War Powers and Treaties

My Lords, I add my thanks to those expressed to the noble and gallant Lord, Lord Guthrie of Craigiebank, for enabling us to have this opportunity to debate the Government’s consultation paper. I welcome the consultation paper. It is a very useful basis on which to pursue the discussion of the very important matters it raises. I thank and congratulate my noble friend Lord Janvrin on his maiden speech which demonstrated his knowledge, experience and wisdom. We thank him very much and look forward to hearing from him again frequently. Committing the armed services to conflict action is the supreme example of the exercise of Executive authority. The ultimate decision has to be that of the Government, the Prime Minister and his or—your Lordships will understand why I add this—her colleagues. The political reality is that any Government faced with having to take the decision will want, if possible, to be reasonably confident that they have, or believe that they can secure, a sufficient measure of parliamentary and public support. Because of the circumstances in which the need for such a decision arises, it is very difficult, if not impossible, to be prescriptive and specific enough to cover every possible circumstance, and it would be a mistake to try. It is quite likely that the need for a decision could arise in circumstances which had not, and could not have, been foreseen. So whatever provision is to be made to involve Parliament and the public more closely in the decision, whether before or after the event, needs in my view to be general and not too specific, and is best provided for—as many noble Lords have said—by agreed convention and not by statute, which would almost inevitably provide too rigid a framework. If Governments are to be accountable to Parliament—as, of course, they are for the decisions in this field, as in others—it is equally important that Parliament should be as well informed as possible. Attention should be given to that need and how it can best be fulfilled without prejudicing the security, intelligence and safety of our Armed Forces. It seems to me that for many of the treaties entered into by Governments, the Ponsonby rules are both acceptable and sufficient because they are very technical and not controversial. However, some treaties—not necessarily all that small in number but great in importance—will increasingly merit further thought, as the noble Baroness, Lady Williams of Crosby, emphasised; for instance, treaties which commit the United Kingdom to membership of international organisations or treaties which have global implications such as climate change measures. This globalisation of affairs means that some of the treaties into which this country enters will become increasingly important. Again, the decision to commit to a treaty is essentially one of executive power. But if it is a treaty of major importance, not only Government but Parliament and the interested public will see it coming and there will be opportunities for parliamentary and public discussion without that having to be specifically provided for in advance. Again, the political reality is that Governments will need to be reasonably confident that they can secure a sufficient measure of parliamentary support. I believe that public input in our system should normally be mediated through Parliament. Referendums tend to be unsatisfactory means of expressing public opinion for a number of reasons, including the difficulty of defining the question and of preventing a referendum from straying into areas where voters express views on matters not directly related to the question on the paper. I very much respect the Government’s decision to open these subjects up for consultation. But the more one seeks to arrange and manage these issues, the more it seems to me that we need to stick to three main conclusions. First, we should not lose sight of the impact of political reality on what happens—the force of events which will determine what the Government do and their need for parliamentary and political support. Secondly, as was fairly generally agreed this afternoon, whatever provision we make should be general and not specific. Thirdly, we should rely on convention, including, of course, new conventions if that seems desirable, and avoid the over-rigid framework of statutory prescription.