Rt Hon Lord Lilley

    Dramatic events often bring long submerged problems to the surface. The Iraq war and subsequent failure to find weapons of mass destruction highlight issues about scrutiny and accountability in three areas: Who is to be held responsible for bad advice? How can Parliament better scrutinise complex material? And should Law Officers be more accountable?

    The key question in politics is always “Who? Whom?” said Lenin. And the key question post Iraq is “who misled whom?” about the existence of weapons of mass destruction. Either the Government misled the public or it was itself misled by erroneous intelligence assessments. The presumption is that if the government is exonerated from deliberately misleading us then it is off the hook.

    Yet the traditional doctrine of accountability in this country has always been that ministers are responsible for everything they do including for the advice they take. Even before Iraq this government seemed to be developing a new doctrine which involves fingering officials – as in the Byers/ Sixsmith affair. Now the Joint Intelligence Committee, having been invoked to justify the war, are left to carry the can for failure to find the casus belli. In effect the new approach is to say that if advice proves flawed the adviser is to blame: if all goes well ministers will take the credit.

    At first sight the traditional doctrine seems pretty unrealistic. If ministers are being fed duff advice or erroneous information by civil servants what is gained by changing the minister and leaving unreliable officials in place?

    But the old doctrine does make sense. Ministers should not just be passive recipients of advice served up by the civil service machine. They should be constantly trying to evaluate that advice. They can cross question. They should make themselves aware of their officials’ prejudices (all of us have prejudices). Above all they should be aware of, and make allowance for, the systemic bias of each department or unit advising them.

    Every department has its own departmental view or vested interest. That is as true of the Intelligence services as of any other department.

    I got a clear whiff of this from my first contact with them. Shortly after becoming a junior treasury minister a mysterious appointment appeared in my diary with a Mr X – provenance and purpose unstated. My private office could only tell me that he was from “the Agencies”. It turned out that he had come to tell me that ‘despite the collapse of communism, the world remained a very dangerous place full of threats to British interests – communism had been replaced by terrorism, rogue states, militant Islam and potentially devastating weapons. Old threats had been replaced by new ones which were if anything more sinister and difficult to combat though the Agencies were ceaselessly battling against them’. Then he left. When my private secretary discretely asked what it had been about it suddenly dawned on me: this had simply been a departmental expenditure bid. The agencies felt vulnerable to spending cuts.

    Ever since the collapse of communism the intelligence services (in all western countries) have had to justify their role. Like every other department they have to emphasise the importance of their task and the seriousness of the problems they have to tackle. Threats which seemed secondary when the USSR was threatening to bury us are now portrayed as of supreme importance.

    There is a law of institutional behaviour that organisations whose original roles disappear or diminish do not volunteer to fade away. They find new roles or discover that existing remits have suddenly become more important. For centuries the Customs and Excise existed primarily to collect tariffs on imports. Once we joined the Common Market half our imports became tariff free and successive GATT rounds cut tariff rates on the remainder by nine tenths. At which point Customs and Excise realised the crucial role Customs officers could play in the War on Drugs. As the Cold War ended the War on Terrorism began. Such coincidences abound.

    I am not for a moment suggesting that the problems of terrorism and weapons of mass destruction do not exist. Still less am I suggesting that the intelligence agencies will falsify information or deliberately distort assessments. In my experience British public servants strive to be scrupulously honest. But it is ultimately for elected ministers to put threats in perspective. In doing so they must be aware of the vested interests of the departments with whom they are dealing. In dealing with evidence about the Iraqi threat ministers should have been aware that the intelligence services would not be understating it. They should have probed and questioned about what was based on direct intelligence, what was based on deduction and assessment, and how reliable sources were.

    Critical scepticism is healthy, indeed essential. In my observation most problems in government arise, not where there is friction between ministers and officials, but where they share enthusiasm for a project. I suspect that the problems of the Child Support Agency were not foreseen because officials shared ministers’ commitment to make absent fathers pay.

    On the far more serious issue of the threat posed by Iraq it seems that the Prime Minister wanted to hear the very message that the security forces wanted to convey to him. Neither was in the business of asking whether the evidence fully justified the assessment made. No one wanted to say that the emperor has no WMD.

    It was up to Parliament and the fourth estate to hold ministers to account. In this case that was made easier as the government published an account of the intelligence information available to it as well as the UN inspector’s report.

