War Powers and Treaties

My Lords, I congratulate the noble and gallant Lord, Lord Guthrie, on initiating this debate and on making a characteristically thoughtful and authoritative contribution to it. I share the delight of all of your Lordships in the sagacious and—equally importantly—perfectly timed speech of the noble Lord, Lord Janvrin. I look forward greatly to hearing many more in the future. Of course, all of your Lordships admired the eloquent and heartfelt words of the noble Lord, Lord Hameed, about the relationship between religion and peace. We know that his future contributions on these matters will be greatly valued. The last time we had a debate on this issue in your Lordships’ House was on 1 May last year. When the noble and learned Lord the then Lord Chancellor concluded the debate, he said: "““It is the Government’s position that the current arrangements reflect the constitutional position. There is more than sufficient parliamentary involvement in that, and it would be both wrong and damaging to change the position””.—[Official Report, 1/5/07; col. 1028.]" Those words might be music to the ears of the noble and gallant Lord, Lord Craig, and perhaps also to those of my noble friend Lord Attlee; but are they still music to the Government’s ears? Having heard my noble friend Lord Goodlad analyse the consultative document so clearly, the Minister now has a marvellous opportunity to respond in detail, so that we are absolutely clear on what position the Government will now take on these matters. Our position is clear. On 15 May last year, there was a debate in another place on armed conflict. My right honourable friend Mr William Hague, the shadow Foreign Secretary, tabled an amendment which said that we support, "““the principle that parliamentary approval should be required for any substantial deployment of British Armed Forces into situations of war or international armed conflict””—" and call— "““on the Government to bring forward proposals to give effect to this principle””.—[Official Report, Commons, 15/5/07; col. 481.]" With the exception of the noble and gallant Lord, Lord Craig, and my noble friend Lord Attlee, that proposition has widespread support in your Lordships’ House. The reasons for it are also widely shared. There is the importance of accountability, not just as a constitutional principle but as a strong incentive to responsible ministerial behaviour. Throughout the time that the Select Committee report was being drafted, the noble Lord, Lord Holme of Cheltenham, was constantly reminding us that the royal prerogative nowadays operates not in the context of the 17th century but in that of a living, working democracy. It must be seen in that context. Many noble and gallant Lords also drew attention to the importance of morale in warfare. Almost every military manual—certainly the Royal Armoured Corps military manual—states that morale is the single most important factor in victory. It is crucial that any soldier engaged in operations is confident that not just Parliament but the nation is behind him. There is another important question: that of legality. As a result of the international criminal convention, as your Lordships will know, an individual soldier can now be prosecuted for a war crime. He will need to be assured, before he goes into operations, that the war he is about to fight is indeed legal. He must be told that. The Attorney-General must take a view, and that view must be stated in public. One matter that has not been addressed is resources. Parliament is the source of supply. We all know from the operation in Afghanistan that there have been many hesitations about whether our soldiers are properly equipped to fight the battle that they must fight there. Parliament, essentially the House of Commons, is responsible for authorising supply. That, surely, is another underlying constitutional reason for taking the approach favoured by your Lordships. Of course it is true, as many noble and gallant Lords have said, that the operation of any convention, especially if it is to be enshrined in a resolution, must be in context. I recall the noble and gallant Lord, Lord Inge, saying that each operational situation writes its own particular script; so the operation of the convention must depend on the circumstances. Sometimes we will be engaged in operations because of a treaty obligation or because we are a member of a coalition, or we may have to act very quickly in circumstances of surprise. The noble and gallant Lord, Lord Vincent, reminded us of the operation in Sierra Leone. The convention must have sufficient flexibility to cope with all these different realities. That provides no difficulty; all constitutional conventions evolve and adapt to circumstances; and as our experience of these situations develops, so our application of the convention becomes more sophisticated and gives Parliament increased opportunities to exercise control. The greatest difficulty is that Parliament will always operate in circumstances of imperfect knowledge. It cannot possibly know all the facts that are known to the non-parliamentary parts of the constitution: to the Cabinet, to the intelligence services and to the Chiefs of Staff. Indeed, it would be inappropriate for Parliament to know those things because they might adversely affect military operations. Here is the crux of the problem, and one that we investigated last year in our debate, as my noble friend Lord Attlee reminded us. What went wrong in Iraq was that there was a breakdown of the non-parliamentary parts of our constitution. The great departments of state, the intelligence services and the Chiefs of Staff were not engaged in the way they were in the Second World War, or I hope in all operations up to Iraq. The devastating indictment by the noble Lord, Lord Butler, of the operation of government during the Iraq period is a graphic illustration of why it is absolutely essential that the main changes that the Government make to the convention can give Parliament the assurance that this part of our constitution is operating effectively, so that we can trust the decisions taken by these different component parts. Parliament must trust the judgment of people who know more than it does; we cannot operate in this theatre otherwise. I suggest that the Government have got a lot of work to do here; and they will have to convince us that the necessary changes have now been made in the light of the Iraq affair. I have left myself just one minute to say something about treaties. I thoroughly endorse what the noble Baroness, Lady Williams, said about setting up a committee to investigate treaties. This is a subject to which we are returning rather than initiating today. The noble Lord, Lord Goodhart, well knows, because I have said it in your Lordships’ House on many occasions, that I entirely agree with him about the importance of investigating certain types of treaty before they are signed and ratified, not after. He will share my dismay if he reads paragraph 2(1)(b) of Annexe C on page 85 of the consultative document, in which the Government expressly exclude that situation from their remit. This has been a most invigorating debate.