The special responsibility of government lawyers and the Iraq inquiry

The United Kingdom House of Commons endorsed the decision to invade and occupy Iraq on 18 March 2003. That morning, Elizabeth Wilmshurst—a deputy legal adviser at the Foreign and Commonwealth Office (FCO)—requested early retirement after almost 30 years of public service, because she regarded the intervention as unlawful without a United Nations Security Council resolution explicitly authorising the use of force. Despite her well-received testimony before the Iraq Inquiry, the Report of the Inquiry left the story of Wilmshurst’s departure on the cutting room floor. With her decision to speak law to power erased from the official record, international law’s heroine had been reduced to a bit part. The absence of discussion of Wilmshurst’s departure in the Report is emblematic of the Inquiry’s limited coverage of the role of government lawyers in foreign ministries who advise on international law. In particular, the Report did not express a view on the government lawyer’s so-called ‘special responsibility’, a conception of the advisory function introduced by FCO legal advisers during the Inquiry hearings. This article examines the scope of the government legal adviser’s special responsibility, discussing the manner in which such a responsibility might be discharged before and after policy decision-making on the use of force. The argument proceeds as follows. Section II canvasses the Report’s restricted treatment of the FCO legal adviser’s responsibilities, compared to its in-depth analysis of the role of the Attorney General. Section III considers an issue that the Report does not explore, and that advisers themselves relegate to the domain of individual conscience: the options available to an adviser after a policy decision is made, where their advice has not been accepted. Section IV asserts that the adviser’s choice to either remain in post or resign in protest conditions their subsequent involvement in legal explanation for the use of force, with a direct bearing on the continued operation of their special responsibility. In an effort to ‘make sense of inquiry sensemaking’, Section V concludes by arguing that the lessons stipulated in the Report support a conception of the adviser’s special responsibility that is exercisable rather than extinguished after a policy decision is reached