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Ordered by the House of Commons to be printed 14th July 2004 - page 107 / 216

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5.7 THE ROLE OF INTELLIGENCE IN ASSESSING THE LEGALITY OF THE WAR17

366.

We have examined the Attorney General’s advice on the legality of war in Iraq, and taken oral evidence from him on two occasions.

367.

The Attorney General was briefed on relevant intelligence issues in September 2002 and February 2003.

368.

At our request, the Legal Secretariat to the Law Officers submitted to us a background note on the usual procedure by which the Government obtains legal advice from the Law Officers, who are the Government’s principal legal advisers. In view of the public interest in this matter, we judge that it may be worth setting this out.

369.

There is no set procedure for seeking the advice of the Law Officers. The usual practice is for a Government lawyer in the Whitehall department with the lead interest in the issue to write to the Legal Secretary to the Law Officers, or to one of the officials in the Legal Secretariat, with a request for Law Officers’ advice. It is not, however, the invariable practice for advice to be sought in this way. On occasion, Ministers write directly to the Law Officers to seek their advice. Paragraph 22 of the Ministerial Code describes the type of case where it will normally be appropriate to consult the Law Officers.

370.

Requests for advice normally set out the background and provide the department’s own legal analysis of the issue. Depending on the circumstances, a number of things might happen once the request is received. The lead department might be asked for further information or further analysis of the legal question if the Legal Secretariat felt that this was needed; it might be necessary to convene a meeting between the Law Officers and relevant departmental lawyers to discuss the matter; the Law Officers might ask for the views of outside counsel on the issue before giving their advice; or the letter might simply be submitted by the Legal Secretariat to the Law Officers for their views.

371.

Once the Law Officers have formed a view on the matter, officials in the Legal Secretariat would normally write back to the lead department recording the Law Officers’ advice. In some cases, the Law Officers may communicate their advice directly to the Minister of the lead department.

372.

There is a long-standing convention, adhered to by successive Governments (and reflected in paragraph 24 of the Ministerial Code), that neither the fact that the Law Officers

  • b.

    The initial assessment of the Iraqi declaration of 7 December.

  • c.

    Intelligence reports from September 2002 onwards on the extent of Iraqi concealment of evidence of prohibited programmes, together with the results of inspections undertaken on the basis of those reports.

93

17

The Government made clear to us that Government legal advice, whether from the Attorney General or from other legal advisers, was shown to us in confidence and without intending to waive the legal professional privilege to which the advice is subject. We have therefore referred to legal advice in general terms only and have not disclosed the contents of that advice in this Report, except to the very limited extent that this is done in this Section. Those limitations are deliberately constructed in a way which does not give rise to the risk of waiver of legal professional privilege in the underlying advice which was given, which the Attorney General has made clear to us remains confidential.

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