UK Military Action in Iraq: Declassified Documents

Robert Courts Excerpts

Wednesday 13th December 2023 Westminster Hall

[The Solicitor General (Robert Courts)]

It is a great honour and pleasure to serve under your chairmanship this evening, Mr Dowd. I thank hon. Members and right hon. Members who have been kind enough to welcome me to my role. I look forward to working with them on this issue and many others, and to serving the House in this role. The hon. Member for Kingston upon Hull East (Karl Turner) and I know each other well from maritime matters already, and I am confident that we will have, as ever, the constructive relationship that the House would expect.

May I start by also extending my commiserations to all those who have been affected—families, friends, British personnel and civilians? We deal with enormously sensitive and tragic historic matters here, and while we will talk about some of the detail of disclosure matters and decisions that were taken, we should never lose sight of the fact that, at the beginning and end of the story, are people whose lives have been irrecoverably changed, and in some cases ended. I know that the House will join me in recognising that.

The hon. Member for Kirkcaldy and Cowdenbeath (Neale Hanvey) secured this debate to discuss the declassification of documents arising from UK military action in Iraq in 1998, and indeed the action itself. He has opened a number of matters before us regarding the merits of that action. Of course, I have to start by saying at the outset that these are historic matters that have been subject to exhaustive and detailed examination in other places, as he will know and to which I refer him. These were matters for many Administrations ago, and not ones that this Government can comment on in the merits. Today, I would like to deal with some of the issues around the disclosure of the documents, which are things that I, as Solicitor General, can comment on. I hope to be able to offer some constructive comments there, and then invite the hon. Gentleman to assist me in some other areas.

I would like to deal with some of the process of the declassification of historic records and to discuss the convention relating to Law Officer advice, which is relatively understood but departed from in some circumstances, such as the ones that the hon. Gentleman has mentioned. I will also mention some of the changes that have been made post Chilcot. Of course, Chilcot’s terms of reference did not include the area that the hon. Gentleman specifically refers to today; none the less, coming afterwards there were some changes in the way that Parliament and Government approach those matters, and I will address some of them today.

In relation to UK military action in Iraq in 1998, certain documents, including advice from Law Officers, have been declassified and released to the National Archives. I understand that the hon. Member has shared a link with the Department, which covered some documents that he wanted to discuss today. My understanding is that those particular documents have in fact now been declassified and are now open for public review—I think that is the case and I am grateful to him for confirming it. The catalogue goes through an updated process, and I think that is the position with those documents now.

The hon. Gentleman asked me to comment on why some specific documents were not available. I apologise that I am not able to give him the answer to that right now, but if he were to write to me and draw my attention to the specific documents he referred to, I will be able to give him an answer and either point him to where they are or give him an explanation of why I cannot. Of course, it is for the Cabinet Office, rather than the Attorney General’s Office, to take a view on whether documents should be disclosed, and whether in full or with redactions for any reason. I make that request and offer at the outset; I hope to be able to give him some assistance.

I will make some comments on the framework for disclosure, which may be of assistance. The Public Records Act 1958 placed Government Departments under an obligation to identify public records with historic value and to make arrangements for their permanent preservation. It imposed a duty to open these records after the passage of 50 years. That 50-year rule was reduced to 30 years by the Public Records Act 1967 and further reduced to 20 years by the Constitutional Reform and Governance Act 2010. Departments may retain records, subject to the approval of the Secretary of State for Culture, Media and Sport, and the Freedom of Information Act 2000 placed a duty on Departments to justify whether records transferred to the National Archives should remain closed to the public. However, the general rule is that material that is 20 years old becomes public records.

There have been a number of bespoke bodies responsible for the physical housing of this material, but since 2008 it has been the National Archives. As I have mentioned, there is a framework based on the exemptions for disclosure. That is contained in the Freedom of Information Act 2000 and determines whether material transferred to the National Archives should be open to the public.

There are several exemptions that are not time-limited. Those include: national security; defence; international relations, or information provided in confidence by other states or international organisations or courts; the economy; criminal investigations; parliamentary privilege; health and safety; and environmental information. A number of those exemptions will require the Department that owns the information to carry out a balancing exercise as to whether it is in the public interest to disclose that material. That requires consultation across Whitehall and other bodies, and the outcome of that test is subject to the approval of the Secretary of State for Culture, Media and Sport, who is advised by the Advisory Council on National Records and Archives.

