Attorney General's Advice Published: Full text of leaked document

Attorney General's Advice Published: Full text of leaked document

Channel 4 has obtained a copy of the summary of the Attorney General's advice that was presented to Tony Blair on 7 March 2003, two weeks before the invasion of Iraq.

* Update - 28 April 2005: full 13-page text of legal advice - 693kb (pdf)

The summary extract reads as follows:

EXTRACT FROM MINUTE OF THE ATTORNEY GENERAL
TO THE BRITISH PRIME MINISTER, 7 MARCH 2003

"Summary

26. To sum up, the language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the legal effect of the resolution. Arguments can be made on both sides. A key question is whether there is in truth a need for an assessment of whether Iraq's conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that situation, it would be for the Council to make it. A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has predetermined the issue. Public statements, on the other hand, say otherwise.

27. In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. [...] The key point is that it should establish that the Council has concluded that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.

28. Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.

29. However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider very carefully whether the evidence of non-cooperation and non- compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.

30. In reaching my conclusion, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a "reasonable case" does not mean that if the matter ever came before a court I would be confident that the court would agree with the view. I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do requ1re a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained. However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree
of public and Parliamentary scrutiny of the legal issue was nothing as great as it is today.

31. The analysis set out above applies whether a second resolution fails to be adopted because of a lack of votes or because it is vetoed. As I have said before, I do not believe that there is any basis in law for arguing that there is an implied condition of reasonableness which can be read into the power of veto conferred on the permanent members of the Security Council by the UN Charter. So there are no grounds for arguing that an "unreasonable veto" would entitle us to proceed on the basis of a presumed Security Council authorisation. In any event, if the majority of world opinion remains opposed to military action, it is likely to be difficult on the facts to categorise a French veto as "unreasonable". The legal analysis may, however, be affected by the course of events over the next week or so, eg the discussions on the draft second resolution. If we fail to achieve the adoption of a second resolution we would need to consider urgently at that stage the strength of our legal case in the light of circumstances at the time.

Possible consequences of acting without a second resolution
[...]"

Channel 4 News reveals legal advice on Iraq War (Channel 4 website, 27 April 2005)
Revealed: Legal advice on Iraq war (Channel 4 website, 27 April 2005)
The document and what it means: Analysis by Anthony Lester QC (pdf) (The Guardian, 28 April 2005)
Now there's no chance of moving on: Comment by Jonathan Freedland (The Guardian, 27 April 2005)
Blix: They should have listened (The Guardian, 27 April 2005)

Haemophiliacs refused vital information under FOI because it would cost over £600 to supply

Haemophiliacs refused vital information under FOI because it would cost over £600 to supply

Haemophiliacs have been told that they cannot see vital documents which could reveal how they were infected with hepatitis C through contaminated NHS blood products because it would be ‘too expensive’ to do so.

Campaigners have demanded the release of classified documents under the Freedom of Information Act but have had their request refused on the grounds of cost. The Department of Health has also claimed that some of the information has been destroyed. Under the Freedom of Information Act, requests for information can be rejected where the cost would exceed £600, but there are other ways of obtaining the information where the cost limit is reached, such as narrowing the scope of the request.

Mike Kenwright, one of the individuals infected by hepatitis C, asked for the documents and believes the files would reveal how the government failed to listen to the warnings from the USA about the dangers of using imported blood plasma products.

Peter Mossman, vice chairman of the Manor House Group, which was formed by haemophiliacs infected with hepatitis C, said he was “appalled” by the failure of the Department of Health to release the documents: “I do not believe they have been destroyed. I think it is the biggest cover-up ever. What also appalls me is that they still insist they cannot have a public inquiry – it is just incredible.”

Haemophiliacs blocked in bid for secret files (Sunday Herald, 24 April 2005)

Attorney General's advice to Blair leaked to Mail on Sunday

Attorney General's advice to Blair leaked to Mail on Sunday

According to the Mail on Sunday, the full 13-page document of advice about the Iraq war drawn up by the Attorney General, Lord Goldsmith, has been leaked to the newspaper only 11 days before polling day in the 2005 general election.

The Mail on Sunday states that Goldsmith's advice to Tony Blair warned the Prime Minister that the decision to go to war would be challenged as it could be in breach of international law for six reasons:

1. In law, there was a strong argument that it was the job of the United Nations - not Blair - to rule whether Iraq had defied the UN's order to disarm

Goldsmith set out how it may be judged that it was the function of the UN Security Council, not an individual country such as Britain or America, to decide if Iraq was in 'material breach' of UN Resolution 1441, passed in November 2002 and giving it a 'final opportunity to comply with its disarmament obligations'. He also pointed out that although Blair could in theory make the decision, a court could decide otherwise.

