Lords Hansard text for 31 Jan 200831 Jan 2008 (pt 0005)

12.55 pm

Lord Inge: My Lords, I start by declaring an interest as the non-executive chairman of Aegis, a private security company. I, too, thank my noble and gallant friend Lord Guthrie for introducing an extremely important debate.

As the consultation paper makes clear, the decision to send armed forces into conflict is one of the most important that a Government can be asked to make. It is important to remember, as the noble and gallant Lord, Lord Guthrie, reminded us, that few armed conflicts turn out as expected. They usually last longer, take unforeseen directions and demand greater sacrifice. Therefore, given the seriousness of the decision to commit our Armed Forces to conflict, it is clearly right that the House of Commons should be involved. The key question, for me, is: how involved?

Different phrases have been used in different documents about this issue. The Prime Minister said, in July 2007, that

Official Report

We need clearer definition of what we want this new convention—and I hope that it will be a convention—to say. That grave issue of peace and war is rather different to some people talking about sending armed forces into conflict, or the words used by the report of the House of Lords Select Committee on the Constitution, called Waging War: Parliament’s Role and Responsibility.

I rather agree with the noble Lord, Lord Hannay, that we must be careful not to be too restrictive on this, because if we look, for example, at the operation in Sierra Leone, and its need not only for urgency but for secrecy, it would have been difficult for Parliament to be consulted in that instance. As I have said, I am certainly much more in favour of a convention than a statutory requirement, which could be too restrictive. Let me also make it quite clear that I am strongly in favour of Parliament being involved to debate any significant military deployment.

As noble Lords have said, in preparing for war and complex military operations it is important for the Armed Forces to have clear decisions, and to get them in a timely manner. Whatever we put in place will remain of paramount importance. That preparation is normally fraught with difficulties, and it needs to be made in good time. If there is any delay in getting the support of Parliament for the Armed Forces it is bound to affect not only planning but, much more importantly, their morale. I need hardly add that it would be fatal for Parliament to dabble in the planning detail, and for the Executive to have to refer back continually for guidance on key issues.

I noted that in its report, Waging War, the House of Lords Select Committee on the Constitution stated clearly on Parliament’s role and responsibility that,

Later, it went on to say, in what I read as a major caveat, that,

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It quoted Afghanistan as a possible example. I would be very cautious about allowing Parliament to dabble in that sort of military planning. As I mentioned earlier, each operational situation, no matter how careful one’s planning, writes its own individual script, and it usually gets worse before its gets better. We need to be careful, for example in Afghanistan, not to dabble in that detail.

However, I recognise that it is enormously important that soldiers, sailors and airmen deployed on military operations feel that they have the support of the nation behind them. When the noble and gallant Lord, Lord Guthrie, and I visited troops in the desert in Iraq just before the first Iraq war, it was interesting how many of them asked us: “The nation is behind us, isn’t it?”. It is terribly important that we never forget that.

The report of the House of Lords Select Committee on the Constitution suggested the excellent idea of a joint parliamentary committee to assume strategic oversight of international defence and foreign policy. It deserves serious consideration. I realise that such a committee could not resolve the underlying issue of parliamentary sovereignty over the deployment of military power, but it could play an important role in educating both Houses of Parliament about the implications of the use of military force. It is a sine qua non that any important issue is considered by all Cabinet Ministers and not just by the Prime Minister and a few key advisers. The commitment of Armed Forces on operations is certainly such an issue.

A key part of that process—it may be teaching my grandmother to suck eggs—will be the proper preparation of papers by departments such as the Foreign Office, the Ministry of Defence, the Treasury and others. For any dangerous complex military operation, the Cabinet should be formally briefed by the Ministry of Defence, the Foreign Office and the Chiefs of Staff. We know that, at times, that has not happened in the past. I would not be opposed to key opposition party members being included in those war Cabinet briefings. I need hardly add that, in presenting the facts to the nation, we should not try to produce dossiers that are “improved” to justify the case of war.

When I was in the Ministry of Defence, I often felt that it would have encouraged the MoD and the Armed Forces if an annual briefing were given by the Cabinet about the Armed Forces, their capabilities, their training, their strengths and weaknesses, and what it would mean if they were committed to operations, because ever fewer people have a real understanding about what the commitment of Armed Forces to conflict entails.

1.02 pm

Lord Goodlad: My Lords, I join other noble Lords in congratulating the noble and gallant Lord, Lord Guthrie, on the authoritative and eloquent way in which he raised this important question. I reiterate our thanks to him. Reference has been made by a

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number of noble Lords to the report of your Lordships’ Select Committee on the Constitution, Waging War: Parliament’s Role and Responsibility. The committee had the report debated last year. I am glad to see that three other members of the committee, the noble and learned Lord, Lord Morris of Aberavon, the noble Lord, Lord Rowlands, and the noble Viscount, Lord Bledisloe, are participating in this debate.

