of whether the Attorney-General's opinion may be cited in debates or otherwise is exclusively a matter for the Ministers concerned—that is, the Prime Minister and the Foreign Secretary.
It seems to me, as a layman, that the Foreign Secretary, as a lawyer, is complicating what is essentially a simple issue. Nobody denies that the Government are entitled not to reveal the advice that they receive from the Attorney-General, but they have chosen in this case to make public a very considerable part of that advice. Given that they have done so, it is difficult to understand the legal, moral or even political basis on which the Foreign Secretary refuses to give the whole of that advice.
In a sense, the hon. Gentleman makes an interesting point, but as he knows, some documents are summaries of considerations and others are not written for publication. Everybody knows that, if they are being truthful. Such documents are about examining the issues, and if they were not protected by legal professional privilege or by the rule protecting the publication of Law Officers' advice generally, it would not be possible for Ministers to get from the Law Officers the explicit, frank and honest advice that we receive.
I shall take some interventions in a moment, but I want to make some progress first.
Throughout the intense public debate about whether the United Kingdom should contemplate military action, which extended from March 2002 until this House made its decision on
There were many hours of intensive argument about the detail of that resolution. Significantly, however, there was remarkably little debate about the preambulatory paragraph, which claimed and asserted that Iraq posed a threat to international peace and security by reason of its non-compliance with the resolution, its proliferation of weapons of mass destruction, and its long-range missile systems. Nor was there any argument about the assertion at the beginning of the operative paragraphs that Iraq had been in, and remained in, material breach of its obligations. To pick up on an issue raised by one of the many lawyers whom the hon. Member for Meirionnydd Nant Conwy mentioned, nor was there any argument as to whether UN Security Council resolution 678—the original resolution—was still in force. Resolution 1441 dealt with that issue explicitly: it was still in force.
Instead, the argument in the Security Council centred—as it did here, in many ways—on whether the resolution that became 1441 would provide sufficient further authority for military action if it proved necessary, or whether a second resolution would be required. In headlines, though, the issue was more complex than that. The debate, in advance of resolution 1441, was written up as an issue of "automaticity". In the event, those who were pressing heavily for a second resolution backed away from that demand. At the same time, the resolution provided no "automaticity". Instead, we agreed unanimously to a process that placed obligations on Iraq: a full and final declaration, and complete co-operation with the inspectors on substance as well as appearance. Further material breaches were very clearly defined by operative paragraph 4. Operative paragraph 12 defined the process by which the Security Council would come together to consider the matter if further material breaches were disclosed under operative paragraphs 4 or 11. If so, operative paragraph 13 made it very clear that "serious consequences"—in other words, military action—would follow.
At every stage, right up to the decision that was taken on
Although we did not publish that advice, we did two things that we thought would help the House in setting out the legal position as the Government saw it. First, the Attorney-General set out in a statement his conclusions on the matter. Secondly, I wrote a detailed five-page letter to the Chairman of the Foreign Affairs Committee about the legal basis for the use of force. In it, I said explicitly that resolution 1441 does not provide "automaticity", but that that
"does not, however, mean that no further action can be taken without a new resolution of the Council."
The letter proceeded to spell out why we believed that taking further military action without a second resolution was entirely justified legally.
That was the basis of the advice that we received. It was made available to this House via a note in the Vote Office, and, in addition, I wrote to every Member on both sides of each House, setting out the text of the Attorney-General's statement and my five-page letter. Let us be clear: many countries took the same view as the United States and the United Kingdom. Australia, Japan, Bulgaria, Spain, Uganda, Ethiopia, South Korea and many others took exactly the same position as we did in respect of the law and the need to take military action.
A few minutes ago, the Foreign Secretary said that the question of publication was a matter for the Attorney-General. That view was challenged. Would the Foreign Secretary care to explain and revisit the argument that he advanced?
I am familiar with "Erskine May", but I should tell Mr. Salmond—he has not been in government; I am—that it is utterly improbable that a Minister would publish legal advice from the Attorney-General without the authority of the Attorney-General or the Solicitor-General. I have never known that to happen, and I do not believe it ever would.
Does my right hon. Friend agree that it is rather odd that the very same people who used the absence of a second resolution as an excuse not to support military intervention opposed the liberation of Kuwait, in respect of which there was no ambiguity whatsoever about the Security Council resolution? I do not question the fact that they are anti-Saddam, but every time action is taken against Saddam—be it the liberation of Kuwait, sanctions or the liberation of Iraq itself—they make every possible excuse not to end one of the most notorious tyrannies since 1945.
I agree entirely with my hon. Friend on this issue. We have to be judged by our actions and the consequences of our decisions, as well as by our words.
I should tell the hon. Member for Meirionnydd Nant Conwy that all the resolutions were made available to the House in Command Papers. My dossier was published, and every single word in it was public and accurate. If he looks at resolutions 678 and 687 in their entirety, he will see that they were not confined to authorising legal action in respect of the removal of the Saddam regime from Kuwait; they also gave wider authority. That wider authority of resolutions 678 and 687 was revived by resolution 1441.
The Foreign Secretary has given an interesting build-up to the passage of resolution 1441 but says that it made various assertions about Iraq's real, present and credible threat of weapons of mass destruction. The weapons inspectorate was there, so can the Foreign Secretary explain why Hans Blix was denied the further two months that he requested to continue the inspection? What response does the Foreign Secretary have to make to the Iraq survey group's non-finding of any weapons of mass destruction—given that we were all told that the reasons for the war were weapons of mass destruction and a real, present and credible threat from Iraq?
It was not just the Government who were telling my hon. Friend. The whole international community believed that Saddam posed a threat to international peace and security by the proliferation of Iraq's weapons of mass destruction and long-range missile systems. Russia did not rely on a dossier from the United Kingdom Government. Neither did China, Germany or France. The whole international community reached the conclusion it did from the evidence—in particular, year after year of non-compliance by Saddam Hussein that was charted to the Security Council in the 173 pages of a 29-chapter document that Dr. Blix put before the Security Council on
I invite my hon. Friend Jeremy Corbyn and other hon. Members to examine Command Papers 5769 and 5785, which I laid before the House in February and March last year. They set out the case and include the speeches that I made before the Security Council. I relied not on direct intelligence but on facts shared with everybody else—including the fact that after 12 years, Saddam was still refusing active compliance with the inspectors. As Dr. Blix said in his report of
Of 29 separate clusters identified by Dr. Blix almost six weeks later, he was explicit that in the cluster relating to anthrax, 10,000 litres of anthrax were unaccounted for. His words, not mine, were that there was a substantial presumption that material was still in Iraq and still active and could be used. When one put together all the publicly available facts and the behaviour that we could see with our own eyes, there was substantial evidence of further material breaches by Iraq.
My hon. Friend the Member for Islington, North asked why we did not give the inspectors more time. That decision had to be made by the Security Council and Governments—Dr. Blix never suggested otherwise—on the basis of earlier Security Council resolutions, not on the evidence of the inspectors, as to whether or not Saddam's regime had been given enough time.
We have strayed on to wider issues. Earlier, the Foreign Secretary seemed to imply that it would be impossible to publish the Attorney-General's advice without his consent. While I appreciate that one should always ask the Attorney-General to agree, perhaps the Foreign Secretary concurs that ultimately, such advice becomes the property of the Government. It is for the Government to decide whether or not they wish to publish. That must be the position.
The hon. Gentleman is right—publication is ultimately for the Government. [Interruption.] Sure. If it was published by a Minister, of course it is a Government document in the end. In practice, one would have to seek the opinion of the Attorney-General. In practice, the idea that one would publish such advice without the Attorney-General's approval is so distant as to be wholly unlikely.
Has my right hon. Friend ever asked the opponents of the war what they believe Saddam Hussein used to invade Iran and Kuwait and to kill hundreds of thousands of people at Halabja?
That is for them to say.
I am glad that we have moved on from whether or not we should dance on the head of a pin and have the legal advice made public. We accept that there was legitimate argument about the legal advice, but at the heart of this, political and moral judgments had to be made about whether or not we should go to war. We must accept the consequences of our decisions. Those who oppose military action must accept the consequences of what would have been their decisions, which would not have been the status quo.
I came here to hear the justification not for the war but for the refusal by the Foreign Secretary and the Government to share the legal advice. This is not about the integrity of any individual but about the integrity in the eyes of the public of the British body politic. Does the right hon. Gentleman agree that it might be in the public interest on this specific occasion to share the legal advice? After all, if the outline was accurate it will simply confirm that the legal advice was consistently reflected in that which the Government have already published.
But the hon. Member for Meirionnydd Nant Conwy gave himself away. He started by saying that we should make available the legal advice, then added that we should make available the instructions as well. The hon. Gentleman's party and the Scottish and Welsh nationalists disagreed with military action in respect of the war. They now seek to make one argument after another to justify their policy. That is fair enough but they must not expect us to be party to that attempt.
The Government have responsibilities to the House and have met them more than any previous Government in respect of military action. I came to the House and said that decisions on military action must be taken on substantive motions whereas, extraordinarily, that was never done in the past. We also made available a digest of the legal basis for the use of force, which had not been done in the past.
It is a not a question of disclosing the instructions. I said that if the full advice had been published, the instructions would be there because it was upon those factual bases that the advice was drawn. That is an obvious point for any practising lawyer and quite plain. The factual bases would have to be on the face of the documents.
The Foreign Secretary says that we introduced a smokescreen in relation to the war. I spent five minutes speaking about the legality of the war. The right hon. Gentleman has so far spent 20 minutes speaking on that aspect.
Because it is at the heart of the issue. I may have misheard the hon. Gentleman but Hansard will tell us tomorrow whether his recollection or mine is correct. I thought that I heard the hon. Gentleman say that he wanted the instructions to be published as well. We have had a spirited debate about whether or not the legal advice should be published and the basis for our decision to use force against Iraq. Whatever our differences over military action, we should look forward as well as back. I am not dismissing for a second the need for clear retrospective examination of Government decisions—not least and above all where military personnel are put in harm's way and innocent and military lives are lost.
Along with our international partners from more than 30 countries, the Government's focus today is on working with the Iraqi people to build the safe, free and prosperous country that they deserve.
Yesterday we saw a potentially historic step along that path. For the first time, representatives of Iraq's different communities, ethnic and religious groups have come together and agreed a common political approach for their country. The signature of the transitional administrative law is a significant Iraqi achievement. The law sets out a framework for governance during the transition and represents a landmark Iraqi consensus across a range of contentious issues.
I am sure that the House will join me in paying tribute to all parties to that agreement. The members of the Iraqi governing council have shown great patience and fostered a spirit of consensus throughout the negotiations, which has laid the foundations for success. I also want to pay tribute to the work of Ambassadors Paul Bremer and Sir Jeremy Greenstock in facilitating the negotiations on the transitional law, and for everything they and their teams are doing to help the Iraqi people to rebuild their country.
Sir Jeremy comes to the end of his period as a British representative on the coalition provisional authority, working directly alongside Paul Bremer, at the end of this month. He has been an outstanding diplomat and public servant, and I venture to suggest that, without his skill and ability to relate to others, the job of securing the transitional law would have been much more difficult. I pay tribute to him and to his wife, Anne, who first had to endure long periods of separation, but has more recently been in Iraq with Sir Jeremy, working particularly on women's issues.
Looking at the detail of the transition law shows how far Iraq has come since the dark days of Saddam Hussein's rule. The law enshrines fundamental principles of human rights, including protection for the freedom of religious belief and practice, freedom of expression and a free and independent judiciary. All Iraqis will be equal in rights, and equal before the law—without regard to gender, sect, opinion, belief, religion or origin. The law makes provision for a national commission for human rights and it includes provision for an electoral system designed to achieve 25 per cent. representation of women in the national assembly—a higher target than has been achieved in our Parliament.
