War Powers and Treaties

My Lords, I thank the noble and gallant Lord, Lord Guthrie, for giving us the opportunity to debate what he rightly describes as this difficult, complex and important subject. I thank him especially for his speech, with which I found myself in respectful agreement almost throughout. We all know—and they certainly do—that generals, admirals and air marshals have to take care not to train their subordinates to fight the last war, or the last type of war. We in Parliament have a parallel duty. It is relevant especially to conservatives like myself. By temperament and experience, we have a strong attachment to constitutional arrangements of long standing. But if today’s and tomorrow’s circumstances are different, we have to look closely, and with the caution enjoined by the noble and gallant Lord, Lord Guthrie, at whether our constitutional arrangements will continue to serve. We have to anticipate as best we can the unintended consequences of keeping them. When we consider the royal prerogative of going to war, it is very hard to find a more central pillar. Of course, the classical military advantages are easily identified—they have been before and were again today by the noble and gallant Lord. For example, flexibility, surprise and overall national security are all well served by our present arrangements. However, it is not just the propriety, but the overall utility of this central prerogative power that nowadays is called vigorously into question, and it behoves us to understand why. I think the driving reason is that the international polity has changed abruptly and profoundly since the end of the last war. The founders of the United Nations meant it to do so. From that time, we have increasingly accepted the growth of supranational obligations enforced by supranational jurisdictions. Thus, for example, the long arm of the International Criminal Court can reach out to every individual in every participating member state, including our own. Not surprisingly, these developments have not gone unnoticed among those who may have to go and do the fighting when this country is committed to war or to any eruption of armed conflict which may call for them to risk their lives. No longer is it an appropriate reassurance—if ever it was—for authority to say to them, ““Do what you’re told, lad. The Army will stand behind you””. Some of them may now be expected to reply, in Ernest Bevin’s succinct words, ““I’ve ‘eard different””. I do not think that we should expect this development to subside. Of course, anyone with only the limited, and now distant, military experience of national and reserve service will speak of these matters with considerable diffidence in the presence of noble and gallant Lords. But I am able, if I may put it like this, to fall in behind the most senior of them all—the noble and gallant Lord, Lord Bramall, in his evidence to your Lordships’ Constitution Committee on 18 January 2006. Describing the three points that he said the Armed Forces need to be reassured of before being committed to a large-scale military operation, he said: "““First, they would like to know that they had the support of the country, secondly, that they had the support of Parliament and, thirdly, that what they had been asked to do was legal, not just within the law of the land but if possible within a wider international context which would put the legality of the use of force beyond doubt””." I noted, not with surprise, that the noble and gallant Lord, Lord Guthrie, virtually repeated those words—certainly those thoughts—in his speech today. None of that is surprising. I have also heard the noble and gallant Lord, Lord Inge, say much the same to this House on previous occasions. Because of that, I now believe that if we do not provide for an obligation to rest upon government, with sensible provision for emergencies, to obtain the approval of at least the House of Commons before committing our forces to war, there will be at least one serious unintended consequence. I believe we can foresee an increasing propensity among our servicepeople to question the chain of command as to the legality of an operation, and even to mark their uncertainty and anxiety by refusing to take part in it. If the Chief of the Defence Staff can ask that question, we might expect them to ask why they should not ask it too. What a military and personal disaster that would be. We owe them our protection from that agony. Of course, parliamentary approval will not guarantee legality but it will at least make illegality more unlikely and more difficult, and it should provide a guide as to whether the country is behind them. How is that to be achieved? The Government’s consultation paper, to which the noble and gallant Lord referred us, discusses impressively, and with possible drafts, the respective merits of legislation and convention. Along with him, I believe that the most serviceable means will be the detailed House of Commons resolution in one or other of the variants described at pages 44 to 49 of annexe A to that paper. By whatever means, however, I am now persuaded, with your Lordships’ Select Committee, that a change of this character in our constitutional arrangements must be made.