2. Goldsmith questioned whether Britain could attack Iraq by using the UN Resolution 1441

The legal advice explained why the resolution's warning of 'serious consequences' if Saddam Hussain continued to flout the UN Resolution fell crucially short of permitting military action. The exact wording had important implications. It did not say 'all necessary means' - UN terminology for war, used when Saddam Hussain invaded Kuwait in 1990.

3. Goldsmith urged caution about going to war without a second UN resolution

He said Blair could go to war without one, but it would be much 'safer' and desirable to secure a second resolution giving specific approval to military intervention.

4. Blair was warned of the risks of relying on the earlier UN resolution used to eject Saddam Hussain from Kuwait.

The legal advice challenged Blair's claims that Britain and the United States had a right to go to war by 'reviving' UN Resolution 678, passed in 1990 when Saddam Hussain invaded Kuwait. Resolution 678 did not permit them to invade Iraq itself. The limited nature of Resolution 678 was one of the chief reasons the Allies did not try to topple Hussain when he was ousted from Kuwait in the 1991 Gulf War. In principle, Resolution 678 could be revived but in practice it could be difficult.

5. Goldsmith drew attention to UN weapons inspector Hans Blix and his search for weapons of mass destruction.

On March 7, 2003, the day the legal advice was written, Blix reported to the UN Security Council that 34 Iraqi al-Samoud missiles had been disabled. He said Iraq was being more helpful generally and that no weapons of mass destruction had been found so far. By the time Blair received Goldsmsith's legal advice, he would have been aware of Blix's latest report.

6. He explained that the American government's position on the legality of the war did not apply in Britain.

Goldsmith explained the legal stance taken by George Bush and why
he faced none of the legal restraints confronting Tony Blair. The US Congress had given Bush special powers to declare the war legal in American law. It also detailed why, in the US view, a second resolution was unnecessary.

These six caveats were stripped from a summary of the advice published 10 days later on the eve of a crucial parliamentary debate on the war. The UK government has consistently refused to disclose the Attorney General's full advice and the UK Information Commissioner, Richard Thomas, is currently investigating whether or not the document should in fact be released - disclosure was refused by the Government who claimed it fell under the section 42(1) exemption of "legal professional privilege" in the UK Freedom of Information Act.

Proof Blair was told war could be ruled illegal (Mail on Sunday, 24 April 2005)

FOI reveals questionable expenses claims by Gordon Jackson, QC: the public pays out again

FOI reveals questionable expenses claims by Gordon Jackson, QC: the public pays out again

Labour MSP and QC, Gordon Jackson, has charged taxpayers for travel to the Scottish Parliament on the same days that he earned hundreds of pounds in legal aid representing clients in the High Court, according to Scotland on Sunday. Documents obtained under Freedom of Information have revealed that this has happened at least nine times.

Jackson, who earns who earns £264,000 a year in legal aid and £50,000 from his MSP’s salary, stated that that he had missed some committee meetings in order to attend court. When confronted with the figures he argued that he had done nothing wrong and that his secretary might have made a mistake in filling out the expenses form.

Scotland on Sunday also asked the Scottish Legal Aid Board to provide details of Jackson’s legal aid claims, but they refused to disclose the information claiming that it would breach confidentiality.

Jackson courts questions on travel expenses (Scotland on Sunday, 24 April 2005)

The public pays for MSPs' £500,000 hotel bill

The public pays for MSPs' £500,000 hotel bill

The Sunday Times has announced that since devolution MSPs have run up hotel bills totalling £500,000. All at the public’s expense. The figures were released under the Scottish Freedom of Information Act only after the Sunday Times forced MSPs to publish them, despite claims that the information should be kept secret because it was “private data” which could jeopardise their “personal security”.

Since 1999, Trish Godman, Labour MSP and deputy presiding officer in Holyrood, has run up the largest hotel bill of all - £23,001 - despite living in Glasgow. Bill Aitken, a Conservative MSP for Glasgow who spends two nights a week in a hotel in Edinburgh, claimed hotel expenses totalling £18,951 for the same period.

MSPs run up £500,000 bill on hotels since devolution (Sunday Times, 24 April 2005)

Renewable energy may harm the environment

Renewable energy may harm the environment

Documents released under Freedom of Information legislation have revealed that environmental advisers at Scottish Natural Heritage (SNH) raised concerns in a briefing paper to the Scottish Executive about the potential damage that an "unplanned proliferation" of wind farms may cause to the environment. As a result the Executive has ordered a review of planning guidelines.

