The Spy Who Tried to Stop a War

by Marcia Mitchell

  Discussions and arguments Goldsmith presented were exhaustive. Previous resolutions were dissected with a sharpened legal scalpel. Also examined was the controversial issue of whether a threatened veto against a resolution for war could affect its legality.

  More worrisome may well have been the cautions Goldsmith raised about the possibility of prosecution of the United States and the United Kingdom for crimes of aggression. However unlikely, it would be possible for opponents of military action to bring a legal case against both countries. But, Goldsmith warned, ‘given the strength of opposition to military action against Iraq, it would not be surprising if some attempts were made to get a case of some sort off the ground’. And ‘We cannot be certain that they would not succeed’ [emphasis added]. Under existing international accords, the United States and Great Britain could be charged with war crimes if they invaded Iraq without a lawfully sanctioned basis.

  Finally, wrote Goldsmith, most significantly, ‘Regime change cannot be the objective of military action’ [emphasis added].[8]

  How ironic that regime change had been the objective of military action pushed by George Bush and agreed to (with stipulations later abandoned) by Tony Blair almost a year earlier, as reported in the 21 July 2002 Cabinet Office briefing paper.

  Ironic as well that the Downing Street memo, dated two days later, records Lord Goldsmith’s discussion of the three acceptable reasons for an attack against Iraq, spelled out in a meeting with the prime minister and other senior UK advisers. He is reported as warning that ‘the desire for regime change was not a legal basis for military action’ – the phrase in his opinion given to the prime minister nine months later and kept hidden until it was finally leaked to the public.

  The leak of excerpts from the attorney general’s original opinion put enormous pressure on Blair to release its full text. Robin Cook, the former foreign secretary and leader of the House, who left Blair’s cabinet over the pre-emptive strike on Iraq, had predicted this embarrassment. ‘I urged the government to publish the full attorney general’s advice, and warned that … it was inevitable that it would come out.’[9]

  Inevitability struck at an especially inopportune time for Tony Blair. The leak surfaced just eleven days before the Labour Party and the opposing Tories were heading for poll booths. Blair survived, but with his power and party weakened.

  Goldsmith’s original position about the war was unambiguous and direct: ‘The safest legal course would be to secure the adoption of a further resolution to authorise the use of force.’

  The legality of the war was not only the defining issue in the Gun case, but also the defining issue in the history of one of the most controversial military conflicts in modern history.

  In telling reporters following the collapse of Katharine’s case that the attorney general’s advice had never changed from his counselling ‘specifically that the war was lawful’, Tony Blair made a huge tactical error. And he was caught in a web of his own spinning.

  CHAPTER 16: An Uncommon Day in the House of Commons

  While we are left in this mystified state, it is fair for members to speculate about the reasons why this [Katharine Gun] prosecution was withdrawn. I wonder whether … there was a fear that no jury in the land would actually find this woman guilty … I wonder whether the substantive issue is being buried under the various legalities. The substantive issue is whether or not we acted at the behest of the American Government.

  – Rt Hon. Colin Challen MP, in the House of Commons, 26 February 2004, 1.12 p.m.

  A ‘MYSTIFIED STATE’ SEEMS to be where most members of Parliament were the day following the collapse of the Crown’s case against Katharine Gun. Solicitor General Ms Harriet Harman was attempting to explain the Crown’s position, hoping to extinguish the fires of anger heating up the atmosphere surrounding a distressingly significant number of sceptical members. Ms Harman had her work cut out for her, particularly with Mr Grieve, who was most troublesome.

  She began her appearance before the House by reviewing relevant rules spelled out in the code governing Crown prosecutions. She explained that in addition to the two basic rules for prosecution, sufficiency of evidence and the public interest test, a prosecution under the Official Secrets Act has a third requirement. The attorney general must agree that the prosecution should go forward. She reviewed the Shawcross exercise, through which the attorney general asks ministerial colleagues for their thoughts and concerns about the proposed prosecution before a decision is made to prosecute. The exercise had been completed. All conditions had been met for Katharine Gun’s prosecution. The Crown’s case had been properly and meticulously prepared. Unfortunately, the case collapsed because of evidentiary issues.

  As for the irritating nonsense that Attorney General Goldsmith’s opinion on the war’s legality played a role in the decision to drop the case – well, assured Ms Harman, that simply was not true. Absolutely, assuredly not true. It would soon become clear that her audience was not about to accept her absolute assurance.

  What followed the solicitor general’s opening remarks was amazing, even for the ever-rambunctious House. Attentive, focused, and to the point, members vigorously explored the basic issues of the entire Gun case, from start to finish. They asked all of the right questions, reflecting not only what their constituencies, but also many others around the world, wanted to know.

  Following her lengthy opening statement, the solicitor general invited questions from her fidgety, explosive audience. First to respond was the honourable gentleman from Beaconsfield, Mr Dominic Grieve.

