Parliament: Waging War (Constitution Committee Report)

My Lords, I join many others in sincerely thanking our chairman, for both the clarity of his opening and the courtesy, charm and great knowledge with which he has conducted our affairs. I also join many others in expressing my view that the Government’s response, which is less than a single page if you remove the formal preliminaries, is not merely inadequate but also a gross discourtesy toour witnesses, advisors and the members of our committee who spent many days considering this vital topic. I hope that I can be brief, both because I am sure that almost everything has now been said and, with the sole exception of my noble and gallant friend Lord Craig, not a single voice disagreed with the committee that there needed to be parliamentary control over this decision, albeit that there have been some differences as to how one will achieve that and the precise nuts and bolts required. Quite apart from its inadequacy, there are two basic flaws in the Government’s response. First, it invokes the need to take war-making decisions ““flexibly and quickly””. No one doubts that there could be cases where there is a need for instant action, and our report expressly recognises this, but they are now rare and can be governed by special procedure. The theoretical need for such speed, or the rarer cases where secrecy is needed, cannot override the proper control of going to war in normal circumstances. Secondly, the Government rely on the fact that there has recently been debate—debate only, save on one occasion when there was a vote—and questions by which Parliament can ““review and investigate”” what has already been done. However, there is a vast difference between Parliament deciding whether or not we should go to war in advance and it merely considering in retrospect whether we should have done so. Once the die has been cast, it may be practically difficult to disengage. Once you have invaded a country, it is not easy just to say ““Oh, I’m sorry; I now find from Parliament that I should not have come. I am getting up and going away””. The country in question might have something to say about that and, indeed, might attack you asyou do so. Secondly, many would not have voted in advance to go to war but would be reluctant to force our country into the humiliation of having to withdraw ignominiously, saying, ““I am sorry; we have made a mistake””. A vast number of people will back our Armed Forces once they are there, even though they would have much preferred they had never gone. Thus an ability to hold the Minister to account after the event is no substitute for parliamentary approval in advance. The Prime Minister has said: "““I cannot conceive of a situation in which a Government … is going to go to war … without a full parliamentary debate””—" save, obviously, where immediate action is essential. If so, as the noble Lord, Lord Parekh, asked, why on earth not have a convention embodying this, fleshing out the boundaries and rules? In parenthesis, andin deference to the semantic objection of the noble Lord, Lord Norton, to the use of the word ““convention””, it may be that you can only have a convention by growth but you can certainly have a parliamentary practice by the decision of both Houses that the Government shall not go to war without a vote. Flatly, I use ““convention”” to cover that. There is considerable need to flesh out such a convention, as this debate has made clear. First, we do not have wars nowadays; we have apparently not had a war since we attacked Siam in 1942. It is therefore difficult to say precisely what is envisaged as needing parliamentary control. In particular, what about massive escalation? Say you send one regiment, and the situation suddenly deteriorates and a whole division is needed: when do you need a further decision? To take a point of the noble and gallant Lord, Lord Craig, he would probably not need parliamentary approval to put General Gordon on the boat to Khartoum, even nowadays. But it certainly should and would need parliamentary approval to send Kitchener and an entire army to rescue him. The Government’s response asserts, without evidence, that going to war is a decision they must take, as, "““one of the key responsibilities for which it has been elected””." Of course, it is for the Government to take the initiative of proposing war. Nobody is suggesting that Parliament can suddenly tell the Government to go to war when the Government do not want to. However, the electorate does not want the Government tomake the final decision without a vote of Parliament. Certainly, many of our witnesses took the viewthat that was not what the electorate wanted. I donot know—we have no evidence—on what the Government base their assertion that it is a key responsibility which they and they alone have been elected to perform. But if we are to acquire parliamentary authorisation for war-making, it is necessary to think out carefully how this is to be done and what are the basic rules. The report rightly and decisively rejects the concept of statutory control. It does so for various reasons, the two most important of which are, first, the virtual impossibility of precise definitions of the circumstances in which parliamentary approval is needed and so forth; and, secondly, the real danger of bringing the courts into the matter and enabling people to challenge the legality of what is being done. For my part, I do not regard that as a remote possibility. Someone may say that the authorisation is not valid—perhaps someone in the invaded country who says, ““You’ve injured me. You weren’t entitled to come and do so because you hadn’t been through the procedure your Parliament set””—and it would be an actionable wrong. The possibilities of litigation are considerable and therefore we were right in coming down firmly in favour of a parliamentary convention. To draft such a convention would undoubtedly require considerable care and skill; for example, in indicating the kind of deployment that would require a parliamentary vote. However, as the convention cannot give rise to court proceedings, it does nothave to be detailed or precise in legislation. It would undoubtedly be possible to devise a formula which governed most situations, and in rare borderline instances Parliament could decide which side of the line it fell. The members of the committee, the majority of those who have spoken today and I think that a convention is the right method. If the Government foolishly remain adamantly in favour of the status quo, there must be a grave risk that those who find that unacceptable will be driven to legislation. I want to deal with three points mentioned by the noble and gallant Lord, Lord Craig of Radley. First, he doubts whether Parliament would have backed the Falklands War or the first Gulf War. I do not know, although I find that a surprising proposition, but if it would not have wanted the country to enter intothose conflicts, so be it. Secondly, he talked aboutthe difficulties created by the parallel running of diplomacy and war preparation. I do not see what difficulty is created in that by having to gain parliamentary approval. Of course, if Parliament gives approval while the forces are on their way, say, to the Falklands or Iraq and the other side suddenly says, ““I see what I have done. I shouldn’t havebeen here. I’ll withdraw from Kuwait””—or fromthe Falklands—or if it says, ““Yes, I’ll let the arms inspectors look at everything and I’ll destroy anything I have””, the forces can turn around whether theyhave parliamentary approval or not. Thirdly, the noble and gallant Lord asked whether parliamentary approval would be needed for withdrawal. Surely, it would be needed only if the withdrawal involved abandoning the entire purpose for which one went there, rather than merely because we had won or the situation was largely in control and fewer forces were required. The noble and gallant Lord said that we would be lampooned if we did that. I thought that we were being lampooned now and that a large part of the world would be pleased and congratulate us if we withdrew. But in fact that point will not arise. The reason one can go to war without parliamentary sanction is that the funds are there,but as the war goes on and a new budget and a new vote are required, if Parliament wants the forces to withdraw, it can severely cut the military budget so that the military has no choice but to withdraw.