My Lords, I am very glad that, when following the noble and gallant Lord, I can agree with him so very extensively. If I were a member of the Select Committee, I should be rather offended by the Government’s dismissal—for that, in essence, is what it is—of my report. Eight paragraphs, covering one and a half pages, are a pretty cursory response to the committee’s inquiry, which, as the noble Lord, Lord Holme, reminded us, is the product of 18 months’ cogitation of evidence taken from November 2005 to July 2006 and recorded in some 240 pages. Nor would I be greatly mollified to read in the response that my report, "““is a significant contribution to the public debate””,"
although that is more than can be said for the Government’s response, which is devoid of any argument worthy of the name.
If I were a member of the Select Committee, I would regard my report as having dealt seriously and fairly with a matter of the gravest constitutional importance, and as having topicality. Yet the response concludes with this sentence, as we have already been reminded: "““The Government will of course continue to listen to views about the deployment of the armed forces and keeps its policies under review””."
That formula suggests to the seasoned eye that itwas selected with satisfaction from the office file of reach-me-down brush-offs. The committee, the Armed Forces and the public deserve better than that.
Today, our Armed Forces face dangers that are at once more brutal and more subtle than they have had to face even in the recent past. In Northern Ireland, for example, terrorists of either colour took goodand only occasionally insufficient care not to blow themselves up in the course of their attacks. Our present suicidal opponents are even more difficult to forestall, and they do not face the fear of being prosecuted for making mistakes in the course of their duty, as our military do. Thank heavens, as we all recognise, our Armed Forces are well led and accept these dangers with a phlegm that we all enormously admire. However, it is correspondingly incumbent on us to give them the quiet minds that will come from reassurance about two things: first, as the noble and gallant Lord, Lord Inge, has said on more than one occasion, that the country is behind them; and, secondly, that what they are tasked with is lawful.
I am convinced that the services need to know that the country is behind them. They need to know this just as much when warlike operations are in preparation as they do when they are in progress, and perhaps even more so, because they have more timeto think about these matters when they are in preparation. We now owe them the assurance that, save in the utmost of sudden emergencies, if they are to be ordered into war or serious armed conflict—the distinction that the noble and gallant Lord, Lord Bramall, makes between the two needs very careful examination and resolution—this can no longer simply be at the behest of a presidential Prime Minister wielding the prerogative power. In contemporary political language, they deserve evidence of greater legitimacy than that, and such evidence can come only from Parliament. They can have no better means of knowing that, in their language, the country is behind them. It is no longer enough to say, as the Prime Minister says in effect in the report, ““Oh, but we would always seek to take Parliament with us anyway. Not to do so would be unimaginable””. In recent years, too many things that were previously unimaginable have happened to our constitution for that to reassure. Mr Gordon Brown at least seems to recognise this. As we have already been reminded in this debate, the report cites him, at paragraph 87, as apparently leaning towards a further restriction of executive power in the context of Parliament’s role in declaring peace or war.
To go back to the Government’s response, it asserts but hardly argues their disagreement with all this. After citing the Prime Minister, the response merely states at paragraph 4: "““The Government is not presently persuaded of the case for going beyond that to establishing a new convention determining the role of Parliament in the deployment of the armed forces””."
Notwithstanding the insertion of ““presently”” into that formula, the Government’s tone is one of, ““Don’t ring us, we’ll ring you””. That is not worthy of the hour. The committee has set out a considered argument for a parliamentary convention—not a statute with all the legalism to which that could give rise—determining the role Parliament should play in making decisions to deploy forces outside the UK to war, or to the risk that they will be engaged in it.
I support this. I like the four characteristics of such a convention set out at the end of the report, but if they are too stark for Ministers, I would have hoped that they might have reacted favourably to, or at least mentioned, a variant also noticed in the report. This was for a convention which would make it the duty of government to seek the prior approval of Parliament, probably the House of Commons advised by this House, in respect of any proposed deployment of UK Armed Forces overseas which for the purposes of the convention the House of Commons itself would have identified. So you would have a general rule which the Commons could tap into in a proper case, but not one that had to be of universal application. I find this attractive, which is why I proposed it.
Lastly, as to lawfulness, the second matter about which the forces need to be reassured, parliamentary authority will not of itself guarantee lawfulness, but at least it will not have been given without the Government having had to assert and justify their claim that what they propose will be lawful. They will have had to expose the character of their legal advice and it is unlikely, to say the least, that any Parliament will commit itself and our Armed Forces to action that it knows to be unlawful.
The further examination of these matters will deserve less dismissive contributions from the Government. If only under the leadership of Mr Gordon Brown, I hope that we shall get them.
Parliament: Waging War (Constitution Committee Report)
Proceeding contribution from
Lord Mayhew of Twysden
(Conservative)
in the House of Lords on Tuesday, 1 May 2007.
It occurred during Debates on select committee report on Parliament: Waging War (Constitution Committee Report).
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