My Lords, all those members who served on the committee have already paid tributeto the chairman, the noble Lord, Lord Holme of Cheltenham, and the manner in which he conducted all the sessions and, ingeniously, put together at the end of a large volume of evidence, such a compelling report. I would like to join in their congratulations. I have also been fortunate, as have all your Lordships, to have heard the noble Lord open this afternoon, and have admired the way in which he has managed to condense so much information in such an eloquent and persuasive manner.
I share the views expressed by almost all your Lordships who have spoken in this debate. If I single out the noble and gallant Lord, Lord Craig of Radley, it is not out of any lack of admiration for him, but simply because I think that his approach was discordant with that of all other of your Lordships. Once again, I find myself admiring the noble and gallant Lord’s courage in the face of so much hostility.
Perhaps I can start—if that does not sound too ominous an introduction to what I trust will be a relatively short speech—by referring to paragraph 50 of the report, which summarises the evidence given by the noble and gallant Lord, Lord Boyce. It states: "““Lord Boyce told us that an open debate in Parliament on deployments could undermine six key aspects of Armed Forces operations:""escalating the conflict through rhetoric;""skewing decisions through access to only limitedinformation …""compromising operational security by publicly discussing too much detail prior to action …""impairing flexibility ...""undermining clarity about the timetable …""[and] giving the opponent early notice of intent””."
The noble and gallant Lord, Lord Bramall, has given some compelling answers to many of the concerns raised by the noble and gallant Lord, Lord Boyce. Nevertheless, as the convention develops during what I hope will be the months, rather than the years, ahead, I am sure that your Lordships will agree that its desirability will need to be tested against those criteria—a point especially emphasised by the noble and gallant Lord, Lord Craig.
I wish to draw your Lordships attention to only one of the six concerns expressed by the noble and gallant Lord, Lord Boyce, which is the skewing of decisions through access to only limited information. At page 22 of the evidence, Professor Loveland emphasised that that might lead to Parliament giving, "““spurious and undeserved legitimacy to whatever it is that the Government has decided to do””."
All of your Lordships have met some honourable Members from another place who voted for the war in Iraq, only to say later that, had they known a certain piece of intelligence that was not available to them at the time, their vote may well have been different. I do not suggest that even now—supposing that a hypothetical vote could be taken now, given all the evidence that we now know about the war—the vote would be any different. But it is plain thatthe view of Members of another place is that the information that they had was, to say it in the least uncontroversial manner, incomplete.
The problem is that the information on which another place will vote to deploy troops abroadwill always be incomplete. Manifestly, a Government cannot allow certain pieces of intelligence to become public. In a sense, the vote will always be on the basis of skewed information. So, in developing a new convention—with which I entirely concur—your Lordships have to find a way to allow another place to have confidence in the Government’s conclusions, without at the same time being in possession of evidence which it should not anyway have because it would undermine the chances of our troops being successful.
The noble Lord, Lord Holme of Cheltenham, was quite right to draw our attention to the historical position. When the modern law of prerogatives was developed at the end of the 17th century, Parliament was in a much more powerful position than it is today to stop Governments going to war. Parliament had control of the purse and the Government and the King did not have control of Parliament. Nowadays, the situation is completely different, because the Government not only have the prerogative power but dominate Parliament in the manner with which weare all familiar. We need to flesh out a convention about the deployment of troops abroad; but, in doingso, we will need to look very carefully at other prerogatives—in particular, the prerogative to make treaties and the prerogative that the Government decide, exclusively, the shape of government machinery.
With a typically imaginative initiative, about ayear ago the noble Lord, Lord Lester of HerneHill, introduced a Bill to your Lordships' House concerning the whole range of prerogative powers of the Government, seeking ways in which Parliament could gain greater control. One of the most important areas touched on in the debate concerned the Government’s prerogative to make treaties. Since the conflict that your Lordships' House had with another place about the treaty with the United States on extradition, I have been convinced that no treaty should be signed by the Government until its terms have been made plain to Parliament and Parliament has had a chance to debate its content.
