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Lord Guthrie of Craigiebank (Crossbench)

rose to call attention to Her Majesty's Government's consultation paper on War Powers and Treaties (Cm 7239); and to move for Papers.

My Lords, I declare an interest as the director of a United States defence company called Colt. I am grateful for being able to introduce this important debate on war powers and treaties. The excellent and helpful consultation paper produced by the Ministry of Justice states:

"The power to send and women abroad into a situation of armed conflict is one of the most important decisions a government can ever take".

In a democracy, it is surely desirable that decisions by Governments to use Armed Forces extensively and substantially be taken on the basis of thorough and accurate information made publicly available, and of candid and consistent explanation by Governments, fully involving Parliament in advice and decision. However, although it is highly desirable, can it be fully entrenched in our constitutional practice?

We should be cautious in letting the experience of the Iraq war, which has undoubtedly given impetus to the debate, overinfluence our deliberations. Recent armed conflict has taken many forms. The background and run-up to the Korean War, Suez, the Falklands, the Balkans, Kosovo, Sierra Leone, Afghanistan, Iraq and Special Force operations have all been different. Often, the nature of the conflict has quickly and dramatically changed, and the rules and objectives of our forces have had to be amended. What I think is certain is that historically it has not been easy to predict armed conflicts far in advance of hostilities, and I do not think it will become easier in the future. New threats can emerge very quickly.

The services want to know that the country is behind them before they are committed, that they are supported by Parliament and that what they are being asked to do is legal. Parliament's stamp of approval is important but Parliament must not run the risk of hazarding the lives of service men and women. Secrecy, security and surprise are critical to many operations and if, for instance, one day it became necessary militarily to pre-empt an enemy attack—and that is not inconceivable—how would Parliament debate the actions in advance? Parliament is unlikely to have all the necessary intelligence to have a fully informed debate. This, of course, may not always be essential and this problem may well be solved by the existing or a new parliamentary committee or committees.

Should Parliament rely on a member of the Government—the Attorney-General's legal advice? Should there be other, more independent advice to Parliament, which may be contrary? I hope that noble and learned Lords will address this but it would be unsettling for those deploying to hear of lawyers expressing contrary views and introducing uncertainty. The prosecution of members of the Armed Forces who take action in good faith would be wrong.

The deployment of a military force for armed conflict is complex and takes—as it did for Iraq or Afghanistan—considerable time. Of course, the very deployment before hostilities can be a deterrent in itself but our current arrangements allow quick decisions to be made and we have been able to act quickly, often before the situation on the ground has deteriorated. The armies of other countries, notably Germany and the Netherlands, are envious of our current procedures. We are likely to work in a coalition or alliance. When I was Chief of the Defence Staff in the Kosovo crisis in 2005, it was very noticeable how the United Kingdom forces could be assembled and deployed quickly in circumstances in which other countries' forces could not respond because of their parliamentary procedures, which had to be observed.

As a member of NATO we are committed to aid other members who are attacked, and the United Nations charter mandates countries to undertake operations should the Security Council require them. As a signatory of NATO and UN treaties we are expected to commit troops quickly when called upon to do so. We also have to recognise the difficulties that arise once a force is deployed. Circumstances change. Humanitarian and peacekeeping operations can suddenly become peace enforcement and develop into armed conflict. All four of these states can take place in a theatre at the same time. Deployments lead to unforeseen consequences and mission creep. I well remember visiting troops delivering cups of tea and medical assistance to elderly ladies at one end of a village when suddenly their comrades at the other end were attacked with great ferocity. Afghanistan is an interesting example. Many failed to predict the intensity of operations there and I suspect that some would not have been so keen on deployment if they had realised what that commitment was going to be.

Formal declaration of war has been described by some as an historical anachronism and it is difficult to see occasions when it would happen. I understand why many think that the royal prerogative being the legal basis for the Government's war powers is an outdated state of affairs in a modern democracy. Having said that, it has not served the country all that badly over the years.