I would say to right hon. and hon. Members who were sceptical about the military action against Iraq, that none of those achievements, including a free press, an independent judiciary, recognition of all religions—Sunni and Shi'a Kurds, as well as Arab Kurds—could possibly have been achieved without the military action that we set in place.
We can certainly agree about the enormous contribution of Sir Jeremy Greenstock to Iraq, and, indeed, his contribution when he was our permanent representative at the United Nations. However, all the constitutional elements to which the Foreign Secretary has just referred stand no chance of implementation unless the security situation is sufficiently stable. What is the Government's present judgment on the extent to which a stable security position will obtain when the constitutional responsibilities are handed over? How many British troops will be required to be in station in Iraq and for how long?
I would say to the right hon. Gentleman that the signature of the transitional administrative law is the clearest demonstration to date of the strong desire of the overwhelming majority of Iraqis to build a free, stable and democratic society there. That it happened after the appalling attacks in Ashura a week ago shows how strong is the shared determination of the people of Iraq to build a better future for themselves. That was one of the most remarkable aspects of all. Security remains the overwhelming concern of the multinational force, the Iraqi security forces and the coalition provisional authority. Part of the issue is the status of forces post-
As regards how long our troops will remain in Iraq, it is a matter for my right hon. Friend the Secretary of State for Defence, and we will not be able to make judgments about that until nearer the mid-year point. I have already made it clear to the House that it will take at least this year before there is any possibility whatever of significant British troop withdrawals. The crucial point is that we committed ourselves to Iraq for the long term and we shall stay there in support of the Iraqi people. On
Other good developments are taking place. Nine months ago, I recall endless concern being expressed—quite rightly—about the lack of electricity and water supply, failures in sanitation systems, difficulties with the transport system and problems in schools and hospitals. We do not hear so much about those problems these days, because huge efforts have been made to raise the standards of those public services, not just to their level on
All that is in stark contrast to the repression, neglect and exploitation practised by Saddam's regime. The full extent of the crimes committed under that regime is only just emerging: dungeons, shackles and instruments of torture in police stations and prisons; vast qualities of documentation on those killed and persecuted by the regime; and testimonies of arbitrary imprisonment, beatings, torture, amputations and mass executions. Some 270 mass graves have been reported, containing hundreds of thousands of bodies. The fate of hundreds of thousands of missing Iraqis, and other nationals, remains unknown.
There are many challenges ahead in Iraq, but the Iraqi people are, with international help, making good progress in rebuilding their country. Whatever our different positions on the justification for military action, our focus now should be on supporting the Iraqi people, and all those who are working with them, as they build a free, safe and prosperous Iraq at peace with its neighbours and taking its rightful place in the international community.
I have no difficulty in associating myself with the Foreign Secretary's last remarks about the position in Iraq. In a sense, it is probably right to say that the judgment of history will determine whether the intervention of the various powers, including the UK and the US, bears fruit—it was always going to be a difficult venture. Equally, I have no difficulty with the fact that I voted for the motion to use armed force. I did so based on my assessment of the position and, of course, on the material that the Government presented to the House—presumably, the exact basis on which the Government intended hon. Members to make up their minds.
The difficulty with the current debate is that we seem to be in danger of straying from the single essential point into much wider considerations. The motion requests the publication of the Attorney-General's advice. I fully accept what the Foreign Secretary said when he enunciated the general principles pertaining to an Attorney-General's advice; it is little different from that given by any other lawyer to his client. It is essential that the Government have access to the best legal advice, as they do through the Attorney-General, albeit that it is not always him who writes the advice—or at least provides some of the basic information or gives an opinion—because he has a pool of talent on which to draw in supplying the advice.
It is ordinarily important that such advice should remain confidential. The reason for the confidentiality is exactly that enunciated by the Foreign Secretary: the desirability of being able to get advice without it being published and also because—I suspect that the right hon. Gentleman would not disagree—the Government cannot hide behind the advice of an Attorney-General. It is the Government's decisions, based on advice, that have to be taken. In the old days, the advice used to be called an opinion. It is someone's opinion, not the gospel truth, that is offered to the world. It is the best advice that an individual, having sought the opinion and help of others, can offer the Government on what may be a complex and difficult issue.
I have no difficulty with those basic principles. I think that the Foreign Secretary accepts that the convention has not required that previous advice from those who held the office of Attorney-General must never be published. The pages of parliamentary history show that that has happened on a number of occasions. Interestingly enough, it has generally happened when a problem about the legality or appropriateness of subsequent Government action has arisen. Matters such as the Archer Shee case and the Belfast riots seem to me to fall roughly into that category.
They may be a long time ago, but one virtue of our parliamentary tradition is that what happens in Parliament is based on precedent. I hope that the Foreign Secretary is not about to consign that tradition to the bin, as it is very desirable. The problems faced by our forefathers tend to replicate themselves in the problems that we face. There is nothing new under the sun, so the past is a good place to look when one needs to know the best way to proceed.
The Foreign Secretary has argued that he does not want to publish the Attorney-General's advice in this case. I disagree with that decision. Before the right hon. Gentleman gets hot under the collar, I hope that he will listen to some straightforward arguments about why the advice should be published.
First, we must look at the circumstances in which the advice came to be given, and the use that the Government have made of it. Last year, the Government faced a difficult task. The Foreign Secretary restated a few moments ago what the Government believed at that time—that military action against Iraq was necessary and that Iraq had systematically flouted a series of UN resolutions. The Government also believed that Iraq posed a regional and even global threat; at least, that was how the matter was presented to the House when it was debated here. Finally, the Government wanted to ensure that Iraq was stopped. They took the view that UN resolutions already agreed allowed action to be taken and that there was no need to go back to the Security Council to secure a further resolution.
To achieve that, the Government put out a great deal of information. Instead of acting first and debating the result in Parliament afterwards, they decided to take the novel step of seeking Parliament's sanction and approval for the action that they intended to take. I thought that that approach was commendable, and I welcomed it at the time.
The Government put into the public domain a mass of information that, generally speaking, would not in the past have been seen by parliamentarians or the public. There were dossiers, and information about Iraq's capability in respect of weapons of mass destruction; also made available were assessments of the risks that Iraq posed, and of previous UN resolutions and the way that they had been broken, as reported by Dr. Blix. The Government also made it clear that they had gone to the Attorney-General before asking Parliament to come to this very important decision. Although the Government were not about to publish the Attorney-General's advice, they stated that they would publish a summary. That summary was published, and was available to hon. Members when the time came to make our decision.
Does the hon. Gentleman agree that we did not go to war because Saddam flouted UN resolutions? Had that been the reason, I assume that we would have gone to war with Israel many years ago, although I would not have supported that. We went to war with Iraq for one reason—because it had weapons of mass destruction. At least, that is what we were told.
There lies the nub of the issue. When I came to consider whether it was proper to take military action against Iraq, I was not shadow Attorney-General. My assessment was influenced by Iraq's systematic flouting of UN resolutions, dating from the end of the Gulf war with Kuwait. The armistice at the end of that war contained conditions that were simply not observed. I was greatly influenced by the systematic violation of those agreements. However, for many Labour Back Benchers and other hon. Members, the critical question—and I accept that it was very important—was whether the situation was grave enough to merit military action.
Clearly, the question of proportionality arose, and I remember the words "real and present danger" being bandied about. Was Iraq a real and present danger as well as being in breach of the resolutions? As Llew Smith says, the issue of WMD featured very largely in the debate. Although I did not think that the WMD issue should be taken in isolation, it was clear from the debate that for many hon. Members it was of critical importance.
My recollection is that a number of senior Conservatives were extremely anxious to go to war, but I hope that the hon. Gentleman will satisfy my curiosity about a particular question. It appears that publication in full of the Attorney-General's advice is now crucial for the hon. Gentleman. He is a lawyer, and he was considering these crucial matters very deeply, so why did it not occur to him, or any of his senior colleagues, to request full publication of the advice at the time?
I had no reason to seek the publication of the Attorney-General's entire advice at the time, because the Government placed before the House a body of material that stated that Iraq had weapons of mass destruction. However, two things have happened since then that have caused us to have this debate, which would not have happened otherwise. First, the weapons have not been found; and, secondly, evidence has emerged that calls into question the Government's competence in handling the intelligence material in relation to WMD. We know that because we discovered in the debate on Lord Hutton's report that the Secretary of State for Defence knew in March 2003 knew that the term "WMD" referred to battlefield weapons only, but that the Prime Minister apparently did not.
My hon. Friend has offered two reasons why we should see the advice in full, but matters have moved fast. I remind him that there is another reason. Clare Short, the former Secretary of State for International Development, was a member of the Cabinet that took the decision to go to war, but she now says that there was something fishy about the decision. I cannot remember that happening in the past. Mr. McCabe wants to know what has changed, but he should ask those who sat around the Cabinet table at the time. Therefore, does my hon. Friend not agree that we are right to ask the questions that we are asking?
My hon. Friend is right. I was about to move on to questions about the actions of that former Cabinet Minister since her resignation. Moreover, we know that the legality of the decision to take military action appears to have been the subject of some controversy, to say the least. I do not mean that as a criticism of the Government, but we know that the second permanent legal adviser to the Foreign Office, Mrs. Wilmshurst, was so concerned that she resigned over the issue.
That is not to say that she was right and the Attorney-General wrong, as it is possible for people to have different opinions. However, we are entitled to ask whether the Attorney-General was given the right information on which to base his advice. That is the critical issue in this case, and the Government cannot avoid it. It may be that the Government were misled by the intelligence services. Their claim about WMD may have been made in complete good faith, As a result, the Attorney-General, again in complete good faith, may have based his advice on it. If that is the case, it may reflect on the competence of the intelligence services—intelligence is a fairly murky area—but it would not necessarily reflect badly on the Government and it would not make the decision to go to war unlawful. We did not have the correct intelligence because Saddam Hussein consistently denied and obfuscated the true position over the previous months and years. It would be useful to have the entire picture because it might well exonerate the Government of anything more than making a mistake.
Alternatively, the conspiracy theory is that the Government knew that the evidence on weapons of mass destruction was nothing like as good as the way in which they presented it to the House, but chose for their own reasons—perhaps they were particularly concerned about their Back Benchers—to deny their Back Benchers and, for all I know, the Attorney-General access to it. That is why the Attorney-General's advice, which the Government specifically relied upon to present their case to the House to justify the legal basis for military action, is so relevant.
I hope that the Foreign Secretary is willing to listen with an open mind. Subject to the problem that the Attorney-General's advice might contain either classified material, which would have to be edited, or references to secret material that the Government have still not been able to present to the public, it is entirely in the Government's interest to make the advice available. The Government used parts of the advice to persuade the electorate and Parliament. One year later, they have got themselves into a position where, possibly through no fault of their own, elements of the factual opinion that they gave have been called into question on valid grounds, and supplying the entire advice would provide reassurance. In that light, I must say to the Foreign Secretary that it strikes me as being fairly reasonable for Mr. Llwyd to table his motion.
I am following the hon. Gentleman's argument fairly carefully and agree with him, but it is highly unlikely that the Attorney-General's advice contains anything secret. If that were the case, the Katharine Gun case would not have collapsed because the judge would have allowed a public interest immunity certificate.
We may be entering the realm of speculation by discussing the collapse of the Katharine Gun case. The hon. Gentleman's point is a little far-fetched because we do not know why it collapsed—we were told that there was a lack of evidence. I do not know whether there was a lack of evidence, whether the Government had material that they would have liked to have put before the court but could not because it was subject to PII or whether the Government had material covered by PII that they did not want to put before the court but would have been forced to put in front of the judge.
I want to return to the notion that the Government may have deliberately sought to dupe an array of people in the build up to war. Were members of the Privy Council such as Mr. Ancram and Mr. Duncan Smith so slow and inept that they could not see possible areas of doubt? Were they so in love with the idea of war that they did not want to consider the matter? What is it about the position now that was not remotely apparent to any of them at the time? This issue is difficult for all of us, but at the time they were in no doubt about the information that they were receiving. Apart from the political opportunity, which we have heard about, why have all the doubts surfaced subsequently? Why did members of the Privy Council not entertain any doubts at the time?
