Chilcot report: Lord Goldsmith’s legal advice on Iraq war provides lessons in lawyering
The Chilcot Inquiry report on the UK invasion of Iraq in 2003, published in July, dedicates an entire chapter to the legal advice given by the then Attorney-General, Lord Goldsmith, on the legality of military action. The Inquiry did not (in its own words) ‘express a view on whether military action was legal’. But it did conclude that ‘the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory’.
Chapter five of the Chilcot Inquiry explores how those circumstances were ‘far from satisfactory’. It provides a fascinating, 169-page exposé of the challenges lawyers face when giving advice. It also raises difficult questions about the role of the chief legal adviser to the Crown, the UK’s Attorney-General.
In December 2002, instructions to provide advice on whether a further resolution would be required before force could be used in Iraq were sent to Lord Goldsmith. Formal advice was not given until 7 March 2003. This advice contained ‘conflicting arguments’ (to quote the Chilcot Inquiry).
Critically, this advice was not shared with the Cabinet. He was then pushed for a more definitive answer and on 13 March 2003 he gave it. There was then an exchange of letters between senior ministers confirming that it was the Prime Minister’s ‘unequivocal view’ that Iraq was in ‘material breach’ of the relevant UN Security Council resolution. After this, on 17 March, the Government presented its legal position on military action to the Cabinet and Parliament.
One of the critical questions the report explores is whether or not a lawyer must investigate the facts on which his or her advice is given. Can a lawyer assume that everything the client tells him is reliable and true? Richard Moorhead is Professor of Law and Professional Ethics at UCL. He has analysed chapter five in detail. He explains: ‘Part of Lord Goldsmith’s view [was] that military action could be legal without a further resolution … but that there needed to be significant, compelling evidence of material breach’ of Iraq’s obligations put in place by the UN. As Moorhead says, Lord Goldsmith ‘asked for confirmation of Mr Blair’s view as to material breaches’. He did not investigate for himself whether this view was sufficiently robust.
This problem – Moorhead calls it ‘the fact-law dichotomy’ – is common when giving legal advice. When lawyers in a commercial situation are given a set of facts and then asked to assess the legality of a particular action, they may not question or investigate the facts on which that assessment is based. However, if they suspect that certain facts have been omitted or exaggerated to support a particular line, is a lawyer actually obligated to act on that suspicion? If there is an obligation for a certain amount of due diligence, how far does this reach?
Steven Stevens, Co-Chair of the IBA’s Professional Ethics Committee, argues that there are limits to such an obligation. He says: ‘Legal opinions generally describe with great care the facts provided upon which reliance is placed, and the lawyer is not generally bound (save in special cases) by the obligation to make his or her own investigation of them, unless instructed to do so. However, if a lawyer has doubts about the veracity of information provided to him or her, the lawyer must raise those queries with the client. A legal adviser fulfils his duty to the client by pointing out very clearly which assumptions he or she is making in giving the advice, and is not required to do more unless other professional duties are put at risk.’
Who’s the client?
Another thorny issue is whether or not Lord Goldsmith was advising the correct person (or body of people). The report records that he believed the Prime Minister alone was the client: ‘Lord Goldsmith told the Inquiry that he viewed Mr Blair as "ultimately" the client for his advice.’ It concludes later on that the Cabinet was not provided with the 7 March advice which included more ‘conflicting arguments’:
‘The advice should have been provided to Ministers and senior officials whose responsibilities were directly engaged and should have been made available to Cabinet.’
This often occurs in a commercial situation where a lawyer may be advising a chief executive or chairman directly whereas advice should be given to the whole board. This is even more so where the board is divided over the particular issue on which the lawyer is advising.
‘‘As the person who had the responsibility to advise at the time […] I did nothing other than give my honest and genuinely held opinion reached after careful study of all the information
Lord Peter Goldsmith, Former UK Attorney General
In the case of Lord Goldsmith in particular, however, Stevens argues that the former’s view was correct: ‘Any advice requested by the prime minister would, under the [UK] system of cabinet government (whereby the prime minister represents the Cabinet and the Government as one), be advice sought on behalf of and for the UK Government.’
What Chilcot did not explore is whether or not the ‘far from satisfactory’ circumstances were in part caused by the very nature of the role of the attorney-general. This was much discussed after the Iraq War and was the subject of scrutiny by a House of Lords’ select committee. The attorney-general is both a member of the government (that is, a politician) and its chief legal adviser. This dual role is, it is argued, inherently conflicting.
Baroness Helena Kennedy, Co-Chair of the IBA’s Human Rights Institute, is in no doubt on this point: ‘I do feel that the attorney-general role in Britain is wrong. In other countries, attorney-generals are seen as lawyers with great expertise who are not political. They are not a member of any party. We really need to bolster the attorney-general’s independence.’
Kennedy also sees the public service element of the attorney-general’s role as setting it apart from ordinary lawyers: ‘The attorney-general is a public servant and he has to consider the public interest and the rule of law; he has to reach a higher standard. In my view, Lord Goldsmith confused his role.’
Lord Goldsmith remains robust on the issue and stands by his advice. He tells Global Insight: ‘There is no shortage of armchair opinion about the role of the attorney-general in such situations, much of it clouded by an underlying disagreement with military action. As the person who had the responsibility to advise at the time though, I did nothing other than give my honest and genuinely held opinion reached after careful study of all the information. There was nothing expedient or political about my actions, and there is no finding to the contrary in Sir John Chilcot’s report.’
It is important to remember, however, that ordinary lawyers also have a duty to the court and to uphold the rule of law – and this is equal to their duty to the client. Jane Ellis, Director of the IBA’s Legal Policy & Research Unit, believes that over the past generation there has been a perceptible shift from one to the other. She argues: ‘As a result of the (understandable) push to make lawyers more commercially-minded, a lot of lawyers now believe that their first duty is to the client and only second to the court and the rule of law. It is a huge challenge for lawyers to stand their ground and face the wrath of a client wanting to get its business done.’
Or let’s put it another way: the client thinks it is king but the rule of law says otherwise.
Polly Botsford is a freelance journalist. She can be contacted at Polly@pollybotsford.com