There is a separate scheme—the security and intelligence instrument—which is approved by the Secretary of State for Culture, Media and Sport and which governs information relating to the security and intelligence agencies. That information is retained in the relevant Departments, and information retained by way of the instrument has to be re-reviewed every 10 years. Regardless of how retentions or disclosures are made, anyone is able to challenge such disclosures or retentions by submitting a freedom of information request to the National Archives for closed material or to the originating Department for retained material. I hope that has been helpful to the House with regard to the procedure for the disclosure of such records and gives an overview of the position.

The second point that I would like to spend a minute or two on is the Law Officers’ convention; I know that the House will be familiar with it, but it is worth rehearsing in a little bit of detail. Some of the aspects that the hon. Member for Kirkcaldy and Cowdenbeath has been speaking about do indeed refer to legal advice that was given at the time, or even to the advice of the Law Officers. In this case, some of that material, as he knows, is available in the National Archives.

As a general rule, there are clear and well-understood reasons for not disclosing legal advice, and there are specific considerations around advice that is given to the Government by Law Officers. They may not be relevant to the context or background of this debate—which is about a historic matter and in any event that advice has been published—but, simply for completeness, it is usual practice that advice given by Law Officers and the advice that has been sought, or indeed the fact that advice has been sought, is not disclosed. That is the Law Officers’ convention and that is reflected in the ministerial code. The fact that Law Officers have or have not advised must not be disclosed outside Government without their authority.

It is only in narrow circumstances that that convention has been waived, and that has been with the consent of the Law Officers. As the hon. Gentleman knows, perhaps the clearest example was the legal basis for the invasion of Iraq in 2003. I know that the House will understand that the very clear reason for the convention is that, as with any client-lawyer relationship, it is to enable the Government to seek legal advice in private without fear of adverse inferences being drawn from the content of the advice or indeed from the fact that advice has been sought in the first place. It means that the Government are not discouraged from seeking advice in certain cases, or pressured to seek advice in inappropriate cases, and it protects that relationship, as with any client-lawyer relationship.

The third point that I will spend a few moments talking about, before I leave some time for the hon. Gentleman to respond, is on Chilcot. There have been a number of changes after Chilcot, which of course was a major inquiry after the 2003 invasion. Operation Desert Fox is outside the scope of the Chilcot terms of reference, but the report does cover the use of military force by the UK and US in Iraq in 1998, including documentary evidence and witness testimony, so some matters can be dealt with in there. If the hon. Gentleman will forgive me, I will not go into the details that were discovered in terms of the merits, but there have been a number of changes since. There is a Chilcot checklist to support decision making, the National Security Council was established to help with the decision-making process, and Law Officers have to be consulted in good time. There are a number of ways in which the situation has changed since the time he talked about.

The hon. Member for Tiverton and Honiton (Richard Foord) asked me about the Cabinet manual. A convention has developed that before troops are committed, the Commons is given the opportunity to debate the matter, which the Government have acknowledged in the past. Although the general convention remains as it is, there has been some amendment of points since then.

I apologise for running over slightly, Mr Dowd. I want to leave the hon. Member for Kirkcaldy and Cowdenbeath some time to respond, but I hope I have dealt with the questions he wanted me to; he can of course come back to me if not.

[Peter Dowd (in the Chair)]

The hon. Gentleman has 30 seconds if he wishes.

Oral Answers to Questions

Robert Courts Excerpts

Wednesday 1st February 2023 Commons Chamber

[The Attorney General]

I am not going to comment on specific cases—the right hon. Lady will understand why that is the case. I think the ministerial code allows for a certain level of wiggle room on that particular area. It is clear that when proceedings have already commenced, it is essential to ask the Law Officers’ opinion on those proceedings. However, I think she and I both know that it is not always clear at the beginning of a series of letters, which may or may not lead to proceedings, when that moment should be. I would always caution—as I am sure she would—that it would be good to involve the Law Officers at an early stage of proceedings, but I cannot comment on specific cases and whether or not that was done.

