The political imperative for a legal war
Britain’s highest legal officer was under enormous pressure to give the legal okay for the war in Iraq, writes Gabrielle Appleby. Australia can learn from the fallout.
Britain’s highest legal officer was under enormous pressure to give the legal okay for the war in Iraq, writes Gabrielle Appleby. Australia can learn from the fallout.
OPINION: After seven long years of investigation, Britain’s Chilcot inquiry handed down its report on the Iraq war last week. Among other things, it criticised the Blair government’s efforts to extract a definitively pro-war legal opinion from its attorney-general, Peter Goldsmith. As a result of the pressure, Chilcot concluded, “The circumstances in which it was ultimately decided that there was a legal basis for UK participation [in Iraq] were far from satisfactory.”
For Australian readers, the timing was significant. Only a few weeks earlier, attorney-general George Brandis issued a directive that many observers fearwill reduce the independence of Goldsmith’s counterpart in Australia, solicitor-general Justin Gleeson. Gleeson himself has already seen some of the dangers identified by Chilcot, and has tightened the operation of his office to reduce the risk of politicisation. But Brandis’s decision is at odds with the lessons the British inquiry spells out so clearly.
Sir John Chilcot’s account of this part of his investigation begins towards the end of 2002, when the British government was positioning itself to join a US-led invasion of Iraq. In November, the UN Security Council passedResolution 1441, offering Iraqi president Saddam Hussein a final “opportunity to comply with [his] disarmament obligations.” All along, though, Goldsmith and lawyers in the British Foreign Office had advisedprime minister Tony Blair and foreign secretary Jack Straw that the resolution would not be sufficient to authorise military invasion of Iraq.
Goldsmith was therefore surprised to hear of rumours alleging that he believed the resolution was sufficient to authorise the use of force. He offered to put these rumours to bed by tendering his advice in writing. The government, however, did not want the attorney-general’s view formalised – not just yet. Politically, the attorney-general’s imprimatur was vital to the British government’s march to war, and Chilcot reveals a government determined to make sure that Goldsmith’s advice supported its position before it was formally tendered.
On 9 December 2002, the Foreign Office and the defence ministry formally asked the attorney-general for written advice on the matter. The instructions to the attorney-general were clear – they did not want an immediate opinion – and a few days later he was told that before he provided written advice it would be helpful if he discussed a draft with the prime minister. Goldsmith was also told not to share his preliminary views with others in government, a position to which he agreed. Chilcot was highly critical of this secrecy, and concluded that the attorney-general’s advice should have been provided to all of those in government “whose responsibilities were directly engaged.”
Elizabeth Wilmshurst, a deputy legal adviser at the Foreign Office, testified about the political consequences of the delay in obtaining the attorney-general’s advice:
For the Attorney to have advised that the conflict would have been unlawful without a second resolution would have been very difficult at that stage without handing Saddam Hussein a massive public relations advantage. It was extraordinary, frankly, to leave the request to him so late in the day.
On 14 January 2003, Goldsmith delivered draft advice to Blair. Consistent with his view during the drafting of the resolution, he advised that a further Security Council decision would be required to revive an earlier UN resolution authorising the use of force in Iraq.
Blair asked Goldsmith to attend cabinet (of which, by convention, Britain’s attorney-general is not a member). He was advised, however, that should he be asked for his views on Resolution 1441 he should indicate that he had not yet given any advice. In the following days, Goldsmith reiterated his preliminary view to Blair twice, despite being told that the government did not want it.
In February, with his final advice still pending, the attorney-general locked horns with foreign secretary Jack Straw over what he saw as dangerous interference in the independence of government legal advisers. Lawyers in the Foreign Office had reiterated its view that Resolution 1441 would not authorise use of force without a further Security Council resolution. “I note your advice,” Straw responded, “but I do not accept it.” Straw contended that international law was an uncertain field and that the case was an “arguable one.” Goldsmith intervened in what he saw as a rebuke from a senior minister to a lawyer in expressing his or her independent legal views, writing to Straw on 3 February:
[I]f a government legal adviser genuinely believes that a course of action would be unlawful, then it is his or her right and duty to say so. I support this right regardless of whether I agree with the substance of the advice which has been given. Where a minister challenges the legal advice he or she has received, there are established mechanisms to deal with this. The principal such mechanism is to seek an opinion from the law officers.
Meanwhile, the government was still waiting on Goldsmith’s formal position on this very question.
It was not until 7 March that Goldsmith produced that advice. Consistent with his draft advice, he wrote that the “safest legal course” was to seek a further UN Security Council resolution. But his view had softened somewhat, he explained, following conversations and correspondence with Britain’s representative at the United Nations, with foreign secretary Jack Straw and with US government lawyers and officials. He now believed that a weaker, “reasonable” case could be made that, in the absence of a second resolution, Resolution 1441 could revive an earlier resolution authorising force. He conceded, though, that a court of law might not agree with this view.
