Page last updated at 18:10 GMT, Tuesday, 26 January 2010

UK legal process on Iraq 'lamentable', says ex adviser

Elizabeth Wilmshurst: "There should have been a greater transparency... about the evolving legal advice"

A Foreign Office lawyer who resigned in protest at the Iraq war said the way ministers weighed up the legal case for the invasion was "lamentable".

Elizabeth Wilmshurst told the Iraq inquiry she thought the war was unlawful without express UN backing.

And she said it was "extraordinary" that Attorney General Lord Goldsmith had only been asked for his opinion days before British troops went in.

Ministers argue that existing UN resolutions justified the use of force.

The testimony of Ms Wilmshurst and her then boss Sir Michael Wood made it clear that the legal team at the Foreign Office believed that the war was illegal under international law.

Legal debate

But in his final legal opinion on the eve of war, Lord Goldsmith advised ministers the "combined effect" of existing UN resolutions on Iraq dating back to 1991 meant the invasion was lawful.

However, critics of the war say the attorney general reached his decision just days after offering a much more finely balanced view of the legal issues involved in an initial assessment.

Ms Wilmshurst told the inquiry she had seen a copy of the attorney general's draft advice in which she said he argued that a second UN resolution explicitly authorising military action was advisable.

Peter Biles
Peter Biles, BBC World Affairs correspondent:
This was the most dramatic day of evidence so far. Elizabeth Wilmshurst's appearance was always guaranteed to draw plenty of attention.

The former Foreign Office legal adviser had not previously spoken publicly about her decision to resign over the Iraq war.

When she finished giving evidence and the cameras had been switched off, members of the public in the hearing room burst into spontaneous applause.

Ms Wilmshurst appeared composed and precise. During the discussion about Jack Straw's rejection of Foreign Office legal advice in 2003, she was asked whether it had made a difference that Mr Straw was a qualified lawyer. "He's not an international lawyer," she replied tersely.

We now know that Ms Wilmshurst was not a lone voice in the Foreign Office. Her boss, Sir Michael Wood, also believed the war was illegal, although he chose not to resign.

His evidence session was unexpectedly interrupted after only 40 minutes as more declassified government documents were suddenly released and handed to the inquiry. For once, there was a real sense of unpredictability about the proceedings.

Lord Goldsmith will appear before the inquiry on Wednesday.

Ms Wilmshurst, deputy legal adviser at the Foreign Office in the run-up to war, was the only civil servant to resign over the invasion.

She told the inquiry that the momentous nature of the action taken against Iraq meant that she believed explicit UN authorisation was needed - an opinion she said was shared by her colleagues.

"We were talking about the massive invasion of another country, the changing of a government and the occupation of that country. In those circumstances, it did seem to me we ought to follow the safest route," she told the inquiry.

She criticised the manner in which the government considered the legal arguments for the invasion, saying it was "extraordinary" the attorney general was only asked for his opinion days before the conflict.

By this stage, she said it would have been "very, very difficult" for him to take any other view than he did without giving "a public relations" boost to Saddam Hussein.

"The process was lamentable. There should have been greater transparency within government about the evolving legal advice so that it was not left entirely to the attorney general alone right at the end to say." she added.

Earlier on Tuesday, the inquiry heard that Jack Straw rejected advice from Ms Wilmshurst's boss, Sir Michael Wood, that military action without express UN backing would amount "to a crime of aggression".

We were talking about the massive invasion of another country, the changing of a government and the occupation of that country
Elizabeth Wilmshurst

Mr Straw told him that international law was "an uncertain field" and opinions were divided over the issue.

Asked about the foreign secretary's position, she said Mr Straw was "not an international lawyer".

Conservative MP Sir Malcolm Rifkind said Mr Straw should not have been "second-guessing" legal experts on such an important issue.

He said Mr Straw and other ministers showed a complete "disregard" for opposing legal arguments.

"I am deeply disturbed by the implications of what we have heard," he told the BBC.

But Former Foreign Secretary Margaret Beckett defended the way ministers, and Lord Goldsmith in particular, handled the legal arguments around the invasion.

"The attorney general's advice to the government, whether on something as absolutely vital as war and peace or on some other issue - it kind of stands," she told the inquiry.

"My impression of him [Lord Goldsmith] is there is absolutely nothing that would make him give advice, particularly on an issue like this, that was anything other than the best possible advice he could give."

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