The final document from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) is a letter dated November 13th 1956 from the Attorney General, Sir Reginald Manningham-Buller, to the Prime Minister Sir Anthony Eden.

The previous Thursday, the 8th, the day the government had survived a vote of confidence in the House of Commons. Eden had ordered a ceasefire from midnight on November 6-7. Ten days after this letter was sent, the Prime Minister went to Jamaica to rest; he resigned in January 1957.

The Attorney’s concern was the legal position and his own.

The Lord Chancellor, I gather, expressed the view in Cabinet that our threat and our use of force was legally justified.

He mentions that Kilmuir said so in the House of Lords on November 1st, just as Selwyn Lloyd had the day before and as R.A. Butler did the same day, in the Commons. He went on:

Although I support what we have done and have said so publicly, we cannot, as you know, agree with the statements made on behalf of the Government that we were legally entitled so to act.

It seems extraordinary now that an Attorney General could support a policy of force in spite of thinking it unlawful. Perhaps the Attorney’s political support for the invasion in spite of its unlawfulness explains why he did not resign over the affair. He certainly knew he’d been compromised:

… it is very questionable if it is proper for Law Officers to continue to hold office if, on an issue of this importance, it is sought to justify the Government’s actions on legal grounds which they cannot support. If this occurred again, I feel I must frankly say that I think the position of the Law Officers would become impossible.

The chances of any such thing occurring again were vanishingly small, of course, and the warning was too little, too late. Was it worth making at all, by then?

Sir Reginald remained Attorney General until 1962, when (after Macmillan’s “Night of the Long Knives”) he replaced Lord Kilmuir as Lord Chancellor. He held that post until Labour won the 1964 election. He then sat as a Law Lord from 1969 till just before his death in 1980.

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From the Attorney General’s 1956 Suez file I’m today reproducing (with permission of the image library of the National Archives) a letter dated November 6 1956 to the Attorney General, Sir Reginald Manningham-Buller, from the Foreign Office Legal Adviser Sir Gerald Fitzmaurice; and the Attorney General’s reply of the following day.

Fitzmaurice tells the Attorney that he’d been asked by Foreign Secretary Selwyn Lloyd to comment on a letter from the Attorney (which must be his letter of November 1).

Apart from saying that the views of the legal advisers here entirely coincided with yours as to the absence of any legal justification for our present actions in Egypt,

he writes,

the comments I made related mainly to the constitutional position.

The extracts he then repeats to the Attorney show him stressing to the Foreign Secretary that the Law Officers, not the Lord Chancellor, are the government’s legal advisers.

As I understand it, the Lord Chancellor is not invested with any actual function of this kind …

It is the Law Officers—i.e. the Attorney and Solicitor General—who are the highest legal authority in government, he says.

The Law Officers therefore have an absolutely unanswerable case over not having been consulted.

The Attorney’s answer is short and approving.

Sir Gerald Fitzmaurice later became a judge at the International Court of Justice, and at the European Court of Human Rights.

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Today’s document from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) is a letter dated November 4 1956 to the Lord Chancellor Lord Kilmuir, from Lord McNair.

Lord McNair was a professor of law at Cambridge. He had served as President of the International Court of Justice until the previous year, and so was obviously one of the leading international lawyers of the day. He went on to be President of the European Court of Human Rights from 1959.

McNair had spoken in the House of Lords in September, making clear his view that Egypt’s nationalisation of the Suez canal would not justify force, having regard to the Kellogg-Briand Pact and the UN Charter. What’s striking about that speech is that not only makes the case repeated later by the Attorney General (who doubtless knew of and was influenced by McNair’s view) but that McNair dismisses Sir Austen Chamberlain’s “British Monroe Doctrine”— a doctrine Lord Kilmuir later seize on in the legal argument he made.

Lord McNair could not know what Kilmuir was telling his ministerial colleagues, of course. What he did know was what Kilmuir had said in the House of Lords a few days before, and what the Prime Minister had said on TV the previous evening.

I can find no authority

McNair writes (para. 1),

for the view that when two States are engaged in fighting and their hostilities may cause injury to the nationals or the property of a neutral State, the Neutral State has a right to intervene by armed force.

