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Lord Mayhew of Twysden: My Lords, we have listened to a most impressively knowledgeable speech which I for one look forward to reading.

I am pleased that the noble Lord, Lord Thomas of Gresford, has resumed his place because he said that those who had cheered on the Attorney-General when we last debated the legality of the war were singularly absent from today's list of speakers. I diffidently draw his attention to the fact that I supported the Attorney-General then and continue to do so.

I may not have cheered him on, but I said that there was more than one view that it was possible to take conscientiously on the legitimacy of going to war. I said that the better view was that of the Attorney's and that if it were not the better view it certainly ought to be. I hold to those views today and without repeating the arguments I want to explain why, notwithstanding the absence of any finding of weapons of mass destruction so far, the legality of the fundamental basis of the case for the Government's invasion of Iraq remains sound.

First, I want to draw attention, as a number of noble Lords already have done, to the lamentable consequences of the way in which the dossier of September 2002 was compiled and the tendentious, not to say disingenuous, manner in which it was subsequently made use of—unfortunately by the Prime Minister among others. There are three aspects of the damage that has been done which we do well to recall.

The first has been that it has managed to make the credibility of the Government a casualty of the Iraq war, almost, some might think, a fatal casualty. That is of enormous importance because the Government need every ounce of credibility they can muster to carry the country and the international community with them through the difficult decisions that have to be taken from now on.

Much has been achieved. We are in danger in this country of neglecting sometimes the success of our actions. I am happy to acknowledge those parts of the Minister's speech that drew attention to them. But
 
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credibility has been gravely damaged. The noble Lord, Lord Hannay, said a few minutes ago that it will be very difficult to justify and to carry the country's support for any use of military force said to be based upon intelligence. That point carries a great deal of wisdom.

Secondly, it is a sorry thing for the Armed Forces—who trusted in the reliability of the case that the Government put forward for going to war, and went on, as we have all acknowledged, to carry out with great bravery and indeed brilliance a dangerous task which the Government imposed upon them—that the legality of the whole thing has been seriously called in question in terms of reliance upon the way in which the dossier was drawn up and subsequently made use of.

Perhaps, above all, that has contributed more than any other factor bar one to assertions—mistaken as I believe they are—that the whole case for going to war was dodgy, and that the legality of this enormously important decision by the Government was shaky to say the least. That other factor is the failure so far to find weapons of mass destruction. I emphasise those words "so far" because of a passage in the report of the noble Lord, Lord Butler—a report to which I like everybody else pay most respectful tribute—which I think has not been mentioned. He said:

We would do well to remember those words.

I want to focus in the minute or two remaining on the absence so far of weapons of mass destruction because it is now said that that emasculates the whole basis of the legal case for going to war. But it does not. The lawfulness of the actions, whether taken by individuals or by governments, surely has to be assessed in the light of the information available at the time those actions were taken and in the light of the perceptions and deductions that reasonably could have been held, and of fears that reasonably could have been entertained, which those actions were intended to avert. Surely that is ordinary common sense.

Governments, like individuals or bishops, have to operate in the real world. It has become an increasingly unpleasant and terribly dangerous world by reason of the actions of a proportion of mankind. That point has been laboured today. There is no need to go into it more than to say that the noble Lord, Lord Butler, referred to it as the calculus of the threat of terrorism having changed. We all know that it is because of the arrival on the scene of people who do not care a bit about how many they kill. Or rather, they do care, because they desire mass murders and mass destruction. They do not mind if they get blown up at the same time; indeed, in some circumstances they desire it.

That has changed the whole calculus and made it vastly more difficult for governments who, on behalf of their countrymen, have to take a line of maximum protection, and which if they happen to be permanent members of the Security Council with military means
 
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have to secure the enforcement of Security Council resolutions. They have to exercise their judgment in that capacity as well. Everybody realises how dangerous the world now is. I found nothing in the report to lead me to reverse the view I have held from the beginning that the Government acted lawfully—as of course they always must.

My last point is that we now know what was actually going on quite irrespective of weapons of mass destruction. We found it in the conclusions set out at paragraph 397 of the report. For shorthand purposes and time I will read just three. The Iraqi Government:

To have neglected those circumstances would have been criminal and they fully justify the unequivocal view expressed by the Prime Minister that there was ongoing material and serious breach by Iraq of its obligations under 1441.

I believe that the war was necessary, alas. I am certain that it was legal. It could not have been necessary if it was not legal. It could not have been legal if it was not necessary. The pity of it is that the case, genuinely and conscientiously argued by those who take a different view, has been so unnecessarily strengthened by the way in which the dossier and related matters were handled.

