Parliament: Waging War (Constitution Committee Report)

rose to move, That this House takes note of the report of the Constitution Committee on Waging War: Parliament’s Role and Responsibility (15th report, Session 2005–06, HL Paper 236) and the follow-up report (third report, Session 2006–07, HL Paper 51). The noble Lord said: My Lords, I ask the indulgence of the House when I apologise for having kept noble Lords waiting for 15 minutes. I was told that there was to be a Statement and I was not in the Palace when I was due to be. I am sorry about that, given the demands on your Lordships’ time. In introducing the Constitution Committee’s report on war-making powers, I should start with several votes of thanks. The first is most obviously to members of the Select Committee, several of whom are in the Chamber and a number of whom plan to speak. Secondly, I thank our Clerk, Ian Mackley. This was his last report as a Clerk because he retired shortly afterwards. We are most grateful to him and to our specialist adviser, Professor Colin Warbrick. I particularly want to thank a large body of extremely expert witnesses who came to testify before your Lordships' committee, including noble and learned Lords and noble and gallant Lords. This report was commissioned not long afterthe Iraq war. It took us 18 months. It was a careful report. I would not want to say that we were not all conscious of the war as we deliberated; we certainly were, but this was not part of a post-mortem into the Iraq war. It was, if anything, an attempt to learn from what has proved to be, in the majority opinion of both Houses and of the country, an unhappy adventure from which our security and foreign policy will take a long time to recover. It is incumbent on us to learn the lessons that can be learned; one of them is the circumstances in which young men and women of the Armed Forces should be committed to armed conflict overseas and how that should happen. Even by the very high standards of this House and its Select Committee reports, this is an authoritative and timely report of considerable political and constitutional significance. I wish I could say that the same was true of the Government's response to it. We reported towards the end of July last year. It took the Government until early November to respond. That is well over the two months prescribed by the Leader of the House as the appropriate time in which there should be a response to Select Committee reports. When the response came it was not only tardy but it would be fair to say that it was cursory to the point of discourtesy. It occupied one and a half pages. It said almost nothing and it certainly did not engage with any of the issues that we had raised. Then, for some reason, probably the same reason, it has taken a very long time to arrange this debate. I am glad that we are finally having it. I shall revert in a moment to the Government's response to our report, but let me go straight to the nub of the question. This is not, in the end, an arcane constitutional issue, although there are certainlysome interesting constitutional aspects to it. It is not primarily a matter of military command and control, although there are some important practicalities that were and need to be discussed. It is, at root, a question of democratic legitimacy. The question is: in a modern democracy, not a 15th century monarchy, on whose authority should the young men and womenof our armed services be sent overseas to fight for their country? To that central question the committee answered unanimously and unambiguously: "““the exercise of the Royal prerogative by the Government to deploy armed force overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy. Parliament’s ability to challenge the executive must be protected and strengthened””." With every constitutional issue in this country there is a lot of history involved. I do not think that it is an exaggeration to say that British parliamentary history has been forged largely on the anvil of what is called supply: the point where the monarch’s wars and his prerogative met the pressing reality of who should pay for those wars. The lengths that kings and their advisers went to over history to avoid parliamentary reckoningand questioning were simply extraordinary. At the weekend I read a very racy and entertaining new biography of Sir Robert Walpole by Edward Pearce, whom many Members of this House will know, in which he recounted that in 1710 and 1711 the Great Duke of Marlborough’s armies had to be paid off not just by a lottery but by a private lottery expressly raised to avoid having to go to Parliament to ask for the money. Supply has always been central to our parliamentary development. Yet, paradoxically, even now these financial constraints on the exercise ofthe prerogative have largely disappeared. We have a standing army—which was the great issue of the15th, 16th, 17th and 18th centuries—and a very good one, too. There are large defence budgets and appropriations, let alone substantial contingencies and reserves. Compared to a 17th century Parliament, a 21st century one has no financial strings that it can draw tight on an impetuous Executive, certainly not at the point of commitment—although retrospectively that may be argued to have happened sometimes. However, given the indisputable responsibility of the Government, with the Prime Minister in this respect assuming not only the powers of his monarchical predecessors but the responsibilities, too, for the defence of the realm, a number of concerns emerged in the Select Committee’s evidence and deliberations about the proposition that I have just made—that Parliament should make the final decisions about war and peace. It was asked whether the Prime Minister would have access to more and better intelligence on which to make decisions than mere MPs would. Might there not be genuine emergencies requiring rapid executive decision-making rather than measured parliamentary debate? From some of our military witnesses there was an ill concealed terror of politicians second-guessing their tactics and battle plans and interfering in some way with the professionals. That latter point was made by, among others, the noble and gallant Lord, Lord Bramall, whom I am very pleased to see in his place and who is himself an advocate of prior parliamentary approval. He said: "““Under no circumstances must parliamentary approval be allowed into the tactical field or the minute field of the way you carry out the operation””." In our report, we confirmed his strictures, saying: "““We … do not … question the principle that the conduct of military operations … should remain the exclusive responsibility of military commanders. At the same time we should add that, clearly, the greater the clarity on the part of Government of their objectives in determining the mission objective, the more this assists military commanders in executing that responsibility””." Then there is the question of information