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That is very closely linked to the fifth and last criterion which is so crucial: how do we define success in these kinds of terms? If it is purely in terms of a military victory, then that indeed was very speedily gained. However, political leaders in the USA and the UK have only very recently woken up to the fact that ought to have been in the forefront of their minds right from the outset, that the struggle in the modern world is primarily one against terrorism and success in that strategy means ensuring that terrorists do not gain and hold the hearts and minds of those in whose name they say they carry out acts of terror. Counterterrorism is primarily a battle of hearts and minds in which military force has an important but subservient place. That was very far from the thinking of those who took us into the conflict in the first place and is one of the reasons for what I continue to regard as a very tragic misjudgment.

So my focus in this debate has been on the continuing relevance of the intellectual framework for considering the morality of military interventions, which very much needs to be borne in mind whenever such interventions are considered in the future. I believe that, judged by those criteria, the legal and ethical implications, which are not always coterminous, were not thought through significantly, while the actual meaning of success in the battle against terrorism was not thought through at all.

3.19 pm

Lord Lyell of Markyate: My Lords, I too thank my noble friend Lord Fowler for introducing this remarkably timely debate. The legal aspects have been mentioned by many speakers already and that is what I want to concentrate on, not only to look back on the past and find out what did happen, but also to consider its

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effect on the future. It is clear that the suspicions about the apparent mishandling of the legal advice has left long-term damage to the perception of the office of the law officers and the Attorney-General. That needs to be looked at very carefully and we cannot do that unless we get to the bottom of what really happened.

What was the continuing role of the then Attorney-General? It ought to have been that he and his department were closely involved in the months and indeed years running up to the invasion. When one got close to it, what was he actually told by the then Prime Minister? We know from the inquiry of the noble Lord, Lord Butler—he is here and will possibly tell us a little more—that his inquiry found it necessary to say that the then Prime Minister had been disingenuous in relation to the handling of the intelligence. That became very important because, as the noble and learned Lord, Lord Steyn, has adverted to, there were enormously deep issues on the legality.

The noble and learned Lord, Lord Goldsmith, who sadly cannot be in his place, first of all boldly and correctly advised that regime change was not a justification for the war—in America it is widely believed to be a justification—but we have not seen the full advice on that. Also, Tony Blair as Prime Minister quite rightly persuaded President Bush that it was necessary to try and get a further resolution from the United Nations. The position here was entirely different from the situation in the Falklands and that in the first Iraq war. In the Falklands we had a right to defend ourselves under Article 51 of the United Nations charter—I was Parliamentary Private Secretary to Sir Michael Havers at that time—and that was always the keystone of our position. That also applied in relation to the first Iraq war and the position of Kuwait, but of course it was then reinforced by an actual United Nations resolution.

When that could not be obtained, it seemed that the then Prime Minister, Tony Blair, sought to fall back on some form of Article 51 justification on the basis that Saddam Hussein had weapons of mass destruction and was able with the aid of some improved Scud missile or in some such way to drop a nuclear, chemical or biological weapon that could cause mass destruction, either over the Israelis or on to our bases in Cyprus. It was never very clear exactly what it was, and we do not really know what the then Attorney-General was told. We do not know exactly what advice he gave, and we do not know exactly what was told to the Cabinet, though it seems to have been extremely little. We ought to know those things.

Sometimes an obfuscation is raised: it is sometimes said the tradition is that the law officers’ advice is not revealed. That has nothing whatever to do with this case. It is always open to the Government, who are the client, to waive the privilege. Although the law officers, for practical reasons, are the gatekeepers, the privilege is that of the client, and the client is the Government. The Government should make it perfectly clear that they waive their privilege. This inquiry must get legal assistance if it needs it, and it probably does need it. It must look into this carefully and give us a full report. Nothing else can satisfy us.

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3.24 pm

Lord Soley: My Lords, the last time I spoke on this issue was in another debate on a Motion commendably tabled by the noble Lord, Lord Fowler. I spelt out then my views on what I saw as the failure of the Iraq occupation after the conflict. My noble friend Lady Ramsay has also drawn attention to the important post-conflict failure and to the profoundly important failure to build consensus, particularly in the region itself. I do not wish to repeat that; I have said it before and written about it, and I really do not want to go there again at the moment. What I want to talk about today, and it touches a little on what the noble and right reverend Lord, Lord Harries, said, is the morality issue and the law issue.

