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Mr. Cash: The Foreign Secretary should bear it in mind that the Attorney-General is not a mere lawyer, and that the Government are not a mere client. The right hon. Gentleman's analogy with legal professional privilege is, I think, gravely defective. Does he not agree that the Attorney-General is in a unique position, in that he is personally accountable for giving advice of this kind? He is not collectively responsible even to the Cabinet, and he is accountable to Parliament. That lies at the heart of much of what we are discussing today.
Mr. Straw: I certainly agree with that. As I have said, I am not arguing that Governments are in the same position as private individuals or private corporations. I am arguing, however, that if government is to operate effectively, legal professional privilege is essential. As the hon. Gentleman knows all too well, were he ever to become a Law Officer in a future Conservative Government, it would be essential to his operation on behalf of his client. At least, the hon. Member for Beaconsfield accepts that.
The construction of the Freedom of Information Act reflects the distinction between legal professional privilege in general and advice from Law Officers, or a request for such advice, in particular; but I argue on both bases. As I have said, the argument was accepted by all parties in Parliament, and it has also been accepted by leaders of the Bar. Those of us who keep in touch with our former colleagues in the Bar Council, its professional body, know that it is not slow in coming forward to criticise the Government when it disagrees
with us. It does that frequently. I therefore hope that weight will be attached to the views of its chairman, Stephen Irwin QC, who went on record nine days ago to say:
- "It is of great importance that confidential advice should remain open to Government.
If future Governments—whether Labour, Conservative or whatever—feel that confidential legal advice on matters of major importance might be made public they may not ask for that advice when they need to, or may not reveal all the facts to their advisers.
Were this advice to be published, it would leave future Governments of whatever hue in difficulty when it comes to obtaining confidential legal advice on major matters of public or international law. That would clearly be against the public interest."
- "Whether you talk to his political opponents, his political friends, judges or anybody in the law, what is completely clear is that the Attorney-General has enormous integrity and great determination to support the rule of law."
To the hon. Member for Meirionnydd Nant Conwy, let me say that it is one thing to argue that lawyers sometimes disagree among themselves. We have learned this afternoon that they do, and as a former member of their profession I must say, "Thank God they do." Far fewer lawyers would be employed if they always agreed. That is the gravamen of what the hon. Gentleman said this afternoon, but he also suggested that the Attorney-General was disagreeing with himself—that he could somehow have presented the House with a clear statement of his conclusions, yet his advice would have been wholly contrary to that. He knows that that is completely untrue. The hon. Member for Beaconsfield nodded in affirmation when I read out the testimonial about the Attorney-General, recognising his integrity and professionalism. If the hon. Member for Meirionnydd Nant Conwy is not arguing that the Attorney-General is disagreeing with himself, what the devil is he arguing?
Mr. Llwyd: I speak as a member of the Bar, and I have the highest regard for the Attorney-General. In no circumstances would I impugn his integrity. What I am saying is that he is gagged.
Mr. Straw: That, too, challenges his integrity. Decisions about the release of the Attorney-General's advice are a matter for the Attorney-General. I hope that, on reflection, the hon. Gentleman will withdraw that insinuation as well.
Mr. Cash: On a point of order, Madam Deputy Speaker. The Foreign Secretary has just alleged that the disclosure of the Attorney-General's advice is a matter for the Attorney-General, and he implied that it was a matter for him alone. As you well know, page 389 of "Erskine May" clearly states that the question of whether the Attorney-General's opinion may be cited in
debates or otherwise is exclusively a matter for the Ministers concerned—that is, the Prime Minister and the Foreign Secretary.
Madam Deputy Speaker: That is not a point of order for the Chair; it is a point for debate.
Mr. Straw: I shall now give way to the hon. Member for Louth and Horncastle (Sir Peter Tapsell).
Sir Peter Tapsell (Louth and Horncastle) (Con): It seems to me, as a layman, that the Foreign Secretary, as a lawyer, is complicating what is essentially a simple issue. Nobody denies that the Government are entitled not to reveal the advice that they receive from the Attorney-General, but they have chosen in this case to make public a very considerable part of that advice. Given that they have done so, it is difficult to understand the legal, moral or even political basis on which the Foreign Secretary refuses to give the whole of that advice.
Mr. Straw: In a sense, the hon. Gentleman makes an interesting point, but as he knows, some documents are summaries of considerations and others are not written for publication. Everybody knows that, if they are being truthful. Such documents are about examining the issues, and if they were not protected by legal professional privilege or by the rule protecting the publication of Law Officers' advice generally, it would not be possible for Ministers to get from the Law Officers the explicit, frank and honest advice that we receive.
