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To balance the experience of the Executive, Parliament must become more expert, and a number of mechanisms, including Select Committees and joint committees, can in practice be devised for that. Fundamental to informed parliamentary debate is access to intelligence. Certainly we have not solved that problem, as the Foreign Affairs Committee in the other place has frequently said. I went often to Langley to talk to members of the Central Intelligence Agency prior to the Iraq war. At least we were made to feel as parliamentarians that we were on their side. I did not have that same feeling when talking to our own intelligence people, who have a certain institutional mistrust of parliamentarians.
So far as concerns the parliamentary vote, there is necessarily a note of scepticism about what would happen in practice. The case study of Iraq is not helpful. When Parliament did have a substantive vote, the war drums were already beating, there was a certain momentum and our forces, along with coalition forces, were already at the border—so it could be
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I shall make some brief conclusions. There is general agreement—which democrat could be against it?—that Parliament should have a greater say, and that the presumption should be that Parliament should be given information unless there are clear interests of national security to the contrary. The problem is to devise mechanisms to inform Parliament, and those mechanisms need to be flexible. Therefore I would favour the evolution of conventions, rather than statutory duties. Much depends on mutual respect and understanding to redress the balance between the Executive and Parliament. But overall, this debate is a welcome initiative by the Government and they deserve our congratulation.
11.56 am
Lord Mayhew of Twysden: My Lords, I thank the noble and gallant Lord, Lord Guthrie, for giving us the opportunity to debate what he rightly describes as this difficult, complex and important subject. I thank him especially for his speech, with which I found myself in respectful agreement almost throughout.
We all know—and they certainly do—that generals, admirals and air marshals have to take care not to train their subordinates to fight the last war, or the last type of war. We in Parliament have a parallel duty. It is relevant especially to conservatives like myself. By temperament and experience, we have a strong attachment to constitutional arrangements of long standing. But if today’s and tomorrow’s circumstances are different, we have to look closely, and with the caution enjoined by the noble and gallant Lord, Lord Guthrie, at whether our constitutional arrangements will continue to serve. We have to anticipate as best we can the unintended consequences of keeping them.
When we consider the royal prerogative of going to war, it is very hard to find a more central pillar. Of course, the classical military advantages are easily identified—they have been before and were again today by the noble and gallant Lord. For example, flexibility, surprise and overall national security are all well served by our present arrangements. However, it is not just the propriety, but the overall utility of this central prerogative power that nowadays is called vigorously into question, and it behoves us to understand why. I think the driving reason is that the international polity has changed abruptly and profoundly since the end of the last war. The founders of the United Nations meant it to do so. From that time, we have increasingly accepted the growth of supranational obligations enforced by supranational jurisdictions. Thus, for example, the long arm of the International Criminal Court can reach out to every individual in every participating member state, including our own.
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Not surprisingly, these developments have not gone unnoticed among those who may have to go and do the fighting when this country is committed to war or to any eruption of armed conflict which may call for them to risk their lives. No longer is it an appropriate reassurance—if ever it was—for authority to say to them, “Do what you’re told, lad. The Army will stand behind you”. Some of them may now be expected to reply, in Ernest Bevin’s succinct words, “I’ve ‘eard different”. I do not think that we should expect this development to subside.
Of course, anyone with only the limited, and now distant, military experience of national and reserve service will speak of these matters with considerable diffidence in the presence of noble and gallant Lords. But I am able, if I may put it like this, to fall in behind the most senior of them all—the noble and gallant Lord, Lord Bramall, in his evidence to your Lordships’ Constitution Committee on 18 January 2006. Describing the three points that he said the Armed Forces need to be reassured of before being committed to a large-scale military operation, he said:
“First, they would like to know that they had the support of the country, secondly, that they had the support of Parliament and, thirdly, that what they had been asked to do was legal, not just within the law of the land but if possible within a wider international context which would put the legality of the use of force beyond doubt”.
I noted, not with surprise, that the noble and gallant Lord, Lord Guthrie, virtually repeated those words—certainly those thoughts—in his speech today. None of that is surprising. I have also heard the noble and gallant Lord, Lord Inge, say much the same to this House on previous occasions.