andthe intelligence on which it is based, a matter of legitimate concern that your Lordships will wantto take seriously, given the understandable fear of warning a potential adversary of details of deployment and of the sources of intelligence. However, we concluded that the House of Commons Defence and Foreign Affairs Select Committees should and could keep a close watching brief on developments as the, "““vanguard of the parliamentary process””," and a responsible filter for sensitive information. That leaves, as a substantial operational objection to prior parliamentary approval, the often quoted issue of the Prime Minister needing to react swiftly to an emergency. I do not dismiss that, but the nature of our treaty obligations, under which the vast majority of military action is undertaken, the interconnected global information system and the way it has affected international relations make such ““surprises”” relatively unlikely—although the Argentine invasion of the Falkland Islands could be argued as something of an exception. However, we concluded that, even if they may be exceptional, emergencies and unwelcome surprises cannot be ruled out in all circumstances in the future. This consideration, above all others, led the committee to prefer the flexibility of a new convention that the Government should seek parliamentary approval if they propose the deployment of British forces outside the UK into actual or potential armed conflict to,as some have suggested, a comprehensive statutory abolition of this prerogative power. Such a convention would continue to allow executive emergency action under prerogative powers but with the important proviso that, within seven days of its enactment, retrospective parliamentary approval should be sought. Another consideration which weighed with the committee in recommending the convention route was the view that it would be unacceptable for there to be a possibility, however remote, of, for example, subjecting forces of the Crown to criminal procedures for action taken in good faith in protecting the national interest. However, the compromise preference for convention should not obscure the unanimous clarity of a cross-party committee that the exercise of the royal prerogative as the authority for the Government, in the person of the Prime Minister, to deploy armed forces is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st-century democracy. The reaction of the Government, both in evidence given to the inquiry and in their subsequent peremptory reaction to our report, which I described, was to defend the status quo, asserting the general principle of ministerial accountability to Parliament—explanatory accountability rather than sacrificial, it should be said—and the unlikelihood, which may well be true, of any Government going to war in the face of widespread parliamentary opposition as adequate defences against any potential abuse of the prerogative. That is a very curious reaction from a Government who gave Parliament a vote on the Iraq war. It is the more so given the wide consensus across the political spectrum that the prior approval of Parliament should be sought before deployment. This is the publicly held position of Gordon Brown and David Cameron—indeed, I chaired the meeting of the British-American Project at which David Cameron said that—together with Sir Menzies Campbell and Kenneth Clarke, chair of the Conservative Democracy Task Force. The fact that the Lord Chancellor’s brief and negative reaction to the report also promised, contradictorily, to keep the matter ““under review”” suggests a recognition in Whitehall that the political weather might be about to change, and with it the defence of this anachronism. A Government who say that they are not presently persuaded of the case are indicating that they may well persuade themselves tomorrow. A change would not be too painful, particularly given the compromise constitutional convention we suggested. Indeed, some constitutionalists maintain that the foundations for such a convention have already been laid by the vote on the second Iraq war—what Jack Straw, the Leader of another place, has called a clear precedent for the future. When the noble and learned Lord the Lord Chancellor replies at the end of the debate I should be very grateful if he could tell us in terms whether he and Her Majesty's Government disagree with his right honourable friend the Leader of another place that that first vote would be the precedent. Secondly, I would be very grateful if he could tell us in terms that he and Her Majesty’s Government categorically disagree with the Chancellor of the Exchequer. Don’t mind the great big clunking fist; just tell us if you disagree with the Chancellor of the Exchequer and tell us at the end of the debate. He is being quite clear that this is the way in which things should change. For those who believe in more open, rational decision-making on big issues—I cannot think of a bigger issue than war and peace—it seems to me that the recommended reform puts the onus on the Government to place clearly before Parliament the objectives of any deployment together with its legal basis, its likely duration and an estimate of its size. That clarity would be welcomed by the military, who, whatever their reservations about the dangers of micromanagement by politicians, hunger for clear definitions of the macro-task to be undertaken on overseas operations and are becoming increasingly vocal when it has not been forthcoming, as we have seen in the cases of Afghanistan and Iraq. The discipline of full accountability to Parliament would help to ensure clearer ends and therefore a better match of means and ends. Ultimately, the issue is not efficiency or even legality but, as I said at the beginning, legitimacy itself. Let me conclude on the prerogative. There are noble Lords speaking in this debate who have worked for the abolition of this whole set of pre-democratic principles or what the Government call ““historical anachronisms””. They may feel that this report does not go far enough. I simply say this: whether it is our convention or a total or larger measure of abolition of prerogative powers, the shrinking of the prerogative is and always has been a question of parliamentary determination. As we have seen yet again, the Executive on the whole will not want to let go of unfettered power; that is the way they are. The judiciary will tend to defer to them. I believe that it is squarely a matter for Parliament to find its voice and its confidence, and I hope that this report will help in achieving that. If not, dear Brutus, the fault will lie, "““not in our stars, but in ourselves, that we are underlings””." I beg to move. Moved, That this House takes note of the reportof the Constitution Committee on Waging War: Parliament’s Role and Responsibility (15th report, Session 2005–06, HL Paper 236) and the follow-up report (third report, Session 2006–07, HL Paper 51).—(Lord Holme of Cheltenham.)