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The noble Lord, Lord Fowler, asked a number of questions. I will add one or two more. First, when was the decision made for the United Kingdom to be involved in the invasion? The memorandum sent by Sir David Manning to Condoleezza Rice, the United States Secretary of State, in which he declared that the Prime Minister was fully on board for the change of regime in Iraq—incidentally itself not legal under the United Nations—was dated 18 March 2002. This implies

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that the decision to become part of the invasion of Iraq was made long before the debate and discussion in this country and, perhaps most importantly, long before the inspectors were able to report back on the completion of their mission, which, as all of us know, was in effect never completed because enough time was never given by the allies who were determined to invade Iraq come what may.

The second big question is how the intelligence about the weapons of mass destruction, and, equally important and even more misleading, the intelligence that was supposed to show links between the Government of Iraq and al-Qaeda, was put in the public realm and whether it had the support of the intelligence community. The references to the links with al-Qaeda have been shown to be totally hollow.

I want to make a final point, but I shall abbreviate my remarks for lack of time; although my noble friends Lord Lee and Lord Addington will be asking further questions, particularly about the military aspects. Much of what happened in the Iraq war was based on the assumption by Her Majesty’s Government that they had to follow the United States whatever it said or did. I remind those who, as I do, care deeply about the Anglo-American relationship that the relationship between Roosevelt and Churchill and perhaps also that between Mrs Thatcher—the noble Baroness, Lady Thatcher—and Ronald Reagan were characterised by frank and candid exchanges in which from time to time the British made it clear that they could not go along with something, as Mrs Thatcher did over the invasion of Grenada. When will our Governments again accept that this country has the right to be heard, and not least when its own service men and women are at risk? Including in this debate, I hope we bear it in mind that we, too, have the right to make judgments and to be listened to.

2.50 pm

Lord Steyn: My Lords, I respectfully applaud the fact that this debate has been arranged, as I respectfully applaud the way in which the noble Lord, Lord Fowler, has placed this matter before the House. I fear that the arrangements for an inquiry into the Iraq war and its terms of reference are patently unacceptable. The absence of powers of subpoena is a grave flaw. The imposition of total secrecy by the Prime Minister is inappropriate. The explanation that it will ensure, for example, that the evidence of serving and former Ministers will be as “full and candid as possible” lets the cat out of the bag. The condition that the committee,

“will not set out to apportion blame”

is truly absurd. It means that if the committee considers that the previous Prime Minister and the Cabinet were to blame, it is not entitled to find accordingly. It is also extraordinary that nowhere in his Statement has the Prime Minister faced up to the fact that the question of law concerning the legality of the invasion of Iraq was at the heart of the matter. Why cannot that issue be explored in public, and before the next election? Let me explain the point briefly.

One starts with the advantage of the magisterial lecture of Lord Alexander of Weedon QC entitled “Iraq: The pax Americana and the law”, delivered

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under the auspices of Justice on 14 October 2003. Lord Alexander was one of our greatest lawyers and this was possibly one of his finest speeches. He laid bare the speciousness of the arguments of the Governments of the United States and the United Kingdom in favour of the legality of the war. A text of the lecture is now readily available on the web at www.justice.org.uk. For what it is worth, I would mention that shortly after my retirement as a Law Lord, I was for a brief while the chairman of Justice. On 18 October 2005, I paid tribute on behalf of Justice to Lord Alexander’s exposure of the illegality of the Iraq war.

It was necessary for our Government to find a justification for their action in international law. The Security Council was plainly opposed to the use of force. The only argument available to the British Government was to fall back on Security Council Resolution 678 passed in 1990 for the purpose of expelling Saddam Hussein from Kuwait. The sole reason for harking back to it was that it was impossible to obtain Security Council approval for the use of force against Iraq in 2003. Resolution 678, passed in 1990 in a wholly different context, had no relevance to the international position regarding the use of force against Iraq in 2003.

For many legal arguments, some support can be dredged up. While there was limited support for our Government, the overwhelming view of international lawyers was that the invasion of Iraq was illegal. Lord Alexander’s criticism of our Government’s position on the critical matter of international law at issue is quite devastating and fully justifies his view that in their search for a justification in law, the Government were driven to scrape the bottom of the legal barrel. I am in full agreement with what Lord Alexander said about the legality of the invasion of Iraq in 2003. The Government’s contrary view is plainly absurd and wrong, but the Prime Minister’s decree prevents this debate being aired before the next election.

For the avoidance of doubt, I make clear that my conclusion is based on two issues. First, I was brought up to admire American constitutional traditions, and I still do. There is nothing anti-American in my stance. Secondly, I respect the operational conduct of our brave troops on the battlefield of Iraq.

