Philippe Sands: The crucial questions about the war's legality

The Foreign Secretary has adopted a first-class 'bootstraps' argument of impressive circularity

Yesterday in the Commons, the Foreign Secretary mounted a spirited defence of the Government's position on the Attorney General's advice on the legality of the war in Iraq. The performance reminded me of the similarly robust defence he adopted in March 2000 (as Home Secretary), when he decided to allow Senator Pinochet to avoid extradition to Spain on the grounds that his failing health would not permit him to stand trial. Five years on, the Senator appears to be in rude health. And the Chilean courts, having stripped him of immunity, consider him fit enough to stand trial.

Yesterday in the Commons, the Foreign Secretary mounted a spirited defence of the Government's position on the Attorney General's advice on the legality of the war in Iraq. The performance reminded me of the similarly robust defence he adopted in March 2000 (as Home Secretary), when he decided to allow Senator Pinochet to avoid extradition to Spain on the grounds that his failing health would not permit him to stand trial. Five years on, the Senator appears to be in rude health. And the Chilean courts, having stripped him of immunity, consider him fit enough to stand trial.

Evidently the Foreign Secretary chose his words with great care. Most striking was what he did not say. Despite having every opportunity to do so, I did not hear him deny that there was a substantive change between the content of the Attorney General's final written legal advice (on 7 March 2003) and the content of the Attorney's final view (as set out in an answer to the Parliamentary Question on 17 March 2003).

To the contrary, Mr Straw seemed to go out of his way to address one of the many questions that is now being asked: what happened in the 10 days between the written advice and the answer to the Parliamentary Question to allow a change?

In answering that question, Mr Straw implicitly accepted that there had been a change. There is nothing wrong with that. Like any lawyer advising on any matter, the Attorney General was entitled to reach a "clearer" view. The difficulty is the justification which now seems to have been put forward for the change: Mr Straw seemed to say that the new development (between 7 and 17 March) was the failure to achieve a consensus within the Security Council, with the result that the desired second resolution could not be adopted.

The claim is hardly persuasive. Even before the ink was dry on Security Council resolution 1441 - adopted in November 2002 giving Iraq one final opportunity to comply with its disarmament obligations under [earlier] resolutions - lawyers were turning their attention to the key question: who decides whether Iraq is in material breach of Security Council resolutions so as to justify the use of force; the Security Council or the Prime Minister?

The Ministerial Code of Conduct requires the Attorney General to be consulted "in good time before the Government is committed to critical decisions involving legal considerations". The Attorney General had four months to advise on whether a second Security Council was required to justify the use of force against Iraq. I have always thought the question was reasonably straightforward and would not require a great deal of agonising. Evidently the Foreign Office legal advisers felt the same way, as Elizabeth Wilmshurst's resignation letter makes clear.

The new "fact" identified yesterday by the Foreign Secretary is totally irrelevant. It seems not to have caused the Foreign Office legal advisers or many other observers to change their minds. Of course the possibility cannot be excluded that new facts could have emerged in the period between 7 and 17 March to indicate conclusively that Saddam Hussein was in material breach of resolution 1441.

If anything, the contrary was true: on 7 March Hans Blix had given his third presentation to the Security Council, concluding that although Iraqi co-operation was not complete it was accelerating. And the Government's own Joint Intelligence Committee had not come up with anything after late December 2002 to indicate material new facts to justify the use of force.

The truth is that all the material facts and legal considerations were known on 7 March 2003 and did not change after that. The collapse of negotiations for a second Security Council resolution is not relevant to the legal issues on which the Attorney General had to advise. The Foreign Secretary has adopted a first-class "bootstraps" argument of impressive circularity: he claimed, in effect, that the Security Council's failure to agree on the terms of a second resolution could itself justify a "clearer" legal view that no second resolution was required. That such a claim can be made indicates the paucity of options available to the Government.

Tony Blair's present difficulties are entirely of his own making. He left it far too late to get written legal advice from his Attorney General. His style of government allowed the Attorney General to give an answer to a Parliamentary Question which was not backed up by complete and consistent written legal advice, leading to the suggestion from Clare Short and others that Cabinet and Parliament may have been misled.

All of this undermines trust in government. The unanswered questions which remain in relation to the legal advice on the road to war need to be brought to an end. The only way that can be done is for the advice to be published. That should be done now, so that the Government can move on in its quest to restore confidence.

Philippe Sands QC is Professor of Law at University College, London, and the author of 'Lawless World' (Allen Lane)