Because of that, I now believe that if we do not provide for an obligation to rest upon government, with sensible provision for emergencies, to obtain the approval of at least the House of Commons before committing our forces to war, there will be at least one serious unintended consequence. I believe we can foresee an increasing propensity among our servicepeople to question the chain of command as to the legality of an operation, and even to mark their uncertainty and anxiety by refusing to take part in it. If the Chief of the Defence Staff can ask that question, we might expect them to ask why they should not ask it too.
What a military and personal disaster that would be. We owe them our protection from that agony. Of course, parliamentary approval will not guarantee legality but it will at least make illegality more unlikely and more difficult, and it should provide a guide as to whether the country is behind them.
How is that to be achieved? The Government’s consultation paper, to which the noble and gallant Lord referred us, discusses impressively, and with possible drafts, the respective merits of legislation and convention. Along with him, I believe that the most serviceable means will be the detailed House of Commons resolution in one or other of the variants described at pages 44 to 49 of annexe A to that paper. By whatever means, however, I am now persuaded, with your Lordships’ Select Committee, that a change of this character in our constitutional arrangements must be made.
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12.03 pm
Lord Craig of Radley: My Lords, I, too, thank the noble and gallant Lord, Lord Guthrie, for raising this topic. Last May, in the debate on the Constitution Committee’s report, Waging War, the then noble and learned Lord the Lord Chancellor put up a spirited government defence for the Prime Minister’s royal prerogative. Mine was a lone voice in support. All other speakers advocated parliamentary involvement. The consultation paper before us—signed by three senior members of the Government and echoing remarks made by the present Prime Minister last July—turns on its head the view espoused by this Government only eight months ago. Am I now also persuaded to do a somersault?
The issues are complex and some key factors are barely mentioned. First, are there not two broad categories of conflict in which we might become involved? As shorthand, I class these as “wars of necessity” and “wars of choice”. In the former, the country or key national interests are directly threatened or even under hostile attack. The international right of self-defence can be invoked. It would be a formality—were it to be required—to have parliamentary approval. Our forces would act to defend themselves and our interests. So I confine my remarks to wars of choice: that is, to offensive operations overseas on which the Government wish to embark.
I question whether this is to be the norm, rather than the rare exception of the past few years, when this Government have so actively engaged in wars of choice. For any British Government, the use of force in a war of choice should be a last resort; not the first, nor even an early, action to be taken to achieve a strategic aim. What preparations have the Armed Forces put in hand for this war of choice? The paper pays too little attention to this and to prior parliamentary scrutiny and challenge in the pre-deployment phase and to the backdrop of diplomatic and economic treaty obligations and other relevant leverages. The paper does not deal adequately with what might be termed the deterrent use of forces or prolonged campaigns—for example, by deploying part way to the theatre, or even threatening to do so with the object of persuading the adversary that they should back off and so deterring conflict; or remaining poised over the horizon.
I am not considering the nuclear deterrent, which I assume the Government are not addressing, but they should make that clear. Setting aside the very valid questions raised about the definitions of “armed conflict” and “armed forces”, what is Parliament formally to approve? References are made to the,
- “decisions by the executive on substantial deployments of armed forces into potential or actual armed conflict”.
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There is some confusion, it seems. Governments must distinguish between the principle or aim of a deployment abroad; the order to prepare to deploy abroad; the actual movement overseas and its scale, but not its employment, in an overseas operation; and the use or threat of use of force in conflict. The document merely proposes that it would be for the Prime Minister to decide at what stage of the above he must seek parliamentary approval. Is this approval to be confined to British boots on the ground abroad, or to the use of force against an overseas opponent? That force could be delivered by aircraft or UAVs operating from home or friendly bases—the RAF has been involved in operations over Iraq almost continuously since the first Gulf War in 1991—or force could come from naval vessels on the high seas. On top of this lack of clarity, the Government foresee a series of situations when pre-clearance by Parliament would not be sought—in recess or dissolution and even if Parliament were sitting, on grounds of security. In such situations, it would be for the Prime Minister to decide. Would not decisions to withdraw or reduce force levels, even to surrender, also remain with the Prime Minister? Parliament’s sovereignty could only be partial and the Prime Minister would in effect continue to use his royal prerogative. Even in the 2003 invasion of Iraq, when the Commons took a pre-combat vote, Parliament was given to understand that it was not regime change but the threat from WMDs that justified and made legal our invasion.