Bill Band, national strategy officer at SNH, stated: "We are concerned about the market-led approach on the location of wind farms. We have over 500 proposals for them around Scotland and in some areas it is a bit of a guddle with small ones alongside larger ones."

Fury at wind farms finally fuels a review (Scotland on Sunday, 24 April 2005)

Scottish Parliament Freedom of Information Disclosure Log

Scottish Parliament Freedom of Information Disclosure Log

The Scottish Parliament website now has a disclosure log that lists information which has been released in response to requests for information under the FOI (Scotland) Act 2002 since January 2005. The information requested includes:

• Information on the Parliament's intranet (SPEIR)
• Information relating to the Futures Event and to the Scottish Parliament and the Business Exchange
• How many MSPs and members of the public were in the Chamber on the 2nd March?
• Request for correspondence relating to weathering of the fabric of the Scottish Parliament
• To provide all correspondence between the Scottish Parliament and Enric Miralles since June 1999
• Request for travel expense claims forms for Keith Raffan MSP for the last 3 financial years

Unlike the Scottish Executive disclosure log, there are no links to the information itself. See the full list here: www.scottish.parliament.uk/cnPages/foi/log05.htm

Links to over 3000 NHS Practitioners' Publication Schemes

Links to over 3000 NHS Practitioners' Publication Schemes

The NHS website provides direct links to over 3000 publication schemes of NHS practitioners including dentists, pharmacists, general practitioners, optometrists and opticians. As of 23rd April 2005 the number of schemes linked to stands at an impressive 3653: www.foi.nhs.uk/practice/

Wine, Wark and EU agricultural subsidy payments

Wine, Wark and EU agricultural subsidy payments

The latest information disclosures from the Scottish Executive:

• April 2005
  Information on wine stocks held in Bute House
• April 2005
  The total annual costs of legal advice and representation for the Scottish Executive since 1999
• April 2005
  Information related to the M74 Completion Scheme and the purchase of land at 38 and 58 Southcroft Road Rutherglen. Information available by emailing: Graham.Edmond@scotland.gsi.gov.uk
• April 2005
  Copies of all letters from Messrs Tods Murray (Solicitors) to the Justice Department on the Title Conditions (Scotland) Bill since 1999
• April 2005
  Engagements carried out by the Deputy First Minister from May 2003 - December 2004
• April 2005
  Engagements carried out by Des McNulty during his term of office as Deputy Minister for Social Justice
• April 2005
  Information on the total cost of civil and criminal legal aid from 1999-2004
• April 2005
  Details of the First Minister's Hospitality Costs from 2000 - Jan. 2005
• March 2005
  Scottish Executive correspondence in relation to Henry McLeish's resignation as First Minister
• March 2005
  Sample of correspondence about Scottish Regiments between members of the public and the Scottish Executive
• March 2005
  Copies of correspondence between the Scottish Executive and Messrs Tods Murray (solicitors) on the subject of Land Reform since 1999
• March 2005
  Costs incurred and claimed by Ministers in providing hospitality
• March 2005
  Papers relating to Kirsty Wark's selection and involvement as a judge on the Architectural Design Team panel for the Holyrood Building Project and to the documentary "The Gathering Place".
• March 2005
  EU agricultural subsidies payments: an early estimate of the pattern of payments expected for CAP Reform entitlements.
  www.scotland.gov.uk/Topics/Agriculture/CAPRef/Analysis
  /Analysis
• March 2005
  Copies of emails and correspondence between the Scottish Children's Reporter Administration and Scottish Executive officials with regard to the review of cases related to Munchausen's Syndrome by Proxy for the entire period of 2004.
  www.scotland.gov.uk/library5/education/scramsbp-00.asp?mode=view
• March 2005
  Copies of emails and correspondence between the Scottish Executive and the Children's Reporter Administration with regard to the Herald Newspaper and general media handling (January 2005) www.scotland.gov.uk/library5/education/scraghgm-00.asp?mode=view
• March 2005
  Correspondence between the Home Office and the Scottish Executive on the Fresh Talent Initiative from 11 January to 8 February 2005.
• March 2005
  EU agricultural subsidy payments: additional statistical information to that published in the Common Agricultural Policy (CAP) Annual Report 2003. www.scotland.gov.uk/Topics/Agriculture/grants/18148/12077

For complete list see: www.scotland.gov.uk/Topics/Government/FOI/19260/20126

The implications of FOI for the Scottish business community

The implications of FOI for the Scottish business community

Businesses in Scotland need to wake up to the implications of the Freedom of Information (Scotland) Act. Kevin Dunion, Scottish Information Commissioner, announced that he is surprised at the indifference of Scottish companies towards the new legislation and the consequences it could have for business. The amount of information now being released into the public domain from over 10,000 public bodies could have a direct effect on many businesses involved in contracts with the public sector.