I would dearly love the rule of law to apply throughout the world. I am a politician, and I come to the law looking at it as a politician. The law does not apply like this in the rest of the world. I would say to lawyers: beware of sounding like the medieval theologians who kept arguing about how many angels can stand on the head of a pin when you are dealing with some of the most brutal dictators. I say to the lawyers that one of the lessons we have to learn from situations like this is that we have yet to find effective ways of dealing with this deadly combination of extreme dictators, failing states and weapons of mass destruction. I say to the lawyers that if their argument had prevailed in the past then Pol Pot would still be running Cambodia, because the Vietnamese illegally removed him; Idi Amin would still be running Uganda, because the Tanzanians illegally removed him; and East Pakistan would still be running what is now Bangladesh, because the Indians illegally removed it.

As I have pointed out here before, one of the most important interventions of all time was particularly important to this House—the 19th-century intervention by the British, using the Royal Navy, to stop the transatlantic slave trade. Captains of Royal Navy vessels were successfully sued in court cases in this House for arresting slave traders on the high seas and for entering the ports of other countries and burning the empty slave boats. All the usual complaints were around saying that we should not do it. Why? In the Times at that period you could read about the cause to bring our British sailors home because they were dying of tropical fevers and so on and it was felt that it was not a war for us. Slavery was normal. Trading slaves was normal. It became abnormal because we made it so, even though it was fully lawful at the time.

People have to be very careful in that if they get the balance of morality and law wrong, they could end up defending the indefensible for legal reasons. I have made this argument before. The lawyers today are very much in the position of lawyers in the 1950s and 1960s who argued that if a man beat his wife and kids in the street he could be arrested but if he did it in his own home he could not be touched. That is what we do in international affairs. The Treaty of Westphalia means that the nation state is still the dominant idea of the day. So if Saddam Hussein invades Kuwait, we will have him, but if he gases his own people we will let him get on with it. You just put your fingers in your ears, cross over to the other side of the road and hope that you do not hear the cries of the kids.

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I heard the cries of the kids because in Hammersmith I used to get waves of refugees. The noble Lord, Lord Fowler, has been very good on the refugee issue. However, at that time I was getting refugees from Saddam and they were pleading for something to be done. There was a breach of the 1991 ceasefire under Chapter 7 of the United Nation charter and people were asking me why we could not make the United Nations intervene. We could not. In the House of Commons debates on 18 March 2003, which I took part in, relatively few Members on either side of the issue actually used WMD as the argument. WMD became important not only in their own right but because they triggered the legal condition.

Lord Burnett: My Lords, will the noble Lord give way?

Lord Soley: I shall, my Lords, but I have only one minute left.

Lord Burnett:My Lords, I apologise, and I am grateful. I was at that debate as well. Why did the Prime Minister and his Ministers concentrate so hard on seeking to justify it as a matter of law?

Lord Soley: My Lords, I think that I just answered that. As I said, it became a matter of law partly for that reason. But it is not the real issue; that was not the judgment that was made.

I come back for my final moments, and I will still finish on time. The balance of power in the world is changing. The United States is in relative decline. That does not mean that it is going down—it is in relative decline to the powers that are coming up. We know that great wars start when great powers are in decline relative to others. That is what happened with Britain when Germany, Russia, Japan and the United States rose in the early 20th century. Now we have the deadly problem of failed states, dictatorships and weapons of mass destruction. If we rely simply on trying to get the law right before we intervene, it is only a matter of time before some of these brutal dictators use weapons of mass destruction far outside their own borders. Saddam Hussein did it—we and the lawyers conveniently forget that.

I say to the lawyers: use your time to start working out how we should deal with these situations by creating international institutions that will enable us to deal with extreme dictators of this type. You cannot justify it; do not try to justify it; and do not end up like the medieval theologians whom you sound like at the moment.

Lord Brett: My Lords, I intervene with trepidation. This is a timed debate and the limit for speaking is five minutes. I congratulate the noble and learned Lord, Lord Lyell of Markyate, on being the only speaker to have stayed within five minutes. When the digital clock reads five, it means that the five minutes are completed. We had five minutes of bonus time, courtesy of one noble Lord not speaking. We will now eat into ministerial time if any noble Lord goes beyond five minutes.

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3.30 pm

Lord Addington: My Lords, I put my name down to speak because, when we went to war in Iraq, regardless of the legality—and I am with my noble friend in thinking that the legal position was extremely tenuous—the fact that we did it in a hurry and did not prepare properly exposed the troops whom we sent into combat to unacceptable risk, and gave them an almost unachievable job.