The proposals before us, though superficially attractive, are still flawed. Parliament will be attempting to judge and formally approve a difficult and dangerous situation, possibly misled over and/or in ignorance of key facts. More critically, there are too many ways in which the Prime Minister of the day might choose to disadvantage the timing of a formal vote or even sidestep it altogether. Is there, in fact, any greater assurance of parliamentary sovereignty over the prerogative than can be exercised by the normal, well tried and tested means of votes of confidence and other methods of challenging the Executive?
Noble Lords should be clear on this point: the Government propose that there could be occasions when the Prime Minister continues to use the royal prerogative and bypasses Parliament and that thereafter it will not be necessary to seek retrospective approval. That negates the argument that parliamentary approval is a necessary precursor to conferring legality. It should remain the Prime Minister’s responsibility to give clear direction to the Armed Forces; he should not look to Parliament to absolve him of that responsibility and so possibly avoid the political dangers of facing a vote of confidence.
How often in future will we be embarking on offensive wars of choice? Have we not had enough of them? We are not arming ourselves to carry them out at such a rate in the future as we have done in the past decade; we are even now sending ill-prepared troops into operations in Afghanistan. Is not the whole concept rather too academic and devoid of realism? I have not somersaulted and, on reflection, nor should the Government.
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12.12 pm
Baroness Williams of Crosby: My Lords, this is one of those significant moments in the quiet evolution of the British constitution when often we fail to recognise the significance of what we are discussing. I am extremely grateful to the noble and gallant Lord, Lord Guthrie, for giving us the opportunity to debate this crucial moment in our constitutional evolution, because it is nothing less than that. I also congratulate the Government on their courage in getting hold of the issue of the royal prerogative in two of the most important areas that can affect the role of Parliament and on recognising the need to empower Parliament to be part of that decision-making process. I listened with great interest to the points raised by the noble and gallant Lord, Lord Craig of Radley, but to my mind the arguments made by the noble and gallant Lord, Lord Guthrie, and the noble and learned Lord, Lord Mayhew of Twysden, are conclusive. We live in a different world and we cannot commit our troops without a much wider process of decision-making than the one on which we have rested for so many centuries.
I shall speak today not about the war-making power but about the other leg of this set of proposals: parliamentary accountability with regard to treaties. On this, there is quite a long history. My noble friend Lord Lester of Herne Hill proposed that Parliament should be involved in the ratification of treaties as long ago as his 2003 Bill and he repeated the proposal in 2006. In another place, Kenneth Clarke, leading the Conservative Party’s study of the changing constitution, proposed that there should be parliamentary accountability in respect of the ratification of treaties. I am delighted that we have now reached something very close to consensus.
In our society today, treaties are of the greatest possible significance. Let me mention just two groups of them so as not to take up too much time. There is a whole group of treaties concerned with climate change, becoming more and more important and likely to grow in significance in the next few years. We no longer talk about the thinness of the ozone layer because, in the words of the former UN Secretary-General Kofi Annan, the Montreal protocol was one of the most successful treaties ever passed and actually managed to push back that threat a long way. Since then, we have had the Kyoto treaty, about which I need say little more except that up to now it is the only international treaty with force across the whole global pattern of climate change. Even now, as we sit, there is a major discussion about the renewal of that treaty, and it could not be of more significance for our citizens and the world.
There is another group of treaties of great significance, on arms. Even now, there is wrangling over the cluster bomb treaty between those who wish to weaken it by excluding what are called “clever” cluster bombs, and the wish of most of our fellow citizens throughout the world to have an effective cluster bomb treaty. It is still under discussion.
The small arms treaty is strongly supported by the British Government, to their credit. It is still not actually being implemented, and one does not need to look much further than the terrible events in Kenya to
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I could go on, but will just mention one other treaty which has so far not been put into practice at all, although passed by the General Assembly of the United Nations as long ago as 1993: the proposed treaty for the fair treatment and recognition of the human rights of migrants. Our country is today deeply caught up in a discussion about the rights of migrants, but there has never been a debate in this House on the issues raised by the treaty, which is now nearly 20 years old.