As I said earlier, the hon. Gentleman does not seem to have kept abreast of what has happened since. When the debate took place, it was clear that Iraq had flouted the UN resolutions—I suspect that no hon. Member in the Chamber this afternoon could suggest that it had not flouted UN resolutions because it did so consistently. The obfuscation, the denial and the expulsion of the inspectors in 1998 form a pattern, and each of those events might well have justified taking military action at the time that it occurred. I can think of all sorts of other things that Iraq did not do: it did not hand back the Kuwaiti art treasures and it never provided a full list of those it had deported and murdered; the list is endless. Saddam Hussein was a monster who behaved monstrously before, during and after the war against Kuwait. I have no regrets about having seen him removed from power.
The issue was difficult for the House. We were told that the pressing need to take military action rather than relying on other means was the existence of weapons of mass destruction, which provided a real and present danger that had to be addressed then and there and not by any other prolonged means. That argument influenced me when I considered how I should vote. I was comfortable in voting for the resolution provided that the Government were acting honestly with the House, and I certainly have no reason to think that they were not. Mr. McCabe may remember that it was pointed out to the Prime Minister that, if only people trusted him more on other matters, it would be easier for them to trust him on that important matter, where we all think that trust was required.
My hon. Friend and I took different views about military action at the time, and I did so with a heavy heart. In March last year, I asked the Prime Minister for the full evidence because many of my constituents and I wanted to be persuaded by the Government. We wanted the evidence to know that the Government were doing the right thing, and that argument remains. We need the evidence to persuade people to trust our Government.
I agree with my hon. Friend. Other Conservative Members also voted another way as a matter of conscience and were given every allowance to do so—I fully respected their position. I agree that there is a need to restore public trust. It is in nobody's interest for trust not to exist, and we will all lose in those circumstances. The belief that there are short-term party political advantages from a decline in trust in politicians in general is frankly a mistake. A loss of trust will ultimately affect the entire system of governance in this country and do none of us any good.
The Government's reliance on the advice, the fact that they published a summary of it and the fact that it was intimately linked to the information that was available at the time and on which they based their view seems to make publication desirable. At the end of the day, however, it is their decision, not mine.
Will my hon. Friend acknowledge that there was a pragmatic reason for the release of the summary? Having been intimately involved in those matters, perhaps he will take it from me that the necessity for producing a summary opinion had much to do with getting Labour Members of Parliament through the Lobby. Furthermore, the alternative in the absence of any such summary would have been a deluge of opinions from Matrix and other chambers, which would have been in the hands of those who were opposed to the war, and the nation would have heard them on the airwaves if they were broadcast nationally on that day.
I am sure that that analysis is correct. There is nothing wrong with what the Government did, and it was all the more desirable for them to take the unusual step of publishing a summary.
Rather than getting agitated by what, in the light of what has happened, is a perfectly sensible suggestion, the Government should go away and consider the matter carefully. It is in their interest and that of good government generally that the advice should be published. If there are compelling reasons why it should not be published that go beyond the reasons of convention, the Foreign Secretary should explain them, rather than saying simply that convention does not allow publication and then giving us an interesting speech on several issues that are not germane to the point that we are discussing this afternoon. I wish the Government every success in what they are trying to do in Iraq, but I also think that it would be wise for the Government to publish the entire advice from the Attorney-General.
To save time and prevent unnecessary interventions, I shall say straight away that I was among those who voted against the war. However, I oppose Saddam Hussein now, just as I opposed him and demonstrated against his rule in the 1980s. I find it ironic that some of his greatest critics today were some of his greatest friends in the 1980s. I remind the House, as I said in an intervention, that I opposed the arms trade with Saddam Hussein and other evil regimes. I remember some of the criticism that we were subject to at the time. We were told that if we continued our campaign we would put British jobs in the arms industry at risk. We ignored that criticism because we thought that the campaign against selling arms to regimes such as Saddam's was more important than putting at risk some jobs in the UK arms industry. In saying that, I accept that right hon. and hon. Members disagree about whether we should have gone to war.
Perhaps I was naive to assume that we could disagree on whether to go to war but that we could still agree that all the information that the Government received before taking the decision to go to war should be provided to hon. Members and to the public. Sadly, that is not the case. However, I believe that the Government have a moral obligation to provide that information, especially to the families of those who died as a result of the war. That obligation extends to us all, so that we can decide whether that act of war was legal. I am not a recent convert to that argument and I have not jumped on the bandwagon. Indeed, I am one of those who have consistently posed such questions to the Government over the past 12 months.
"We want to ensure that any post-conflict authority in Iraq is endorsed and authorised by a new United Nations resolution".—[Hansard, 19 March 2003; Vol. 401, c. 932.]
But many of us who voted against the war contended that we did not even have an existing UN Security Council resolution that endorsed a military invasion and that it was an illegal war. In reply to a question of mine in May 2003, I was informed that Sir Jeremy Greenstock had said, when he spoke at the UN:
"There is no 'automaticity' in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in . . . Resolution 1441".—[Hansard, 7 May 2003; Vol. 404, c. 739W.]
We all know that no second resolution was ever put to the United Nations.
The hon. Gentleman is well versed in the statement that was produced by France, Germany and Russia thereafter, which emphasised that that was their understanding of the resolution that they had voted for.
I support such sentiments and I suspect that it is one of the reasons why a second resolution was not put to the UN at the time.
Many hon. Members today wonder how a year ago they were able to vote for a resolution for war that asserted that this House:
"recognises that Iraq's weapons of mass destruction and long range missiles, and its continuing non-compliance with Security Council Resolutions, pose a threat to international peace and security". —[Hansard, 18 March 2003; Vol. 401, c. 760.]
That was false. As Dr. David Kay, an ex-CIA agent and the former head of the Iraq survey group, which was set up to find the Iraqi weapons of mass destruction, put it to the United States Senate in January this year, after he resigned:
"We were almost all wrong".
We now need to know whether Ministers simply proved to be very bad judges of geopolitics, stubbornly refusing to listen to the millions who marched against the war a year ago, or—worse—deliberately distorted the evidence, cherry-picked the details that suited their case for invading Iraq, and pressed the Attorney-General to provide an opinion that endorsed a political decision already taken two years earlier to invade Iraq and overthrow Saddam.
I respect my hon. Friend's view on the war, although I do not agree with it. Is he seriously suggesting that Ministers in this Labour Government deliberately set out to lie, distort and misrepresent the truth to con us all into a war? Is that really what he believes?
Where I come from, we have a quaint tradition that if someone poses a question, someone else answers. You have both posed and attempted to answer the question. You posed the question and now I shall answer—
My hon. Friend posed the question and I shall answer it. My answer is that I cannot answer his question truthfully until we receive the information that some of us have demanded and is the reason for today's debate. If we receive the information in the weeks or months ahead, I shall be in a far better position to answer my hon. Friend's question, but until that happens I have to say that I just do not know.
The sequential refusals of the Attorney-General in the other place, and Ministers in this House, to release the full legal opinion have prevented both Houses of Parliament from finding the truth about how the war was started. I have tabled many questions on the legality of the war—probably more than any other Member, as the Minister will accept. I have requested that all—I emphasise the word "all"—the information that the Government received should be in the hands of Members of Parliament and the public. Sadly, a Labour Government who came to power in 1997 committed to open government have failed to keep their promise. The Government's responses to my requests for information have included "No" and "Information withheld". The Government have also responded that it is
"not the practice to disclose the content of confidential discussions with foreign Governments."—[Hansard, 24 March 2003; Vol. 402, c. 21W.]
On another occasion, they said that the
"substance of advice which the Law Officers may have given to Government is not publicly disclosed."—[Hansard, 26 March 2003; Vol. 402, c. 236W.]
I have also been told that
"information is withheld under exemptions 2 and 4 . . . of the Code of Practice on Access to Government Information."—[Hansard, 6 October 2003; Vol. 410, c. 1114W.]
For the sake of clarity, will my hon. Friend confirm that when he says that all information should be put into the public domain, he means that all the intelligence information on which the Government based their decision should be put into the public domain?
I assumed that my hon. Friend the Minister would have known without bothering to ask that I was referring to the information that the Government received from the Attorney-General. Indeed, that is the reason for the debate. I did not ask for intelligence information or any other information that would put national security at risk. I am referring to the information that the Attorney-General provided to the Government. I see no reason why Members of the House, and indeed members of the general public, should not receive all of that information in order to be able to pass judgment on whether it was right or wrong, legal or illegal, to go to war.
We also know from Anthony Aust, a former Foreign Office deputy legal adviser and visiting professor of international law at the London School of Economics, writing in The Guardian on
"over the Simonstown Agreement with South Africa. The treaty for the navy base obliged Britain to supply the apartheid regime with military equipment. The legal advice was published to justify the exports."
Indeed, Ministers were becoming even more secretive, adding that even information on whether legal advice had been offered was a secret.
In an intervention I said that I could understand that if a private individual sought legal advice, that individual had a right to determine whether the advice would remain confidential. But I repeat that a Labour Government or any other Government are not a private individual. This Labour Government were democratically elected and are therefore accountable to the people. It is not possible to have that accountability if the people—those who put the Government into office—are prevented from having information that determines the most important of all decisions: whether the country should go to war. I believe that Members of this House cannot take that kind of decision unless we, too, are provided with that information.
While all this has been going on, a cloak of secrecy has been drawn over these matters. Despite the fact that no weapons of mass destruction have been found—Saddam was supposed to have weapons of mass destruction that he could use within 45 minutes and that were a threat to the west—no resignations have followed. Last December, I asked my right hon. Friend the Prime Minister whether, if no weapons of mass destruction were found in Iraq, we could expect resignations at the highest levels of Government. Unfortunately, he failed to answer.
In my opinion, the war was illegal. It was immoral, and it has resulted in a more unstable world, where terrorism is a graver threat. It was conducted on a false premise—that Iraq had weapons of mass destruction, that it could use them within 45 minutes and that it was a threat to us in the west.
Were I winding up the debate, I should be compelled to describe it as wide-ranging. But in the time available to me I shall try to focus on the issue of publication, which I understand to be the gravamen of the motion in the name of Members of Plaid Cymru and the Scottish National party.
Let me remind the House that when General Galtieri invaded the Falklands, the legal position was clear and unequivocal. When Saddam Hussein invaded Kuwait, there could be no dispute about the illegality of that act. But the military action against Iraq 12 months ago had neither such legal clarity nor unanimity, then or now. The truth is that legal opinion was then, and remains today, as controversial and divided as public opinion.
The circumstances were and remain unique. The United Kingdom went to war on the basis of intelligence assessments, not because of an actual or even an immediately threatened act of aggression. It has been repeated again today that we went to war, the Government said, on the basis of the contention that Iraq was in breach of United Nations resolutions, and that that of itself justified military action to enforce those resolutions. That contention, if I have stated it both accurately and fairly, as I believe I have, seems to me to fail to take account of three significant legal principles.
The first principle is that war must always be the last resort when all other diplomatic and political alternatives have been exhausted. Yet at the time of our debate on
The second principle is that when military action is taken, the use of force must always be proportionate to the political aims. The object of the resolutions upon which the Government rely now, and upon which they relied then, was to disarm Iraq, not to topple its Government. It is self-evident that military action for the first purpose is different in degree and extent from what is required for the second.
The third principle is that regime change is illegal under article 2, paragraph 4, of the charter of the United Nations. Yet which of us doubts that the clear objective of the United States, with which we were associated in alliance, was regime change? Last week in Sedgefield, in a speech whose second half in particular requires careful study and consideration, the Prime Minister distanced the Government from regime change. But it cannot be avoided that we acted in concert with the United States, for which regime change was a publicly stated justification for military action.
