Blair saw legal caveats a year before invasion

The advice to Tony Blair was stark. "A legal justification for invasion would be needed," said an options paper drawn up for him by the Cabinet Office. "Subject to Law Officers' advice, none currently exists."

The advice to Tony Blair was stark. "A legal justification for invasion would be needed," said an options paper drawn up for him by the Cabinet Office. "Subject to Law Officers' advice, none currently exists."

The date of the memo was 8 March 2002. Its discussion of the legality of war in Iraq, revealed for the first time today in The Independent on Sunday, sheds new light on the full legal advice of the Attorney General, Lord Goldsmith, which the Government was finally forced to publish amid huge controversy last week.

A few weeks before the Cabinet Office drew up its paper, President George Bush had unveiled the concept of the "axis of evil" in his State of the Union speech, announcing that after the expulsion of al-Qa'ida from Afghanistan, America had a new score to settle: with Saddam Hussein in Iraq. Mr Blair was due to travel to Texas the following month to meet Mr Bush at his ranch in Crawford, and Britain was struggling to work out its approach to the new American agenda.

Three years on, the Cabinet Office paper's view of the "options for regime change" look naive, seeing only two possibilities - a Sunni military strongman in the Saddam mould, or a broadly democratic government which would be "Sunni-dominated", while giving the Shias "fair access to government". The present structure, dominated by Shia and Kurdish Iraqis, with Sunnis only patchily represented, was not envisaged.

When this document was leaked last September, attention rightly focused on its discussion of regime change and the need to step up the pressure on Saddam through tighter sanctions and a military build-up, while working to gather international support and "sensitise" the public through a media campaign. But a previously unseen attachment, written by the Foreign Office's legal advisers, demonstrates that the Prime Minister was warned in detail, more than a year before the war in Iraq, that there was no legal basis for an invasion.

Not only that: since publication of the 13-page legal opinion delivered by Lord Goldsmith on 7 March 2003, less than a fortnight before war began, it has become clear that he drew directly from the Foreign Office document of a year earlier. Discussing the question of who can decide whether Iraq has violated the 1991 ceasefire terms set out in UN Resolution 687, both say the US is alone in arguing that individual states can make such a decision, rather than the Security Council.

"We are not aware of any other state which supports this view," says the Foreign Office note, dated 8 March 2002. "I am not aware of any other state which supports this view," says the Attorney General, 364 days later. This near unanimity was not to last.

One of the authors of the Foreign Office document was Elizabeth Wilmshurst, the department's deputy legal adviser. Quitting abruptly on the eve of war, she said in her resignation letter that Lord Goldsmith had "given us to understand" that he shared her team's view of the legal position: resolution 1441, passed by the Security Council in November 2002, did not give authority for an invasion of Iraq; it needed another vote.

The first inkling Ms Wilmshurst got of any change in the Attorney General's view was in his 7 March paper, which began to argue that resolution 1441 might be enough in itself. But it was far from clear-cut, saying "a reasonable case can be made" that resolution 1441 "is capable in principle" of reviving the right to use force without another resolution. But the argument might well not succeed if it came before a court; "the language of resolution 1441 leaves the position unclear".

This uncertainty had disappeared 10 days later when Lord Goldsmith issued a terse statement saying "it is plain" Iraq was in "material breach" of 1441 and earlier UN resolutions, and that war was justified. This reassured military commanders that their troops would not be prosecuted for war crimes, and convinced wavering Labour backbenchers and the majority of the Cabinet who had not seen his earlier advice that they could vote for war with a clear conscience the next day.

The same day, Ms Wilms-hurst left the Foreign Office after nearly 30 years as a member of its legal team. Not only did she call the war a "crime of aggression", she made plain her view that Lord Goldsmith had buckled under pressure. Having already retreated from his previous legal position, she wrote, his view "has of course changed again into what is now the official line". He had fallen into step with the US.

The Foreign Secretary, Jack Straw, argued in the Commons last month that the Attorney General had changed his view because the circumstances changed. He relied upon the claim, always disputed in Paris, that the French had threatened to veto any second UN resolution. But the publication of Lord Goldsmith's detailed advice last week demolished that argument, saying: "There are no grounds for arguing that an 'unreasonable veto' would entitle us to proceed ..."

The Government has since fallen back on another claim: that Saddam failed the "six tests" proposed by Britain just before the war. But since these required him, among other things, to admit he had concealed weapons of mass destruction and surrender "mobile chemical and biological production facilities" which never existed, the argument is equally specious.