How can we look at accountability for treaties? I am clear that there must be more to it—in this respect it is very different from war powers—than simply agreeing that Parliament should approve the ratification of treaties. It is essential, in as complex an area as this, that it be matched by a parliamentary Select Committee which would look into treaties and decide which ones were so significant for our citizens, in this country and beyond, to be discussed and debated in Parliament before the Government finally give their approval. In this respect, the Ponsonby rules, to which the noble Lord, Lord Anderson of Swansea, referred, while impressive in their day—laying treaties for 21 days and leaving it for the House to decide which ones should be debated—are simply no longer adequate machinery. There must be a much more careful look at treaties, and a decision made by the House itself about which ones should be debated before they can be agreed to.
We therefore need a combination of those two things. To that end, I recently submitted a memorandum to the Liaison Committee, asking that it should seriously consider the possibility of a Select Committee on treaties. The committee said that this was a major issue which rather went beyond, in its view, its own competence and jurisdiction. Long ago, the noble Lord, Lord Wakeham, also proposed, in his well known report on the reform of the House of Lords, that there should be a careful look at treaties and that they should become part of the responsibilities of this House—possibly jointly with the other House; that is a matter for discussion which I shall not go into right now.
This is the moment for Parliament to seize this opportunity. It is particularly appropriate for this House, with its responsibilities and experience. That has been matched in other parts of the world, such as Germany, Canada and the United States, where the upper House has a special responsibility in this field. However, I strongly urge that, as a result of this debate, the Government, as part of their reform of the constitution of the United Kingdom and their exciting proposals, look closely at treaties and consider whether there should not be some form of Select Committee of Parliament, linked to—I stress that—a decision by the Government to accept that there should be parliamentary approval before major treaties are ratified. That would very much strengthen
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12.20 pm
Lord Bramall: My Lords, I, too, am very grateful to my noble and gallant friend Lord Guthrie for obtaining this important debate and for leading us into it so very clearly. It is not easy to decide how the royal prerogative should be constitutionally changed because, as has been said, the whole issue is complicated and there are many divergent factors. At the outset, I should make it clear that I am enthusiastic about what the Government are now seeking to do to involve Parliament more in it.
It is unthinkable that in this day and age our democratic Government should commit armed forces to a substantial war without the prior and manifest assent of Parliament. Only in this way can it be properly established that the country, which after all will have to see the war through to its conclusion, and at least the law of our land are formally behind such an enterprise, which may have many quite unpredictable international consequences. Such authority is also necessary both to sustain the highest morale of our Armed Forces, who have to carry out these operations and want to know that the country is fully behind them, and as a guarantee of some legal basis and authority for the war, for which further international authority may also be required.
At the same time, the responsibility for deploying forces, which is quite separate from commitment—in accordance with, say, treaty obligations, initially perhaps in a deterrent or a warning posture—and for actually carrying out war-like operations once they are embarked on, must for obvious reasons remain with the Executive and the chain of command that they set up or inherit. Nor must anything be done to compromise the secrecy and security of operations still in their planning stage, as this might remove the element of tactical surprise that is often so vital for any success in battle. This would be particularly applicable in operations to rescue British hostages or to pre-empt terrorism of the sort that occurred in Sierra Leone; then there would be no alternative but to act first and inform Parliament later. Moreover, any force deployed to put pressure on a potential adversary to comply with or not break international law would hardly want its impact weakened by a debate that might throw doubt on whether such force would ever be used in practice.
However, these diverging requirements can be reconciled by mixing regular, sensibly led and informative debates in both Houses, as is quite normal, with a clear commitment that before armed forces are actually committed to any large-scale, military action, assent of the other place is obligatory. This could easily have been achieved in the Falklands War before the landings, before the Anglo-American advance to recapture Kuwait, and before the coalition invasion of Iraq. In the latter case, there was an assenting vote in the other place, but it was on the wrong premise; otherwise, the result might have been different. It might not have been easy to get a
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