The inquiry into the Iraq invasion which began last week in London is essential. But it should have started earlier, it should have been structured differently and – crucially – it should have begun by addressing the legality of the war.

The overriding issue is the legality of the war. This is a pure question of law. Why cannot this issue be explored in public, and before the next election? It could easily be explored and decided in public within three or four days.

Good sense and convenience point to it being the very first question to be addressed. Sir John Chilcot, chairman of the inquiry, has observed that he does not exclude an interim report, but that it is not likely. He should reconsider. There is no reason grounded in the public interest to avoid considering and ruling on the legality of the Iraq war now or very soon. The public interest favours transparency now, avoiding the issue being kicked into the long grass for party political reasons until after the election.

I would expect the inquiry to conclude – in agreement with Kofi Annan, former secretary-general of the United Nations – that in the absence of a second UN resolution authorising invasion, it was illegal.

Even if, contrary to my view, the inquiry were to conclude the invasion of Iraq was legal in accordance with international law, it remains one of the greatest foreign policy disasters in British history, exceeding in the gravity of its consequences the Suez affair.

This is not the view of Gordon Brown. Nowhere in his statement to parliament announcing the inquiry was there any explicit recognition that arguably the government may have acted contrary to established international law. But the prime minister did say about Iraq: “Thanks to our efforts and those of our allies, over six difficult years a young democracy has replaced a vicious 30-year dictatorship.”

This gets close to our country congratulating itself on our greatest foreign policy debacle.

The invasion of Iraq has had, and will continue to have, grave consequences for the peace and security of the region and the world. It weakened international institutions. It fractured the international rule of law. It encouraged disrespect for the law by authoritarian regimes who copied the words and examples of George W. Bush and Tony Blair. Torture became ever more widespread. Rendition, a fancy word for kidnapping, became institutionalised as a form of torture by proxy in odious regimes.

No protest by the UK government is recorded. After all, Mr Blair proclaimed that the rules of the game had changed, by which he meant the international rules of law. This is the aspect of the war on terror that the government does not want us to know about. But history will not be neutered. Slowly the facts are emerging.

Had the inquiry been structured as the prime minister envisaged when he announced it in June, it would not have helped make the facts public.

Mr Brown initially tried to arrange a secret inquiry on the spurious grounds that it would ensure the evidence of serving and former ministers would be “as full and candid as possible”. The prime minister’s attempt was blocked by public opposition. He also failed to the extent that he tried to prevent any criticism by the inquiry of the cabinet. The prime minister’s wishes prevailed in part, with evidence not being given on oath. The public will draw its own inference as to why those who committed us to the Iraq war wish to avoid giving evidence under oath. The importance of this point is heightened by the fact that at the inquiry there will be no cross-examination of witnesses.

Contrary to the even-handed procedure adopted between political parties in respect of appointments in the Falklands inquiry, the prime minister picked the members of the Iraq inquiry. I have no doubt all five members are persons of independence, competence and integrity. But the method of selection was not calculated to inspire public confidence.

Mr Brown chose not to appoint any military figure to serve as a member on the Iraq inquiry. Given that the overwhelming thrust of the evidence concerns military matters, that is odd. Our country greatly respects military men and women. With due respect I would say that the public has greater faith in the independence of military personnel than in judges, civil servants or politicians.

Bearing in mind the critical question of the legality of the invasion, the fact that no lawyer of standing was appointed to serve as a member of the inquiry is surprising. Or perhaps it is not surprising, given that lawyers are paid to probe. For the inquiry to consult a lawyer is hardly the same. Lord Butler, the former cabinet secretary who headed the Iraq intelligence inquiry, in June said eloquently that the prime minister’s arrangements had been dictated more by political interest than by the national interest. He warned that it may not achieve the purpose so many people hope from it, of purging the mistrust.

No doubt the Iraq inquiry will want to examine critically, so far as it is able to do so, the legacy of Iraq, and allocate responsibility where it is appropriate without fear or favour. But the jury is out on the processes of the inquiry.

Lord Steyn is a crossbench peer and former Law Lord. This is an abridged version of a speech to be delivered this evening to the London Common Law and Commercial Bar Association

Get alerts on UK politics & policy when a new story is published

Copyright The Financial Times Limited 2019. All rights reserved.
Reuse this content (opens in new window)

Follow the topics in this article