The Commissioner stated "It is the one area in Scotland that has surprised me: how little interest the business community has shown. The Act is used abroad extensively by businesses, but it does not appear to have been properly considered by businesses here. I think they feel reassured that because the Act does not apply to them directly, somehow it is of limited impact. They do not seem to have considered the scale of public procurement, and particularly things like PFI and PPP mean that a lot of information about companies will become available."

He added that businesses also need to be aware of the scope of the Environmental Information (Scotland) Regulations, which came into force at the same time as the Scottish Freedom of Information Act: "Environmental information that becomes available will apply to companies directly. I think they should wake up to this quite quickly. It’s going to come as a surprise to many of them."

Wake-up call for companies over new freedom of information law (Scotland on Sunday, 17 April 2005)

Ever wondered why there is always a large queue in Argos? Ask a traffic warden

Ever wondered why there is always a large queue in Argos? Ask a traffic warden

A document obtained under FOI from National Car Parks (NCP), has revealed an incentive scheme introduced last year which rewards traffic wardens with points to purchase Argos products if they help to "increase revenue".

A spokesman for NCP, one of many contractors employed by around 30 local authorities in Britain to issue parking tickets, said that the scheme was not meant to encourage wardens to give out more tickets, but to reward them for their all-round performance. However, one warden stated: " The more tickets you give, the more points you get. It goes to your Argos card."

NCP has been criticised in the past for its bonus-related schemes. Documents obtained by the Sunday Times under FOI have revealed that one traffic warden based in Westminster issued 1,444 tickets in October 2003, an average of over 60 every day. Since 1994, UK motorists have been charged with £1.35 billion in parking fines. This may go some way to explaining why there is always a large queue in Argos.

Traffic wardens in 'Argos points for tickets' row (Sunday Times, 10 April 2005)

FOI reveals full extent of MRSA infections in children at Great Ormond Street Hospital

FOI reveals full extent of MRSA infections in children at Great Ormond Street Hospital

Figures released under the UK Freedom of Information Act have revealed that four children aged three or under have died over the past five years after suffering MRSA infections at the Great Ormond Street Hospital in London. Twenty children over that period were found to have MRSA in their bloodstream, the most dangerous form of the superbug infection. The figures also revealed that 357 children aged three and under have been found with MRSA at the hospital in the past five years in the form of infections found in the nose, saliva or open wounds.

The full figures were only provided to the Sunday Times in response to a formal freedom of information request. Public relations managers at the hospital had previously informed reporters that only seven children aged three and under had been found to be infected with MRSA in the hospital in the past three years.

Hidden infant toll of MRSA (Sunday Times, 10 April 2005)

Lies, damned lies, and politicians - how to check the facts

Lies, damned lies, and politicians - how to check the facts

Now that the 2005 UK general election campaign has officially started, Channel 4 has produced a timely website to keep tabs on our friendly politicians. FactCheck has been set up to "scrutinise interviews, speeches and manifesto pledges - informing public debate by creating a popular resource for an information-hungry electorate". Its aim is to test the veracity of claim and counter claim by the country's leading politicians.

The new website (www.channel4.com/factcheck) is based on the American fact-checking website www.FactCheck.org, originally set up in 2003, which enjoyed widespread acclaim during the US elections with its unbiased scrutiny of the accuracy of political speeches, interviews and press releases. It quickly established itself as a trusted monitor and was widely quoted by political parties and journalists.

