Elizabeth Wilmshurst was one of the deputy legal advisers at the Foreign and Commonwealth Office. As is now well known, she submitted her resignation on
"lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678".
Given that difference of views, her resignation was an honourable course to take and in accordance with the civil service code.
The Foreign and Commonwealth Office has received a number of requests for the text of Ms Wilmshurst's letter under the Freedom of Information Act, which came into force on
Following the publication in The Guardian on
It was entirely proper for the Government to withhold information under the provisions of this Act. Indeed, as the Minister who was responsible for taking what was then the Freedom of Information Bill through Parliament, I can recall no suggestion from any party in the House that the Government's legal advice should not be exempt from such disclosure.
Let me now turn to the second aspect of the question: the Attorney-General's opinion on the legality of military action in Iraq. This whole question is covered extensively in Lord Butler's report on intelligence on weapons of mass destruction at paragraphs 366 to 387, and I commend those paragraphs to the House. Ms Wilmshurst gave evidence to the Butler inquiry, and the substance of her position, then as now, is covered in paragraph 376 of the report.
In the light of Saddam's failure to comply with his very clear obligations, set out in United Nations Security Council resolution 1441 of November 2002, the United Kingdom, United States and Spain tabled in February 2003 a further draft resolution in the Security Council, posing tough but attainable tests for Iraq. That gave Saddam Hussein the final opportunity to comply, which was offered by resolution 1441.
I attended a series of ministerial Security Council meetings in the early months of 2003, the last of which was on
The Attorney-General, in his written answer of
Will the Foreign Secretary confirm that the censored paragraph removed from Ms Wilmshurst's letter of resignation, and shown on Channel 4 yesterday, has now been revealed? Why was it covered up? Does he agree that it shows clearly that until
Ms Wilmshurst's note further makes clear that the Attorney-General's position changed twice. Why did that happen? Why did his continuing doubts, which we now know were present in his letter of
Does the Foreign Secretary not realise how corrosive the entire episode is to trust in Government? It would be far better were the entire paper trail to be published, to reassure the public that the Attorney-General was neither leant on to change his views for party political reasons, nor deceived by the Prime Minister on the facts on which war might be justified.
Let me deal with the hon. Gentleman's points in turn. First, on why we refused to publish those two sentences, I have set out the reasons. The issue for the whole House, and not least the shadow Attorney-General, is whether he and his party are now moving from a clear position that Law Officers' advice should not be published to proposing that Law Officers' advice, and that which contributes to it, should be published.
I draw the House's attention to the fact that when a similar issue arose, albeit in respect of a different subject—legal advice in respect of the ratification of the Maastricht treaty—the then Attorney-General set out clearly that he could not recall any occasion when the Law Officers' advice had been disclosed, and would not break precedent.
When we discussed the issue of the Freedom of Information Bill in the House, the House as a whole was absolutely clear that legal advice, and the background to that legal advice, should not be disclosed, for very good reasons. If the hon. Gentleman is now saying, on behalf of his party, that that should change, he had better say so; but the implications for good government are very grave indeed.
The hon. Gentleman then made a wholly tendentious claim based on his reading of Ms Wilmshurst's letter. He said that it showed clearly that the Attorney-General had one view on
Throughout the period following the passage of resolution 1441, my right hon. Friend the Prime Minister and I, every other member of this Government and, indeed, all the Governments who later formed the coalition were seeking to ensure that there was clear compliance by Saddam with the obligations imposed on him by resolution 1441 and the resolutions that preceded it. When it became clear that that was not the case, we worked night and day for a second resolution. We did not work night and day for a second resolution because it was required by the terms of resolution 1441: it was not. I can go into the negotiating history of resolution 1441 in very great detail. I can point out to the House that France proposed at one stage that there should indeed be a lock requiring a second resolution in resolution 1441, but backed off from that proposal. Everyone who knows the text of resolution 1441, and that of operative paragraphs 4, 12 and 13 in particular, will know that there was no requirement whatever for a second resolution. We sought a second resolution because we sought a consensus in the Security Council, and what changed between 7 and
The hon. Gentleman's last point concerned the effect of refusing to disclose the Attorney-General's advice. The Attorney-General's advice was before the Butler inquiry. The Attorney-General gave advice to the Butler inquiry, and so, as I have said, did Ms Wilmshurst. That was the appropriate setting in which to examine the advice in detail. Lord Butler concluded that the Attorney-General had given clear and categorical advice to the Cabinet, and that in his judgment it was lawful under resolution 1441 to use force without a further United Nations Security Council resolution. That was the position after full examination, and that is the position now.
The Secretary-General of the United Nations himself has said that the war in Iraq was illegal, so it is hardly a surprise that the Attorney-General started from that point as well. It would not be the first occasion in history when a lawyer had changed his mind and his advice, but there was no change in the legal position during the period before the country went to war; nor was there a material change in the facts, such as evidence of the existence of weapons of mass destruction.