Lord Maclennan of Rogart: My Lords, there can be few considering the circumstances surrounding this debate, coming as it does after a weekend of unparalleled, unlawful violence in Russia, who would question the belief that the lawless use of force between and within the member nations of the United Nations is one of the great challenges of our time. It is therefore not a matter about which one needs to apologise if one focuses, as so many have done during the debate in this House, upon the issues of the legality of the war in Iraq. I was grateful to the Minister for her kind words, when opening the debate, that it was all right to look back. Indeed, we needed to look back. Certainly, as she put it, we must learn the lessons. She is in a better position than most of us in this House to chart what is happening on the ground in Iraq. We must pay due deference to her reading of what is happening there. I will return to that point.

For me, the Iraq war is, as the noble Lord, Lord Lamont of Lerwick, put it, the greatest diplomatic defeat of this country since the 1956 Suez adventure. In many ways, it is a worse defeat than that. To some extent, that situation was recoverable by the intervention of our long-standing friends in the United States. On this occasion, the boot is very much on the other foot.

The terms of reference for the inquiry by the noble Lord, Lord Butler, were regrettably narrow. We are grateful to the noble Lord for interpreting them
 
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creatively to allow him to look at some of the issues that were so vexing the public, not least the issue of the Government's purported legal justification for the military invasion.

Perhaps it is a little difficult to dig out what that committee had to say on the subject, but, none the less, it is clear. In paragraph 429 of the Butler report, it is clear that as early as March 2002 British Government officials had advised not only that regime change of itself had no basis in international law but that any offensive military action against Iraq could be justified in Iraq only if Iraq were held to be in breach of its disarmament obligations under United Nations Security Council Resolution 687 or some new resolution. Proof of that breach would need to be "incontrovertible" and of "large scale activity". At that time, the intelligence available was insufficiently robust to meet such criteria.

It is a matter of some satisfaction that the committee also recorded its surprise that policy makers and the intelligence community did not, as the generally negative results of the UNMOVIC inspection became increasingly apparent, re-evaluate in early 2003 the quality of the intelligence. In the absence of that re-evaluation, it is plain that the Prime Minister took it on himself to determine the necessity of the action.

In his interesting intervention, the noble Lord, Lord Butler, spoke of the systems of government that allowed advice to be forthcoming when required. It is plain that on this occasion, in the critical three months prior to the war, not only was such advice not sought, it was not proffered. Nor was there any updating action to enable the British Government to claim in the United Nations or anywhere else that the situation merited the response proposed.

It would be wrong to focus entirely on that point. The Iraq war has brought death in uncounted thousands. It is fairly clear that it has sustained and extended support for terrorism in the Middle East—even in Iraq itself—such that it has become, in the words of the noble Lord, Lord Howell, who opened the debate from the Opposition Benches, the monstrous norm. It is also clear that this war has diverted the international community from addressing the central danger in the Middle East—the Palestinian-Israeli conflict. It makes any aspiration to impose, by force or any other means, democracy on another country in that part of the world a vain aspiration.

The greatest sadness and the greatest need in this debate is the requirement that we should recognise how the international legal order has been undermined by that action. Article 39 of the United Nations charter spells out that the Security Council should determine,

It is spurious to claim that articles decided in the context of the Kuwaiti liberation had any direct bearing on the circumstances that led to the invasion in March 2003.
 
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The requirement now is for the international community to recognise that this system of peaceful resolution of disputes has been challenged by some of the greatest powers among its members. That the law is not universally accepted or universally regarded as acceptable is clear. The Prime Minister was not wrong in his Sedgefield speech to businessmen on 5 March to point out the need for a general debate on the updating of international law to make it capable of dealing with the new threats. But it is not acceptable that he should have taken the law into his own hands with an attempt to describe as legal what was essentially a political justification.

Political justifications may be acknowledged and understood but they cannot be accepted, as was made entirely clear by the International Court of Justice in the Nicaragua case in 1986. It is time that that task was taken on by the international community. No doubt a first step has been taken by the Secretary-General in establishing his high-level panel of which the noble Lord, Lord Hannay of Chiswick, is a most distinguished member. But it will require more than that no doubt highly political report. It will require a longer period of persuasion to bring to a conclusion the procedural steps that are required to take away from the nation state the capacity in law to inflict such mayhem as we have seen.

In such crises, the ultimate question is whether the use of force may be justified beyond the cases provided for in the charter—I am thinking of humanitarian cases and drug trafficking—which threaten lives and livelihoods. The question is: who is to make the determination that such action is necessary? That cannot be simply a decision for those with the greatest power to impose themselves on others. We had hoped that that system would have been put to bed by the UN charter, but it needs updating.

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