2.56 pm

Lord King of Bridgwater: My Lords, I join in congratulating my noble friend Lord Fowler on initiating this debate. Perhaps I may say to the noble Lord, Lord Steyn, that his comments, which I listened to with great interest, may be the reason why the former Attorney-General, the noble and learned Lord, Lord Goldsmith, had such difficulty at the time giving a legal opinion to justify the war. It is one of the issues that I hope will come out in the inquiry. My noble friend Lord Fowler rightly started by paying tribute to those whose lives have either been lost or shattered as a result of the Iraq war. We certainly owe them and their families, who will bear the scars for the rest of their lives—some 400 have made the ultimate sacrifice or have been very seriously wounded—a proper inquiry into the events.

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There is no doubt that in both Houses this is a deeply controversial matter. Very serious allegations have been made at every stage of these proceedings and at the moment we have not set up in quite the best possible way an inquiry to meet the various proper requirements that I know the House has in mind. The Prime Minister has clearly got into a big mess about it, and the news today is that he has now written to Sir John Chilcott suggesting that he can invite public hearings as well, which means that he is adjusting the position. I see that the Conservative Party has said that if it is not satisfied, it will table a debate in the House of Commons next week. I think that that would be a great pity because I would much rather see this resolved in the proper way.

The Prime Minister said the day before yesterday that he has clung closely to the Franks banner, and Franks is what we have got. What we certainly have not had from the start is the way in which Franks was set up, and the noble Lord, Lord Butler, with his diplomacy and technique, will know something about that. Moreover, there is a complete absence of cross-party consultation. The Franks inquiry was set up in response to two Questions for Written Answer, one tabled by Michael Foot, the Leader of the Opposition, and the other by Joe Grimond, emphasising the fact that there had been close cross-party consultation before it was set up. It is tragic that that was not done here. The Prime Minister said rather lamely that that was because they were Written Answers and that he was making an oral Statement, but what he did not point out was that there was then a full day’s debate on the Floor of the House on the setting-up of the inquiry.

I accept that the people the Prime Minister has proposed are very distinguished public servants, but whether the balance between academics and public servants fully meets the need for non-partisan public figures is open to question. The Prime Minister said that it would be impossible for anyone in the House of Lords actually to serve on the committee. I notice that four Members of this House—Lord Watkinson, Lord Barber, Lord Lever and Lord Merlyn-Rees—served under Lord Franks and I do not think for a moment that they were too partisan in their approach to the responsibilities they took on as full Privy Counsellors.

If this is to be a proper inquiry, the Prime Minister’s lack of consultation has done no service to the people who have been asked to take part. The Leader of the Liberal Democrats in the House of Commons said that they looked like a hand-picked group that the Prime Minister had privately chosen for his own purposes. I make no allegations against these distinguished people, but they have not been helped by the way in which this has been embarked on.

As to the suggestion that if it were held in public it would be impossible to be candid, perhaps some of your Lordships heard Major General Tim Cross today making it absolutely clear that he would regard it as his duty, having commanded troops in Iraq, to be fully candid and in public about the shortcomings that he saw. Sir John Walker, the former chief of defence intelligence, was yesterday quoted in the Evening Standard as making clear that, on the present basis, it seems the inquiry is to be in private only to protect the past and

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present members of the Government, and that every member of the Armed Forces would feel it their duty to be fully candid and in public.

On the timing, the Prime Minister said he was advised that it would take about year. Who on earth advised him? Who on earth knows how long it can possibly take? The advice was that the Bloody Sunday inquiry would take six months. As it is now in its eighth year, that has not proved very accurate.

My only recommendation—there are a range of issues that other noble Lords will wish to address and I do not wish to delay the House—is that it is absolutely essential that the inquiry is split up in some way, perhaps through interim reports dealing with the separate issues. They are quite separate issues so why not start with the terms of reference for the Franks inquiry and how responsibility was exercised in the period up to the start of the war. That would be a good subject for the first interim report before we get into the issues around the appallingly inadequate resources deployed in the war. They were a fraction of what we used for the much more limited objective of liberating Kuwait. A fifth of the forces deployed to liberate Kuwait were used to try to occupy the whole of Iraq and overthrow the regime. Very serious allegations arose over the decision about going to war, including that delays were made in procurement of equipment because we did not wish to give any signal that we intended to go to war when in fact the decision had already been taken. A whole range of issues needs addressing and a proper inquiry, conducted as far as possible in public, is absolutely essential if they are to be properly dealt with.

