Parliament: Waging War (Constitution Committee Report)

My Lords, I join othersin congratulating the Constitution Committee on producing an extremely important and timely report. I accept the principle underpinning the report. The Executive rests on the confidence of Parliament—it derives its legitimacy from Parliament—and it must be accountable to Parliament for its actions. I accept that Parliament's ability to challenge the Executive must be, to use the words of the committee at paragraph 103, ““protected and strengthened””. However, the committee has missed, or rather failed to focus on, what I consider to be core to achieving that. The committee has, quite justifiably, addressed the issue in terms of the current debate. That debate has focused on strengthening Parliament through statute, hence the various Private Members’ Bills cited in the report, or through developing a constitutional convention. This debate misses the fundamental nature of the problem. The problemis not one of statutory powers or developing constitutional conventions. One has only to put the debate in comparative context to appreciate that. The US Congress is vested with significant powers. The war-making power is vested in Congress, not in the president. The president does not rely on the confidence of Congress. It can challenge him without jeopardising its own existence in office. It can seek to use the power of the purse or it can legislate to constrain the president. It did precisely that in 1973 when it enacted the War Powers Act. One can contrast that position with that of Parliament. The war-making power in the United Kingdom is a prerogative power. It can be employed without reference to Parliament. On the face of it, Congress and Parliament can be argued to be at opposite ends of the spectrum: Congress is powerful, Parliament is weak. In practice, the difference between the two to affect executive decisions to commit troops to combat is not particularly great. The war-making power, as Professor Warbrick notes in Appendix 4 of the report, is an obsolescent power. Some scholars have seen the War Powers Act as enhancing presidential authority, through formally recognising in statute the power of the president to commit troops to action. It has not proved a significant check on the president in committing forces abroad. Congress has not been a notable constraint on the president in recent years. Norman Ornstein and Thomas Mann in an article in the journal Foreign Affairs at the end of last year, contend that: "““In the past six years... congressional oversight of the executive across a range of policies, but especially on foreign and national security policy, has virtually collapsed””." Even now, with a Democrat-controlled Congress, problems remain. The argument that there is little difference between Congress and Parliament in their capacities to constrain the Executive in committing forces abroad is well made in an article in the latest issue of Public Law by David Jenkins of Aberdeen University. As he argues: "““Neither the constitution's ‘declare war’ clause itself, northe War Powers Act, have effectively hedged the President's increasingly unilateral power to commit the United States to armed conflict, a power that substantially resembles the Crown's war prerogative””." The president's power as commander-in-chief can be seen to confer on the president not dissimilar powers to those conferred on the Prime Ministerby the prerogative in this country. An American president, when determined, can commit troops just as can a determined British Prime Minister. The problem is not one of formal capacity to constrain government. There is certainly something lacking, but it is not formal powers. Why does a determined president get his way? Because Congress lacks the information and the political will to challenge him. Why do a determined Government get their wayin this country? Because Parliament lacks the information and the political will to challenge them. One only has to look at what has happened in respect of Iraq. The House of Commons voted on the issue—and I accept that, on issues of going to war, it should be the House of Commons that votes. It voted on the basis of information provided by the Executive. Would it have voted differently had it had the information that we now have? We cannot know for certain. We do not need to know for the purpose of my argument. The problem was not one of the mechanism for parliamentary approval. If therehad been a statutory requirement for a vote, or a convention to that effect, it would not have affected the outcome. The problem was one of incomplete information. Even with far greater resources at its disposal than Parliament, Congress faces a similar problem. The committee touches on this in its report in its discussion of whether there is a need for independent legal advice for Parliament and for a Joint Committee on the Armed Forces, but it does not get to the heart of it. It is that discussion that merits expansion. We need to consider how Parliament can be better informed for the purpose of assessing whether the Government are justified in committing troops to war. It may be a difficult, if not a near impossible, task, for fairly obvious reasons; but, if Parliament is not furnished with the information necessary to make an informed judgment, the Executive will get their way. Parliament does not have the basis on which to challenge them. Information is a necessary but not sufficient condition for strengthening Parliament’s ability to challenge the Executive. One also needs the political will. That applies as much to Congress as to Parliament. If members are not prepared to challenge the Executive, especially when furnished with the information necessary to make a judgment, then again the formal powers are rendered nugatory and the Executive get their way. One cannot do anything in a formal or mechanistic way to generate political will. Popular pressure may help engender a more critical stance, but that will be limited if there is incomplete information. It is also limited once forces are committed and troops are in action. However, what may help Members think more critically is access to the information that has prompted or forced the Government to act. Governments are strengthened if they take Parliament into their confidence. In the 20th century, Parliament was, perhaps paradoxically, at its strongest during the Second World War. The Government were extremely powerful in executing the war, but it relied on the cross-party support of Parliament. Governments that are confident in their reasons for committing forces to action should be willing to share their knowledge with Parliament. However, that willingness should not be assumed. We therefore need to address ways in which Parliament can help itself to make informed judgments on a government decision to commit forces to action. Is it through a joint committee, through strengthening the resources of existing Select Committees in the other place or through other routes? These are the questions we need to be addressing and addressing quickly. If we come up with answers, we then need the political will to deliver. They will not deliver of their own accord or as a result of government munificence. On the issues raised by the report, I would draw attention to the fact that conventions are not made; they develop and they rest on the willingness of those at whom they are directed to abide by them. A convention may develop along the lines favoured by the committee and, in any event, it is not clear that a Government could necessarily prevent a vote taking place, certainly not without the support of the Opposition or opposition parties. However, holding a vote on the basis of incomplete information is not a means of strengthening Parliament. It is likely to legitimise the Government, because, as I have said, Parliament is dependent on the information provided by Government. Hence my contention that we need to address the need for a better informed Parliament. That, to my mind, is the fundamental issue. Talking of incomplete information brings me to the Government’s response to the committee’s report. I have little to add to what the committee has said in its follow-up report or to the comments made already this afternoon. The stance that has been taken by the Government largely beggars belief. Ministers knew that the report would be debated, yet produced a document that fails completely to engage with the report. The response did not appear for three months, but could have been written in 10 minutes. In replying to this debate, we are entitled to expect the noble and learned Lord the Lord Chancellor to explain why it took so long to produce what for all intents and purposes is a non-response. We are also entitledto expect from him a proper engagement with the committee’s report. The relationship between Parliament and Government at time of war or conflict is crucial to the health of our polity. It is crucial that the Government recognise that and are prepared to take Parliament into their confidence. Acknowledging that fact will be a start, but only a start. We as a Parliament have a lot more to do.