War Powers and Treaties

My Lords, the worthy aim of the consultation document is to increase the say of Parliament in the areas of treaty ratification and declarations of war, thereby rebalancing the relationship between the Executive and the legislature. The Prime Minister’s Statement last July begged many questions, some of which were raised in the consultation document, and others were in the valuable response from your Lordships’ Select Committee on the Constitution with its emphasis on flexibility rather than the rigid statutory framework. Those questions were also emphasised in the excellent opening speech by the noble and gallant Lord, who spoke from experience, stressing caution, the diverse nature of conflicts and the problems of legal advice, in that the Attorney-General would have drawn on a very wide range of legal opinion before giving his own view. The question of ratification of treaties is of course much less controversial. From my experience in chairing the Foreign Affairs Committee in the other place, I cannot recall an example of where we debated the ratification of a treaty. It is clear that by far the greatest number of treaties are highly technical, and those which are not so technical but controversial will be scrutinised in detail on the Floors of both Houses, as is happening now regarding the Lisbon treaty, for example. The question is put as to whether the 21-day Ponsonby rule should be extended. The Government have already said that they would respond positively, and much depends on the mutual respect of the Government and Parliament. For example, although there is an obligation on the Government to respond in the other place to Select Committee reports within two months, if there is a case for extension the committee will discuss and reasonably agree to that. The issue of war powers is the difficult sector, as the noble and gallant Lord stated. The starting point is the need to rebalance the great accretion of power to the Executive and the extension of prerogative power, partly as a result of two world wars. This is felt in the domestic sphere but very much in the field of international affairs. It is properly said that during the Iraq conflict the Cabinet became virtually a dignified part of the constitution and many of the decisions were made by the Prime Minister and his entourage. The specific problems in international affairs include the information revolution and the need for increasing specialisation at a time when Parliament, alas—certainly the other place—is becoming more parochial and where the pathway to Parliament is so often through local government, which is very proper, or through being a research assistant to another Member. Yet this House is where there are people with direct military experience. Indeed, as one saw in the US during the Iraq war, Richard Armitage and Colin Powell at the head of the State Department were far less bellicose than the non-military men at the head of the Department of Defense—the management experts Donald Rumsfeld and Paul Wolfowitz. Another factor is the speed of change, where, as the noble and gallant Lord said, there can be a sudden worsening of the situation, an internal coup or whatever. Also, one is dealing with allies and, in any event, there are international obligations under the NATO treaty, as there will be under the Lisbon treaty, and there is Article 51 of the UN charter. Perhaps the most fundamental problem is that of intelligence, which I shall come to later. Whatever the formal positions, as one saw in the United States on Vietnam, the role of the legislature may be quite limited. There is the problem of definition. For example, would the very successful intervention in Sierra Leone have required parliamentary endorsement? To balance the experience of the Executive, Parliament must become more expert, and a number of mechanisms, including Select Committees and joint committees, can in practice be devised for that. Fundamental to informed parliamentary debate is access to intelligence. Certainly we have not solved that problem, as the Foreign Affairs Committee in the other place has frequently said. I went often to Langley to talk to members of the Central Intelligence Agency prior to the Iraq war. At least we were made to feel as parliamentarians that we were on their side. I did not have that same feeling when talking to our own intelligence people, who have a certain institutional mistrust of parliamentarians. So far as concerns the parliamentary vote, there is necessarily a note of scepticism about what would happen in practice. The case study of Iraq is not helpful. When Parliament did have a substantive vote, the war drums were already beating, there was a certain momentum and our forces, along with coalition forces, were already at the border—so it could be construed almost as stabbing our soldiers in the back to take a different view at that point. It is clear that the problem of pre-emptive strikes would be ruled out by a formal vote, giving advance notice to any potential enemy. It is also true that your Lordships’ House has considerable expertise. I adopt what the noble and gallant Lord has said about at least having a debate here prior to any decision and vote in the other place. I shall make some brief conclusions. There is general agreement—which democrat could be against it?—that Parliament should have a greater say, and that the presumption should be that Parliament should be given information unless there are clear interests of national security to the contrary. The problem is to devise mechanisms to inform Parliament, and those mechanisms need to be flexible. Therefore I would favour the evolution of conventions, rather than statutory duties. Much depends on mutual respect and understanding to redress the balance between the Executive and Parliament. But overall, this debate is a welcome initiative by the Government and they deserve our congratulation.