3.02 pm

Lord Anderson of Swansea: My Lords, I strike a note of scepticism and discord. I recognise that the Government are honouring an obligation and have to proceed, but I am profoundly unconvinced that the exercise will be worthwhile. It is something of a pipe dream to believe that the inquiry as planned, or any inquiry, will lead to closure. I cite in evidence the letter page of the Guardian yesterday, where so many people have already made up their minds and their responses are already predictable. I recall that when the noble and learned Lord, Lord Hutton, was appointed there were paeans of praise about a man wholly incorruptible and fearless, and yet when his report was published and it was considered to be not the one people wanted, it was called a whitewash. Many critics of war do not want a sober analysis; they want an apology andthe heads of Tony Blair and Alastair Campbell on a platter.

I chaired the Foreign Affairs Committee which produced the report. We looked, as far as we were able, at many of the documents. I hope that the Government will at least look at our special report and re-examine our experiences if they are concerned—as they say they are—about improving the powers of Select Committees.

The responses to the Government’s announcement are already mostly critical. On the membership, I agree that there should have been a serious attempt at party consensus. It is wrong that there is no person with serious military experience on the committee. So far as secrecy is concerned, Hutton was in public but

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was nevertheless called a whitewash. But I agree with the noble Lord, Lord Fowler, that the presumption should be in favour of a public hearing and I hope my noble friend the Minister will confirm that the chairman will have considerable discretion. It is to be hoped that there will be a presumption of openness.

The precedent of Bloody Sunday is not a happy one. Eight years on, with almost £200 million spent, it has been a bonanza for lawyers. It is perhaps cathartic, but it is likely to have little effect. Perhaps the Minister will confirm that if the committee really wants to be almost entirely in public it will be able to do so.

Much of the ground has already been covered, both in the US and in this country. On intelligence; is there any suggestion that relevant information was not supplied to the Butler inquiry and the Intelligence and Security Committee inquiry or that they did not have all the relevant information to reach their conclusions? As to the pre-planning, it is absolutely right in my judgment—and I met Richard Perle and a number of the neo cons—that we relied too much on people like Perle, who were claiming that our forces would be greeted as liberators, without any serious thought to the aftermath. Of course the dismantling of the security structures, the police and military forces—the de-Baathification—has turned out to be a mistake.

So far as the law is concerned, the Attorney-General made a difficult decision. He must have consulted widely, as is normal, before it. There are equally cogent arguments on the other side. It may be that the weight of international legal opinion is on the other side, but is the committee, without any lawyers, to interpose its own legal judgment for that which has already been made? That is surely absurd. There is no legal expert on the committee. Even if there were, that decision, right or wrong, was made in good faith.

As to the military, there must have been many lessons learnt and inquiries held within the Army. Much will depend on resources, on manpower and on equipment; much of it is technical. There should certainly be a military member of the committee. Much of the problem is contextual; what people knew at the relevant time. As a former chairman of the Foreign Affairs Committee, I received briefing from the same individual as the Prime Minister, and the Prime Minister, in my judgment, honestly reproduced what he had been told. Mistakes there were, of course, but mistakes of honest judgment.

The political issues include our relations with the US and the European Union; the resources, civil and military; the over-reliance on exiles, Chalabi and others; the intelligence, which was shared by most of our sister intelligence agencies who came to the same conclusion; the misreading by the neo cons of 9/11; and, equally, if perhaps not mentioned, questions of governance and whether it was prime ministerial government or Cabinet government. It was clearly a political judgment; it should be judged politically and not by a committee, whether in secret or public, of the great and the good.

It is inconceivable to expect closure. I predict that the likely response will be relief for the Government, disappointment for the public and cries in unison of “whitewash”, “cover up” and “charade” from the press and from those who currently criticise the Iraq war.

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3.08 pm

Lord Thomas of Gresford: My Lords, you can put some of the great and good into a shuttered room and present them with files and documents into which they can dig and delve, and you can send an occasional witness into the gloom to give evidence in secret. No doubt they will emerge after 12 months, blinking into the light like the political prisoners released from jail in Beethoven’s Fidelio, but I suspect that the chorus they will be singing will not be regarded by the public as an ode to freedom and enlightenment. The alternative is to hold a proper public inquiry, where evidence is called, examined and tested, on oath and in public, for the commissioners to come to proper conclusions that everyone can consider and assent to.

On Monday this week in another place, Sir Menzies Campbell asked whether the inquiry will have the power not just to ask for witnesses but to compel them to attend and put them on oath so that their evidence may be verified against that background. The Prime Minister’s reply was to say:

“I know that the Liberal party wanted it to be held in public, but I think they know also what happens when there are public inquiries. That means lawyers, lawyers and lawyers, whereas people can feel free to give evidence and give it frankly about what we want to hear—that is, the lessons that we can learn from the war”.