As far as the UN is concerned (para. 4)

So far from seeking authority for our armed intervention, we presented the United Nations with a fait accompli, and we concealed our intentions from them

McNair dismisses Kilmuir’s reliance on the Caroline incident (para. 5) before writing

I come now to what you appear to regard as the main justification of our intervention, namely, self-defence. I consider that you adopt an unduly wide conception of this term …

Ultimately, McNair writes,

My general conclusion is that our intervention is illegal.

Politely phrased though it is, this letter reads, as no doubt it was intended, as a slap-down by an eminent international lawyer of arguments he clearly saw as both weak and self-serving.

McNair didn’t say he was copying his letter to the Attorney General; I don’t know how a copy found its way into the Attorney’s file.

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Today’s document from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) is a letter from the Attorney General to R. A. Butler dated November 1 1956 suggesting a non-legal justification for intervention to be used in the Commons (Butler was to wind up a debate on the situation for the government that evening) while making it clear the Attorney sees no possible legal defence of it.

The Attorney, undoubtedly responding to the line about to be taken by Lord Kilmuir in the House of Lords on the same day, doubts there was any threat to the lives of British nationals such as to justify the use of force.

I am not aware that any threat to our nationals came from Egypt …

He goes on

I would thus seek to justify our action not under … international law but on the ground of expediency … and in conformity with the intentions underlying the Charter …

He expresses concern that MPs will demand to know his view on the legal position.

If that demand is made, I shall be in a position of acute difficulty for I cannot really advance any legal justification for our action.

His reference to a legal memo must I think be to the one sent to the Lord Chancellor on October 31.

Butler’s speech later perhaps rather cleverly focused at first on the question of whether there was in law a state of armed conflict, rather than on the question of whether Britain’s use of force was lawful. What he said later also shows the Attorney’s influence: he talks of the spirit and intention of the Charter and defends Britain’s motives in more or less the terms the Attorney suggested.

Butler did, though, go on to claim that Britain’s action accorded with customary international law and with Article 51 of the Charter.

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The Suez file: the Attorney’s letter to Selwyn Lloyd, November 1, 1956

December 30, 2016

The next document I’m reproducing from the Attorney General’s 1956 Suez file (with permission of the image library of the National Archives) is a letter from the Attorney General to the Foreign Secretary Selwyn Lloyd dated November 1 1956—and copied to Prime Minister Eden—expressing concern about government statements on the legal justification for action in […]

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The Suez file: the Attorney’s letter and memo of October 31, 1956

December 29, 2016

The third batch of documents from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) consists of a letter from the Attorney General to the Lord Chancellor dated October 31 1956, together with a memorandum stating the Law Officers’ final view and in effect closing the legal […]

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The Suez file: Lord Kilmuir’s letter and memo of October 15, 1956

December 28, 2016

The second batch of documents from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) consists of the Lord Chancellor, Lord Kilmuir’s reply to the Attorney, dated October 15 1956; and his memorandum setting out his own opinion that the use of force over Suez would be […]

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The Suez file: the Attorney’s letter and memo of October 12, 1956

December 27, 2016

With permission of the image library of the National Archives, here are the first two documents I’m reproducing from the Attorney General’s 1956 Suez file: a letter from the Attorney, Sir Reginald Manningham-Buller to the Lord Chancellor, Lord Kilmuir (better known to many as Sir David Maxwell-Fyfe, as he was before he became a peer) […]

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1956: The Attorney General’s Suez file

December 27, 2016

The year about to end, 2016, is the 60th anniversary of the Suez crisis—something I’m surprised hasn’t had more coverage and comment. The Suez crisis is of legal interest because of the way the Attorney General Sir Reginald Manningham-Buller’s view (that Britain’s military intervention could not be justified in international law) was ignored by the […]

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Why the High Court got the law wrong about Brexit

November 4, 2016

Some reactions to the High Court’s judgment in the article 50 case, R (Miller) v Brexit Secretary, have been ugly, excessive and ridiculous. It’s excessive too to see the judgment as blocking Brexit, or as creating a constitutional crisis. It does neither thing. I’ve no doubt that if the judgment is upheld on appeal to […]

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