The relevance of that is that on so many occasions we deploy troops because we have a treaty obligation to do so. The individual rights of citizens were adversely affected by the extradition treaty with the United States, which was negotiated and concluded in secret. Yet there is no individual right that is more important than the right to life. If our soldiers are to be deployed as a result of a treaty, it is vital that any future treaty that is negotiated and which requiresthe deployment of our troops is properly scrutinised by Parliament before it is signed. That is the first component of the new convention, which I believe should have serious consideration. The second concerns the machinery of government. When the right honourable Clare Short gave evidence to the committee, at page 3 of the evidence, she said: "““When you look at the royal prerogative, it is not the prerogative of the Cabinet, it is the prerogative of the Prime Minister, so that helps to encourage a lack of accountability to the Cabinet. I think even worse, the Cabinet Committee Defence and Overseas policy, to which come all the heads of the ... Armed Forces, the Permanent Secretaries and Secretaries of State of all the departments which have any foreign policy intervention, normally would meet and scrutinise all the diplomatic, political and military options in a crisis situation like this. It did not meet””."
For corroboration, one has to turn only to the report by the noble Lord, Lord Butler, entitled,The Review of Intelligence on Weapons of Mass Destruction. At page 146, in the concluding section of the report on the machinery of government, the noble Lord laments the fact that powers originally exercised by the Cabinet secretariat were handed over tothe personal advisers of the Prime Minister. He concludes: "““One inescapable consequence of this was to limit wider collective discussion and consideration by the Cabinet to the frequent but unscripted occasions when the Prime Minister, Foreign Secretary and Defence Secretary briefed the Cabinet orally. Excellent quality papers were written by officials, but these were not discussed in Cabinet or in Cabinet Committee. Without papers circulated in advance, it remains possible but is obviously much more difficult for members of the Cabinet outside the ""small circle directly involved to bring their political judgement and experience to bear on major decisions for which the Cabinet as a whole must carry responsibility. The absence of papers on the Cabinet agenda so that Ministers could obtain briefings in advance from the Cabinet Office, their own departments or from the intelligence agencies plainly reduced their ability to prepare properly for such discussions, while the changes to key posts at the head of the Cabinet Secretariat lessened the support of the machinery of government for the collective responsibility of the Cabinet in the vital matter of war and peace””."
An essential component of a convention, therefore, should be Parliament’s confidence that the proper processes of Cabinet Government are respected by the Government. If we are confident that intelligence we will never see has been properly assessed by the people in Government who are responsible for assessing it, we are much more likely to have confidence in the Government’s judgments aboutthe deployment of troops. I believe that a second component of this convention must be an overhaul of the machinery of government in respect of decisions of war and peace so that Parliament can be absolutely confident that intelligence has gone through the proper, responsible committees and the people in whom Parliament are entitled to have trust; namely, the intelligence services, the great departments of state and the chiefs of staff. If that happens, Parliament is much more likely, and rightly, to give the Government’s judgment about deployment of troops the benefit of the doubt.
I think that the noble and learned Lord the Lord Chancellor will find himself in agreement with my third component, just in case he is not in agreement with my other points. It is essential that the legal position is made absolutely clear before any deployment of troops, now crucial to the individual soldier. Since the development of the law under the International Criminal Court, the soldier is entitled to know where he stands and must have confidence that the conflict is legal. It is right that the Attorney-General comes to Parliament to make a statement about the legality of war. It would not, of course, be appropriate for Parliament to see the advice thatthe Attorney-General gave to the Government. Inevitably, any responsible Attorney-General is bound to have to assess all the arguments, some of which might be contrary to the final position that he takes. If that document should become public, it is as sure as night follows day that there would be a very big dispute about its merits. Nothing could be more damaging to the confidence of the soldier who is about to fight. The Government have to take a view about the legal position. If, ultimately, they are proved wrong, that is a matter for future accountability. The only way they can do that is on one piece of advice from the Attorney-General which is summarised and is clear—it should not express doubts—about the legality of the conflict or otherwise.
I have spoken long enough. There is more, of course, that I should say. This convention cannot be created overnight. We will need to think of a number of other things in addition to those that I have expressed from the Opposition Dispatch Box today.
Parliament: Waging War (Constitution Committee Report)
Proceeding contribution from
Lord Kingsland
(Conservative)
in the House of Lords on Tuesday, 1 May 2007.
It occurred during Debates on select committee report on Parliament: Waging War (Constitution Committee Report).
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2006-07
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