Pressed further on whether there would be a power to compel witnesses to give evidence on oath, he said:

“The terms under which evidence will be given is a matter on which we will comment and report later, but I am absolutely sure that everybody who gives evidence will have to tell the truth to the committee. They are under an obligation to do so by the committee’s terms of reference”.—[Official Report, Commons, 15/6/09; cols. 33-34.]

Can the Prime Minister be capable of such naivety? The whole point about an oath being administered is not that it is an appeal to someone’s god but that it opens a person to criminal prosecution for perjury if he does not tell the truth.

I can think of a number of instances of this. I was involved in the court martial of the paratroopers three years ago for the death of an Iraqi in Maysan province, when witness after witness came from Iraq and gave evidence. Some women complained that their clothes had been ripped off them, some of them claimed that the deceased had been hit by rifle butts and so on. When subjected to detailed cross-examination and reminded that they had taken the oath on the Koran, they all retracted what they had said; we got to the truth. As the noble Lord, Lord Fowler, who has to be congratulated on introducing this debate, said, we need to know the truth.

The Baha Musa court martial, in which I was also involved, revealed unacceptable and disgraceful conditioning that was being carried out in the British Army regarding the way that prisoners were handled. A senior colonel from the legal department arrived at Basra airport and saw groups of prisoners sitting on the ground in the sun with their hands bound and with blindfolds over their heads. When he made a fuss about it, all the way up to the Ministry of Defence, he was told, “Well, the Attorney-General says it’s all right, and if you think any better then you should be the next Attorney-General”. Of course, the House of

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Lords held that the Human Rights Act applies to soldiers in the field, but that has not helped the career of that particular officer.

The Baha Musa inquiry into the death of a single person and the circumstances surrounding it was announced in May last year. There have been directions hearings; it is to open on 13 July; evidence will start in September; and it is expected to last until June or July next year. That is for a single death. The concept that the inquiry that has been announced by the Prime Minister will take in the order of 12 months is, obviously, not worthy of consideration. It is a serious matter to start an inquiry, but we are concerned with extremely serious issues that have to be determined in public. I am grateful to the noble Lord, Lord Fowler, for bringing this matter forward. I know that we will return to it again and again.

3.13 pm

Lord Harries of Pentregarth: My Lords, I also pay tribute to our brave service men and women who have done their duty in very difficult circumstances. I hope and pray, with everyone else, that Iraq, which is still the most dangerous place on earth, may yet turn out to be better than we feared.

I intend to focus on only one aspect of the invasion of Iraq: the intellectual and moral framework in which the original decision to invade was made. The intellectual framework for decisions about military intervention, which has been developed in the West through the Christian Church and now forms the basis for UN thinking about intervention, sets out a number of questions that have to be addressed before an intervention can be morally justified.

The first question is: is there lawful authority? In the Christian tradition, that means the highest authority available for resolving disputes. In the international sphere, in most circumstances, it means the United Nations. Here, a very important distinction arises between what is legal and what may be ethical. They usually overlap but they are not always coterminous. As we know, a debate continues to rage about whether the invasion was legal. Already today the noble Baroness, Lady Ramsay, has said that she believes it was legal while the noble and learned Lord, Lord Steyn, has argued that it was not. My point is that what is legal may not be enough. The fact is that there was no significant international consensus, and those opposed were not just the usual suspects but serious heavyweight players such as Germany and France.

A useful comparison may be made with the intervention in Kosovo. That did not have a specific authorisation from the Security Council but, as Michael Quinlan, whom we honoured this morning at his memorial service at Westminster, pointed out, it differed from Iraq in at least four pertinent respects: the intervention was directed to halting an immediate and manifest humanitarian outrage in full swing; it was not a regime-changing invasion; it was supported by the great majority of countries in the region and a wide international grouping of major countries; and it was validated soon afterwards by the United Nations

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itself. Not long before, the UN Secretary-General had publicly recognised that the Kosovo situation was a threat to international peace and security.

The second question concerns just cause. The original stated reason, as we know, was the possession of WMD by Saddam Hussein. In my opinion, it was a very reasonable belief at the time that he had such weapons, even though up to that point the inspectors had not been able to locate them. Taken by itself, though, this was not a good enough reason for intervention. Other criteria had to be met as well and other, perhaps less destructive, possibilities might have worked out to be intellectually and morally better. There was an alternative to intervention: deterrence and containment, which had been working well. Very often, in a world where there is a choice of evils, we have to put up with a less than perfect solution. We have to live with a problem, containing it rather than solving it, because trying to solve it in one fell swoop would unleash even greater evils.

The third question is whether every possible step to achieve a resolution by peaceful means had been tried first and found to fail. I think perhaps that had actually been met. The fourth question is about the very difficult political and military judgment over whether the evils unleashed by the war would outweigh the good that might be achieved.

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