Those three elements—last resort, proportionality and regime change—all have legal consequences. I do not believe that any opinion seeking to examine and analyse the legal justification for military action could or should have ignored them. That is why I believe that the public are entitled to know whether the Attorney-General considered those elements, and if so what weight was attached to them.
It is said that convention precludes publication of the Attorney-General's advice, but that principle was breached when part of the advice was published. If the principle is of such profound significance, as soon as it is breached the argument that it must be maintained in all circumstances suffers at the very least considerable damage. That principle can have been breached only because of a recognition by the Government of the special circumstances of the time—special circumstances reflected, as Llew Smith has just said, in the Government's decision to put to the House a question seeking endorsement of the decision to take military action; special circumstances indeed. But that convention is not a statutory rule. The law is not broken by publication of the Attorney-General's advice, and it must be borne in mind that conventions in our constitution are conceived of in the public interest. It is not their purpose to protect parties or Governments from scrutiny or embarrassment. So, in this case, it is my conclusion that the convention does not serve the public interest and that the public interest is best served by full disclosure. That is why the House should support the motion.
Only rarely does the House discuss matters of lawyers' law, and I am rather surprised that we are doing so this afternoon. The confidentiality of the Attorney-General's advice may be a matter that plays more in the taverns and byways of some parts of Wales, and possibly of Scotland, than in my constituency. Frankly, it has no resonance in my constituency.
Yes, there is an interest in the security situation in Iraq because some of my constituents and some of the sons and daughters of my constituents are in that country with the United Kingdom's armed forces. There is interest in the developing democracy in Iraq and the emergence of a free press, responsible government and the interim constitution that was agreed recently. There is also some interest in what is to happen to Saddam Hussein and when he is to be tried for crimes against humanity, but there is no interest whatever in the subject of this debate. None the less, I shall address it.
I thought the debate was to be about a specific issue—the confidentiality of the advice—but Sir Menzies Campbell strayed into the substance of that advice. I understood him to say that because we do not have the full advice we cannot understand the full legal reasoning. If that is what he was saying, let me assure him that the matter is widely canvassed in legal literature and there are extensive discussions of the various legal arguments. It is not merely a matter of an A4 sheet, as Mr. Llwyd claimed; a fuller memorandum to the Select Committee on Foreign Affairs was published by my right hon. Friend the Foreign Secretary, which set out in detail issues such as automaticity. That advice clearly stated that we did not accept that the situation gave rise to automaticity, but that Iraq had a final opportunity, under resolution 1441, to comply with the UN resolutions but had not taken advantage of that.
That being so, we should do justice to the comments of Sir Menzies Campbell. Does not Ross Cranston find it passing strange that the published summary of the Attorney-General's advice included no consideration of such pertinent issues as proportionality in weighing up the legality or otherwise of the conflict before reaching a conclusion?
As I just said, one has to look not only at the summary of the Attorney-General's advice, but at the memorandum to members of the Foreign Affairs Committee published on
May I put a specific question to the hon. and learned Gentleman? Is it his position that the UN resolutions, including 1441, gave warrant for regime change?
The resolutions—1441 in particular—gave rise to an obligation that the then Iraqi Government bring themselves into compliance. The onus was on that Government to comply with the obligation to disarm. They had a final opportunity to do so, mechanisms were set up for that under 1441, but they did not comply. I shall return to that point in a moment.
My hon. and learned Friend's argument appears to be that the legality of the case for war was wholly transparent, partly because of the summary and partly because of various memorandums. But if the legal basis for going to war was as transparent as all that, why, only days before the war, was the Chief of the Defence Staff, Sir Michael Boyce, still asking for a clear legal authorisation?
Because, clearly, our armed forces and our civil servants are scrupulous about complying with legal advice. I do not know the substance of the advice being sought, but two issues are, unfortunately, sometimes confused: the legality of taking action and—whether or not the action is legal—the need to comply with what was set out in the Geneva protocols and is now incorporated in the statute of the International Criminal Court, namely, that one cannot commit crimes against humanity, war crimes and so on.
The admiral can help us, because he speculates in The Herald on
"Now, if that caused them to go back saying 'We need our advice tightened up', I don't know."
As I said, our armed forces are scrupulous about whether or not they are acting in accordance with the law. I do not know the background, but I can well understand Lord Boyce wanting assurance on that point. On the substance of the advice, which is not the issue of the debate, I am absolutely clear, as I have told the House on a number of occasions, that the repeated failure of the then Iraqi Government to comply with a series of resolutions dating back to the first Gulf war—resolutions 678, 687 and a number of others, leading to resolution 1441—gave rise to the obligation unconditionally to co-operate, which Saddam Hussein failed to do.
Let me come, first, to the technical issue that is the substance of the motion: the obligation to publish the advice. In private law matters, there is both confidentiality—the lawyer's obligation to maintain the confidence of the client—and the separate evidential rule, which involves legal professional privilege, one aspect of which is that one cannot get access to legal advice during judicial or quasi-judicial proceedings. One cannot get access to communications between the lawyer and the client that have been used for the purpose of obtaining legal advice. The reason for that goes back to statements such as those of Lord Brougham in the early 19th century, for example, and reiterated by the chairman of the Bar Council, quoted by my right hon. Friend the Foreign Secretary.
I shall quote Mr. Irwin, who is the current chairman of the Bar in England and Wales:
"Were this advice to be published, it would leave future governments of whatever hue in difficulty when it comes to obtaining confidential legal advice on major matters of public or international law. That would be clearly against the public interest."
In other words, we want our armed forces and civil servants to seek legal advice, and the protection given by the confidentiality of the advice encourages them to do so. That has always been the rationale of the confidentiality of advice, although one may question it. In my former guise, I was not always persuaded by the notion that legal professional privilege should be absolute. The law should recognise that there are good public policy reasons in some cases for overcoming legal professional privilege, but that is the general rule.
In the public sector, there are additional features. There is the provision in section 35(1)(c) of the Freedom of Information Act 2000, which my right hon. Friend mentioned. There is the provision in the ministerial code, and there is the convention. It is a convention, not an absolute rule, and it is recognised in "Erskine May". The hon. Member for Meirionnydd Nant Conwy quoted Edwards's "The Law Officers of the Crown." It is a convention widely recognised that the Law Officers' legal advice remains confidential. There are exceptions; it is not an absolute rule. There is the case of the Belfast riots in 1865, and there are other exceptions. In recent times, Law Officers' legal advice was published as a result of legal proceedings in the Factortame case and the Scott inquiry, but good public policy justifications are needed to publish in defiance of the convention.
The argument that it might be necessary to publish the Attorney-General's advice in specific legal proceedings so that people can defend themselves in criminal cases has already been used in the debate. Several Greenpeace volunteers are appearing before the magistrates court as a result of occupying tanks at the Marchwood military docks in February 2003. They want to argue a defence of necessity and say, "We were trying to prevent an illegal war, so we need access to the Attorney-General's advice."
Mention has also been made of the Katharine Gun case, although if one reads the statement by the Director of Public Prosecutions carefully, one finds that the abandonment of that prosecution had nothing whatsoever to do with the Attorney-General's advice. The Greenpeace activists are barking up the wrong tree, and I suggest that they get better legal advice if they think that the Attorney-General's opinion would provide them with any defence to the charges of aggravated trespass or criminal damage because there must be some proximity between the Attorney-General's advice and the defence of necessity. Anyhow, they may make the application and can seek judicial review if the magistrates refuse to order the advice to be produced.
We have heard a second argument about the situation somehow undermining the position of the parliamentary ombudsman, who, as I understand it from press reports, has sought the advice as a result of an application from The Guardian. It would be deeply ironic if the advice were made available to her but not to the House, and I frankly do not think that she should have access to the advice. I cannot understand the legal justification for making the advice available to her, but that is another argument, which frankly is not especially relevant today.
The third argument, which is a serious argument, is that we must understand the factual basis on which the advice was given. Serious commentators such as Professor Peter Hennessy have commented on the matter. Professor Hennessy said:
"That opinion turned largely on what intelligence told Whitehall about the degree to which Saddam Hussein and his weaponry posed a danger to other people's nationals other than his own."
The right hon. and learned Member for North-East Fife was reported last week in The Guardian as saying:
"The reliability of the advice is directly related to quality of the facts on which it is based".
The argument is serious, but it can be easily resolved because the facts on which the advice was based were perfectly clear. The facts are set out in Security Council resolution 1441, and my right hon. Friend the Foreign Secretary spoke about the way in which each of the resolution's words was carefully negotiated.
The preamble to resolution 1441 sets out two facts: Iraq's breach of Security Council's disarmament resolutions over 12 years since 1990, and its failure to comply with inspection regimes under those resolutions. As the preamble says, the Security Council was deploring
"further that Iraq repeatedly obstructed immediate, unconditional, and unrestricted access to sites designated by . . . UNSCOM".
It also says that the Security Council recognises
"the threat Iraq's non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security".
The obligations on Iraq are clearly set out in the substance of resolution 1441. Paragraph 1 says that Iraq is "in material breach". As I have said in previous debates, that is the most serious kind of breach because it may give rise to the breach of a treaty. Paragraph 2 gives Iraq
"a final opportunity to comply with its disarmament obligations".
Paragraph 9 puts the important obligation on Iraq to
The resolution is perfectly clear.
I have been listening carefully to my hon. and learned Friend. I am not an expert in international law, but surely we should take into account the context of resolution 1441. The American delegation to the United Nations said that 1441 would not lead to military action. Indeed, it would have been difficult to secure unanimous agreement for that resolution if the French or Germans had believed otherwise. It is odd to build an argument on the basis of what happened on that fateful day in the United Nations.
Resolution 1441 imposed a unanimous obligation on Iraq, saying that it was "in material breach", but had a final opportunity to comply with its obligations inter alia by co-operating "immediately, unconditionally, and actively". Paragraph 13 goes on to say that
"the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations".
I think that my hon. and learned Friend is going to conclude that 1441 gave the green light to go to war. Why, then, did the much praised public servant, Sir Jeremy Greenstock, make a statement outside the UN in which he said that there was "no automaticity" about our going to war in that resolution?
I touched on that earlier, when I said that there was no automaticity, but that Iraq had to achieve compliance immediately, unconditionally, and actively.
Dr. Blix produced three important and detailed reports for the Security Council, the first of which was published on
"Inspection is not a game of 'catch as catch can'."
He pointed out that the obligation in paragraph 9 of resolution 1441 was to co-operate actively. In his report of
"Although I can understand that it may not be easy for Iraq in all cases to provide the evidence needed, it is not the task of the inspectors to find it. Iraq itself must squarely tackle this task and avoid belittling the questions."
Finally, in his March report, Dr. Blix said:
"It is obvious that, while the numerous initiatives which are now taken by the Iraqi side with a view to resolving some long-standing open disarmament issues, can be seen as 'active', or even 'pro-active', these initiatives 3–4 months into the resolution cannot be said to constitute 'immediate' co-operation."
In other words, Dr. Blix was saying that Iraq had not complied with its obligations under 1441.
The issue of whether or not weapons of mass destruction existed is beside the point as far as 1441 is concerned, because under that resolution the onus is on Iraq to demonstrate that it does not have such weapons. I remind the House that in the preamble to resolution 1483, passed after the conflict had finished on
"the importance of the disarmament of Iraqi weapons of mass destruction and of eventual confirmation of the disarmament of Iraq".
Paragraph 11, the substantive part of that resolution, reaffirms
"that Iraq must meet its disarmament obligations".
Even after the conflict, the Security Council said that Iraq must disarm. The fact that weapons of mass destruction have not been found so far is clearly beside the point.
It is clear, in terms of 1441, that we took armed action because Iraq had not demonstrated that it did not have weapons of mass destruction. That is the point. The onus was on Iraq to demonstrate that it did not have them, but it failed to do so.