On one point there has been no equivocation: Lord Goldsmith insisted on 7 March 2003, as the Foreign Office paper had the previous March, that "regime change cannot be the basis of military action". Only a week after hostilities began, the journalist John Kampfner discovered, he was anxious enough about the legal position to issue another legal memo.

On 26 March 2003 he warned that any military action must be "limited to what is necessary to achieve the objectives" of the 1990 UN resolution, "namely Iraqi disarmament ... The Government has concluded that the removal of the current Iraqi regime from power is necessary to secure disarmament, but the longer the occupation of Iraq continues, and the more the tasks undertaken by an interim administration depart from the main objective, the more difficult it will be to justify the lawfulness of the occupation." Lord Goldsmith's uneasiness is all too evident.

For Mr Blair to argue that he was not aware of any ambiguity, he would have had to ignore not only the Attorney General's numerous submissions of March 2003, not only the options paper of a year earlier, but most of what was said at a crucial meeting in July 2002. At this, according to Philippe Sands QC in his recent book Lawless World, the Prime Minister, Lord Goldsmith and ministers "considered the legal issues", including the paper prepared by Ms Wilmshurst and colleagues months earlier.

In eight pages of dry legal language, the document questions whether a UN resolution more than a decade old can still authorise the use of force, saying previous use of it in 1998 "was controversial anyway; many of our partners did not think the legal basis was sufficient ..." Self-defence and humanitarian intervention are given equally short shrift. It is made clear that the legal basis for the "no-fly zones" over Iraq, later used as cover for a bombing campaign to destroy Saddam's air defences before the war, was highly contentious.

Despite all these warnings, and the reservations contained in other leaked documents from the same period, President Bush already had reason to believe, as he awaited Mr Blair's arrival at Crawford in April 2002, that his guest was on side. A joint press call proved it. "I explained to the Prime Minister that the policy of my government is the removal of Saddam," said Mr Bush. Though Mr Blair would not utter the words "regime change", he responded: "Asking the question, would the region, the world, and not least the ordinary Iraqi people be better off without the regime of Saddam Hussein, the only answer anyone could give to that question would be yes." But he insisted that all options remained open, at such length that Mr Bush added: "Maybe I should be a little less direct and be a little more nuanced, and say we support regime change."

What appeared to resonate more with Mr Blair than the cautious words of his advisers was Mr Bush's rhetoric: "History has called us into action," the President said. "This Prime Minister doesn't need a poll or focus group to convince him the difference between right and wrong. It's refreshing to see leaders speak with moral clarity when it comes to the defence of freedom."

By the end of this meeting, it was on record that Britain had followed the US in switching its priorities from the war against terrorism to one on Saddam and Iraq. Any thought of nuances, legal or otherwise, began to fade as the facts were adjusted to fit the cause. Only now, in the final week of an election campaign which has battered the reputations of both Mr Blair and his Attorney General, is reality beginning to bite back.

THE IRAQ FACTOR

THE SERVICE FAMILIES

Rose Gentle, mother of Fusilier Gordon Gentle, killed on 28 June 2004, and election candidate against armed forces minister Adam Ingram

I'm really angryabout it. This document says our boys could get punished by the courts for killing people. Blair should be punished.

Reg Keys, father of Lance Corporal Thomas Keys, killed on 24 June 2003, and election candidate against Tony Blair

It just underlines all I have believed. There was no legal authority in that document to go to war, and there are so many caveats in there. It's just damning.

Tony Maddison, father of Marine Christopher Maddison, killed on 30 March 2003

When Chris was going to war, I believed what the Prime Minister was telling us. I'm very saddened now, and angry. Over the past few days, it has become more and more clear we were lied to.

John Miller, father of RMP Corporal Simon Miller, killed on 24 June 2003

What stands out for me is it says the UN must pass a resolution for war. So what authority did Blair and Bush have to say that Iraq had broken those resolutions and decide on war?

Rob Kelly, father of Private Andrew Kelly, 3 Para, killed on 6 May 2003

Many people with common sense wouldn't have taken a decision to go to war based on such sketchy advice - it's too important, to commit a country to so much loss of life.

Ann and George Lawrence, parents of Lieutenant Marc Lawrence RN, killed on 22 March 2003

Mr Blair comments that his conscience is clear. If Mr Blair's conscience is clear, why withhold the Attorney General's advice until a leak forced him to make it public?