Magazine article The Spectator

Why Did the Attorney General Change His Advice?

Magazine article The Spectator

Why Did the Attorney General Change His Advice?

Article excerpt

Hasn't it been an exciting few months to be a lawyer? Once they just sat quietly in offices with stripey wallpaper and dado rails, sending out the bills. Now almost every couple of weeks, it seems, they hold the fate of the government in their hands. Lord Hutton may have missed his big chance, but the newspapers have transferred their hopes to the almost equally improbable figure of the Attorney General, Lord Goldsmith, and his advice on the lawfulness of the war with Iraq. The tabloids are printing snatched pictures, not of white-trash pop starlets, but of the middle-aged former deputy legal adviser at the Foreign Office. The nation's best-known legal luwies are once again to be found in all major TV studios: Lord Lester of Herne Hill! Rabinder Singh QC! Baroness Kennedy of The Shaws! Everybody except Lord Goodman (at this point a colleague has reminded me that Lord Goodman is dead. That would explain it.)

The purpose of all the excitement is, of course, to discover what Lord Goldsmith's legal advice was, and whether it changed in the run-up to the war. Was the Attorney General, shall we say, 'subconsciously influenced' to alter his judgment? The government is not telling. But today, for the first time, one of the people who worked closely with Lord Goldsmith before the invasion confirms on the record that his legal advice did indeed change, and did indeed become more favourable to war.

Michael Foster, the Labour MP for Hastings and Rye, was Lord Goldsmith's parliamentary private secretary until the eve of the conflict, when he became one of several ministerial aides to resign in protest. He has now returned to the Attorney General's side, and is once again serving as his PPS. This week Mr Foster told The Spectator that in late September 2002, five months before the outbreak of hostilities, Lord Goldsmith advised the government in clear terms that a war to topple Saddam Hussein would be illegal. 'He was asked the question - would regime change be lawful per se, and he said no, it wouldn't.'

Mr Foster insists that Lord Goldsmith's advice that autumn was 'independent' of his later view, in March 2003, that a war of regime change would be legal after all. The difference, he says, is that in November 2002 the UN had passed a further resolution, 1441, offering Iraq a 'final opportunity' to disarm. Iraq had failed to comply. That failure 'revived' an earlier authorisation to use force under resolutions 687 and 678, 13 and 12 years old respectively, and passed in relation to the first Gulf war. 'There were two different questions, two quite separate pieces of advice,' he says. 'The first question was, is regime change alone a legal ground for conflict; the answer's no. But with the UN resolutions, together with the breach of Saddam in complying, was that legal? Answer, yes. He [Lord Goldsmith] was asked two separate questions on two separate occasions and he answered them.'

This does not, however, seem to be entirely the case. I understand that there were many elements in common between Lord Goldsmith's two sets of advice. The autumn 2002 paper did say there were some circumstances under which military action was legal under resolutions 687 and 678 - for instance, with the bombing raids of 1993 and 1998. It also raised the prospect that force could be used to implement the new resolution then under discussion at the UN - the one that became resolution 1441. These arguments became the basis on which the Attorney General ruled in March that the war was legal. Critically, however, his advice in September was rather more equivocal.

Other sources familiar with the evolution of Lord Goldsmith's legal thinking - not Mr Foster - say that the Attorney General provided further advice in writing at least twice in early 2003 before his final determination in March. This advice is described as 'not bullish' on the subject of whether 1441 was sufficient authority for action. One source characterised it as saying: 'There is a perfectly decent argument that 1441 could justify the war. …

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