War Powers and Treaties

My Lords, I join other noble Lords in congratulating the noble and gallant Lord, Lord Guthrie, on the authoritative and eloquent way in which he raised this important question. I reiterate our thanks to him. Reference has been made by a number of noble Lords to the report of your Lordships’ Select Committee on the Constitution, Waging War: Parliament’s Role and Responsibility. The committee had the report debated last year. I am glad to see that three other members of the committee, the noble and learned Lord, Lord Morris of Aberavon, the noble Lord, Lord Rowlands, and the noble Viscount, Lord Bledisloe, are participating in this debate. The committee welcomes the consultation paper, War Powers and Treaties, and is grateful for its recognition of the conclusions of the report produced under the chairmanship of my predecessor, the noble Lord, Lord Holme of Cheltenham. The paper takes account of a number of the key recommendations. We welcome, first, the Government’s commitment to investigate ways of, "““seeking to give Parliament the final say in decisions to commit UK troops to armed conflict overseas””." It is a central point. I trust that the Government, in framing a resolution for the House of Commons, will find a way to take account of the concerns expressed by the noble and gallant Lord, Lord Craig of Radley, because they are extremely serious and were considered in detail by the committee. The essential flexibility of the armed services to which the noble and gallant Lord gave reference, and considerations of security and surprise, must be maintained. The essential proposition seems now to have the assent of noble Lords on all sides of the House. Secondly, the committee welcomes the Government’s view that is ““entirely appropriate”” that the House of Lords should have a role in the process. I agree with the noble and gallant Lord, Lord Guthrie, that any debate in this place should precede that in the Commons; it is clear that immense expertise is here. It would be a problem if this House took a different view from that of the other place. It would particularly acute if, at some future date, we had a wholly or predominantly elected House of Lords—but that argument is for another day. Thirdly, we welcome the commitment to ensure that service personnel are protected from criminal prosecution for actions taken in good faith. Fourthly, we welcome the Government’s recognition that the committee’s favoured option of a parliamentary convention, "““has the advantages of being more flexible and adaptable””." We welcomed the Lord Chancellor’s comment in his evidence to the committee in October that, "““the balance of opinion is in favour of the conventional approach””." However, the committee is disappointed at the Government’s preference for a requirement merely to inform Parliament, rather than to seek retrospective approval for deployment, in cases where forces have been deployed without prior parliamentary approval for reasons of urgency or national security. The committee’s preferred option is that if, for reasons of emergency or security, prior application for parliamentary approval is impossible, "““the Government should provide retrospective information within seven days of [the deployment's] commencement or as soon as it is feasible””," at which point, parliamentary approval should be sought. The committee is concerned also at the Government’s proposal that, "““Parliament's involvement should be limited to approving the initial engagement””." Your Lordships’ committee would prefer that, in addition to keeping Parliament informed of the progress of deployments, the Government should be required to seek a renewal of parliamentary approval if a deployment’s nature or objectives alter significantly. Such a requirement is vital to ensure that mission creep does not become a problem. It is possible to argue that the House of Commons can do anything that it decides. There was a large number of debates during the Falklands conflict; there have been a large number of debates about Iraq; but it is argued that this would be far better spelt out in a convention agreed by the Government in Parliament. There is currently no agreed definition in the Geneva Convention of the term, ““armed conflict””. It will therefore be necessary for the Government to look elsewhere for a meaningful definition, as we all know that there has been no declaration of war by this country since that on Thailand in the Second World War. I am strongly convinced that it will be possible for the Government and Parliament to agree a resolution that enshrines an appropriate convention reflecting the concerns that have been expressed today. The military covenant, which has been so much discussed in recent months, demands no less.