War Powers and Treaties

My Lords, I, too, express gratitude to the noble and gallant Lord, Lord Guthrie, for initiating this debate and for his wise and measured words. I had the privilege of associating with him and those under his command in the Welsh Guards for a long time, and more recently when he was Chief of the Defence Staff and I was Attorney-General—and always to my benefit. The noble and learned Lord, Lord Mayhew, myself and others were witnesses to this House’s constitutional affairs committee in 2006. The noble Lord, Lord Holme of Cheltenham, and his committee graciously got the maximum out of us. There were two questions. First, was there a need for change? Secondly, if so, how was that to be effected? It was a particular pleasure to me that your Lordships' committee rejected statutory control of the deployment of British forces outside the UK into armed conflict and preferred a convention that parliamentary approval should be sought. I fear that the response of the Government then was very negative in the persons of three Ministers who preferred the status quo. I very much welcome the consultative paper, which echoes the attitude of the Prime Minister as far back as January 2006 when he was Chancellor of the Exchequer, and which was quite different from that of his colleagues who gave evidence. The consultative paper echoes the Select Committee’s observations. The royal prerogative is a misnomer. It has been progressively reduced since 1688. In reality it is the Executive prerogative, exercised by the Prime Minister with or without consultation with his Cabinet. It was Churchill who said it was no longer a royal prerogative, but the privilege of the people. That brings me to the question of how the privilege should now be controlled. My immediate answer as a democrat is that it should be by the elected House of Commons. The House of Lords should have an input and the House of Commons would be well advised to consider the contribution of this House. But at the end of the day there should be no uncertain sound of the trumpet, nor two tunes played at the same time. The body that controls supply should democratically control the decision-taking. Ministers, civil servants and the Armed Forces are enjoined to obey the rule of law, both domestic and international. It is written into their rules. Now there are additional hazards in the form of the International Criminal Court. As Attorney-General I had to agree rules of engagement and, in the case of Kosovo on almost every day for about 68 days, to agree each significant military target. We try hard, and succeed, in complying with the law but we can be challenged, and we were challenged with nine other defendants before the international court at The Hague, where I had to appear for the United Kingdom to challenge the case against the legality of the bombing in Kosovo. The noble and gallant Lord, Lord Bramall—Field Marshal Bramall—as the noble and learned Lord, Lord Mayhew, has reminded us, had three requirements: the support of the country, the support of Parliament and assurance for the forces that it was legal. There was unanimity before the committee that there should be no interference by Parliament on operational matters once commenced. I agree. When I was asked to give evidence, I started off with a blank sheet of paper, grappling with an issue that I had not previously given much thought to. After reading all the available material, I came to the conclusion as a democrat, a former Attorney-General and a former Defence Minister a long time ago that the status quo allowing unfettered control to the Executive without democratic involvement was outdated and crying out for reform. In what circumstances should Parliament be involved? The concept of a formal declaration of war is outdated for a host of legal reasons. We last went to war—as we were reminded by the noble Lord, Lord Goodlad—in 1942 against Siam. The modern version is armed conflict. The Geneva conventions and protocol are not very helpful in defining it, but we all have some idea what it is when we see it. We cannot cater for all eventualities. A convention should cater for most eventualities and should stand the test of time. The consultative paper prefers a convention to statutory control. It states, and I cannot improve on this: "““A Parliamentary convention in the form of a resolution has the advantages of being more flexible and adaptable. The interpretation of the resolution would lie clearly in the hands of Parliament rather than the courts. It could be framed in more general terms than is possible with statute. It is therefore less likely to interfere with the operational freedoms and responsibilities of commanders in the field””." The Select Committee agreed that a convention is better able to anticipate what might happen in 20, 30 or 40 years’ time. In my view, the more generally it is drafted the better. There remains the problem when troops have to be committed urgently and secretly. I believe that the Government should then, at the earliest practical opportunity, seek Parliament’s approval. Informing Parliament is not enough. There are obvious difficulties. The egg cannot be unscrambled. Even if what has been done is perfectly legal, if there is overwhelming dissent, it would hardly be feasible for the Government to continue with it, or in reality to continue in office at all. We are reminded of the realpolitik of what happened in the Norway debate. This consultative paper augurs well for the future.