War Powers and Treaties

My Lords, today’s debate on the Government’s consultation paper, Limiting Executive Powers, is an important stage in remedying what has become an increasingly indefensible anomaly in our constitutional practice whereby one of the world’s oldest parliamentary democracies leaves matters of great significance, such as decisions on war, peace and treaty-making, to be taken under the royal prerogative, perhaps more accurately described as on the say-so of the Government of the day. The consultation paper itself provides a good deal of material for thought, although it does not cover adequately all the complexities of the subject matters we are discussing. Much still remains to be teased out before a sound basis for proceeding to parliamentary action can be said to exist. I therefore greatly welcome the initiative taken by my noble and gallant friend Lord Guthrie of Craigiebank for this debate on the consultation paper. It is a bit odd that the first debate should be taking place in Cross-Bench time and not at the initiative of the Government and in their own time, but it is none the less welcome for that. I intend to limit my remarks on this occasion to the issue of war powers, by far the more important of the two fields covered by the consultation paper and the one in which the most significant changes to current practice are proposed. As I said at the outset, it would seem hard to gainsay the case for giving Parliament a determining voice on this matter, but it would be unwise to think that this will be a simple open or shut decision; it simply bristles with complexities, of which some can be solved in advance but some will find responses only when new procedures are put into practice. Among the latter, I would identify the need for our armed forces to feel that they have the full legitimacy of parliamentary support when they are asked to risk their lives and those of others. Unfortunately, the nature of our highly adversarial parliamentary system and the fact that a majority in Parliament often does not represent anything like a majority of the electorate will make that objective pretty hard to achieve in practice. A second major complexity is the question of the information basis on which Parliament will reach its decisions. It is fashionable to claim that if we had known in March 2003 what we now know about Iraq’s weapons of mass destruction—or, rather, the lack of them—the large majority supporting military action would have been reversed. That cannot in fact be proved, but we should have no illusions; these decisions will always have to be taken on the basis of incomplete and imperfect information. Adversaries, particularly if they are authoritarian or totalitarian regimes, do not willingly reveal their assets or their future intentions. Intelligence is one way of remedying that lack of knowledge, but it never provides the whole picture. I turn to areas that I do not believe have yet been adequately covered—indeed, barely covered at all—in the consultation paper that we are debating. In so doing, I declare a non-pecuniary interest as chair of the board of the United Nations Association of Great Britain and Northern Ireland, which has submitted some separate observations on the consultation paper. These areas arise as a result of our membership of a number of international organisations and alliances, which are committed to taking action in common to achieve collective security. The UN and NATO are the most significant of these, although in future the European Union may, too, come to play a bigger role in that field. Already, we can see how national decision-making on collective action by both NATO and the UN can impose serious delays and constraints on effective action by those organisations. That is the case with the caveats exercised by certain NATO members in Afghanistan, and over any number of NATO peacekeeping operations, most topically Darfur. If, as I believe, it is in our national interest to make those organisations more effective, not less, we are going to need to proceed with some care so as to ensure that the parliamentary changes we introduce do not cut across their interest and undermine it. The case of UN peacekeeping operations is likely to be particularly complex. In many of those, it is simply not possible to say in advance with any certainty whether such an operation is going to take place with a full ceasefire in operation, or whether it might, at an indeterminate later stage, involve hostilities and the use of military force. On many occasions, British involvement in a particular UN peace operation will be extremely modest; a few observers, perhaps, or some logistical or specialist personnel. On which side of the parliamentary authorisation line will such examples fall? Nothing has damaged UN peacekeeping operations more in the past than the slowness and delays in deploying forces authorised by the Security Council. Remedying that, by developing a better rapid reaction capability for the UN, must surely be a high priority, otherwise the field is left open to spoilers. We will need to ensure that our national parliamentary procedures are fully consistent with that objective. How are those UN complexities best handled? In theory, there are at least two ways in which we could proceed, and probably more. One would be to limit the scope of the parliamentary authorisation procedure so as to exclude certain scales or types of UN activity. The other would be to have what I call a light option procedure for handling such deployments. That second possibility is the one being operated in Germany; it is described on pages 66 and 67 of the consultation paper. Under it, the Government inform the key parliamentary chairmen of action that they plan to take, but no full parliamentary authorisation procedure is required. I do not believe that it makes sense to try to settle the matter at this preliminary stage. What is needed urgently is some detailed consideration by the Government and further public consultation on these aspects. The bland recognition in paragraph 40 of the consultation paper that these NATO and UN complications exist, without the slightest indication of how to address them, will simply not suffice. Can the Minister give some indication of how the Government intend to respond on those matters? In reviewing this consultation paper in this House, the matter of the powers or role of your Lordships’ House arises. My views there coincide precisely with those of my noble and gallant friend Lord Guthrie of Craigiebank, who said that this House should have an opportunity to debate the matter in government time before the other place takes the decision on the matter. That is how it should be, but the decision should not be for this House. I conclude as I began by indicating my broad support for the Government’s intention, in bringing forward this consultation paper, to move our constitutional practice on to a sounder basis where Parliament plays a full and decisive role. In so doing, however, let us not forget the virtues of pragmatism and flexibility or fall victim to the law of unintended consequences that the noble and learned Lord, Lord Mayhew, referred to so eloquently in his contribution.