Can the Foreign Secretary tell us whether there is a formal written justification documenting the shift in the Attorney-General's position, which occurred not once but twice? Can he tell us whether the final advice of the Attorney-General was consistent with the independent external advice that the Government received? If not, is it not the case that the full text of Elizabeth Wilmshurst's resignation letter has now completely undermined the Government's position on the war in Iraq?
We are all aware of what the Secretary-General of the United Nations said. It emphasises the fact that on this issue there were disagreements about the legal position. That is well known—but the truth is that there are often disagreements about legal positions and legal advice. There are disagreements in respect of matters of domestic law, on which the law is always more certain; still more are there disagreements in respect of matters of international law. These judgments were held independently, they were held honourably, and they were well known in advance of the debate on
That answers the hon. Gentleman's first and third points. He also said that there was no material change in the facts. I am sorry, but he was not at the Security Council five times between January and March 2003, and I was. There was a significant change in the facts. We had hoped in early January was that there was going to be full compliance by Saddam with the terms of the resolution. He was given a very clear obligation to do so. It became clear, however, not least on
What also changed between 7 and
The Attorney-General said on
I agree entirely with my right hon. Friend about that. All of us have every respect for Members of all parties on both sides of the House who took a different view on the rightness of taking military action and who voted against the Government on
As one of those who did not vote for the war on Iraq, may I sincerely ask the Foreign Secretary whether he thinks that this disclosure will have a dreadful effect on the parents and relatives of those who have lost their lives in this conflict? Does not he genuinely believe that this problem of credibility will go on and on, unless the Government are prepared to publish all the documents involved? Would not that be the right way to deal with the problem, instead of letting it go on and on, as it inevitably will?
No, I do not, for this reason. The Attorney-General's legal advice was clear. It was known. It was reflected in the view of his advice, which he put before the House of Lords on
Does my right hon. Friend accept that no Attorney-General from either party will barter their integrity, and least of all this Attorney-General, who was a leader of the Bar, on such an important matter for purely party political purposes? Does he recall what the Bar Council of England and Wales said about this matter at the time: that the advice and the working papers should not be published because it would severely undermine legal professional privilege?
I am grateful to my hon. and learned Friend for that. The Attorney-General is a man who all of us know is of the greatest integrity and also a very good lawyer. He came to his view for sound reasons. It was independent and it was genuinely held. My hon. and learned Friend is also right to draw attention to the fact that the requirement to protect the confidentiality of legal advice has been supported not only by successive Governments—I would be astonished if the shadow Attorney-General is now departing from that; if he is, perhaps he or his colleagues should say so—but by the Law Lords in a series of judgments, as well as by working barristers represented by the Bar Council. There is every reason for it, and it is good government that would suffer were we to remove that requirement.
After five years as a Parliamentary Private Secretary in the Law Office, I am of course very aware that there is a convention that the Law Officers' advice should never be revealed. However, it is open to the Government to waive that convention if they wish, and the facts in this case are unique. Do the Government realise that if they do not make full disclosure, they will have only themselves to blame if people continue to believe the worst of the Government?
I do not accept that, and the Butler inquiry set out in some detail the very rare circumstances in which, in the last 100 years, the advice of Attorneys-General has been released. I think that it pointed out that it has happened on only three occasions: two in respect of legal action and one, as it happened, in respect of the Westland affair where the whole of the advice was leaked by a divided Cabinet and it was made public in any case.
I am sure that my right hon. Friend would wish to agree with me that Elizabeth Wilmshurst was a distinguished legal adviser who did very valuable work in the international criminal court. Would my right hon. Friend confirm that, unlike those on the Opposition Front Bench, she was always consistent in her view that invasion of Iraq would require a second resolution? Would he further confirm that the Attorney-General shared that opinion, an opinion that he no doubt held genuinely and independently, from September 2002 until March 2003, when he changed that opinion? May I put it to my right hon. Friend, who is an experienced Member of the House, that perhaps the time has come for him to reflect on whether there is so much in the public domain that it would be better for the Government to let out the whole truth? The Government have published one opinion from the Attorney-General. Surely the less damaging course for the Government now is to publish both opinions and explain exactly what it was that persuaded the Attorney-General to change his opinion in-between.
On my right hon. Friend's first point, yes I accept, and I always have done—I have made this very clear very publicly—that Elizabeth Wilmshurst was a very fine legal adviser in the Foreign Office, she has acted honourably throughout, and it is certainly the case that her view about the potential legality of any military action without a second resolution after 1441 was well known to me, and I think to others within the Government. But as I have said, that was her view, and I think she accepted—certainly it has to be accepted—that the final arbiter of the Government's legal position is the Attorney-General and not any individual legal adviser, however distinguished.
On the second point that my right hon. Friend invites me to discuss, what is the case is that before the passage of resolution 1441, there was a widespread view that military action would at the very best be wholly ill-advised without what became the first UN resolution in 2002, and could be unlawful, but that was changed by the passage of resolution 1441. I simply invite my right hon. Friend to refresh his memory about the terms of resolution 1441, which set out clear obligations on Saddam Hussein. Operative paragraph 4 set out the terms of a further material breach; operative paragraphs 11 and 12 set out how any further material breach should be reported and considered by the Security Council; and operative paragraph 13 made it very clear to Saddam Hussein that "serious consequences" would follow in respect of a further material breach.
