have been consulted in relation to a particular matter nor the substance of any advice they may have given is disclosed outside Government. The purpose of the convention is to enable the Government, like everyone else, to obtain full and frank legal advice in confidence. There is a strong public interest in the Government seeking legal advice so that it acts in accordance with the law. If there were a risk that Law Officers’ advice would be made public, this might inhibit the provision of full and frank legal advice. The rationale for the convention is the same as that which underpins the doctrine of legal professional privilege, which also applies to Law Officers’ advice.
We have been advised of only three examples in the past 100 years of the actual advice of the Law Officers being disclosed publicly. Two of those examples relate to the provision of documents in judicial proceedings, namely the Factortame litigation and the Scott Inquiry. In both of those cases, the advice given by the Law Officers was central to the issues in the proceedings. The third example arose from the Westland affair when a letter from the then Solicitor General to the then Secretary of State for Defence was published by the Government. This followed, however, the unauthorised disclosure of part of the Solicitor General’s letter in breach of the convention, which gave rise to serious consideration of prosecutions under the Officials Secrets Act and led to, or contributed to, the resignation of two Cabinet Ministers.
In the case of Iraq, the Attorney General offered initial advice to the Government prior to the adoption of United Nations Security Council Resolution 1441, when consideration was being given to the enforcement of Iraq’s compliance with its disarmament obligations under United Nations Security Council Resolution 687 and subsequent relevant resolutions. That advice mainly concerned legal interpretation of relevant United Nations Security Council resolutions. But the Attorney General did conclude that, on the basis of the information he had seen, there would be no justification for the use of force against Iraq on grounds of self-defence against an imminent threat.
Following the passing of United Nations Security Council Resolution 1441, there was disagreement inside the FCO on whether a further decision of the Security Council would be needed before the UK could lawfully use force against Iraq to secure compliance by Iraq with its disarmament obligations. The Foreign Secretary told us that he took the view that, particularly in the light of the negotiating history of Security Council Resolution 1441, such a further decision was not essential but that all concerned in the FCO accepted that the final word would belong to the Attorney General.
In the ultimate event, a Deputy Legal Adviser in the FCO, Ms Elizabeth Wilmshurst, disagreed with the Government’s position and felt it necessary to resign. We took evidence from Ms Wilmshurst and she told us that her view rested on a difference over legal arguments and was not related to intelligence.
The Attorney General has told us that, during the course of negotiation of Resolution 1441 and in the weeks following the adoption of that resolution, he had a number of discussions with the Prime Minister, the Foreign Secretary and senior officials from their departments about what happened during the negotiations, and on the interpretation of Resolution 1441, including whether it was of itself sufficient to authorise the use of force in the event that Iraq failed to take the ‘final opportunity’ afforded to it by the Security Council to comply