Goldsmith’s advice was seen as too equivocal; it didn’t give the British government what it wanted either politically or legally. Politically, Blair and his allies needed the firm support of their most senior law officer for the case they were putting to cabinet and parliament. Legally, the military and the civil service were growing nervous that they might otherwise be liable for breaches of international criminal law before the International Criminal Court. At a meeting with the attorney-general, the Treasury solicitor and admiral Michael Boyce, on behalf of the armed forces, asked for a “clear-cut” answer to the question. Goldsmith told Chilcot:
I very quickly saw that actually this wasn’t satisfactory from their point of view. They deserved more… than my saying there was a reasonable case.
So, therefore it was important for me to come down clearly on one side of the argument or the other, which is what I proceeded to do.
On 12 March, Blair told parliament that his government wouldn’t do anything that lacked a “proper legal basis.” Parliament called for the release of the attorney-general’s advice on the issue, notwithstanding a generalconvention that law officers’ opinions are kept confidential. MPs argued that the convention should be disregarded: they were being asked to vote on war, and needed access to this advice to make an informed decision.
The following day, the attorney-general provided Blair’s government, the military and the civil service with what they wanted: advice stating that the “better view” was that the earlier resolution justifying force had been revived by the latest UN resolution, provided the prime minister believed that Iraq had committed material breaches of Resolution 1441. In that circumstance, a further decision of the Security Council or a second resolution was not necessary. It was on the basis of this advice that the British government decided to join the US’s military attack on Iraq.
The change in Goldsmith’s emphasis did not turn on any change in the legal argument, or on new information. As he explained to Chilcot, he had been asked a different question. Rather than addressing the question of whether there was a reasonable case, he was now being asked whether he considered the action legal. “Well, I regard that as a different question,” he said, “and you then have to answer it.”
A summary of Goldsmith’s advice was tabled in parliament on 17 March. It had been prepared over the 15–16 March weekend by Goldsmith and a team of lawyers assembled to help him explain his view, as he put it, “as strongly and unambiguously as possible.”
The “summary” was not an explanation of the legal arguments, but rather a statement of Goldsmith’s final legal position. This is what cabinet saw; its members were not trusted with the more equivocal advice of 7 March, nor the advice of 13 March indicating the necessary preconditions on which the summary of 17 March was given.
At 10pm on 18 March, the House of Commons approved the British invasion of Iraq without a further Security Council resolution. Days later, the Foreign Office’s Elizabeth Wilmshurst resigned. In her resignation letter, she said that the attorney-general had changed his view on the legality of the Iraq war. She said that she could not “in conscience” accept his, or the government’s, ultimate position.
One of the lessons Chilcot believes must be drawn from these events is that cabinet, charged with endorsing the prime minister’s decision to join the invasion of Iraq, should have been presented with a full copy of the attorney-general’s 13 March opinion. This advice should also have been made available to ministers and senior officials in the relevant portfolios.
In Britain, the attorney-general still fills the role of primary legal adviser to cabinet. By convention, he or she is a well-qualified lawyer, less politically engaged than other ministers, and free of major administrative responsibilities. In Australia, by contrast, the attorney-general is a senior, highly political minister, and the role of primary legal adviser to government is filled by the solicitor-general, an independent office-holder. Here, it is the solicitor-general who usually provides the big calls on legal questions.
For the solicitor-general to be able to fulfil this role properly, a number of preconditions need to exist. Chilcot’s report provides a timely reminder of the dangers if these are forgotten.
Politically unhindered early access: When Australian ministers and government officials need the solicitor-general’s advice, conditions of access and timing should not be manipulated by the government. In May this year, attorney-general George Brandis issued a legal direction restricting access to the solicitor-general, Justin Gleeson SC, in the absence of a written, signed consent from the attorney-general. In itself, this doesn’t necessarily herald an attempt to manipulate access to the solicitor-general, but it does place greater control in the hands of Brandis and his successors.
In important cases, the federal government has failed to seek the solicitor-general’s independent advice on important matters, and has instead used lawyers within the departments and agencies involved. Indeed, on the question of the legality of the Iraq war, the solicitor-general’s advice just wasn’t sought at all. Instead, the advice came from Chris Moraitis from the Department of Foreign Affairs and Trade and Bill Campbell QC from the Attorney-General’s Department. As former solicitor-general Gavan Griffith QC wrote in 2003, the government was, in effect, “content to table a mere ‘memorandum’ of assertion, signed off at the departmental level of first assistant secretaries.”
