Dec 13, 2008

India - Judicial compensation for legislative weakness

Arvind Sivaramakrishnan

The ineffectuality of parliaments is one of the main problems in several parliamentary democracies today. It was glaringly obvious in the case of Iraq invasion.

Annual lectures at learned societies are not often the venues or vehicles for direct attacks on the actions of governments, but the 2008 Grotius Lecture, delivered by Lord Bingham of Cornhill, the recently-retired senior British Law Lord, at the British Institute of International and Comparative Law in London on November 17, may well come to be seen as a classic of its kind, not least because it also gives rise to a number of very important questions for any democracy.

Lord Bingham was direct and unsparing in his attack on the defining act of Tony Blair’s 10 years as the Prime Minister of the United Kingdom, namely the invasion of Iraq which the United States and the United Kingdom led in March 2003. Adding his own legal weight to the already very substantial and long-standing body of international legal opinion to the effect that the invasion could not be justified under U.N. Security Council Resolution 1441, Lord Bingham said that the British government’s position, which was stated by the then Attorney-General Lord Goldsmith in a written answer to Parliament on March 17, 2003, that Resolution 1441 had been materially breached by Iraq and that the use of force was therefore justified, was ‘flawed in two fundamental respects.’

The first flaw was that there was no hard evidence of such material breaches, of non-compliance by Iraq sufficiently serious to warrant the use of force. The U.N. weapons inspectors led by Hans Blix were only a few months short of the completion of their extensive investigation of Iraq’s alleged stockpile of weapons of mass destruction; they had found none until then, and none have been found since the invasion. The claimed factual grounds for the invasion of Iraq did not exist.

The second fundamental flaw was a legal one, and lay in Lord Goldsmith’s conclusion, in the statement of March 17, 2003, that Resolution 1441 did not require the Security Council to make any further decision to authorise the use of force against Iraq. Goldsmith’s claim for this was that if 1441 had required a further decision, it would have contained such a requirement. This reasoning, Lord Bingham said, ‘simply passes belief.’ It amounts to saying that the Security Council did not need to discuss whether or not Iraq had failed so significantly to comply with the earlier Resolution 678 that force was needed. In effect, Lord Goldsmith had arrogated to his own government both the power to conclude that Iraq had materially failed in respect of 678 and the consequent power to invade. President Bush and the then British Prime Minister Tony Blair had, as one British commentator says, made themselves investigator, prosecutor, judge and jury, all in one.

In any case, it has been known well enough for some years that Bush and Blair had collusively decided several months earlier to invade Iraq, and that they had simply ignored the overwhelming amount of legal opinion to the effect that an invasion would be a breach of international law. That body of opinion made no practical difference, and, as one British newspaper says now, neither has Lord Bingham’s lecture, both because he is no longer a serving judge and because it is highly unlikely that any government will contemplate a repeat performance of the Iraq invasion for a very long time to come. Even in the British domestic context, it is also very unlikely that any prime minister or individual minister will in the foreseeable future perpetrate such a gross breach of the U.K. ministerial code, which requires all British ministers to comply with the law, whether in domestic, international, or treaty forms.

The impact of Lord Bingham’s lecture will indeed be indirect rather than direct. Lord Bingham, who as the senior Law Lord was the closest approximation to a chief justice in the British judicial system, has since his retirement ceased to be a serving judge, but he remains a life member of the upper chamber of the British parliament, the House of Lords, and can therefore continue to debate and vote on legislation and to serve on the appropriate parliamentary committees. Whatever he says on any major public issue will be taken very seriously.

To start with, Lord Bingham’s argument in the Grotius lecture is on very strong ground. Paragraph 1 of Resolution 1441 asserts that Iraq was and remained in breach of its disarmament obligations under the relevant Security Council resolutions, but paragraph 2 affords Iraq ‘a final opportunity to comply’ therewith. It is highly significant that both the U.S. and the U.K. stated in the formal explanations of their respective votes on Resolution 1441 that it involved no ‘automaticity’, no ‘hidden triggers’; the British explanation even says that if there were any ‘further Iraqi breaches of its disarmament obligations’ the matter would return to the Security Council for discussion — as indeed 1441 requires in its own paragraph 12. Furthermore, Lord Goldsmith had himself been equivocal about the legality of an invasion for a year, until he suddenly changed his line in March 2003. Many attribute Goldsmith’s volte-face to pressure from Tony Blair and the U.S. Vice-President Dick Cheney; the British government is also appealing the U.K. Information Commissioner’s ruling on the Cabinet minutes for the relevant period in March 2003.

If Lord Bingham is right, then the only conclusion is that Blair — acting for the United Kingdom — flagrantly broke the law. Blair’s government, by passing new legislation on public inquiries before Blair left office, also ensured that its conduct over Iraq would probably never be fully exposed.

In addition, the fact of Lord Bingham’s attack on the invasion of Iraq exemplifies the importance of a public culture in which public servants and other public officials act on a reasoned commitment to the law, and — in a wider sense — the state. Over Iraq in particular, anxiety about the legality of the invasion permeated all the British armed forces, even to the extent that the then First Sea Lord, the seniormost naval officer, took private legal advice on the matter. The then chief of the defence staff also wanted to be sure that if he were to be charged in the International Criminal Court then the political leaders who ordered the invasion would be charged as well.

This kind of public commitment can serve as a counterweight to a party-dominated and therefore often executive-dominated political process. One of Lord Bingham’s judicial predecessors had — unattributably — told an academic seminar some fifteen years previously that the British senior judiciary were becoming much tougher at judicial review because Parliament was useless as a check on the executive.

The ineffectuality of parliaments is one of the main problems in several parliamentary democracies today, and was glaringly obvious in the case of the Iraq invasion. In the U.K., it is public knowledge that 95 per cent of the then 400-plus Labour MPs in a 659-seat chamber were against the invasion; but in the end only 139 voted against it. All the Labour MPs had been given the – significantly fictitious and now infamous – dossier claiming that Iraq had weapons of mass destruction which could be deployed against the U.K. in 45 minutes, but a substantial proportion of them had not read it. One Labour MP, apparently unaware of what he was revealing about himself, said later that he had trusted Tony Blair ‘implicitly’, and a Blair aide said that even the dossier in question contained enough uncertainties to convince any serious reader that the invasion should not proceed.

Unfortunately, parliamentary ineffectuality is not confined to major events like the Iraq invasion. Neither is it confined to the U.K. alone, where much public criticism has been voiced for some years of the poor quality of legislative debate in the elected chamber, the House of Commons.

It follows that public-service officials often have to step in when legislatures fail to do what they should do. This is a feature of any democracy whether parliamentary or presidential; it is likely to be just as important in the forthcoming months as it was over Iraq, because President-elect Obama and the British Prime Minister Gordon Brown plan an intensification of military activities in an even more intractable series of conflicts than those in Iraq, namely those in Afghanistan. Mr Obama and Mr Brown will almost certainly look for other states in the region to assist them, and if the elected assemblies in South Asia do not perform their constitutional duty of scrutinising their respective governments’ responses thoroughly then unelected public servants will have to perform that duty instead.

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