We sent British troops into a foreign country, which we had starved for 10 years, having already attacked. We then hit it with a massive bombardment—or rather, our allies did most of that. We then said, “We bring you democracy and freedom because you are really just like us”. Apparently they did not want to be just like us—or like the version that was on offer—and we then wondered why we were badly received. We then put on the ground troops who were not properly trained or prepared for the situation and said, “Deal with it”.

A duty of care was missed to the entire Armed Forces, people who are prepared to put their lives at risk to carry out the wishes of the politicians who send them into these situations. What happened was that, for reasons that I do not think anybody will understand fully in the short term, the British Government told the troops to go in and do something primarily because our allies were doing it. We went in to take on a second-rate Stalin—brutal and unpleasant, but hamstrung and contained—on tenuous grounds; we sent our young men to do the job. Why? Making the assumption that things could get a little better, we sent in people to risk their lives.

I have always felt that one of my party’s finest hours was when Charles Kennedy said that we would not play along with this. Can we have an assurance from the Government that any future mass deployment of troops, for any level of occupation—it was clear in Iraq that there would have to be a long occupation—will be accompanied by a doctrine that says what happens if we have to be there for three years, five years or whatever? It should say, “Long-term deployment is always going to be an option and we will always support it”.

These are wars of choice, to use the expression of my much missed friend Lord Garden. We did not have to go. We were not stopping Saddam Hussein from storming up Brighton beach. We went to him; we carried the war to him. We did not have to be there—that is clear. The regime, unpleasant as it was, was contained and controlled. We went in and effectively let the genie out of the bottle. There was a low-level civil war and we placed our troops in the middle of it. Will we ever allow this to happen again? If we do, I suggest that we have learned nothing from this, and that would be probably the biggest failure of the whole process.

3.34 pm

Lord Butler of Brockwell: My Lords, I join the congratulations and thanks to the noble Lord, Lord Fowler, for giving the House the opportunity to hold this very timely debate.

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The Government’s political interest in an inquiry in the form proposed by the Prime Minister is obvious. The Government have conceded the inquiry which they promised, and the arrangements proposed for it ensure that we will hear no more about it until after the general election. The question is whether the Government have allowed their political interest to overcome the national interest.

There must be two purposes to a further inquiry. One is to learn lessons from the policy decisions taken in connection with the Iraq war. The second is to act as a sort of truth and reconciliation process for those, including the bereaved, who think that they were misled, even deceived, about the Government’s reasons for joining the war. I think it possible, indeed probable, that an inquiry on the lines proposed can suggest useful policy lessons from the war. Certainly, I make no criticism in that respect of the distinguished people appointed to the inquiry, particularly its chairman, for whom I have a very high regard. But there is no prospect that an inquiry conducted entirely in private can purge the national feeling of mistrust.

I do not find the national security arguments in favour of an inquiry in private convincing. The review that I chaired published verbatim the Government’s intelligence assessments on which the decision to go to war was based. If there is confidential material—for example, about discussions with allies—or if there are witnesses who are prepared to speak openly only in private, it would be possible for the inquiry to hold in camera sessions for that purpose. Nor am I persuaded by the arguments that an open inquiry would be a field day for lawyers. Not every inquiry has to be like the Saville inquiry and, if witnesses need protection from the inquiry, they need protection whether it is in public or in private. So I reluctantly conclude that the form of the inquiry proposed by the Government has been dictated more by their political interest than by the national interest, and that it cannot achieve the purpose of purging mistrust which so many people hope for from it.

There is an additional point for Parliament, as was pointed out by the noble Lord, Lord Fowler. There are many differences from the circumstances in which the Franks inquiry into the Falklands War was established, but there is one crucial difference. That inquiry was set up with the support and participation of all parties in Parliament. In this case it is clear that neither the Official Opposition, nor the Liberal Democrat party, nor many government Back-Benchers, nor many noble Lords who have spoken on this side today are happy about an inquiry conducted entirely in private. It is therefore doubtful whether the form of the inquiry, if submitted to a vote in Parliament, would obtain a majority. The question arises: should the form of an inquiry into the actions of the Government be determined exclusively by the Government?

On 6 July 1982 the then Prime Minister announced the membership and terms of reference of the Franks inquiry. On 8 July 1982, two days later, she moved a motion seeking Parliament’s approval and a substantial debate followed before the motion was passed. So I ask the Minister: will the Government similarly seek Parliament’s approval for this inquiry, or does the

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Prime Minister’s pledge to return power to Parliament not stretch to giving it the opportunity to approve and, if it wishes, to amend the proposal for the inquiry? If the Prime Minister’s decision to return power to Parliament does not stretch to that, it now looks likely that the opposition parties in another place will, next week, take matters into their own hands and pass an amendment seeking that the inquiry should be conducted in public. I suggest that that is not the way in which these things should be done.

