Foreign Office asks judges not to rule on Iraq war legality

, legal correspondent
Wed 30 Jun 2004 21.52 EDT

It would be prejudicial to the national interest if the courts expressed a view which differed from the government's on the legal justification for the war, the permanent under secretary of state, Sir Michael Jay, said in a witness statement handed in 10 minutes before the hearing began on Tuesday.

The hearing ended yesterday with judgment reserved.

Five peace activists charged with trying to delay US bombers taking off from RAF Fairford in the week before the war sought a ruling that they were entitled to plead in their defence that they acted to postpone the start of a war they believed to be illegal.

A high court judge, Mr Justice Grigson, ruled in May that foreign policy, including the waging of war, was an exercise of crown prerogative which could not be examined in the courts. But although the defendants could not raise the legality of the war itself, they could mount defences of "necessity", prevention of crime, and "lawful excuse", based on the "secondary effects" of the war.

Sir Michael said he was authorised to make his statement by the foreign secretary, Jack Straw.

In his and Mr Straw's judgment "it would be prejudicial to the national interest and the conduct of the government's foreign policy if the English courts were to express opinions on questions of international law concerning the use of force by the United Kingdom and other states which might differ from those expressed by the government and advanced by it in the conduct of international relations".

The appellants are Philip Pritchard and Toby Olditch, both of Oxford, Margaret Jones, of Bristol, Paul Milling, who lives in the Lake District, and Josh Richards, of Bristol.