The committee welcomes the consultation paper, War Powers and Treaties, and is grateful for its recognition of the conclusions of the report produced under the chairmanship of my predecessor, the noble Lord, Lord Holme of Cheltenham. The paper takes account of a number of the key recommendations. We welcome, first, the Government’s commitment to investigate ways of,

It is a central point. I trust that the Government, in framing a resolution for the House of Commons, will find a way to take account of the concerns expressed by the noble and gallant Lord, Lord Craig of Radley, because they are extremely serious and were considered in detail by the committee. The essential flexibility of the armed services to which the noble and gallant Lord gave reference, and considerations of security and surprise, must be maintained. The essential proposition seems now to have the assent of noble Lords on all sides of the House.

Secondly, the committee welcomes the Government’s view that it is “entirely appropriate” that the House of Lords should have a role in the process. I agree with the noble and gallant Lord, Lord Guthrie, that any debate in this place should precede that in the Commons; it is clear that immense expertise is here. It would be a problem if this House took a different view from that of the other place. It would be particularly acute if, at some future date, we had a wholly or predominantly elected House of Lords—but that argument is for another day.

Thirdly, we welcome the commitment to ensure that service personnel are protected from criminal prosecution for actions taken in good faith. Fourthly, we welcome the Government’s recognition that the committee’s favoured option of a parliamentary convention,

We welcomed the Lord Chancellor’s comment in his evidence to the committee in October that,

However, the committee is disappointed at the Government’s preference for a requirement merely to inform Parliament, rather than to seek retrospective approval for deployment, in cases where forces have been deployed without prior parliamentary approval for reasons of urgency or national security. The committee’s preferred option is that if, for reasons of emergency or security, prior application for parliamentary approval is impossible,

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at which point, parliamentary approval should be sought.

The committee is concerned also at the Government’s proposal that,

Your Lordships’ committee would prefer that, in addition to keeping Parliament informed of the progress of deployments, the Government should be required to seek a renewal of parliamentary approval if a deployment’s nature or objectives alter significantly. Such a requirement is vital to ensure that mission creep does not become a problem. It is possible to argue that the House of Commons can do anything that it decides. There was a large number of debates during the Falklands conflict; there have been a large number of debates about Iraq; but it is argued that this would be far better spelt out in a convention agreed by the Government in Parliament.

There is currently no agreed definition in the Geneva Convention of the term, “armed conflict”. It will therefore be necessary for the Government to look elsewhere for a meaningful definition, as we all know that there has been no declaration of war by this country since that on Thailand in the Second World War. I am strongly convinced that it will be possible for the Government and Parliament to agree a resolution that enshrines an appropriate convention reflecting the concerns that have been expressed today. The military covenant, which has been so much discussed in recent months, demands no less.

1.08 pm

Lord Armstrong of Ilminster: My Lords, I add my thanks to those expressed to the noble and gallant Lord, Lord Guthrie of Craigiebank, for enabling us to have this opportunity to debate the Government’s consultation paper. I welcome the consultation paper. It is a very useful basis on which to pursue the discussion of the very important matters it raises. I thank and congratulate my noble friend Lord Janvrin on his maiden speech which demonstrated his knowledge, experience and wisdom. We thank him very much and look forward to hearing from him again frequently.

Committing the armed services to conflict action is the supreme example of the exercise of Executive authority. The ultimate decision has to be that of the Government, the Prime Minister and his or—your Lordships will understand why I add this—her colleagues. The political reality is that any Government faced with having to take the decision will want, if possible, to be reasonably confident that they have, or believe that they can secure, a sufficient measure of parliamentary and public support. Because of the circumstances in which the need for such a decision arises, it is very difficult, if not impossible, to be prescriptive and specific enough to cover every possible circumstance, and it would be a mistake to try. It is quite likely that the need for a decision could arise in circumstances which had not, and could not have, been foreseen.

So whatever provision is to be made to involve Parliament and the public more closely in the decision, whether before or after the event, needs in my view to be general and not too specific, and is best

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provided for—as many noble Lords have said—by agreed convention and not by statute, which would almost inevitably provide too rigid a framework. If Governments are to be accountable to Parliament—as, of course, they are for the decisions in this field, as in others—it is equally important that Parliament should be as well informed as possible. Attention should be given to that need and how it can best be fulfilled without prejudicing the security, intelligence and safety of our Armed Forces.

It seems to me that for many of the treaties entered into by Governments, the Ponsonby rules are both acceptable and sufficient because they are very technical and not controversial. However, some treaties—not necessarily all that small in number but great in importance—will increasingly merit further thought, as the noble Baroness, Lady Williams of Crosby, emphasised; for instance, treaties which commit the United Kingdom to membership of international organisations or treaties which have global implications such as climate change measures. This globalisation of affairs means that some of the treaties into which this country enters will become increasingly important.

Again, the decision to commit to a treaty is essentially one of executive power. But if it is a treaty of major importance, not only Government but Parliament and the interested public will see it coming and there will be opportunities for parliamentary and public discussion without that having to be specifically provided for in advance. Again, the political reality is that Governments will need to be reasonably confident that they can secure a sufficient measure of parliamentary support. I believe that public input in our system should normally be mediated through Parliament. Referendums tend to be unsatisfactory means of expressing public opinion for a number of reasons, including the difficulty of defining the question and of preventing a referendum from straying into areas where voters express views on matters not directly related to the question on the paper.

