Parliament: Waging War (Constitution Committee Report)

My Lords, I begin by thanking the noble Lord, Lord Holme of Cheltenham, and his colleagues on the Constitution Committee for this excellent report. It is timely, closely argued, politically balanced and backed up by an impressive body of views from experts in the field. The Government’s response is disappointing, not so much because it rejects the recommendations of the report but because it does so on grounds that I find completely unconvincing. The Government’s response rests on two grounds. First, it says, no Government would ever dreamof going to war without a parliamentary debate. Fine—so why not make it clear and accept a binding convention? Secondly, the point is not about parliamentary debate or support but about parliamentary approval prior to the action. It is also important to bear in mind, in response to the Government’s first argument, that the debate could be held at a time when Parliament may have no choice but to approve what has already happened. The Government’s second argument is that the ability to take decisions using prerogative powers, "““is an important cornerstone of our democracy””." That, I am afraid, is a half-truth. First, the useof prerogative powers has been constitutionally regulated over the centuries. That has been the process of our political evolution. I see no reason why the process of historical restriction and regulation of prerogative powers should stop now. Secondly, this Government, to their credit, have either loosened up or broken quite a few cornerstones in the 10 years in which they have been in power. I remember very clearly the debate on devolution. Before that, the noble Baroness, Lady Thatcher, and many others in the Conservative Party argued thata unified or unitary constitution of our state wasthe cornerstone of our democracy. Parliamentary sovereignty was important and devolution was going to create ““anti-parliaments”” in Scotland and Wales. We have got rid of that—and at that time no question was raised about the cornerstone of democracy being shaken by accepting the policy of devolution. The third reason why I find that argument specious has to do with the fact that I should have thought that parliamentary sovereignty was also the cornerstone of our democracy. That requires that the power to declare armed hostility or war should be accountable to and approved of by Parliament. As I am puzzled by the Government’s reasons, and even more puzzled that the Constitution Committee’s tightly argued report has not been persuasive to the Government, I should like to have another go at it and try to reinforce some of the report’s conclusions by advancing a different set of arguments and, in some cases, going a little further than the report does. I should have thought that if democracy means anything at all, it certainly requires that people should be involved in taking decisions affecting their lives—and wars certainly do that. By wars, I meannot only declarations of war but conflicts involving engagement or deployment of armed forces outside the territory of the United Kingdom. All wars take lives, make the country more vulnerable than before, and involve huge expenditure of scarce resources. They are also fought in the name of the people of the country, and people have a right to be satisfied that what is done in their name is acceptable to them—and that they are prepared to accept moral responsibility for the decisions taken by the Executive. If wars or armed hostilities were to be ill conceived or unwise, they would diminish all of us individually as well as collectively; induce a sense of shame or guilt, as the war in Iraq has done; and affect the quality of our lives. It is therefore a matter of absolute urgency and importance that, in any democratic society, decisions involving wars or armed hostilities must be taken by the representatives of the people. If we accept the conclusion of the report—that Parliament should authorise the declaration of war or engagement of armed hostility—then there are many good reasons why that should happen. I have already talked about the principle of democratic legitimacy, but I could give many other reasons as well. Parliament would have the opportunity to examine the political case for the war and to decide whether the case had been well made. It would also have the opportunity to examine the legality of the war and to say whether it was legal. Parliamentary debate prior to the engagement of hostilities would ensure that any secret commitments made by the Executive on behalf of the country would come out into the open and be carefully discussed. It would give the chiefs of staff the confidence that the decision had the support of the country at large and would contribute to strengthening the morale of our forces. No less importantly, it would reassure the country and the families of those who die in wars that their lives were not lost in vain. When I talk about parliamentary authority I have in mind not just the House of Commons but also the House of Lords. Even after careful thought I donot understand why armed hostilities should be authorised only by the other place and not by your Lordships’ House. I give three good reasons why I find that argument unconvincing. First, your Lordships’ House is a constitutional part of Parliament and has the appropriate legal and constitutional authority.After all, no measure becomes law unless it is passed by both Houses of Parliament. Therefore, I cannot see why the declaration of hostilities should be an exception. Secondly, the fact that the composition of the House of Lords is disputed does not detract from the fact that it is part of our constitutional architecture. However it is composed, it has constitutional authority of almost equal magnitude to that of the Commons. If your Lordships’ House were to be elected, that might increase its legitimacy but I do not see how it could increase its authority. Thirdly, in our country people speak—I mentioned their approving what is done in their name—in two different voices: the House of Commons, where Members represent their various constituencies, and your Lordships' House. It is important to bear in mind that your Lordships' House has an enormously proud record of maintaining civil liberties, which is an important tradition of our country. It is very striking that in this respect the other place was found wanting. Your Lordships’ House was widely acclaimed and applauded for speaking in the name of, and on behalf of, the country at large. For those and other reasons I strongly urge that the report be modified and that the approval of not just the other place but your Lordships' House should be taken into account. I am tempted to go a little further. If one has a bare majority in favour of the initiation of armed hostilities, it is sometimes asked what kind of messages that sends out. Are we prepared to commit our troops and risk their lives on the basis of 51 per cent of Members voting for this or that action in either of the two Houses? In that situation, half the Members of both Houses would be against initiating hostilities, which would send out different messages. I do not want to push my point further, but I have argued it in my academic writings and perhaps I should do so in political platforms such as this. It might not be a bad idea to explore the possibility, as some countries are doing, of insisting that a declaration of war and armed hostilities should command at least a two-thirds majority of the legislature of the country concerned. To commit and endanger people’s lives without that is extremely dangerous. The report goes through the various reasons why people might raise objections to its recommendation for a constitutional convention. It successfully answers almost all those objections, including those raised by the noble and gallant Lord, Lord Craig of Radley. Responding to an emergency in self-defence is easily covered. People say that if parliamentary authorisation is required there is a danger of media pressure. However, media pressure takes place everywhere all the time, and in many cases is to be welcomed rather than resented or resisted. We are told that parliamentary authorisation opens up the possibility of judicial review. The evidence of the noble Lord, Lord Lester of Herne Hill, was very striking in that regard; namely, that judicial review comes into play only when a Prime Minister is stupid enough to declare war while disregarding the Act. In such situations judicial review has much to be saidfor it. It was said just now that parliamentary authorisation was likely to politicise the Armed Forces. On the contrary, I should have thought that it would put the issue beyond party politics becauseit was likely to enjoy cross-party support. As for operational security, I think it is already recognised that we are talking about approving a decision to go to war, not micro-management of how the war should be conducted. I shall discuss briefly the final question that is raised—whether parliamentary authorisation should be a matter of statute or convention. I can see arguments for both but I have a mild preference for statute. If you have a convention, you risk two or three dangers arising. Conventions are not necessarily binding and can be circumvented by all manner of means. There is also the danger that a convention would not necessarily reassure the country. In the aftermath of what has happened in Iraq and elsewhere, one of the most important political questions in a democracy is to find ways of reassuring the country at large that when armed hostilities are engaged in they are carefully thought through. I do not think we fully appreciate how much the legitimacy of our democracy is undermined by this ill-conceived act of war. It is therefore important that rather than simply thinking in terms of a constitutional convention we should rather think in terms of a binding statute. I urge the Government to bear in mind that there is already a momentum for a great historical change. For all kinds of reasons different political parties and currents of thought in our country are beginningto converge on broadly what the Constitution Committee recommended. I very much hope that the Government, whose record in these matters has been excellent so far, will seize the opportunity and accept the recommendations of the Constitution Committee with some of the qualifications that I introduced.