Dear Peter
Following the recent controversy about your advice on the legality of the Iraq war, I have gone over in detail the process by which you gave your advice on the legality of the war. I have concluded that you failed to comply with the Ministerial Code when giving your advice to the Cabinet and that you misled the Cabinet about your legal advice.
This is a very serious matter. The Ministerial Code lays down that
“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”.
In the run up to the war, I had been informed by UN officials that their legal advisers considered that war would be illegal without a second UN resolution. I had also been informed by Department for International Development officials that Foreign Office legal advisers had disagreed, but the predominant view was that UN resolution 1441 did not give authority for war and that war would be illegal without a further UN resolution. I was also informed by my senior officials that it was rumoured that you had said there was no legal authority for war and were considering resigning. I was later informed by my senior officials that the Chief of the Defence Staff had said the military would not go to war without firm advice from the Attorney General that there was legal authority for war. It was on this basis that I asked that you be invited to attend the Cabinet and said publicly that I would not support war in Iraq without a second UN resolution.
As you know, when you came to the Cabinet on 17 March, the text of what purported to be your advice was distributed around the table. You began to read it out. There were then murmurings indicating that you did not need to read it as members of the Cabinet could read it for themselves. I then attempted to initiate a discussion. I asked why it was so late and whether you had changed your mind. There were then many voices calling for me to be quiet and not ask such questions and no discussion was allowed. The paper you provided was then published as an answer to a Parliamentary Question.
I was very surprised by your advice, but I accepted it as the official and authoritative advice of the UK Attorney General. I wrote a letter to my colleagues in the PLP before the vote on 18 March explaining why I had been persuaded to vote for a war which I had previously considered to be illegal without a second UN resolution. I said in that letter:
‘I am writing to all colleagues in the Parliamentary Labour Party to tell you that I have decided to support the Government in the vote tonight. Given my remarks of last week, I thought I should explain my reasoning. I hope this might be of some help to those of you who are agonising over your decision.
I remain very critical of the way the Iraq crisis has been handled. I think the UK could have exerted more leverage and the approach to the Security Council should have been more respectful and less dominated by US timelines and demands for automaticity. But we are where we are, and we must decide how we can best take things forward.
There have been a number of important developments over the last week:
Firstly, the Attorney General has made clear that military action would be legal under international law. Other lawyers have expressed contrary opinions. But for the UK Government, the civil service and the military, it is the view of the Attorney General that matters and this is unequivocal. ………..’.
The evidence provided by the Butler Report demonstrates that you were not wholly honest with the Cabinet. The report provides details of the complex process through which your advice developed. All of this was kept from the Cabinet. Butler tells us that prior to the adoption of UN Resolution 1441 you concluded that “there would be no justification for the use of force against Iraq on the grounds of self-defence against imminent threat”. The Butler Report confirms what I heard from my officials that after the passage of 1441 and following disagreement amongst Foreign Office legal advisers on the legality of war without a second resolution, all concerned agreed that the final word would belong to the Attorney General. Butler tells us that in the weeks following the adoption of the resolution, you had a number of discussions with the Prime Minister and Foreign Secretary about whether 1441 was sufficient to authorise the use of force and that you talked with Sir Jeremy Greenstock and in February 2003 met members of the US administration. Butler also tells us that you informed the Prime Minister’s advisers of your view at a meeting on 28 February 2003 and that his office asked you to put these views in writing, which you did in a formal Minute to the Prime Minister on 7 March 2003. None of these exchanges or the content of the Minute were reported to the Cabinet. This is very significant because you failed to share your concerns with the Cabinet and to describe how you came to be persuaded of the legality of war. Butler informs us that your Minute required the Prime Minister, in the absence of a further UN Security Council resolution, to be satisfied that there were ‘strong factual grounds for concluding that Iraq had failed to take the final opportunity to comply with its disarmament obligations under relevant resolutions of the Security Council and that it was possible to demonstrate hard evidence of non-compliance and non-co-operation with the requirements of Security Council Resolution 1441, so as to justify the conclusion that Iraq was in further material breach of its obligations’. All of this was kept from the Cabinet, although at this time I was reading telegrams of Dr Blix’s reports to the Security Council indicating increased co-operation from the Iraqi regime. Butler tells us that on the basis of your advice, military campaign objectives were drawn up, making it clear that the objective of the military campaign was to bring about Iraq’s disarmament in accordance with its obligations under UN Security Council resolutions and you confirmed that the assessment of whether war was necessary to enforce Iraq’s disarmament obligations was not a judgement for you.
Butler tells us that you then informed Lord Falconer and Sally Morgan at a meeting on 13 March that in your view it was lawful under Resolution 1441 to use force without a further UN resolution, but on 14 March after the breakdown of negotiations at the UN, your Legal Secretary wrote to the Prime Minister’s Private Secretary seeking confirmation that ‘it is unequivocally the Prime Minister’s view that Iraq was in material breach of its obligations under 1441’. The Prime Minister so confirmed and the Butler enquiry was informed that the Prime Minister relied on intelligence and other sources including UNMOVIC information. None of this was reported to Cabinet and it is notable that the Prime Minister was reaching dubious conclusions about factual questions without any Cabinet discussion. I was at the time reading accounts of UNMOVIC’s reports which did not point to this conclusion.
My complaint is made under paragraphs 22 and 23 of the Ministerial Code. Paragraph 23 provides that “When advice from the Law Officers is included in correspondence between Ministers, or in papers for the Cabinet or Ministerial Committees, the conclusions may if necessary be summarised, but if this is done, the complete text of the advice should be attached.”
I am afraid that it is now clear to me that by failing to reveal your full legal advice and the considerations that underpinned your final advice, you misled the Cabinet and therefore helped obtain support for military action improperly. This is a very serious matter in relation to the war in Iraq, the integrity of your office, your own integrity and the proper working of UK constitutional arrangements.
I am informed by Sir Andrew Turnbull’s office that complaints about breaches of the Ministerial Code are a matter for the Minister concerned and the Prime Minister. Given the Prime Minister’s role in these decisions, this is clearly a completely unsatisfactory system for enforcing the Ministerial Code. I note that the ninth report of the Committee on Standards in Public Life set out detailed recommendations to enable the investigation of complaints about alleged breaches of the Ministerial Code to carry public confidence. The Prime Minister has rejected the proposal that a panel of people of senior standing be available to investigate alleged breaches of the Ministerial Code. I am nevertheless sending a copy of this complaint to Sir Alistair Graham, Chairman of the Committee on Standards in Public Life. I am asking him to consider how this complaint can be properly investigated when responsibility for the breach of the Ministerial Code is shared by yourself, the Prime Minister and Cabinet Secretary, yet it is to yourself and the Prime Minister that the complaint must be made and according to the Code ‘it is not the role of the Secretary of the Cabinet or other officials to enforce it or to investigate Ministers although they may provide Ministers with private advice on matters which it covers.’
I am also copying this complaint to the Select Committee on Public Administration and to the Bar Council to ask them to consider whether you have complied with your duties as a member of the Bar. I am also making a copy of the letter available on my website.
Yours sincerely
Clare Short
