Parliament: Waging War (Constitution Committee Report)

My Lords, I was also privileged to serve on the committee and took a particular interest in this inquiry because of the effect of the prerogative on the conduct of our foreign affairs. I congratulate our chairman, the noble Lord, Lord Holme, on finally achieving this debate. We had an impressive array of witnesses and, with expert help, we produced a report of more than 300 pages which includes solid original evidence. As our chairman said, the Government’s response was on a single sheet so thin that you could see through it, although it stated that the paper contained 75 per cent fibre content. There was no fibre inthat response; it said nothing of any value. How appropriate that our chairman dismissed it as ““woolly”” as well as ““temporising””, ““tardy”” and ““inadequate””. To be fair to the noble and learned Lord the Lord Chancellor, the responsible Minister, he did apologise in October for the ““extended delay””, but it was especially disappointing on such an important subject. As one of the key witnesses, he had already given the Government’s position, which may be summarised in two sentences. The prerogative is vested in the Executive, who must have the power to deploy troops in difficult and fast-moving circumstances; and they do. The Executive are fully accountable to Parliament, and the Government cannot go to war without the support of Parliament. This is where this debate comes in. This Government genuinely believe that they are already consulting Parliament through debates, Statements and Questions, and that they are adequately held to account through Select Committees. Most of us accept that there has been a degree of consultation and scrutiny, but from Parliament’s point of view that process is too informal and is at the whim of the Government. It is not statutory, and it lacks structure. In particular cases it may have proved satisfactory, but in practice it is constitutionally inadequate. Parliament’s ability to challenge the Executive must be strengthened, especially in regard to deployment. The Armed Forces need not ultimately worry about this too much because under the royal prerogative no Government would ever give up emergency powers. We therefore suggest there must be some limited form of convention to ensure that future Governments and Parliaments are mutually aware of and bound by some quasi-legal procedure. That was well stated in paragraphs 85 to 93 and in our conclusion in paragraph 108. We were fortunate to have the advice of two former Attorneys-General who were sympathetic to the idea of a flexible convention, while recognising, as we all did, and as evidence from the Armed Forces had plainly shown, that there must ultimately be no restraint on the power to deploy. The noble Baroness, Lady O’Cathain, has already quoted the noble and learned Lord, Lord Mayhew, on this, and I fully agree with her points on accountability. Gordon Brown’s position, so far as I have understood it, may be a fraction closer to ours in that he has accepted an evolutionary role for Parliament, which implies a desire to stand back and reviewthe constitutional position without the need for legislation. It was unfortunate that we were not able to hear Mr Brown’s evidence directly. We have not gone down the path of recommending a special Select Committee as some of our witnesses were urging us to do. The Select Committee procedure is in itself a pillar of the constitution, and we do not want more committees. I still wonder, however, whether the present Select Committees, while they do an excellent job of scrutiny on particular themes, might not in a crisis be strengthened by seconding members to an ad hoc committee with access to intelligence, similar to the quadripartite Select Committee. My only criticism of our report is that it did not spell out how Parliament could be better consulted. This may be because of the evidence of Professor Sir Lawrence Freedman, who was an adviser to the Defence Committee during the Falklands war. At question 127, page 72, he said: "““What the Committee was able to do was provide first a platform for people to grumble and complain but then, as time went on, it was able to bring a degree of realism from both sides to the discussion, by which time, of course, the conflict was well over””." More seriously, I take the important points madeby the noble Lord, Lord Norton, on the lack of information and the difficulty of fully involving any Select Committee in the process. To some extent, things have moved on with the publication of this report, which the Government should regard as a landmark in itself, because of the careful interpretation of policy that lies in the evidence as well as in the conclusions. However, none of us is convinced by the Government’s attitude so far, judging from last year’s response and occasional Answers to Questions in the House. I hope that the Minister can be more forthcoming this afternoon. I found helpful, as did the noble Lord, Lord Garden, the evidence we heard on the Dutch Parliament regarding the war in Afghanistan. The war gradually grew in importance while we were taking evidence because of our deployment of additional forces there. Article 96 of the Netherlands’ constitution states that its Parliament must give prior approval unless consultation proves impossible. Article 100 states that the Government must inform the States-General of any deployment, including the provision of humanitarian aid. As a result, Dutch MPs were able to challenge the proposal to deploy Dutch troops to NATO-ISAF in December 2005, which was approved only in February 2006. That was two months’ delay, to which some objected as operationally disadvantageous; but in my opinion military critics would disapprove of any such delay. These were ISAF troops and there was no compelling reason for their deployment, since they did not form part of Operation Enduring Freedom, and that was precisely why the MPs were interested. They wanted to know exactly what their troops were undertaking. In Britain, by contrast, a significant new deployment of more than 1,300 troops was announced and we had Statements and Questions, but there was no contract with Parliament such as that we ultimately had before the Iraq war. It was a blatant use of the prerogative and parliamentarians were not properly consulted. It showed a lack of respect for our constitutional arrangements, which to my mind can be met only with a more formal convention. I must emphasise that this would not be a straitjacket, but a statement of the role of Parliament. The British public have not been consulted adequately on Afghanistan. As my noble and gallant friend Lord Bramall said, there were different aimsin Iraq and the same is true of Afghanistan. Thepublic still think that we are fighting a war for reconstruction and development, and there is some ambiguity about the role of NATO, which is engaged in Operation Silicon in the mountains of Helmand, in contrast to the peacekeeping work of ISAF further north. That is precisely what Parliament should be debating before these major decisions are taken. That is why I wholeheartedly support our committee’s proposal, which is backed up by eminent witnesses with considerable combined experience, including military historians and representatives from our Armed Forces—not all of whom agree, as we know. My noble and gallant friend Lord Bramall will not mind if I quote his evidence from page 64. In an interesting summary, he said that, "““if Parliament supports the action, which it did in Iraq, the Armed Forces can take heart that constitutionally the country supports it””." But I repeat what he also said—that this does not mean that parliamentary approval should ever extend to tactical decisions; the committee was unanimous on that. I hope that the noble and learned Lord the Lord Chancellor will therefore consider this report a little more seriously today than before, and I hope that he will accept that, whatever the good intentions of the Government, the example of Afghanistan should cause them to reflect a little more deeply than they have hitherto.