I was sad to see that the other day the hon. Member for Meirionnydd Nant Conwy, supported by Adam Price, signed up to the petition to the International Criminal Court on UK war crimes. That petition is entirely misconceived. It confuses the earlier notion of the illegality of the war with that of how any war is conducted in relation to the Geneva protocols, and also suggests that we in the UK are guilty of genocide because we acted in accordance with the sanctions resolutions imposed by the United Nations. That is completely wrong.
It is clear what the motion is all about. We cannot get away from the obvious fact that we have a legitimate disagreement in this House about the war in Iraq. The motion is one more weapon that is being used by those who opposed the war to further that cause. I completely reject the suggestion that the Attorney-General was suborned in terms of the opinion that he gave. As my right hon. Friend the Foreign Secretary said, the Attorney-General is a man of the highest integrity. Before he became Attorney-General, he was a leader of the commercial Bar and chairman of the Bar Council. He is a man of the highest intelligence and integrity, and the suggestion that he was manipulated to produce advice must be clearly and unequivocally rejected.
The motion represents one more attempt to go over very old ground. As my right hon. Friend the Foreign Secretary said, our major concern should be the future of a democratic state in Iraq.
I regard it as a little odd, to say the least, that the Solicitor-General is not in her place to discuss these matters, given that she assumed such a prominent role in the Gun prosecution case and that the Attorney-General is the subject of the debate. A few days ago, I said in a letter to The Daily Telegraph that I deeply regret the fact that the Attorney-General is not in the House of Commons to answer for and to be accountable for the decisions that he takes on behalf of the nation, particularly in matters of this kind. Many people have the highest opinion of the Attorney-General, and I would concur. However, nobody is infallible. Moreover, under the conventions of the House, it is—or was, until this Government took over—always the case that the Attorney-General sat in this House, for extremely good and sound reasons. I shall revert later to the role of the Attorney-General.
I share or bear some responsibility for the Government's position because I repeatedly asked questions in the run-up to the war. I pressed especially for the Attorney-General's opinion on the legality of the war to be made available. Furthermore, on
"We always act in accordance with international law."—[Hansard, 14 March 2003; Vol. 401, c. 482W.]
Towards the end of my remarks, I shall revert to that point and speak not only about dismantling the issue of the resolutions but the philosophy that lies behind the question of what constitutes international law, what the Prime Minister thinks about that now and what he thought about it then. His speech in Sedgefield on
In the run-up to the debate on
I believed—I emphasise that I express a personal opinion, although others share it—that it would be highly undesirable if proceedings in the House were dominated by a deluge of opinions on only one side—that the war was illegal. It appeared to me that it would therefore be wise for alternative opinion to be presented to the House to rectify the imbalance that would have been broadcast to the nation. Furthermore, from the Government's point of view, that would have influenced those hon. Members who were prepared to vote for the war only reluctantly and who could be persuaded if the deluge of opinion from international lawyers were counterbalanced. Those Members had a difficult choice—I am not in any way cynical about that, or unfairly critical of them—and I believe that the submission of the Attorney-General's opinion in summary form had an enormous influence on the debate. I think that I am right in saying that the legality of the war was not challenged during the course of that debate. That may seem curious in retrospect, but on the whole, the fact that the Attorney-General's summary opinion had been put before the House laid the matter to rest for the time being.
As we know, however, that has not been the case since then, and the debate on legality rumbles on. For many reasons that I have often stated, from the Front Bench during debates and in correspondence in the national press, I have repeatedly called for publication of the full opinion. The Prime Minister apparently understands the basis of that argument, because in my exchanges with him during his statement to the House on the setting up of the Butler inquiry, I explicitly suggested that the Butler committee should have a copy of the full opinion from the Attorney-General. The Prime Minister replied that it could have anything it wanted, and the Foreign Secretary had said as much to me the previous day in reply to a similar question. On that basis, we know that the Butler inquiry will have access to the full opinion. We also know that the ombudsman has called for it. As I said in my exchanges with the Solicitor-General at the time of the dropping of the Gun prosecution, it would be in line with the ministerial code for the matter to be put before the House to be cleared up.
"long-standing convention . . . the advice of the Law Officers is given in confidence and is not disclosed publicly".
I do not mean this offensively, but, as a point of factual correction, that is not true. In all fairness, I think that the Foreign Secretary admitted as much in our exchanges, so we have cleared that up. However, it is intolerable that for several weeks—even several months—millions of people in this country have been subjected to yet another propaganda outburst, in which that convention was claimed to exist. In fact, that was not properly challenged at all until last week.
I became so frustrated with that that I wrote a very plain letter to The Daily Telegraph setting out, in terms, the precedents for disclosure. I also spelled them out on the "Today" programme. Given that there is no rule of absolute confidentiality—I go further, and say that no rule of confidentiality exists at all—it is intolerable that the nation was deluged with so much propaganda and was led to think that disclosure of the Attorney-General's opinion would contravene some constitutional principle of the highest importance.
The Foreign Secretary simply could not deny that many of the opinions previously disclosed by an Attorney-General related to state policy and questions of war and peace. That has happened on many important occasions, not all of them in the mists of antiquity, although some go back to 1865. They include the Belfast riots case, in which Palmerston made it explicit that there was no reason why the Attorney-General's opinion should not be made available to the House of Commons; he based that decision on the Cagliari case of 1858. Subsequently, along came Balfour in 1901, who, for reasons of political convenience, tried to change the rules. However, Edwards—the great authority on these matters—makes it clear that we cannot say dogmatically that there have been no occasions on which the Attorney-General's advice has not been made available, and there are so many instances when it has been, that it would be utterly absurd to cling to the idea that, in matters of great controversy and dispute involving state policy, as in the case of the Iraq war, the Attorney-General's opinion should not be made available this time.
As the hon. Gentleman has told the House that there is no doubt in his mind as to the legality of the war, I assume that the release of the full advice would have no impact on his opinion, since he has already used his best judgment to come to that conclusion. Will he therefore tell the House whose cause would be served by the release of the information?
I am coming to that. The answer is simple: it is the cause of trust. The very people who have been deluged with the deception that there is a bar to the Attorney-General's opinion being released to the public would benefit. Let us make no mistake: many people have been deceived into believing that a constitutional bar exists. We are bound to ask why such an alleged bar was set up. It was because the Government did not want people to know that no absolute rule of confidentiality existed. It was for that reason that I wrote my letter to The Daily Telegraph and appeared on the "Today" programme. As I have said, I did so because I became so fed up and frustrated at the deception that was being perpetrated.
How does the hon. Gentleman feel that the earlier exchange with the Foreign Secretary was left? The Foreign Secretary said first that the matter was up to the Attorney-General, but he seemed later to retract that. Did we reach a satisfactory conclusion on that issue?
I think we were getting there.
Such matters have been canvassed in the past, and I ought perhaps to refer again to Edwards, the great authority on the Law Officers of the Crown. He makes it abundantly clear that it is no more than a courtesy for the Attorney-General to be asked for his consent when a Minister decides—as a matter of his ministerial accountability—to exercise his discretion to release the opinion of the Attorney-General in regard to the sphere of functions relating to that Minister. In this case, it is the sphere of the Prime Minister, the Foreign Secretary and, to a certain extent, the Defence Secretary that is at stake. Having opened my remarks by noting the absence of the Solicitor-General from this debate, it is instructive to point out that we now have two Foreign Office Ministers here. I hope that that is in recognition of the fact that they are responsible for the release of the opinion, and that it is not specifically the Solicitor-General or the Attorney-General, but those Ministers, who are primarily concerned.
On that point, does not it make matters even worse that one of the senior legal advisers at the Foreign Office took a view opposite to that of the Attorney-General?
Certainly, it is unusual to find the Foreign Office legal adviser resigning. I am not privy to the full facts of that resignation. Of course, the Attorney-General's advice at the time will have been based on the facts as he understood them, on which I will comment in a moment.
Briefly, however, I want to deal with the other precedents that have been mentioned. The Archer Shee case in 1911, which was the famous Winslow boy case, raised matters affecting the integrity of the Admiralty. Then there was the instance of Austen Chamberlain on the legal questions arising over peace and disarmament in 1927. There was also the case of the naval base at Simonstown in 1971. There was the instance—this was not so much a matter of state policy, although I think that it was a matter of immensely important foreign policy—of the Maastricht treaty in mid-1993. The advice given by the Law Officers with regard to the Merchant Shipping Act 1988, which was disclosed in the Factortame case, was also an example. In addition, there was the substance of the advice given in connection with the Scott inquiry, and an incidence in the 1960s in relation to Commonwealth immigration. Lastly, of course, there is the summary opinion of the Attorney-General given in relation to this war.
The full advice has therefore been given on a number of occasions, and advice has been given in substance or in summary in others. As far as I know from all the reports that I have heard, the Australian Attorney-General's full opinion was given to the Australian Parliament. Many of the traditions on which Australia's parliamentary system is based are similar to ours, and no doubt similar considerations applied. I have been informed that the US Attorney-General's opinion could well be made available, too. Therefore, if we consider the desirability of transparency, there seems to be no profound reason why the opinion of the Attorney-General should not be available in this case.
Given the debacle in the House of Lords yesterday in relation to the Constitutional Reform Bill, the role of the Attorney-General may be subject to some uncertainty, if not threat, in light of the kind of reforms being proposed and the abolition of the Lord Chancellor's role. The debate therefore has a certain poignancy, as it could turn out to be highly inconvenient to have a man of integrity and independence of mind standing up to a Government and saying, "You cannot go to war." Previous Governments have had to contend with difficulties with regard to advice given by the Attorney-General in relation to matters of state policy, and that has been catastrophic for them.
As we know, or ought to know, conventions depend on the reason for the rule. If the reason in this case is merely to protect the Government—if the alleged convention not to release the advice of the Attorney-General is intended merely to protect the Government from their critics and those Back Benchers who voted reluctantly for the war—that is a bad reason. The convention, such as it is—broken as often as it is adhered to—should not be relied on in this instance. T. S. Eliot wrote in "Murder in the Cathedral", that now is my way clear, now is the meaning plain: temptation shall not come in this kind again, for I now know it is the greatest treason to do the right thing for the wrong reason. I believe that the Government's moral dilemma in relation to the non-publication so far of this advice turns on that moral dilemma.
For me, the most important question arising in this debate turns on accountability and trust—accountability for judgment and trust in the basis on which that judgment was made: the two are inter-woven. The disclosure of the advice is a matter not for the Attorney-General, but for the Prime Minister and the Foreign Secretary. The Attorney-General could have arrived at his opinion, pursuant to my question on the eve of war, only on the basis of the facts before him at that time. The facts were provided by the Prime Minister and the Foreign Secretary—and so was the perception, or the understanding, or the conduct, of international relations in the context of international law. That may not be apparent at first sight, but I believe it has a great bearing on the matters we are considering.
Contrary to suggestions by leading counsel in the press recently that the rule of confidentiality is based on the legal professional relationship between legal adviser and client, it is surely obvious to anyone that—as I said in an intervention earlier—the Attorney-General is not a mere legal adviser, and the Government are not a mere client. Given the case of R v. Allen in 1862, and on any constitutional analysis, the Attorney-General has a vital role in our constitutional arrangements. He is personally accountable to Parliament and is not collectively responsible to the Cabinet, as was made clear by the judgment of Lord Justice Cockburn. He is therefore in a unique and exposed position. At the time of giving his opinion on the legality of the war, if he had declared it to be unlawful and if his advice had not been accepted, he would have been honour-bound and expected to resign. That is his prerogative and his responsibility. If he advises the Government that a war is legal, all is well; if he does not, all hell is let loose.
In such circumstances, there is every reason why the Attorney-General should not be left as the boy on the burning deck. I am bound to say that that thought lay at the back of my mind when I told the Solicitor-General on
The Solicitor-General claimed in her statement on that day that the Prime Minister was bound to take his law from the Attorney-General. In a letter of
"the Law Officers have no control over the legal action of the Government. A Minister is not obliged to take his law from the Attorney General. Accountability thus rests with the Ministerial decision taker."