Mr. Straw: I shall take some interventions in a moment, but I want to make some progress first.
Throughout the intense public debate about whether the United Kingdom should contemplate military action, which extended from March 2002 until this House made its decision on 18 March last year, two questions were understandably intertwined. The first was whether it was right politically to threaten, and if necessary to take, military action against the Saddam regime; the second was, if so, whether there was a legal basis for doing so. Both questions gave rise to the issue of the authority of the United Nations, to which the United Kingdom has always been profoundly committed. We played a key role in getting the United Nations Security Council to look again at the issue of Iraq in autumn 2002. Along with our permanent representative in New York, Sir Jeremy Greenstock, and my political director, Sir Peter Ricketts, I negotiated virtually every line and every word of the resolution that became resolution 1441, which was passed on 8 November 2002. I therefore know its text, and I know its negotiating history.
There were many hours of intensive argument about the detail of that resolution. Significantly, however, there was remarkably little debate about the preambulatory paragraph, which claimed and asserted that Iraq posed a threat to international peace and security by reason of its non-compliance with the resolution, its proliferation of weapons of mass destruction, and its long-range missile systems. Nor was
there any argument about the assertion at the beginning of the operative paragraphs that Iraq had been in, and remained in, material breach of its obligations. To pick up on an issue raised by one of the many lawyers whom the hon. Member for Meirionnydd Nant Conwy mentioned, nor was there any argument as to whether UN Security Council resolution 678—the original resolution—was still in force. Resolution 1441 dealt with that issue explicitly: it was still in force.Instead, the argument in the Security Council centred—as it did here, in many ways—on whether the resolution that became 1441 would provide sufficient further authority for military action if it proved necessary, or whether a second resolution would be required. In headlines, though, the issue was more complex than that. The debate, in advance of resolution 1441, was written up as an issue of "automaticity". In the event, those who were pressing heavily for a second resolution backed away from that demand. At the same time, the resolution provided no "automaticity". Instead, we agreed unanimously to a process that placed obligations on Iraq: a full and final declaration, and complete co-operation with the inspectors on substance as well as appearance. Further material breaches were very clearly defined by operative paragraph 4. Operative paragraph 12 defined the process by which the Security Council would come together to consider the matter if further material breaches were disclosed under operative paragraphs 4 or 11. If so, operative paragraph 13 made it very clear that "serious consequences"—in other words, military action—would follow.
At every stage, right up to the decision that was taken on 18 March last year, the Government's position was that we would much prefer to have a second resolution. We went to enormous—if abortive—lengths to secure a second resolution, and I attended ministerial meetings of the Security Council four times between the end of January and 7 March. I also made it consistently clear that there was no requirement for a second resolution. As colleagues on both sides of the House will recall, on the first occasion that we debated resolution 1441—25 November 2002—and on every subsequent occasion, the question of whether we needed a second resolution arose, and legitimately so. Time and again, I spelled out the negotiating history and said that we would prefer a second resolution, but that we did not need one.
By 17 March last year, in the light of the breakdown of negotiations on a second resolution, and in the light of clear further material breaches by the Iraqi regime—no one in the Security Council or in the House argued about the fact that it had broken both the tests in operative paragraph 4—the Cabinet recommended to Parliament that military action should be taken. We did not publish the Attorney-General's advice to the Government, but I should point out—I hope that the hon. Member for Meirionnydd Nant Conwy will think about it—that the Attorney-General's advice in respect of military action has been published on no occasion whatsoever that we can identify.
Although we did not publish that advice, we did two things that we thought would help the House in setting out the legal position as the Government saw it. First, the Attorney-General set out in a statement his conclusions on the matter. Secondly, I wrote a detailed five-page letter to the Chairman of the Foreign Affairs
Committee about the legal basis for the use of force. In it, I said explicitly that resolution 1441 does not provide "automaticity", but that that
- "does not, however, mean that no further action can be taken without a new resolution of the Council."
That was the basis of the advice that we received. It was made available to this House via a note in the Vote Office, and, in addition, I wrote to every Member on both sides of each House, setting out the text of the Attorney-General's statement and my five-page letter. Let us be clear: many countries took the same view as the United States and the United Kingdom. Australia, Japan, Bulgaria, Spain, Uganda, Ethiopia, South Korea and many others took exactly the same position as we did in respect of the law and the need to take military action.
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