War Powers and Treaties

My Lords, I speak as a member of the Constitution Committee of this House, which made the report on war-making powers, so I shall speak only about war making. I do so with the diffidence, which I share with the noble and learned Lord, Lord Mayhew, of a national service soldier who found it a peculiar privilege to have the opportunity of hearing and questioning no fewer than five of our greatest servicemen. As a member of the committee, I am pleased that the new Prime Minister has reversed the Government’s attitude to our report. The Government have now committed themselves to a requirement that, on the grave issue of going to war, the House of Commons should make the decision, although it is sad that they have not taken my noble and gallant friend Lord Craig with them. I am also pleased that the Government recognise that this House shall have a role, although I accept that there can be only one decision and that must be made by the other place. The Prime Minister spoke of peace and war, but we are discussing, as everyone has pointed out, the power and the right to involve the forces of the Crown in armed conflict—although I fear that I shall probably lapse back into colloquially using ““war””. We all think that we know an armed conflict when we see one, but it would be difficult to define precisely in statutory words the ambit of what was or was not such an armed conflict as to require prior parliamentary authorisation. That is the principal, although by no means only, reason why I was and remain firmly convinced, like the noble and gallant Lord, Lord Guthrie, and many other speakers, that the right way forward is to impose parliamentary control by means of a binding—in my notes I had written ““convention””, but in deference to the noble Lord, Lord Morgan, I shall not use that word—resolution based on a clear undertaking, accepted and endorsed by the other party, that the Government will not involve the nation in an armed conflict without a clear vote of the House of Commons. I entirely agree with the noble Lord, Lord Rowlands, that that can be binding, although I do not mind whether it is binding as a convention or as an undertaking by everyone. This is clearly preferable to a statutory obligation, which would present almost impossible obstacles to drafting and definition and which would afford an open invitation to litigation. Wherever we do or do not want lawyers and litigation, we certainly do not want them on the battlefield. The other advantage of a convention is that one would not be abolishing the royal prerogative and one would require no legislation. One would be saying that in no circumstances would the royal prerogative be used without a parliamentary vote. I accept that the exact wording of the parliamentary convention or resolution would also require careful drafting, but it would not require the precision or detail of a statute and it would be able to be adapted if circumstances changed. In practice, it will almost always be clear whether a particular deployment of forces is or is not of the kind that Parliament intended to control. If a Government were to go to war without parliamentary approval, they would incur the wrath of both Houses just when they were trying to carry the nation with them. The Government must, in appropriate circumstances, be able to react to an emergency and to take their adversary by surprise by going to war without prior warning or debate. Like most noble Lords who have spoken, our committee considered that this would in fact arise only in rare cases. It was interesting that the majority of the conflicts mentioned by the noble and gallant Lord, Lord Guthrie, did not fall in the category of emergency or, indeed, surprise. But if that did occur, what, then, should be required of the Government by way of parliamentary endorsement? Should they, as I strongly believe, be required to get a positive vote of approval or would it suffice if they merely informed Parliament? In reaching my conclusion that the Government should definitely have to get an actual vote of approval, I recognise that it might be very difficult for Parliament to vote against a deployment if that deployment had actually taken place and our troops were already on hostile territory. But that is not the point. It is probably pretty unlikely, but even if you ask for parliamentary approval in advance, the Commons will vote by a majority against even a prospective deployment recommended by the Government. The Government may well suffer sufficiently hostile reactions from much of the House such as those which, as has been pointed out, brought down Mr Chamberlain. The point is that the Government will have to ask and, in so doing, will have to deploy facts and papers setting out the basis on which they wish to go to war and the aims and purposes of that war. That will give them real cause for careful thought and reflection. Above all, it will deter them from getting involved in a conflict on the tail of some ally to whom they have chosen to commit themselves in advance and without reference to Parliament or the knowledge of the nation. Therefore, I am in favour of parliamentary control by means of resolution. That control would be strengthened if we adopted the very wise suggestion of the noble Lord, Lord Janvrin, in his superb maiden speech, that there should also be a need to report on how the conflict has gone after it has ended.