In other words, we are back to the Prime Minister and the Foreign Secretary, although the latter refused to accept that point in his speech.
At 6 o'clock yesterday evening, I received an unsatisfactory answer from the Solicitor-General about the so-called evidential deficiency, which we all believe has much to do with the desire not to publish the full opinion. On the dropping of the Katharine Gun prosecution, the Attorney-General indicated in the other place that the papers relating to that evidence would be made available—or so I thought I heard him say. I have asked the Solicitor-General to lay these papers in the Library, and she said that she would provide an answer shortly. I faxed her last night, asking that the papers be made available for today's debate, but they have not been provided.
As I have said before, the production of the full opinion is a matter separate from the legality of the war. Many believe, for example, that the 45-minute claim was exaggerated in order to get Labour Members through the Lobby. In common with my colleagues—or most of them—I believe that the war was both legal and necessary. Indeed, I have much sympathy with the Prime Minister's speech last Friday on global terrorism, although I disagree with him when he claims that the question should not be one of "issues of trust", but of his judgment. For me, it is a question of both judgment and trust.
The Prime Minister is right to say that the United Nations needs reform and that international law needs re-evaluating. There is no final arbiter or court to adjudicate on many of these matters, although in my opinion we were unwise to submit ourselves to the jurisdiction of the International Criminal Court. Lord Boyce was right to insist that our armed forces were satisfied that the war was legal. We need to go further than that, however.
Of course, there is much to be said for the rules of international law in their general sense, but the Attorney-General's opinion is intimately bound up with the centre of gravity of our perception of, and conduct of, international relations, and with international law and our view of the nation state. It is therefore integral to the Government's view of foreign policy. The release of the Attorney-General's opinion would throw much light on these matters.
As the Prime Minister said in his Sedgefield speech, in our own self-interest we and the United States are ultimately bound up with the fate of other nations. Although he does not seem to appreciate the fact, his decision to go to war was based on the Westphalian concept of nation states, which he repudiated in his speech. According to that concept, states decide for themselves what is in their own self-interest—as the French, the Germans and the Russians did in respect of resolution 1441. Indeed, all those nations adopted their positions as individual nation states in their own self-interest, in opposition to the self-interest, as they saw it, of the United States and the United Kingdom. Indeed, Monsieur Vedrine, the former French Foreign Minister, said that the French were making decisions according to their interpretation of their own interests.
Fundamental matters of foreign policy such as the 45-minute claim and what the Prime Minister knew about whether or not the weapons were battlefield weapons are inherently matters of judgment as well as of trust. If the Prime Minister wants us to trust his judgment, he would do well, in line with the precedents on state policy, to satisfy the House that the instructions to the Attorney-General as evidenced in his opinion—and Her Majesty's Government's policy on international law and the United Nations as reflected in that opinion—stand scrutiny. That should include the Attorney-General's opinion about the extent and relevance of international law, so that it cannot be said that the Attorney-General had changed his mind about the legality of the war, as we know he did in respect of the Gun prosecution.
In circumstances that echo today's debate, it emerges that in 1924 the Cabinet exerted undue pressure on the integrity and independence of the then Attorney-General, Sir Patrick Hastings, in relation to the Campbell sedition case. But the storm clouds grew and eventually burst in a vote of censure on Ramsay MacDonald's Government, which then fell. It would be as well for the Prime Minister to take note.
I do not propose to speak for half an hour, and I begin by apologising for not being a lawyer in a debate that has so far effectively been dominated by lawyers.
It is in the interests of all right hon. and hon. Members to ensure and insist that decisions made by the House comply with international law. It is to that context that I shall confine my comments. I do not want a re-run of the arguments about whether or not the war should have been fought. I accept the Prime Minister's view that, at one level, that is a matter of judgment. I have never questioned the sincerity of the Prime Minister—I just think his judgment was awful. The House has a responsibility to express judgments, and we will be judged by the public when they cast their votes. That is the nature of politics. Part of that process presupposes that judgments are made within a framework of legality.
The official position of the Conservative party cannot be rewritten as part of a post-hoc rationalisation. Before the war, I toured television stations either preceding or following the shadow Foreign Secretary. It was clear that the issue of legality did not for one moment pass through his mind. At some stages, his gung-ho approach left me feeling that if the Conservatives had evidence of Saddam passing wind, that would have been enough to declare war. The Conservatives just wanted to be in there, so for them to suggest at this point that they had a continuing concern about compliance with international law is not to be truthful. That is not necessarily the claim made by all Conservative Members but it would certainly be a gross distortion of official Conservative Front-Bench policy at the time.
Convention or not, one of the most important principles of open, democratic accountability in respect of an issue as profoundly important as going to war is that legal advice should be presented to the House. Right hon. and hon. Members have spoken about lawyer-client confidentiality, but it was the House that endorsed support for the war. As such, it was Parliament that should have been deemed to be the client and it is Parliament that should have the right to know the contents of the legal advice.
My reservations about the wording of the motion do not relate to whether the advice should be disclosed. Rather, the motion presents an inadequate proposition by posing three important questions that it then ducks. It cannot be sufficient merely to ask for the advice of the Attorney-General. We must ask for the background advice given to the Attorney-General by his deputy, Elizabeth Wilmshurst. We need to know also which other counsels' opinion was sought. As a House, we ought to address what we would do with advice presented to us today.
As to the opinion of other counsels, having had a limited amount of local government experience, I take a sanguine view of the advice that one gets from lawyers. Lawyers will give the best advice that money can buy—and the best opposite advice that money can buy. Whether one believes that or not, councillors in local government would usually look at the legal advice and ask whether it would get past the district auditor, knowing that someone else would judge them on that advice—
No, because we have had so many interventions, and it is inappropriate for an hon. Member who has been absent for much of the last couple of hours to intervene at this stage.
The point is that someone else will judge the legality of one's actions. What the legal profession provided was legal advice and opinion, not necessarily an affirmation of legality. Ultimately, that is what the House will have to face up to.
Some hon. Members have mentioned human rights and argued that it was right to tackle the wretched record of Saddam Hussein, but I must remind them that that was not the basis of the case made to justify going to war. As others have pointed out, regime change would have been illegal under international law. The case made to justify the war was mounted on the basis of Saddam's possession of weapons of mass destruction, the threat to international security and the breach of UN resolutions.
In respect of UN resolutions, we should remind ourselves of what was said by Hans Blix—not only head of the weapons inspectorate, but himself an international lawyer. In an interview with The Independent at the weekend, he said:
"I don't buy the argument the war was legalised by the Iraqi violation of earlier resolutions."
He went on to say that ownership of the resolutions rested with the entire 15-member Security Council, and not with individual international states. That is the proper basis and we should reflect on it. It is a fact that the rest of the UN Security Council believed that there was no automaticity to a war on the basis of resolution 1441. As Sir Jeremy Greenstock made clear, a second resolution would have been required to justify war. What Hans Blix is telling us is that the possession of the right to determine was the prerogative of the UN Security Council. That is my main concern.
As a Parliament we must move beyond simple demands about what information and advice should be made available towards recognition that countries cannot act as judge and jury in their own cause. Those who argue that the outcome justifies the war are treading a flawed and dangerous path. It cannot be right for any country to be able to start a war simply because it wants to, and then declare the war lawful because it chooses to. That is making up international law as one goes along. If we presume that right for ourselves, the same right applies to every other country—whether it be a rogue state or "axis of evil" country or not. All those states would have exactly the same rights. The willingness of this Parliament to hold itself to account to international law, as judged by other international bodies, is the central issue at stake.
This weekend the Prime Minister made a speech about the war on terrorism. He made an important point when he said:
"It means reforming the United Nations so its Security Council represents 21st century reality; and giving the UN the capability to act effectively as well as debate."
The Prime Minister was asking for new flexibilities. I suspect that, if that were put to the Security Council, other member states would talk about different constraints on the freedom of individual states. Throughout his speech, the Prime Minister may have wanted flexibilities, but he wanted them within a framework of legality. That is the central issue that we must address.
If the Government genuinely believe that there was a legal case for war, we should take the initiative ourselves and refer the case either to the International Criminal Court or to the UN Security Council.
There needs to be a judgment that is not made by us. The people who perpetrate a war cannot be the ones who determine whether it was legal.
That was brought home to me by the comments of Admiral Sir Michael Boyce, the Chief of the Defence Staff at the time. Other hon. Members have made reference to his demand, six days before the war started and with troops lined up on the borders of Iraq, for an unequivocal assurance that the war was legal. The significance of that demand is that he should have made it at all. No members of the defence staff or the armed forces would ever want to be accused of being unwilling to fight a legal war, or to put their lives on the line to defend the country against a real and present threat to our security.
However, Sir Michael was merely voicing the concerns of the defence establishment, which reflected the view of the British public that the war was not legal. The Chief of the Defence Staff feared that British soldiers would find themselves hauled up before the ICC and charged with committing war crimes because the war was not deemed to be legal.
The House must find the courage to do more than demand that the Attorney-General's advice be published. We must go further, and deal with the central question that the British public want us to address. The answer to that question cannot be determined through the claims and self-justifications of those who made the decisions. Only in the court of international opinion, or in the international institutions established to define the legalities of war, will the question be answered that people still ask us every day on their doorsteps. Was the war legal? At the moment, the answer in the public mind is no.
I am not a lawyer, and that makes me unusual in this debate. However, my remarks centre on the fact that non-lawyers can also contribute to the discussion of these matters, as can people from the countries represented on these Benches.
My constituents are puzzled by the Government's strange reticence on this matter. Earlier, the Foreign Secretary likened the situation to the relationship between lawyer and client. He said that confidentiality must be respected, or the relationship would be worthless in the future. Similarly, he claimed that the Attorney-General's advice must remain confidential.
However, the relationship in question is not like the one that exists between a client and a lawyer. It is the relationship between a Government and a people. The advice given to the Government was the basis on which we went to war. That is not a pettifogging issue, as Mr. Foulkes claimed. He is not here at present, but it is not as if we are talking about double parking, shoplifting or the larceny of bicycle inner tubes. We are talking about war—the most extreme action a Government or state can take. The tragedies of 20,000 people, at least, attest to the seriousness of the matter. War is serious; it is not pettifogging.
If we are to resolve the matter collectively, and if the Government are to achieve the closure that Ministers and their friends so long for, the people of our countries must be satisfied. They must be given the full information so that they can decide the matter for themselves. I thought that Labour Members believed in the maxim, "Trust the people," but clearly they do not in this instance. I hope that the Government can trust the people in the future and that they publish the advice.
I was against the war and remain against it. I am clear about that, but this matter does not concern the war itself. The question here is whether people should be told the basis for going to war. If the advice is published, it will not be hon. Members who are satisfied but the people, in which case my constituents will be satisfied or otherwise by the Government's actions. The question is not for my hon. Friends or me; it is for the people, because the Government are answerable to the people of the United Kingdom—the people of Scotland, the people of Wales and the people of my Caernarfon constituency.
If the Government persist with their course of action and refuse to come clean and allow the matter to be resolved, the people will find them shifty and evasive, and—perhaps wrongly—they will be found guilty by default. If they have nothing to fear, nothing to hide and no guilt, let them publish the advice and be justified.
I am pleased to have the opportunity to speak in this debate. Contrary to suggestions by my hon. Friends that the issue is pettifogging and that ordinary people are not interested in it, I have received many letters about it and am glad to speak on behalf of my constituents.
My hon. Friend Mr. McCabe asked, whose cause would be served by publishing the legal advice. I have a simple answer: the cause of democracy will be served by publishing the legal advice. We have heard that Ministers' arguments that there is no precedent for publishing the Attorney-General's advice is wholly specious. In his comprehensive speech, Mr. Cash set out all the precedents going back to the 19th century. Before he informed us about the historical precedents, we already knew that the Government had partially revealed the advice by presenting a summary. I am not a lawyer, but I cannot see the difference between publishing a summary of the advice and publishing the whole advice.