The Channel 4 version has already uncovered false claims made by Patricia Hewitt, Trade and Industry Secretary, in relation to Conservative childcare policies: she "alleged twice on Easter Monday that the Conservatives had "backtracked" on plans to give parents £150 a week for childcare costs. She first made the allegation during a BBC Breakfast TV interview and repeated it at a press conference a few hours later. The only problem was the Conservatives never actually said it in the first place": www.channel4.com/news/factcheck/quote.jsp?id=44

Shadow Chancellor Oliver Letwin was also caught out with his claim that Labour has "added about a quarter of a million extra bureaucratic posts in this country. That's not teachers or doctors or nurses or army personnel or anybody on the frontline serving customers but people behind desks dealing with pieces of paper." FactCheck showed that these "bureaucratic posts" included matrons, librarians, and laboratory assistants: www.channel4.com/news/factcheck/quote.jsp?id=47

Other politicians being economical with the truth include John Reid, Health Secretary, who is claiming that "the Conservatives would abandon a central principle of the NHS and charge people upfront for operations. He warns that under the Tory proposals people would face the stark choice of waiting for months in an NHS system or pay extra for private treatment if they want to be treated quicker. He also claims resources that would be spent on the NHS would be given to the private sector, which would put it at a disadvantage and force patients to go private. However, FactCheck has established that the proposed Conservative policy won't bring patient charges for operations": www.channel4.com/news/factcheck/quote.jsp?id=6

At last we can keep election lies in check (The Observer, 3 April 2005)

Useful websites:

• www.channel4.com/factcheck (get the facts on what the politicians claim)
• www.theyworkforyou.com (find out what your local MP does at Westminster)
• www.publicwhip.org.uk (find out how your MP votes in the UK parliament)
• www.faxyourmp.com (contact your MP about something that concerns you)

Scottish Information Commissioner: Investigations underway

Scottish Information Commissioner: Investigations underway

Kevin Dunion, Scottish Information Commissioner, has announced that his team of eight investigators is currently dealing with 69 appeals under the Freedom of Information (Scotland) Act 2002. The appeals include questions about park-and-ride schemes, speed cameras, tendering processes, job application processes, and the operations of local schools.

Investigations underway as of 30 March 2005:

• 200500298 - Common Services Agency - Incidences of childhood leukaemia
• 200500463 - Scottish Parliament - Number of enquiries dealt with by MSPs
• 200500488 - Perth and Kinross Council - Copy of file held by Property Services Department regarding lease
• 200500547 - Central Scotland Police - Names of constables against whom complaints of racial abuse made
• 200500611 - Common Services Agency - Correspondence relating to death of relative
• 200500646 - Perth & Kinross Council - Names and addresses of supporters and objectors to planning application
• 200500684 - Scottish Legal Aid Board - Home addresses of Board members
• 200500685 - Scottish Legal Aid Board - Disclosure of membership of secret society of Board members
• 200500686 - Scottish Legal Aid Board - Names of lawyers seeking legal aid from a named firm; names of legal aid employees involved in decisions regarding provision of legal aid to those solicitors; declaration regarding knowledge of Children (Scotland) Act 1995; information regarding public liability insurance; information regarding membership of secret society by legal firms and by employees of SLAB
• 200500732 - Scottish Executive - Cost and other financial details in contract
• 200500740 - Glasgow City Council - Details (including minutes) of the Chirnsyde Community Initiative
• 200500801 - Scottish Commission for the Regulation of Care (Care Commission) - Details of interview questions and answers
• 200500842 - Argyll & Bute Council - Communications regarding tenanted premises
• 200500844 - Dundee City Council - Notice or orders pursuant to s166 of Housing (Scotland) Act 1987 - houses in multiple occupation
• 200500845 - Dundee City Council - Notice or orders pursuant to s90 of the Housing (Scotland) Act 1987 - housing action areas
• 200500846 - Dundee City Council - Notice or orders pursuant to s108 of Housing (Scotland) Act 1987 - repairs notices
• 200500862 - City of Edinburgh Council - Procedures for claiming student discount for council tax
• 200500865 - Scottish Prison Service - IT equipment provided by SPS for prisoners
• 200500868 - Grampian Police - Guidance and policy on use of warnings to adults
• 200500871 - City of Edinburgh Council - Committee minutes
• 200500893 - Scottish Parliament - Briefing for public petitions committee
• 200500906 - Common Services Agency - Surgical mortality rates
• 200500957 - Scottish Executive Health Department - Correspondence, minutes etc regarding free personal care
• 200500976 - Grampian Police - Copies of formal statement and information from missing person reports
• 200500977 - Aberdeen City Council - Social work files
• 200500979 - Scottish Executive Justice Department - Commencement of ss25-29 of the Law Reform (Miscellaneous Provisions) ( Scotland ) Act 1990
• 200501096 - Lothian and Borders Police - Calibration certificate for speed cameras
  
  The full list of current investigations is available on the Commissioner's website: www.itspublicknowledge.info/investigations/investigations.htm. It will be updated every two weeks.

The man who can't keep a secret (The Scotsman, 8 April 2005)