War Powers and Treaties

My Lords, this has been a remarkable debate—it is remarkable that it has happened at all. It is a matter of great credit to the Government that they have brought forward this important constitutional initiative in the consultative document which was certainly unheralded under the previous Prime Minister. The debate has been distinguished by the contributions of two maiden speakers. The personal experience of the noble Lord, Lord Janvrin, covers a wide range of activities and his years in the palace have given him a peculiarly advantageous multiple point of departure for reaching his wise conclusions. We look forward greatly to hearing him again on many occasions. The noble Lord, Lord Hameed, made a distinguished maiden speech about the nature of Islam and its proper interpretation, to which the House paid close attention. At this time, his message could not have been more welcome or appropriate, and his wish to see his beliefs extend the processes of peace is something we all took very much to our heart. The less controversial aspect of the debate focused on how Parliament should be involved in the treaty-making process. My noble friend Lady Williams of Crosby pointed to the massive importance that treaties now have in conditioning the lives of the citizens of this country and how it is appropriate that Parliament should be more involved than it has been under the operation of the Ponsonby rule. A particularly powerful example was cited by my noble friend Lord Goodhart of the treaty of extradition with the United States, which has imposed unequal terms upon our citizens and was done clandestinely, without the signature even being known to Parliament. The Prime Minister has indicated his Government’s intention that Parliament’s right to ratify international treaties should be put on a statutory footing. That is immensely welcome. A number of questions were raised in the Government’s paper which merit close attention. We were helpfully advised by the noble Lord, Lord Hannay, not to regard this as a conclusive debate—many more matters need to be fleshed out and we may need further detailed papers from the Government on both topics. In particular, I noted the proposal that a statutory provision might allow the Secretary of State discretion on the need for flexibility. I would like to see what that provides before assenting to such a proposal—it might operate as a manner of getting out of the significant parliamentary obligation. There is also the need for provisions to be amplified for scrutiny by Parliament both in the provision of information and in providing committee scrutiny. There have been a number of recommendations from this House in particular that it would be a very suitable role for the second Chamber to consider treaties. Although I recognise the difficulty of doing so in all circumstances, I put in a plea for the prior consideration of treaties; it should not simply be ex post facto, when the consequences of rejection can be very serious. Should the Parliament’s vote on a treaty be binding, as the paper asked? I am bound to say that votes of Parliament should be binding—they should not be indicative alone. That should not necessarily preclude the Government from re-presenting a treaty for consideration at a later date if circumstances and the opinion about it have changed. The central focus of this debate has been the exercise of the war powers and the inappropriateness—as the noble Lord, Lord Morgan, said, the historical anachronism—of the prerogative controlling their exercise. Once again, the general principle to which the Government have given voice—that the ultimate decision on the use of war powers should be for the House of Commons—is admirable, although I will have something to say about the role of this House before concluding. There was a general acceptance in the debate that our troops have the right to expect three things when they are committed to armed conflict: first, the support of the country; secondly, the support of Parliament; and thirdly, the assurance that they are supported by the law—particularly international law. These arguments seem compelling for bringing decision-making about the exercise of war powers to Parliament. We have seen a quite disturbing, growing questioning of the legitimacy of interventions within the armed services at all ranks and levels. We must have a means of preventing such a debilitating occurrence. A number of questions were raised on how this general principle would be operated, some of which could be answered quite straightforwardly. It is clear that operational flexibility in the field must be retained, and we cannot—as the noble and gallant Lord, Lord Bramall, powerfully said—second-guess commanders on the ground. We must also address the morale of the troops. The risk of the perception of the war being unjustified, addressed by the noble and learned Lord, Lord Mayhew, can best be handled by the parliamentary debate preceding the commitment. What would be the consequences of a failure to obtain parliamentary approval? The noble and gallant Lord, Lord Guthrie, among a number of other distinguished noble and gallant Lords, made the clear point that individual members of the armed services should not be put at legal risk as a result of the failure of Parliament to authorise or approve, either in advance or retrospectively, the action. That, of course, does not discharge them from their obligation to observe the rules of international law, particularly human rights; the defence of superior orders is very limited indeed. Other questions were raised about definitions of ““armed conflict””. Again, the Government have asked for our views on that. Mine is that it should be very wide. Similarly, the definition of ““Armed Forces”” should include the Reserve Forces, as specifically asked about by the Government. The need for information to inform the debates before decisions are taken is clearly paramount. The extent of that information provided by the Government is a matter of some controversy. The Government have only committed themselves to providing statements on the objectives, places of troop deployment and the legal basis. I am bound to say that that would be the bare minimum of information required to justify a war or commitment of troops to armed conflict. It is clearly of paramount importance that the legal opinion should be seen to be comprehensive and independent. The role of the Attorney-General has not been satisfactory in this respect in the past, having been partial in too many instances, and incomplete. We wish to see the Attorney-General directly responsible to Parliament. None of this makes it unlikely or impossible. The Government’s proposals—