The other argument that we have heard from Ministers—I hope that we will not hear it again this afternoon—is that the Government are somehow comparable to a lawyer's private client, but that is tendentious. The Government are not the clients; if anything, we are the clients, and therefore we are entitled to see advice that was sought in our names.
Some of my hon. Friends have asked why there is concern about the legal advice. One reason why there is concern is that it is widely acknowledged that the greatest expertise about the law in relation to war and foreign policy rests not with the Attorney-General, who is a distinguished commercial lawyer but not an expert on these matters, but the Foreign Office. Is it pure coincidence that the deputy legal adviser to the Foreign Office resigned on the eve of the war? Could it be that there were uncertainties within the Foreign Office that were not reflected in the published summary of the Attorney-General's advice?
I am grateful to my hon. Friend.
On the eve of war, the deputy legal adviser at the Foreign Office, Elizabeth Wilmshurst, resigned, which was not sufficiently remarked on at the time. Days before the war, the Chief of the Defence Staff, Admiral Michael Boyce, insisted on a simple statement on the legality of the war. That gives the lie to my hon. Friends who claim that the legality of the war was transparent all along. If the Chief of the Defence Staff demanded a definitive statement on the legality of the war, it means that there was uncertainty among those who were best placed to know—our armed forces. People ask why we are obsessed with this pettifogging issue and why are we always looking backwards, but I believe that the British public value our armed forces and do not want to feel that we sent them to fight an illegal war. That is not a trivial matter. Indeed, it goes to the heart of the framework of international law.
One of the reasons for the uncertainty, the bloodshed and the attacks on our forces in the region is a widespread belief internationally that the war was not legal. Certainly, military action was not taken on the basis of a genuine international consensus. It was undertaken unilaterally by the US and Britain. Whether my hon. Friends like it or not, the issue still concerns the British public. The legality of the war has a bearing on the legitimacy of the actions of our troops in the future.
The issue will not go away. There is a shadow hanging over the Government and all the bluster and threats against certain of my hon. Friends—such as intimations that we will be put in front of a special tribunals and asked whether we are, or have ever been, socialists—will not make it go away. The shadow from the war with Iraq is a widespread perception—not only among Opposition Members and Back Benchers—that we sent our troops into an illegal war. If the Government are confident of the legal basis for the war, they have nothing to fear from completing the process that they have started and publishing, in full, the Attorney-General's advice.
It is a great pleasure to sum up the debate, which was opened by my hon. Friend Mr. Llwyd.
Over the weekend, The Guardian asked for my memories of the Iraq debate held almost a year ago; I am sure that the Foreign Secretary and many others who participated in it will also be asked, if they have not been already, about their memories. I took the precaution of re-reading the debate, and it is instructive to see the development in the positions of several people.
I was pleased to note that I started my contribution by saying what I still believe to be the case—that the fundamental issue at stake was not Saddam Hussein, Iraq, oil or international terrorism, but the development of a new world order. In particular, it was the development of a doctrine of pre-emption by the dominant—indeed, the only—superpower in the world, and how the world community would adjust to that new reality. Having read the speech that the Prime Minister made in Sedgefield on Friday, I am even more concerned, because in it he sailed close to the wind about such a doctrine. As has been said at least once in this debate, the problem with a doctrine of pre-emption is that it would not be used only by the most powerful country in the world. By definition, without a framework of international law by which countries must abide, it is a doctrine that can be used by any country that is more powerful than another country from which it perceives a threat. I still think that the framework of law is the most important issue in the war in Iraq. The issue is still with us and it is clear that the Prime Minister is now struggling with it, although it might have been better to have had that intellectual struggle before the conflict, instead of afterwards.
I make my second point because, remarkably, I hear from a number of ultra-loyal forces on the Government Benches that somehow the question of weapons of mass destruction was not the dominant theme in the Prime Minister's presentation to us on
"Let me explain the dangers. Three kilograms of VX from a rocket launcher would contaminate 0.25 square km of a city. Millions of lethal doses are contained in one litre of anthrax, and 10,000 litres are unaccounted for. What happened on
The Prime Minister presented us with a world in which there was a clear, imminent threat, one that required an immediate response. It could not even wait a few weeks for Hans Blix and the rest of the inspectors to complete their work and furnish us with the facts. Those facts, which were then unknown, are now probably known to the extent that no such weapons of mass destruction have been found.
I want to do three things in summing up the debate, beginning with a look at the framework of law. I will not follow my hon. Friend the Member for Meirionnydd Nant Conwy, who quoted extensively from many legal authorities and said that people who were for or against legality all argued that the Attorney-General's advice should be published. I thought that that was an extremely powerful point, even if the Foreign Secretary did not take it fully on board. I want to quote key people who were involved in terms of the international framework of law: Hans Blix and the Secretary-General of the United Nations, who were not involved in our domestic political debate, but who were at the very centre of what can be defined as the world order, or at least what should be defined as the world order.
Secondly, I want to look at the development of Government thinking, because one of the reasons why the Attorney-General's advice should be published is that it is clear to me that the Government's thinking on the matter went through a serious evolutionary change as the realisation dawned that a second resolution would not be possible. I should like to see whether the Attorney-General's legal opinion reflected that change as the sequence of events unfolded, which is why I should like to see all his advice published.
Thirdly, I want to repeat the fundamental point that the party to this argument, the client, was not the Government. The client was Parliament and the people of this country, who are absolutely entitled to see the legal basis on which they were committed to conflict.
With regard to the question of quoting people, the Foreign Secretary follows the Prime Minister in almost demeaning his profession. Lawyers are people who disagree. It is said that there are as many legal opinions as there are lawyers. I am an economist, and the same sort of thing is said about economists. There is an argument unfolding that this is a matter about which reasonable people can agree or disagree: that there is no absolute certainty, no absolute fact, no moral code to abide by, but a series of arguments. On Friday the Prime Minister said it again:
"The lawyers continue to divide over it"— the question of law—
"with their legal opinions bearing a remarkable similarity to their political views of the war."
I stop the quotation there. Lawyers would be less than human if their legal judgments were not informed by their general views. Every human being has that tendency. But is it not also possible that many lawyers, and many other human beings, informed their view of the war by their opinion of its legality, not vice-versa?
The question of legality is fundamental. In all the conflicts that I have been asked to vote upon, on some of which I agreed with the Government, as with the then Government on the first Iraq conflict and with the present Government on a number of humanitarian interventions more recently, I have taken as my fundamental code United Nations approval and sanction for conflict. Although they have never arisen to date, there might be circumstances in which the United Nations sanctioned an action and I still would not feel it to be right, because, as Sir Menzies Campbell pointed out, the legality of a war is dependent on whether the action is proportionate, whether it is effective and whether all other avenues have been tried. However, the guidance of the United Nations is not a bad place to start from when deciding whether a conflict is legal and justified.
"Resolution 1441 . . . manifestly does not authorise military action. If the Council had intended to do so it could have said so quite unambiguously. To seek to spell out such authority from a reference to 'serious consequences' is to treat the Security Council as a Delphic oracle".—[Hansard, House of Lords, 17 March 2003; Vol. 646, c. 90.]
If the advice of the present Attorney-General had been not that war was legal, but that it was not justified and not legal, what would have been the Government's response? Would it have been to change their course of action or their Attorney-General? I want to get to the heart of the relationship between the Government and their Law Officers.
The hon. Gentleman is making a preposterous suggestion. If the Attorney-General had come to a different view, it would have been communicated to the House and that would have been the end of the matter.
The hon. Gentleman is making the general suggestion that the position of the Attorney-General is not independent of Ministers and that if his advice is not acceptable Ministers require it to be changed, on threat of his being sacked. That is a preposterous statement and is utterly untrue and incorrect—in respect not only of the present Administration but of any Administration. Peter Archer is a good friend and I should be happy to take him through the negotiating history of 1441 and explain why I think he erred, but if he had been the Attorney-General and had, finally, come to a different view, that would have been the end of the matter.
The key word is "finally". One of the issues that we want to explore is whether the Attorney-General's advice went through a variety of versions before the Foreign Secretary published the final document in summary—[Interruption.] The Foreign Secretary waves his hands, but earlier in the debate he implied that the veto over the publication of the advice was in the hands of the Attorney-General, so it is perfectly reasonable to ask him whether the Attorney-General's advice went through a series of drafts before it became the final advice that the Foreign Secretary deigned to give the House when he wanted sanction for the war. However, if the Law Officers have a veto over such action—as the Foreign Secretary says—I am very pleased to hear it. I am glad that someone has a veto over military action.
My second quotation is from Hans Blix—[Interruption.] The Foreign Secretary can listen to the quotation and then comment. Hans Blix is an international lawyer as well as a weapons inspector, and he said:
"I don't buy the argument that the war was legalised by the Iraqi violation of earlier resolutions . . . It's the Security Council that is party to the ceasefire, not the UK and the US individually, and therefore it is the council that has ownership over the ceasefire, in my interpretation . . . Any individual member could take a view—the Russians could take one view, the Chinese could take another, they could be at war with each other, theoretically."
I shall come in a few seconds to the questions of who owns a decision to go to war and who owns the advice of the Attorney-General, but the point of view expressed by Hans Blix is surely correct: ownership of the interpretation of what is sanctioned by the UN lies with its Security Council and not with individual countries in the Council, which might come to different conclusions.
"the legitimacy and support of any such action will be seriously impaired . . . If the United States and others were to go outside the Council and take military action, it would not be in conformity with the charter"— of the United Nations. Those are not lawyers giving different legal opinions; they are the key players in an international framework of law—players whom the Foreign Secretary decided to bypass or ignore for the purposes of gaining legal sanction for the decision to go to war.
Another issue that has been raised in the debate is the Elizabeth Wilmshurst resignation, which has not been spoken of or debated publicly to the same extent perhaps as the Katharine Gun trial and other issues, but it is surely pertinent when a career civil servant, who, by all accounts, had a distinguished career and was near the pinnacle of her profession as deputy legal adviser in the Foreign Office, resigns on the eve of a conflict. At the very least, that gives us the strong suggestion that the arguments involving lawyers that the Foreign Secretary thinks take place outside the realms of the Foreign Office were taking place within the Foreign Office itself. I should like to know whether the Attorney-General weighed up those arguments and counter-suggestions before he finally decided to agree with the Prime Minister and the Foreign Secretary and give them the basis that they wanted for the legality of the conflict.
I also want to explore the development of Government thinking. The Foreign Secretary is very sensitive on this matter. He takes every opportunity, even when it is not central to the debate, as it is in this one, to tell us about his efforts on resolution 1441, but we can be reasonably convinced—can we not?—that the Government's position on the central importance of that resolution was developing as events moved along. On
"This was a moving situation because for a long time we were thinking this might have been authorised by a specific UN resolution, in a way because it would have been clear cut. We worked hard to get it and worked on the assumption that we probably would. I'm not aware of a plan B. It only became apparent when that resolution was not forthcoming that advice was needed."
What advice was the Cabinet Secretary talking about? Had there been prior advice based on resolution 1441? Was it only after the desired outcome of resolution 1441 was not forthcoming that "advice was needed"?
The indication that the Government's advice was developing also comes from the comments of Admiral Sir Michael Boyce. For example, in The Herald on
"My views were clear and made very formally in Cabinet and in the view I transmitted to the Attorney-General through Number 10. I required a piece of paper saying it was lawful. Now, if that causes them to go back saying 'We need our advice tightened up', I don't know."
Admiral Sir Michael Boyce, the Chief of the Defence Staff, clearly believed on the eve of war that he had not been supplied with an adequate and clear explanation of the legal position, and he required one, quite rightly, because he was concerned about the implications for him and the armed forces under his command if one was not provided. I should like the Foreign Secretary to say whether the Attorney-General's advice evolved to meet the circumstances and when that advice departed from resolution 1441 and went outside that resolution's remit.
