Parliament: Waging War (Constitution Committee Report)

My Lords, many who have participated in the preparation of the report have spoken directly of their appreciation of the chairmanship of my noble friend Lord Holme of Cheltenham, who opened the debate with such clarity and economy. I join them and others who have congratulated him on the manner in which he steered the report to a subtle and important conclusion. I profoundly hope that it will inform the thinking of the Government when they undertake what the noble and learned Lord the Lord Chancellor has described as the continuing review to which this issue is to be subjected. I have known my noble friend Lord Holme in a number of circumstances, although I have not had the pleasure of sitting at his feet in this committee. His role in promoting constitutional reform and the rule of law is probably unrivalled in this House. The core message in the report and of today’s debate is that, however appropriate the governing of the decisions on war or peace and whatever their manner and their constitutional foundation, the process is not suitable for today. The report spoke of an historical anomaly and warned against replacing it by a political anomaly. Consequently, the measured and extremely informed contributions to the debate make it exceptionally helpful to those who will haveto bring forward proposals to meet what I perceiveto be the public wish that their representatives in Parliament should decide whether to commit troops overseas to the unique task of taking life on our behalf. The quality of the debate and its multidimensional nature were nowhere more strongly demonstrated than in the contribution of the noble and gallant Lord, Lord Bramall, whose experience and responsibilities make it appropriate that we should give considerable weight to his perceptions. He dealt with the practical impact of parliamentary approval of the decision-making required of political leaders, the Prime Minister and those responsible for our Armed Forces, which was particularly helpful. He said that in most circumstances the time factor would not be a constraint and that nowadays most armed conflict is heralded in advance by the diplomatic exchanges and the build-up of force. We were warned—again, with the benefit of experience—by the noble Lord, Lord Luce, that the timing could be awkward, as it had been in the case of the Falklands invasion. However, he did not support the view that Parliament should be excluded from the decision-making. He simply advised that detailed information that might be necessary for the security of the troops and the effectiveness of the operation should not be revealed at too early a stage. That view will have commanded widespread support. The quality of the exchanges raised sharply the question of why the Government’s reply to this report was so dismissive. The noble and learned Lord, Lord Mayhew, and the noble Baroness, Lady O’Cathain, spoke of the tardy and threadbare nature of the single-page response. The noble Earl, Lord Sandwich, said that it lacks fibre. It is appropriate that these Benches ask the noble and learned Lord the Lord Chancellor to say in his winding-up speech whether he shares the view expressed by the noble Lord,Lord Holme, in opening this debate. The words ofMr Gordon Brown were quoted a number of times. In April 2005, he said: "““I think it is unlikely that except in the most exceptional circumstances a government would choose not to have a vote in Parliament””." and in January 2006, he made a similar remark. Does the noble and learned Lord think that that is indeed a portent of a serious reconsideration of the line of argument so summarily put forward last autumn? It is not enough to say that the Government are not presently persuaded of the force of the argument as the evidence summarises it. The argument is important and needs to be addressed. We owe nothing less to our troops, whom we are deploying, at great risk to themselves, in Iraq and Afghanistan today and who will, no doubt, be deployed in a number of other situations of armed conflict that, it does not take the powers of a crystal-ball gazer to apprehend, will be the consequences of the underlying tensions in the world in which we are living. The report raised interesting points and underlined the importance to the armed services of public backing for their objectives and of the legality ofthe operations. In his evidence to the committee, the noble and learned Lord, Lord Mayhew, carefully described what he perceives as the requirement that the character of the legal advice given about the international legality of armed conflict should be made known to Parliament. The Government would be wise to adopt that approach. There are difficulties in the position of the Attorney-General, whose first responsibility is to advise the Government, and there is nobody able to do the task for Parliament alone. In any event, the arguments that have moved the mindof the Government are important in order for Parliament to understand their legal case. The core of this debate rested on whether accountability to Parliament and Parliament’s responsibility for choosing whether to commit troops to armed conflict should be secured by parliamentary convention or legislation. Opinion on this was less united than it was on the core principle that Parliament should give its consent. My noble friend Lord Lester sought to answer the criticism that legislation as a basis for war powers would inevitably give rise to the risk of judicial review. The argument continued with a contribution from the noble Viscount, Lord Bledisloe, who doubted whether it could entirely be avoided. This debate deserves tobe continued. I doubt that it is beyond the wit of Parliament to construct legislation that makes the intervention of the courts extraordinarily unlikely. In any event, if the courts were to intervene, the result would not necessarily be catastrophic. The noble Lord, Lord Norton, forcefully and persuasively expressed the view that conventions are not made. I was reminded of a story about a dean of an American college who announced that, as from the next day, it would be the tradition of the college that no one would walk on the grass. I do not believe that such conventions can be plucked out of a short and easy dialogue between party leaders or even between the usual channels. The actuality is rather different. The conventions, in the sense of a treaty or the kind of concordat arrived at between the noble and learned Lord the Lord Chancellor and the Lord Chief Justice, are highly unusual in our constitution. In any event, I question whether a convention would be a strong enough basis to stand up to changes in circumstances. The report by the noble Lord, Lord Cunningham, on the conventions of this House was cited, but in the debate that followed the publication of that report, even he indicated that conventions would not necessarily survive a change in the composition of the House. If there are changes of circumstances, who would rely on such a fragile basis? I throw my weight behind those, including the noble Lord, Lord Judd, and the right reverend Prelate the Bishop of Ripon and Leeds, who say that we should look to construct a statutory basis on which to found our goal of ensuring that Parliament decides. We have a serious obligation to do this at this time. The noble Lord, Lord Judd, spoke movingly and powerfully about our commitment, which is more than one of language, historically to resort to the use of force only in specified legal circumstances. When we do, it potentially has serious consequence for those who fighting on our behalf. I cannot believe that it is satisfactory to them that their only assurance that that represent the will of the people is the voice of the Prime Minister. We must broaden the basis of consent for the most grave action that a modern nation state can take.