It was the judgment of the Attorney-General—and I may say, although I am not the Government legal adviser, it was my judgment based on my intense knowledge of the negotiating history of resolution 1441—that the effect of 1441 was to revive the authority of resolutions 678 and 687 and—[Interruption.] Well, we did not get a second resolution because it was not possible, but it was never needed legally, and I made that very clear to the House—crystal clear, on the record—when I reported the passage of 1441 to the House on
The right hon. Gentleman, in justifying the legality of war, is resting his case on the three resolutions that he has cited. He has been reminded that the Secretary-General of the United Nations said that the war was unlawful. Would not the right hon. Gentleman accept that the Secretary-General is singularly well placed to advise as to the legal impact of Security Council resolutions? Is not the truth this: the Attorney-General, as a good House lawyer, came to give the best argument that he could in order to provide legal cover for a decision already taken when war was then inevitable and in order to provide the best justification that he could for a war that was being prosecuted for reasons outside those publicly stated by the Prime Minister?
That allegation is completely untrue. It is unworthy of the right hon. and learned Gentleman, and he knows it. I made it clear, and so did the Prime Minister, repeatedly, that we wanted to see the issue of Saddam Hussein's clear breach of United Nations Security Council resolutions resolved peacefully. The phrase that I used repeatedly, in the Security Council and outside, was that we would of course take yes for an answer. Had there been any evidence of compliance with resolution 1441 in those Security Council resolutions, it would not have lain in my mouth to say to my colleagues, without demur from any of them, in the Security Council on
Should we not keep reminding everyone that there was a very large majority in favour of taking military action at the time? Those who voted for such action presumably did so on the basis that it was legal—otherwise they would not have voted accordingly. Does my right hon. Friend agree that it is pretty grubby to see those who voted for and enthusiastically backed the war now jumping on the anti-war bandwagon? What sort of respect can anyone have for the official Opposition?
I agree with my hon. Friend and I commend him and other colleagues on both sides of the House who have been consistent on this matter. If only we had seen similar consistency from the Opposition Front Bench. If I recall correctly, all the Conservative Front Benchers voted in favour of the resolution of
"If I knew then what I know now, that would have caused a difficulty. I couldn't have voted for that resolution."
He then went on to say:
"I think I would have voted for a differently worded resolution that would have authorised the war", adding that he was
"still in favour of the war".
Well, it is time for the Opposition to put up or shut up on this matter of the military action.
The Foreign Secretary will know that the Attorney-General has a duty to provide legal advice to Parliament in addition to his duties in relation to the Executive. Was not his written answer of
With great respect to the hon. Gentleman, the requirement on the Attorney-General to provide legal advice to Parliament is very limited indeed and it is a wholly separate duty from the clear and continuing requirement to provide legal advice to the Government internally. Such advice is very clearly protected by the long-standing principle of legal professional privilege, confirmed by the Law Lords and many other courts. It is protected by the ministerial code. As recently as four years ago, the House had every opportunity during the passage of the Freedom of Information Bill to disagree with that. As I have already said, not a single Member on either side of the House ever proposed that the advice of the Attorney-General should be made public in the way that is now being suggested.
Does my right hon. Friend agree that the failure to circulate the Attorney-General's background documents to the Cabinet was a failure to comply with the ministerial code? Having asked the Prime Minister for an undertaking relating to factual matters, the Attorney-General clearly changed his mind. Keeping all that secret was done to mislead the Cabinet, and the publication of only partial legal advice from the Attorney-General was done to mislead Parliament. These are terribly serious matters, which can be cleared up only by putting everything openly on the record. Otherwise, the very institution of the Attorney-General as a reliable part of our constitutional arrangements will be brought into doubt.
I am sorry to say that I do not accept any part of what my right hon. Friend said. There has been not the slightest evidence of providing anything other than the straightforward facts of the matter both to this House and to the other place. There is no secret about the fact that the Attorney-General sought the view of the Prime Minister as to whether Iraq was in further material breach. That was set out clearly in the Butler inquiry's report.
As to the matter of the ministerial code, that charge, which my right hon. Friend has made in the past, was fully dealt with by Sir Andrew Turnbull, the Cabinet Secretary. Paragraph 23 of the code, which I happen to have in front of me, is much more narrowly drawn than she suggests. The Attorney-General was actually present in the Cabinet—I re-examined the minutes this morning—and offered the clear view that military action in respect of Iraq, as of
Does the Foreign Secretary recall that it was my question to the Prime Minister on
Does the Foreign Secretary accept that, under the rules and conventions of the House and under the rules of ministerial conduct, it is the Prime Minister—I see him in his place now—who is responsible for deciding on the disclosure of the Attorney-General's advice and for rectifying any misleading statements that may have been made? I tabled a question to the Prime Minister—[Interruption.] Will the Foreign Secretary now answer the charge whether the Prime Minister—
With apologies to the hon. Gentleman, his question to the Prime Minister of