[Robert Courts (Witney) (Con)]

4. What steps she has taken to support Ukraine’s judiciary in their conduct of war crimes trials.

[The Attorney General (Victoria Prentis)]

I thank my constituency neighbour for his question. This Government firmly believe in international accountability. Ukraine’s judiciary should be congratulated on prosecuting war crimes right now, in real time, during a brutal conflict. On Monday I met a delegation of Ukrainian judges in this building and heard how they are approaching this monumental task. They are grateful for our practical support, including an extensive training programme led by Sir Howard Morrison.

[Robert Courts]

What assessment has the Attorney General made of the international community’s progress in bringing Russian leadership to trial for the crime of aggression in Ukraine?

[The Attorney General]

The crime of aggression is one of the most significant in international criminal law. At Ukraine’s invitation, we have joined a core group of states to discuss the establishment of a bespoke tribunal. We are absolutely determined to play a leading role in ensuring international accountability for Russia’s actions.

Oral Answers to Questions

Robert Courts Excerpts

Thursday 13th February 2020 Commons Chamber

The Minister of State was asked—

[Robert Courts (Witney) (Con)]

1. What steps his Department is taking to help support the roll-out of (a) full-fibre and (b) gigabit-capable broadband to homes and businesses throughout the UK by 2025.

[Gagan Mohindra (South West Hertfordshire) (Con)]

3. What steps his Department is taking to help support the roll-out of (a) full-fibre and (b) gigabit-capable broadband to homes and businesses throughout the UK by 2025.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Matt Warman)]

Gigabit broadband roll-out is accelerating, and as a result of the steps that the Government are taking, full-fibre coverage has doubled in the past year. We have introduced legislation to make it easier for operators to deploy broadband in blocks of flats and will legislate to mandate gigabit connectivity in new builds, while providing £5 billion of funding to support the roll-out in hard-to-reach areas.

[Robert Courts]

I was delighted when this one nation Government announced a £5 billion package to roll out broadband to the hardest-to-reach areas, but can the Minister tell us when we will see that money being put into action, so that places such as west Oxfordshire can benefit?

[Matt Warman]

As my hon. Friend knows, through our rural gigabit connectivity programme we are already putting £200 million into some of the hardest-to-reach places, not least in west Oxfordshire. The £5 billion of funding, which we will talk about in much greater detail in the Budget and beyond, will see us work with local authorities, particularly in areas such as west Oxfordshire, to get this broadband rolled out there as quickly as possible.

Withdrawal Agreement: Legal Opinion

Robert Courts Excerpts

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

I am not convinced that I fully understood the question, perhaps because I did it too much justice and thought it might be a sensible one. The truth is that I doubt I agree with it.

[Robert Courts (Witney) (Con)]

May I place on the record at the outset that, whatever one may think of the issues at stake, the integrity and honesty of the Attorney General are absolutely above question? I commend him for his approach. Much of this agreement requires consideration of the concept of bad faith, so will he please outline what circumstances would constitute bad faith and how the UK might prove them, bearing in mind that, as he will know, international arbitrators are loth to find that a sovereign state such as the UK or a respected body such as the EU have acted in bad faith? Is it not the case that, were the EU to continue to propose ideas that were in good faith but unacceptable to the UK, such as a customs union, these proposals would not assist us?

Withdrawal Agreement: Legal Position

Robert Courts Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

I am very sorry the hon. Member feels that. If I have expressed myself intemperately it is simply because of the questions that I have been asked. I am trying to convey, obviously unsuccessfully, the fact that I am here to justify or to seek to defend this position only because I believe in the public interest. That is the reason why I am saying what I am saying. On all points of law on which I have been asked, I have given my best judgment, my fullest judgment and my starkest judgment about what the situation truly is—as I would give to anybody, including the Government. I assure him that that is the case. That is the complete and full truth. I have given, absolutely candidly, the legal views that I hold on this matter.

[Robert Courts (Witney) (Con)]

I am very grateful for the Attorney General’s indication that article 50 does not provide a legal basis in Union law for permanent future arrangements. Will he give his view on the concern that it might none the less be a basis for arrangements that prove to be indefinite?

[The Attorney General]

No, I do not believe that that is the case. Once it became de facto the subsisting and permanent arrangement, in that there was no prospect of agreement because negotiations had broken down, it would be severely vulnerable to challenge, because it is widely understood that article 50 cannot be a proper basis for any sort of permanent or enduring arrangement. The fact of the matter is that it would be extremely vulnerable to legal challenge.