3.40 pm

Lord Sheikh: My Lords, the invasion of Iraq on the side of the USA was one of our most unpopular military actions and it received condemnation not only at home but internationally. It resulted in insurgency, mayhem, criminal activities, bloodshed and human tragedies and it drove a wedge between the Sunni and Shia communities. Flawed reasoning and bad intelligence were at the heart of the decision to invade. We were told that there were weapons of mass destruction, which proved to be wrong. If the intention was to effect regime change, then that is not permitted under international law. We invaded Iraq without a clear mandate and the United Nations was rendered supine, which should not have happened.

The invasion did not receive support from the major countries in Europe or from other countries in the world. We relied heavily on the US, which did not have an effective plan to implement post-defeat of Saddam Hussein. We should have undertaken our own intelligence and due diligence before deciding to be part of the invasion. There were large-scale demonstrations in the country and the serious concerns expressed by senior former British diplomats with considerable knowledge of Iraq were disregarded.

We, of all countries, should have realised the problems, as we had a mandate to rule Iraq after the First World War and were a close ally of that country. The invasion and occupation opened up old wounds between Shias and Sunnis and resulted not only in fighting between the two communities but in both communities being against the occupation. The mayhem also resulted in insurgents coming to the country from other parts of the world. As a person who appreciates the art and culture of other countries, it broke my heart to find out that a number of cultural heritage sites and museums were not protected, which resulted in the damage or loss of priceless artefacts. Iraq, of course, has one of the oldest civilisations in the world.

I believe that a grave error was made in disbanding the Iraqi army, but there are efforts now to rebuild it and the police. Those should be continued. Another problem that must be addressed is that of the displaced Iraqi citizens, while the humanitarian situation is also a cause for concern. There are nearly 2 million internally displaced persons in Iraq. About 30 per cent of Iraqi citizens are thought to be living in abject poverty, with limited access to basic provisions such as clean water, electricity and proper sanitation. I would be grateful if the Minister would tell your Lordships’ House what assistance Her Majesty’s Government are giving the Iraqi authorities to tackle that situation, which will be essential in rebuilding the country.

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The torture that was inflicted on Iraqi citizens at Abu Ghraib must be totally condemned and we must ensure that it is never repeated. The soldiers who committed those horrible acts took pride in their actions by taking photographs and later claimed that they were following orders to obtain information. We should establish where the commands came from and the people concerned should be held to account. I would like the Minister to comment on that point.

Although many people in the United Kingdom have negative opinions about what happened in Iraq, we should all pay tribute to the bravery of our Armed Forces. They have played a vital role in improving the situation in Iraq and we owe them a debt of gratitude for their courage and tenacity.

Although we welcome the decision by the Prime Minster to launch an inquiry into our involvement in Iraq, following the withdrawal of troops in July, I am concerned at the lack of transparency in the inquiry. The British public will not welcome the decision to hold it behind closed doors. The basis on which it is to be held is totally unsatisfactory and needs to be revised.

What are the lessons to be learnt from the Iraq war? I should like to summarise these as follows. First, we should not get involved in any military action until we are satisfied that our intelligence is sound and we have a plan for action after vanquishing the enemy. Secondly, we should of course protect our national interest and not be subordinate to any other nation. Thirdly, we must look at the cultural and religious beliefs of people in the country and ensure that our actions will not result in inflaming the situation. Fourthly, the reasons for any invasion must be sound and clearly explained to Parliament and the British public. Fifthly, we must always think about the exit strategy and leave behind a suitable legacy. Sixthly and finally, any action must not result in overstretching our military capability, and our forces must be adequately resourced in every way.

3.46 pm

Lord Desai: My Lords, perhaps noble Lords will permit me to say that this is the 18th anniversary of my maiden speech in your Lordships’ House. I am grateful to the noble Lord, Lord Fowler, for allowing us an opportunity to debate this question. I was, and continue to be, supportive of the decision made by the Government to invade Iraq. Many of the reasons have already been described by my noble friends Lady Ramsay and Lord Soley.

Let me start by saying this: I am absolutely in favour of a very open inquiry. It should be like the Bloody Sunday inquiry. Let it take seven or eight years, or whatever; but at the end of it people will not be satisfied that an answer has been obtained. They are not satisfied with the Hutton or Butler inquiries, because the point is that people know the answer they want and if they do not get the answer they want they will not be satisfied.

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