  ‘This case raises some very important and worrying features. It is an unusual feature of the case, as the solicitor general will confirm, that the facts of Ms Gun’s actions were not in dispute. The defence that had been raised was one of necessity …

  ‘Was it the case that, prior to charge, the director of public prosecutions and the attorney general were consulted, so that the Shawcross exercise of which the solicitor general spoke was carried out? If so, why did the evaluation of the chances of conviction change so dramatically between the date of charge in November and the events yesterday? When did it become clear that the case would not succeed? When was it decided by the attorney general that it should not go ahead?’

  Grieve continued with the observation that a decision to drop the prosecution was said to have been made prior to the 24 February defence request for information on the war’s legality. Exactly when and why was this important decision made to drop the case? He noted that discussions had taken place between the attorney general and the foreign secretary on 14 and 24 February. Would the solicitor general kindly enlighten the House about those meetings?

  In the event Rt Hon. Dominic Grieve had not been direct enough, he would be more specific:

  ‘It has been widely suggested and publicized that the discontinuance followed a request by the defence for a copy of the attorney general’s advice on the Iraq War. I cannot see a reason why the solicitor general cannot indicate whether such a request was made prior to discontinuance yesterday, and I would be grateful if she would tell the House whether that was indeed the case.’

  She would, but not directly. The reason for ending the case had nothing to do with this persistent, ugly issue about the war’s legality. It was because continuing reviews of the case prior to the date of trial revealed a problem.

  ‘If at any point counsel decides, on balance of all the admissible evidence … that there is no longer a realistic prospect of conviction, it is counsel’s duty to make his view known.’ Discussions between the attorney general and foreign secretary on 14 and 24 February were only about evidentiary sufficiency. The obvious problem for some in the House was that nothing seemed to have changed between 14 November and the following 24 February regarding a sufficiency of evidence.

  The honourable gentleman from Beaconsfield asked about ‘new material’ the government said had come to light, affecting the decision to discontinue the case. What, pray tell, was it?
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  Surely members must understand, Ms Harman had already explained, some secrets must remain secret. Although she would like to reveal more, she could not.

  With regard to the evidence issue, the attorney general had said, and the solicitor general agreed, that the ‘evidential deficiency’ within the current statutory framework made it impossible to disprove Katharine’s defence of necessity. This worried the member from Beaconsfield.

  Grieve asked, ‘Is the solicitor general saying that, under the Official Secrets Act, no defence of necessity can be rebutted? Or is she saying as Official Secrets Act prosecutions usually require the withholding of certain material from a jury under public interest immunity … that the current state of public distrust of the government over their actions in Iraq has rendered the process of justice impossible in this instance? Whichever is the case, this is a disastrous state of affairs for the due process of justice in this country.’

  Mr Grieve said there had been previous requests by many people to see a copy of the attorney general’s advice, which played so important a role in the Gun case. While there are acceptable reasons why this sort of request might not be honoured, would the government please consider waiving restrictions and allow the public to see that advice? Questions about this case and the whole war’s legality issue could be settled. Would the solicitor general consult her cabinet colleagues about whether that might help restore faith in the administration of justice in this country?

  ‘The honourable gentleman asked whether the government should waive confidentiality – whether either the prime minister or the attorney general should waive the normal rule, which is that legal advice to government is confidential. He suggested that it should be waived. I remind him that because of exceptional public interest in the question of the legal basis for the use of force in Iraq, the attorney general did, on 17 March, set out the basis on which he believed in the lawfulness of the use of force in Iraq; and he was able to reaffirm this morning, in another place, that his opinion of whether his view of the law was right had not changed.’

  Later, of course, when the attorney general’s original opinion of the war’s legality was leaked to the public (and later released in full under pressure), it would become clear that Lord Goldsmith’s opinion had indeed changed. Further, Elizabeth Wilmshurst’s letter of resignation confirmed Goldsmith’s switch to the approved ‘official line’.

  ‘No doubt many people will have examined the law on the use of force,’ Ms Harman said, ‘and, as we know from lectures and newspapers, many of them do not agree with the attorney general. If the attorney general tells the prime minister that he is entitled to do something, the prime minister is entitled to rely on that, irrespective of whether many other people take a different view.’ She went further, saying the prime minister is ‘obliged’ to take the attorney general’s advice.

  Mr William Cash said, ‘I hope that the solicitor general will understand when I say that I found much of what she said pretty unconvincing … With respect to the right honourable and learned lady’s assertion that the prime minister is obliged to take his law from the attorney general, I refer her to a letter from the previous clerk of the house, Sir William McKay.’

  Cash quotes from the letter: ‘The law officers have no control over the legal action of the government. A minister is not obliged to take his law from the attorney general. Accountability thus rests with the ministerial decision-taker.’

  Ms Harman insisted that the legality of an action was the business of the attorney general. She reiterated, ‘The government have made it clear that they will not act in breach of international or domestic law, and they have only one authoritative source of legal advice, aside from the courts, and that is the attorney general.’ Further, said the unhappy solicitor general, ‘I am disappointed that the honourable gentleman found what I have said unconvincing because I have tried to be as clear as possible.’