A prohibition on “draft” advice: The second lesson from Chilcot is that the solicitor-general should never be asked for “draft” advice – advice to be discussed with the client before finalisation. This is one lesson that Australia appears to have learnt before Britain has.
After he was appointed to the position of solicitor-general, Gleeson put in place a protocol that he would provide, if at all possible, formal, written opinions only: no oral advice, no email advice, no draft advice. He was very clear this protocol was designed to make sure that preliminary advice, or the strength of it, was not misrepresented as his final view. He is well aware of the dangers of “draft” advice.
Release of full legal advice to responsible public officials: Chilcot was highly critical of the British government’s refusal to release the attorney-general’s full advice – explaining the legal position, its strength and preconditions, and the counter-arguments – to those in government, including cabinet members, “whose responsibilities were directly engaged.” The inquiry also raised the question of whether the full advice ought to have been released to parliamentarians prior to their being asked to vote on war.
In Australia, governments rarely release the solicitor-general’s advice to parliament. In several recent cases, the federal government has relied on the solicitor-general’s advice in making its case to parliament, but has stuck to the convention of not releasing that advice. During the 2015 debate over the government’s citizenship-stripping proposal, for instance, the parliamentary committee investigating the legislation asked to see the solicitor-general’s advice about whether the legislation was constitutionally valid. The attorney-general refused to provide it, yet the majority of committee members indicated they were content to accept assurances that the solicitor-general had assessed the question.
The committee members’ ready acceptance probably reflects the status and respect accorded to the office of solicitor-general within parliament. But the incident highlights the fact that if parliament blindly follows the convention it may be deprived of information it needs to fulfil its constitutional obligations. As Chilcot reminds us, a mere summary of the solicitor-general’s advice, or an assurance as to its content, will rarely meet these obligations.
Protection from pressure to form a “definitive view”: This brings me to Chilcot’s final lesson: the need for the Australian attorney-general to protect the solicitor-general from political pressure to form a “definitive” legal view that the government can use to bolster the legitimacy of its political decisions. This is particularly important because the accepted Australian practice is that the solicitor-general’s advice is treated as binding across government unless or until it is overruled by a subsequent advice, or by the courts.
To argue that the solicitor-general must act independently doesn’t answer the question of what interpretative practice the solicitor-general should adopt when asked to advise on legal issues that are uncertain. It was this type of issue that Peter Goldsmith confronted in advising Blair on the legality of the Iraq war. For various political and legal reasons, however, the Blair government was determined to receive a definitive legal answer. What should the attorney-general have done?
Where some ambiguity exist in the legal position but a “better view” is likelyto be adopted by the relevant court, it seems reasonably clear that a law officer ought to advise to this effect. But the officer concerned should also give some indication that the matter is not without ambiguity and indicate how much confidence he or she has in the “better view.”
Sometimes, though, there will be no readily apparent “better view” that can be expressed with any such confidence. The attorney-general in Britain and the solicitor-general in Australia are likely to face such problems more frequently than other legal advisers. In Australia, for example, the solicitor-general is only resorted to for very difficult legal questions – often where there has been disagreement between other government legal advisers – and is frequently asked to advise in the field of constitutional law, where issues are inherently more likely to be of this type. International law is of a similar nature.
So what does, or should, the solicitor-general do when confronted with this type of deep and genuine legal ambiguity? A number of positions could be taken. He or she could recognise that the democratically elected government has a legitimate interest in pursuing its policies, and resolve any ambiguity in favour of the government’s preferences. He or she could make a determination about what the preferable position is – perhaps by reference to the long-term interests of the government, or his or her own determination of which view might best promote the “public interest.” Or the solicitor-general could simply refuse to attempt to resolve the ambiguity, and instead outline the different possible positions without indicating a preference.
Undoubtedly, the government has an obligation to operate within the law. But the government must alsomeet its duties and responsibilities to the public. To do so, it requires a varied and flexible store of power. When deep legal indeterminacy arises, I think the best resolution to this question is that the solicitor-general (and government lawyers more generally) should frame his or her opinions by explaining that it is provided in the context of a genuine indeterminacy, and that other legitimate views on the position exist, and by providing a legal assessment of the relative merits and strength of the different positions. By doing so, the solicitor-general would be signalling that, ultimately, it will be the government decision whether to pursue the matter.
The danger, as we saw in Britain in the lead-up to the Iraq war, is that if a law officer is pressured to provide a “definitive view” when one does not exist, the government is able to use that opinion to justify what is ultimately a political decision. The government should be open and transparent with the public about the political decisions it makes, and not pressure its legal advisers to provide cover.
Gabrielle Appleby is an Associate Professor in the Gilbert+Tobin Centre of Public Law at UNSW.
This opinion piece was first published on Inside Story.