I very much respect the Government’s decision to open these subjects up for consultation. But the more one seeks to arrange and manage these issues, the more it seems to me that we need to stick to three main conclusions. First, we should not lose sight of the impact of political reality on what happens—the force of events which will determine what the Government do and their need for parliamentary and political support. Secondly, as was fairly generally agreed this afternoon, whatever provision we make should be general and not specific. Thirdly, we should rely on convention, including, of course, new conventions if that seems desirable, and avoid the over-rigid framework of statutory prescription.

1.15 pm

Lord Morris of Aberavon: My Lords, I, too, express gratitude to the noble and gallant Lord, Lord Guthrie, for initiating this debate and for his wise and measured words. I had the privilege of associating with him and those under his command in the Welsh Guards for a long time, and more recently when he was Chief of the Defence Staff and I was Attorney-General—and always to my benefit.

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The noble and learned Lord, Lord Mayhew, myself and others were witnesses to this House’s constitutional affairs committee in 2006. The noble Lord, Lord Holme of Cheltenham, and his committee graciously got the maximum out of us. There were two questions. First, was there a need for change? Secondly, if so, how was that to be effected? It was a particular pleasure to me that your Lordships' committee rejected statutory control of the deployment of British forces outside the UK into armed conflict and preferred a convention that parliamentary approval should be sought. I fear that the response of the Government then was very negative in the persons of three Ministers who preferred the status quo. I very much welcome the consultative paper, which echoes the attitude of the Prime Minister as far back as January 2006 when he was Chancellor of the Exchequer, and which was quite different from that of his colleagues who gave evidence. The consultative paper echoes the Select Committee’s observations.

The royal prerogative is a misnomer. It has been progressively reduced since 1688. In reality it is the Executive prerogative, exercised by the Prime Minister with or without consultation with his Cabinet. It was Churchill who said it was no longer a royal prerogative, but the privilege of the people. That brings me to the question of how the privilege should now be controlled. My immediate answer as a democrat is that it should be by the elected House of Commons. The House of Lords should have an input and the House of Commons would be well advised to consider the contribution of this House. But at the end of the day there should be no uncertain sound of the trumpet, nor two tunes played at the same time. The body that controls supply should democratically control the decision-taking. Ministers, civil servants and the Armed Forces are enjoined to obey the rule of law, both domestic and international. It is written into their rules. Now there are additional hazards in the form of the International Criminal Court.

As Attorney-General I had to agree rules of engagement and, in the case of Kosovo on almost every day for about 68 days, to agree each significant military target. We try hard, and succeed, in complying with the law but we can be challenged, and we were challenged with nine other defendants before the international court at The Hague, where I had to appear for the United Kingdom to challenge the case against the legality of the bombing in Kosovo.

The noble and gallant Lord, Lord Bramall—Field Marshal Bramall—as the noble and learned Lord, Lord Mayhew, has reminded us, had three requirements: the support of the country, the support of Parliament and assurance for the forces that it was legal. There was unanimity before the committee that there should be no interference by Parliament on operational matters once commenced. I agree. When I was asked to give evidence, I started off with a blank sheet of paper, grappling with an issue that I had not previously given much thought to. After reading all the available material, I came to the conclusion as a democrat, a former Attorney-General and a former Defence Minister a long time ago that the status quo allowing unfettered control to the Executive without democratic involvement was outdated and crying out for reform.

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In what circumstances should Parliament be involved? The concept of a formal declaration of war is outdated for a host of legal reasons. We last went to war—as we were reminded by the noble Lord, Lord Goodlad—in 1942 against Siam. The modern version is armed conflict. The Geneva conventions and protocol are not very helpful in defining it, but we all have some idea what it is when we see it. We cannot cater for all eventualities. A convention should cater for most eventualities and should stand the test of time. The consultative paper prefers a convention to statutory control. It states, and I cannot improve on this:

“A Parliamentary convention in the form of a resolution has the advantages of being more flexible and adaptable. The interpretation of the resolution would lie clearly in the hands of Parliament rather than the courts. It could be framed in more general terms than is possible with statute. It is therefore less likely to interfere with the operational freedoms and responsibilities of commanders in the field”.

The Select Committee agreed that a convention is better able to anticipate what might happen in 20, 30 or 40 years’ time. In my view, the more generally it is drafted the better.

There remains the problem when troops have to be committed urgently and secretly. I believe that the Government should then, at the earliest practical opportunity, seek Parliament’s approval. Informing Parliament is not enough. There are obvious difficulties. The egg cannot be unscrambled. Even if what has been done is perfectly legal, if there is overwhelming dissent, it would hardly be feasible for the Government to continue with it, or in reality to continue in office at all. We are reminded of the realpolitik of what happened in the Norway debate. This consultative paper augurs well for the future.

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