  Clear or not, the exchange did nothing to assure the House that the government had adhered to international law, as suggested by its refusal to rebut Katharine Gun’s defence. Neither did the argument satisfy those who wanted the attorney general’s opinion made public.

  Amid the mutterings and outbursts typical of hot debate in the historic House, the member from Torridge and West Devon, Mr John Burnett, was recognized and raised questions about what had changed in the defence case between the time the defendant was first charged and the time the case was dropped. And then he moved on to a more threatening subject.

  ‘Yesterday, counsel informed the court that the [Gun] prosecution was to be abandoned. The solicitor general will be aware that there has been considerable speculation that it was abandoned because the government feared that at the trial evidence would be adduced of the grave misgivings of many officials in a number of departments of state about the legality of the war with Iraq.’

  Mr Burnett concluded with a charge that struck Ms Harman as most unkind, however respectfully framed: ‘I respect both the attorney general and the solicitor general, but unless they put in the public domain … the compelling legal reasons for the withdrawal from the Gun prosecution, we can only assume that the law officers have capitulated to the executive, and have failed in their duty to the House and the country.’

  She could not let that go. Capitulated to the executive? Failed in their duty to the House and the country?

  ‘I take exception to the suggestion that the law officers have done that, and that the attorney general failed to carry out his duties as he was required to in this matter! Let me say most emphatically that he did not … The honourable gentleman said that many officials had misgivings. That might well have been the case, but the question of whether the prime minister had a lawful basis for the use of force is one on which he takes the advice of the attorney general. It is not for him then to second-guess that by taking the view of many officials who have misgivings.’

  Unsatisfied, the honourable gentleman asked the terrible question that kept resurfacing. It was there, so prominently, because the case against Katharine Gun had collapsed in full view of the world.

  Was there a connection between the discontinuance of the case and the request for disclosure?

  Surely irritated by now, the solicitor general reaffirmed that ‘the discontinuance was not connected to a request for disclosure of the attorney general’s full legal advice or the anticipation of such a request being made’.

  Her audience remained unconvinced.

  Mr Denzil Davies of Llanelli spoke. ‘Given the reasonable assumption that the defence of necessity must have been based upon a belief by the defence that the war was illegal, and since my right honourable and learned friend has said that the government would not be able to rebut that defence, does it not follow that the government are not able to disprove the assertion that the war was illegal?’

  Of course it follows. But, replied Ms Harman, ‘The defence of necessity can be based on many issues.’

  Recalcitrant members returned to the issue of new evidence. Could whatever it was that torpedoed the Crown’s case affect the potential success or failure of similar OSA cases? Sadly, she could not say.

  Mr Donald Anderson of Swansea, East, asked about a great danger ‘that other people in a position similar to that of Ms Gun will feel that they can disobey their obligations under the OSA and talk to newspapers’.

  The solicitor general apologized to the House. Without her being able to share the intelligence involved, ‘Members will not feel fully in the picture. But one of the characteristics of the security services is that people are supposed not to be put fully in the picture.’ This must have come as something of a surprise to the members, who likely thought they should be in the picture.

  Observed Mr Jon Owen Jones of Cardiff, ‘Is not this case a very simple one, in that the government decided that they could not convince a British jury that they had gone to war legally?’

  ‘That is not the case! My honourable friend is entitled to assert it, but I ask the ho
nourable members at some point to believe what I have said.’ Ms Harman acknowledged that her honourable friend might well be mystified by all of this.

  Mr Jeremy Corbyn of Islington enquired as to whether it could be assumed that the government had accepted Katharine Gun’s defence of necessity as overriding her loyalty to her employer, and that it would be reinstating her in the secret service.

  ‘That is a very good question and I am actually going to answer it.’ For a change, some surely thought. ‘The government do not accept the public interest defence, of necessity.’ Yet it dropped the case.

  It was Katharine’s good fortune that the honourable member from Cheltenham, Mr Nigel Jones, had been supportive throughout her ordeal. He had also been helpful in fighting her husband’s deportation. His were the most personal remarks of the day.

  ‘GCHQ is in my constituency, and Katharine Gun is one of my constituents. I have supported her through the recent difficult months, during which she has felt vulnerable, and I felt the relief that she experienced yesterday. Have the government given any thought to compensation for legal costs and any other compensation that it may be appropriate to give Ms Gun to help her rebuild her life?’

  As if! thought many of the learned and honourable gathering. They were told that Katharine could apply for legal costs ‘if so minded’, and the processes would be applied in the usual way.

  The questions did not become easier for the solicitor general; in fact, they became more dangerous. Mr Douglas Hogg, of Sleaford and North Hykeham, asked if she understood that ‘many of us who opposed the war strongly suspect that in the government’s possession are documents that … would have shown the war was unlawful and unnecessary’. Were there hidden documents that rendered the prosecution unable to rebut the defence?