    They merited closer reading than they received. Civil servants would never falsify information but they are willing to leave false impressions intact. So what they do not say can be as revealing as what they do say. I was struck by the complete absence of any claim to current intelligence directly confirming Iraq’s possession of chemical and biological weapons. We can be pretty confident that if they had such direct intelligence (e.g. from a deserter, informer, phone tap or radio intercept of someone with personal knowledge of these WMD) they would have referred to it. Rather than referring to biological and chemical “weapons” the main conclusions refer to “capabilities”. On biological “The JIC concluded that Iraq had sufficient expertise, equipment and material to produce biological warfare agents within weeks using its legitimate bio-technology facilities”. [Did anyone pickup the word “legitimate”?] On chemicals “the JIC assessed that Iraq retained some chemical warfare agents, precursors ….. These stocks would enable Iraq to produce significant quantities of mustard gas within weeks and of nerve agent within months. Overall the JIC concluded “These chemical and biological capabilities represented the most immediate threat from Iraqi weapons of mass destruction”.

    In short “the most immediate threat” would take weeks or months to manufacture. The embarrassing implication of this was that Iraq probably did not possess currently useable WMD. Hence the repeated references to intelligence that Iraq could deploy chemical and biological weapons within 45 minutes. That was a way of allowing the reader to conclude that he must have them without the need to assert something for which they had so little evidence.

    One reason these signals were not picked up is the way Parliament and the media can be bounced into comment on complex documents before they have time to read them. That was successfully exploited by Jack Straw when he deployed Hans Blix’ final report to allay scepticism about the existence of WMD. He told Parliament that the report “sets out, in 173 pages of painstaking detail, the terrible nature of the weapons Saddam has sought with such determination to develop.” He urged us to read the whole document and promised to put copies in the Commons library. He then gave one illustration of what it contained…“the inspectors found evidence of anthrax where Iraq had said there was none”. The clear impression was given that at last these inspectors had found current evidence that Saddam possessed anthrax. In fact the document revealed that the discovery of these traces of anthrax was made way back in 1996 by the previous team of inspectors. The Foreign Office had clearly judged correctly that no one would check since only one copy of the report, which could neither be copied nor removed, was placed in the Commons library. I was only able to obtain one to peruse in my room by raising a point of order. I was struck by the absence – as in the government’s dossier – of references to current evidence of the existence of WMDs. So far as I know, no journalist checked Straw’s illustration against the document. The single most valuable reform of Parliament would be to insist that government statements are made available to all MPs (if need be in a closed reading room) an hour or two before any statement.

    Given time to read the published information anyone could easily conclude, as I did, that Iraq probably had few if any useable weapons of mass destruction. Equally they would have to conclude that Saddam had past form, current intent and future capability to acquire them.

    Arguably there was a case for war to pre-empt such as risk by removing the regime which in any case was a tyranny. Those were the grounds on which, albeit with a heavy heart and some reservations, I voted for war conscious that there were probably no WMD.

    The government’s subsequent problem springs from the fact that they presented the war as a war of disarmament to remove the alleged WMD which constituted a “current and serious threat”. This was partly because they thought presenting it as a war of disarmament (rather than for regime change) would maximise support from Labour backbenchers – many of them veterans of CND.

    By all accounts there were also legal constraints arising from the Law Officers’ opinions. This raises the issue of the power and lack of scrutiny of the Law Officers. Their role is little known but of increasing significance.

    When I was in the Cabinet, once the Law Officers had given their opinion on the legality of any action, it was binding. Although Law Officers’ opinions were never published we would not even consider pursuing a policy which they had opined would infringe British, European or International law. Presumably the same is true under this government. If it were ever revealed that ministers had done something their own Law Officers considered to be illegal their position would be untenable. However, ministers were extremely reluctant to seek formal opinions from the Law Officers. This perplexed me at first since in business we always took legal advice if we had any doubt about the legality of some proposal. The explanation is that where the law, particularly International law, impinges on government the law is often pretty subjective. Yet once the Law Officers have opined their subjective assessment must be treated as objective truth. This gives the Law Officers great power.

    Unusually, the Attorney General’s conclusions on the legality of war with Iraq were published. But his full opinion was not. It is reported to have said that war to change the regime would be illegal. To a layman this is contentious. Anglo-American air forces have effectively changed the regime in the Kurdish areas. If it is legal to change the regime in a third of a country, why not the rest?

    Even lay arguments can influence a Law Officer’s opinion. On one occasion I was informed that the Attorney was “minded to opine” that a policy I was proposing to announce was contrary to international law. I asked to discuss this with him privately and, to the amazement of my officials, my proposal was duly declared to be compatible with the law.

    Where issues of defence, security and international relations are concerned it is even more important that, while behaving lawfully, Britain is not rigidly constrained by one lawyer’s necessarily subjective assessment of such a fluid concept as International Law. At very least, Cabinet ministers should recognise their subjective nature. Maybe Law Officers should be invited to indicate the range of different interpretations without plumping for one view. Possibly a lesser official could be asked to give a preliminary view which could be discussed with relevant ministers – or even published – before the Law Officers give their view just as the Advocate-General offers his assessment of the European Court before the judges rule.