Intro: Philippe Sands, QC, queries confidential guidance that left Sir John Chilcot unable to rule on legality of 2003 invasion

Baghdad under attack at the start of the Iraq war in 2003.

THE BRITISH GOVERNMENT is refusing to release confidential advice Whitehall officials gave to Gordon Brown about the remit and scope of the Iraq inquiry. This made it impossible for Sir John Chilcot to rule on whether the invasion of Iraq in 2003 was illegal.

The refusal to issue the advice given flies in the face of an information tribunal ruling which has ordered that the material be released. It means the public cannot see what options were considered when deciding on the nature and breadth of the inquiry when it was established in 2009.

The Chilcot inquiry has expressed grave doubts about the war’s legality, but the inquiry, a privy council committee headed by Chilcot, was only charged with learning lessons from the disastrous invasion and was not able to declare whether the war was illegal.

This conclusion would have been available to a judge-led inquiry, a decision that could have been used by those calling for the prosecution of government ministers and officials.

“The Chilcot inquiry’s treatment of the legality of the war is curious,” said Philippe Sands QC, an expert on international law and director of the centre on international courts and tribunals at University College London.

“It claims not to have addressed legality, yet concludes that the UK has undermined the authority of the security council, found that ‘the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory’, and obtained 37 independent submissions which point overwhelmingly to the manifest illegality of the war.

“The facts it has found, working diligently over many years, raise the most serious concerns, suggesting negligence, recklessness and possibly even criminality, in circumstances in which more than 150,000 people have died and more than a million displaced.

“We are entitled to know who took the decision to turn the inquiry away from matters of legal responsibility, and why.”

Existence of the advice has emerged from a freedom of information request by a member of the public, whose previous requests to see minutes from two pre-Iraq war cabinet meetings were vetoed by successive governments. That person thought it important to place in the public domain information relating to the setting up of the inquiry, what sort of inquiry it should be, how the panel was selected, how the remit was decided upon and whether there would be supporting legal counsel. Such information would have allowed an evaluation on how effective, or honest, the assurances given to parliament by Gordon Brown in the summer of 2009 were. It would also have offered assurances that the inquiry would be completely independent of government and operate impartially and objectively.

The request was for the disclosure “of all information held by the Cabinet Office relating to how the selection criteria used in recruiting the individual members of the Iraq inquiry panel was decided upon” and “disclosure of information regarding the remit of the inquiry”.

The submission said “there was a public interest in disclosing information that revealed why a decision had been taken not to employ legal counsel for the inquiry or to include a practising lawyer on the panel”.

The information commissioner ruled against disclosure, arguing that it would “very likely … result in a significant and notable chilling effect on the way in which officials advise ministers on matters of similar importance in the future.

“This is because the information … comprises a detailed and candid examination of the various issues and options associated with the establishment of the inquiry.”

This argument was rejected in May by Judge Peter Lane after an appeal to the information tribunal. However, the Cabinet Office has declined to cooperate, saying it has until 30 July to decide if it will appeal the ruling.

A government spokesperson said: “The Cabinet Office is considering the tribunal’s decision and will respond in due course.”

Several theories have emerged as to why the Cabinet Office was fighting disclosure. One reason could be that there is material which would show that the Chilcot inquiry was not founded on ‘independence’ and impartiality.

Another could be that the senior civil service will fight tooth and nail to keep these spaces in which advice is given on policy formulation as being part of their own protected areas of work.

A further reason could be that they are stringing it out until the most favourable time exists to use the ministerial veto.