The Prime Minister has never been able to explain the content of his interview on "Newsnight" on
The absolutely crucial aspect of the debate is the information allowed to those who make decisions. The Foreign Secretary has made great play of the fact that the House was given the unprecedented opportunity to make a decision on whether to go to war on a substantive motion. Despite all the points in the debate on which I disagree with him, I do not disagree with him about that. It was a good initiative and rightly something of which to be proud. However, if the House is to be called upon to make such a fundamental decision, surely the unavoidable conclusion is that the House, on behalf of the people whom it represents, should be given all possible advice on which to base its decision. The Attorney-General's advice has been described as a summary or a précis, and the Foreign Secretary earlier described it as a digest. If the House makes a decision, it is entitled to full information. If the public are called on to support a decision, we are entitled to full information.
As we have heard, there are several precedents for releasing an Attorney-General's advice: the Factortame judgment, the situation regarding the Commonwealth Immigration Act 1962 and the Scott inquiry. The precedents go right back to 1865 and Lord Palmerston and the Belfast riots. However, even if there were not a single precedent, it would be right fully to publish the Attorney-General's advice on this occasion because of the unprecedented and correct decision to allow the House a substantive vote on peace or war. It is a question of ownership. Just as the United Nations should own the right to decide whether to sanction action on its behalf, the House, on behalf of the people, should have ownership of any legal advice that informs a decision on whether to go to war.
The Prime Minister has set out his case, and I re-read the Foreign Secretary's comments from last year's debate in which he said that if we agreed to the motion the world would become a safer place and the authority of the United Nations would be upheld. As the Prime Minister pointed out on Friday, the world is still in deadly peril. Is Iraq a safer place? The Foreign Secretary was right to say that the removal of the dictator was a major gain. The passing of a draft constitution is a major gain, but it has not yet been put into effect. The gains are immense, but it can hardly be said that they were a bargain given that 10,000 people are dead—British and American soldiers, and Iraqi civilians.
Even more tragically and importantly, the authority of the United Nations has not been upheld to consolidate its position. We have moved from the situation on
The war in Iraq is haunting the Prime Minister and it will haunt the Government. The ghost will not be exorcised by telling journalists to write about something else or by saying that the solution is reform of the United Nations to make it conform to what he wants it to do. I honestly do not think that it will be exorcised by refusing to publish—by keeping secret—advice and information to which the House, which was asked to vote on a war, and the people of this country, who were asked to support a war, are entitled.
This debate has been useful in reviewing many important issues surrounding the conflict with Iraq, but I am honestly not sure that it has been about the legality of going to war and whether it was right or wrong to do so. Hon. Members rehearsed arguments made in the Chamber before about whether we were right in principle to go to war, which is a separate issue.
Let me deal with the issues that were raised. Mr. Llwyd referred to the non-disclosure of the Attorney-General's advice. He said that it was impossible to be dogmatic, and that there might be circumstances in which everything is to be gained from disclosure. That is an arguable case, but it is not justified in the circumstances. If he looks at the precedents, such advice from an Attorney-General has never been disclosed in circumstances of military conflict—not once has that happened, and he should reflect on that. He went on to level accusations at the Government, asking whether we can support the rule of law in Iraq when we ignore it here. I would argue emphatically that we are not ignoring the rule of law, and I would maintain equally emphatically that we would not have gone to war unless it was lawful under international law to do so.
Reflecting on the Minister's first argument, a number of precedents for the full disclosure of the Attorney-General's advice have been raised in the debate, including, for example, the case of the Spanish fishing boats. Does the Minister maintain that it was more important to reveal advice on such an issue than to do so on the most fundamental issue of all?
I wish that I had not given way to the hon. Gentleman. I was making the point that when Members cite selective examples of precedent, they must be able to sustain their argument, and I do not believe that they have done so this afternoon.
The hon. Member for Meirionnydd Nant Conwy said that we went to war solely on the basis of intelligence in the possession of the UK Government. That is emphatically not the case. We went to war because resolution 1441, which was passed unanimously, gave Iraq a last chance verifiably to disarm, which it manifestly did not take. Hans Blix's report consists of 173 pages of unanswered questions, which also led us to our conclusion. The hon. Gentleman threw in for good measure the 45-minute claim. Nothing in our debate has frustrated me more than the focus after the event on that claim, which in retrospect has grown in importance compared with its relevance in the run-up to conflict. The record shows that the 45-minute claim was raised only twice in the 40,000 parliamentary questions tabled between the publication of the dossier and the decision to go to war on
The hon. Gentleman lamented the fact that he was not in a position to make a judgment without seeing the Attorney-General's advice. I contend that he does not need to do so—the Attorney-General's statement to Parliament makes the legal position clear—unless he is saying that the Attorney-General said one thing to Parliament in his published response and another privately to the Government. Unless that is his contention, I do not understand the case that he is making.
I have already gone out of my way to say that I am not impugning the credibility of the Attorney-General or the veracity of what he said. I repeat: the facts on which he based his conclusion are the key to the whole debate.
With respect, I think that the hon. Gentleman did impugn the integrity of the Attorney-General—[Interruption.] Let me finish the point. He said clearly that he was not impugning the Attorney-General's integrity, but he went on to argue that the Attorney-General had been gagged yet had remained in office, which is fundamentally to question his integrity. I hope that in the cold light of day the hon. Gentleman will reflect on his comments and withdraw them.
We then heard a contribution from Mr. Grieve, who said that although advice from the Attorney-General should ordinarily remain confidential, he disagreed with that in these particular circumstances. I find it difficult to reconcile his comments with those made by his right hon and learned Friend the shadow Foreign Secretary in a debate in the House on
"I accept that that is a sensitive area that might not necessarily benefit from the sharp spotlight of public scrutiny."—[Hansard, 22 October 2003; Vol. 411, c. 670.]
The House needs to know what, in the view of the Opposition, has changed between then and now.
First, there is no incompatibility between what my right hon. and learned Friend said and what I said. Secondly, the major change that has taken place since then is that information has come to light that has led to public disquiet about what information the Government had on weapons of mass destruction and how they used it. That is why the Government set up the Butler inquiry.
I wholly refute what the hon. Gentleman says. If the public disquiet to which he refers exists now, it existed then. That is why the shadow Foreign Secretary called for an independent judicial inquiry. There is a significant difference between what the hon. Gentleman said today and what his right hon. and learned Friend said as recently as October last year. That demonstrates yet again that nobody knows more about opportunism than Conservative Front Benchers.
I listened carefully to the comments of my hon. Friend Llew Smith, who is no longer in the Chamber. He said that the House needs to know whether Ministers deliberately distorted evidence to justify the case for war, and implied that we could well have done. I shall choose my words carefully, because I have the greatest respect for hon. Members who, in opposing the decision to go to war, reached a conclusion that differed from mine. However, they do not have a monopoly on conviction or sincerity in this regard. I respect their right to put forward their views, but I wish that they would respect the right of Government Front Benchers similarly to argue from the position of conviction and sincerity.
As for the allegation that we distorted and fabricated evidence and misled the House, that has been refuted on three separate occasions. The cross-party Intelligence and Security Committee, the cross-party Foreign Affairs Committee and the Hutton inquiry all concluded in terms that we did not distort—to use the jargon, "sex up"—the dossier and that we took reasonable decisions based on the evidence before us. I wish that hon. Members who disagree with our decision to go to war would at least concede that point to us.
My hon. Friend raised the issue of Jeremy Greenstock's comments and the argument that the first Security Council resolution had no "automaticity" in terms of deciding to go to war. That is a key argument that needs to be addressed. I stress that Security Council resolution 1441 did not revive the 678 authorisation immediately on its adoption. In that very significant sense, there was no "automaticity". The resolution rightly afforded Iraq a final opportunity to comply and provided for any failure by Iraq to be "considered" by the Security Council. However—this is the key point—that paragraph in the resolution does not mean that no further action could be taken without a new resolution by the Security Council. Had that explicitly been the intention, it would have provided that the Security Council would decide what needed to be done to restore international peace and security, not, as the resolution actually stated, to consider the matter. The choice of words was explicit and deliberate. A proposal that there should be a requirement for a decision by the Security Council—a position that was initially maintained by several of its members—was not adopted. Instead, rightly in my view, the Security Council opted for the formula that it must consider the matter before any action was taken. That is fundamentally what happened.
Sir Menzies Campbell knows from many of the issues with which we have been involved that I have the greatest respect for him. This afternoon, however, he questioned the legal basis for going to war. Yet on
"It may well be true that, legally, no new resolution is required for the use of force to implement resolution 687."—[Hansard, 24 September 2002; Vol. 390, c. 43.]
He was right then and I wish that he had followed the thrust of his argument. His words in September 2002 do not sit easily with his comments today.
Does the Minister concede that I consistently said that military action must be seen as a last resort when all other diplomatic and political alternatives have been exhausted, and that the source of international law is to be found not only in the United Nations and its charter or resolutions but in customary international law?
All hon. Members viewed military conflict as a last resort. I simply point out that the right hon. and learned Gentleman questioned the legality of our decision today, but did not do so in September 2002.
There was a unanimous view on resolution 1441, but a disagreement on the method of enforcing it. We are entirely clear that we acted in accordance with international law at all times.
Authority to use force against Iraq derived explicitly from the combined effect of United Nations Security Council resolutions 687, 678 and 1441. They were all adopted under chapter VII of the UN charter, which allows for the use of force for the express purpose of restoring international peace and security. The debate has centred on the disclosure of the Attorney-General's advice and the long-standing convention, which both parties have observed when in government, of not normally revealing that advice. The reasons for the convention of non-disclosure are compelling. Its purpose is to enable the Government, like everyone else, to obtain frank and full legal advice in confidence. It is manifestly in the public interest for all Governments to act in that way and in accordance with the rule of law.
As Ministers have said on innumerable occasions, the Attorney-General's advice was not to be disclosed. Nevertheless, in view of the amount of public interest, the Attorney-General exceptionally set out his view of the legal basis for the use of force against Iraq in response to a written parliamentary question on
Let me deal briefly with precedent. As I said earlier, I am not aware that Law Officers' advice on any previous military conflict has ever been disclosed at the time of conflict. Even on less serious issues, there has never been a general policy of disclosure. Given the position of Conservative Front-Bench Members now, it is interesting to recall the then Government's position on the Maastricht treaty in 1993. Although the Foreign Secretary had made a statement that included a summary of the Law Officers' conclusions, the Attorney-General was asked, and explicitly refused, to disclose his full advice. It was right then and it is right now. Those points need to be made clearly.
This Government, like others before them, will not reveal advice that the Attorney-General has given them. That is, rightly, the long-standing convention, which allows the Government, like everyone else, to obtain frank and full legal advice in confidence. However, hon. Members should be in no doubt that the conflict was legal. The Government would not have engaged in military action had they not been satisfied that such action was legal under international law.
Just as importantly, we should return to the central reason why we took military action. The removal of Saddam Hussein has made the world a much safer place. The conflict that we undertook was right and just; now, however, we should focus on our priority of reconstruction and the creation of a safe and stable democratic Iraq. Yesterday's signing of the transitional administrative law was a significant historic achievement. We are now committed to helping the Iraqis to achieve the prosperity, freedom and democracy that Saddam Hussein denied them for decades. That is the significant point in the debate, and I urge hon. Members to support the amendment and reject the main motion.
Question accordingly negatived.
Question, That the proposed words be there added, put forthwith, pursuant to
Mr. Deputy Speaker forthwith declared the main Question, as amended, to be agreed to.
That this House notes the long-standing convention, followed by successive governments, that the advice of the Law Officers is given in confidence and is not disclosed publicly; notes, however, the Answer given in the House of Lords by the Attorney General on 17th March 2003 which set out his view of the legal basis of the use of force against Iraq, and the letter of the same date from the Secretary of State for Foreign and Commonwealth Affairs to the Chairman of the Foreign Affairs Committee giving more detail of the legal position; and believes that the priority now for the Government is to help the Iraqi people rebuild Iraq.