I do not believe that one should legislate and have a statutory solution. Deployments vary so much and are accompanied by much uncertainty. One template would rarely work for all situations. I see the best solution being a formal but non-statutory convention. It would be necessary, whenever it was possible and sensible, to seek parliamentary approval for deployment before service men and women were committed, but there is a need for some flexibility and it would not always be wise or practical to debate prior to deployment, even though government parliamentary debate and approval would be highly desirable. It would also be reassuring for the Armed Forces. I do not see it as particularly helpful for us in the House voting but it would be of immense value if we were to debate, preferably before the House of Commons had their debate, and were able to inform them and the Government of our views. There is much experience in this House which should be used.

If for some reason armed conflict or substantial deployments occur without Parliament's approval, it would be important for Parliament to meet at an early opportunity to endorse the decisions which had been made. I also see a necessity for Parliament to watch and discuss the progress of a campaign from time to time, always bearing in mind the effect such a debate would have on our troops in the field. It is almost inconceivable for the Prime Minister and Government to commit troops without thinking they had the backing of Parliament. We should be concerned that parliamentary oversight could, unless we are careful, lead to pressure to debate how operations should be conducted. Parliamentarians are not qualified to do this and they must avoid micromanaging and taking tactical decisions. These are the province of the commanders on the ground. What Parliament should debate are the objectives, the legality of what our forces are being asked to do, and in very general terms the size of a deployment and likely direction. These last two are notoriously difficult to predict, depending very greatly on the actions of the ill intentioned that are causing the problem in the first place. We are not in control of what their reaction to us will be.

This is a difficult and complex but very important subject which needs debating. We must avoid an overly prescriptive solution and maintain flexibility. Slavishly following a parliamentary statutory procedure on every occasion, whatever the circumstances, could endanger the very people we are trying to help. I beg to move for Papers.

11:48 am
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Lord Anderson of Swansea (Labour)

My Lords, the worthy aim of the consultation document is to increase the say of Parliament in the areas of treaty ratification and declarations of war, thereby rebalancing the relationship between the Executive and the legislature. The Prime Minister's Statement last July begged many questions, some of which were raised in the consultation document, and others were in the valuable response from your Lordships' Select Committee on the Constitution with its emphasis on flexibility rather than the rigid statutory framework. Those questions were also emphasised in the excellent opening speech by the noble and gallant Lord, who spoke from experience, stressing caution, the diverse nature of conflicts and the problems of legal advice, in that the Attorney-General would have drawn on a very wide range of legal opinion before giving his own view.

The question of ratification of treaties is of course much less controversial. From my experience in chairing the Foreign Affairs Committee in the other place, I cannot recall an example of where we debated the ratification of a treaty. It is clear that by far the greatest number of treaties are highly technical, and those which are not so technical but controversial will be scrutinised in detail on the Floors of both Houses, as is happening now regarding the Lisbon treaty, for example.

The question is put as to whether the 21-day Ponsonby rule should be extended. The Government have already said that they would respond positively, and much depends on the mutual respect of the Government and Parliament. For example, although there is an obligation on the Government to respond in the other place to Select Committee reports within two months, if there is a case for extension the committee will discuss and reasonably agree to that.

The issue of war powers is the difficult sector, as the noble and gallant Lord stated. The starting point is the need to rebalance the great accretion of power to the Executive and the extension of prerogative power, partly as a result of two world wars. This is felt in the domestic sphere but very much in the field of international affairs. It is properly said that during the Iraq conflict the Cabinet became virtually a dignified part of the constitution and many of the decisions were made by the Prime Minister and his entourage. The specific problems in international affairs include the information revolution and the need for increasing specialisation at a time when Parliament, alas—certainly the other place—is becoming more parochial and where the pathway to Parliament is so often through local government, which is very proper, or through being a research assistant to another Member. Yet this House is where there are people with direct military experience. Indeed, as one saw in the US during the Iraq war, Richard Armitage and Colin Powell at the head of the State Department were far less bellicose than the non-military men at the head of the Department of Defense—the management experts Donald Rumsfeld and Paul Wolfowitz.

Another factor is the speed of change, where, as the noble and gallant Lord said, there can be a sudden worsening of the situation, an internal coup or whatever. Also, one is dealing with allies and, in any event, there are international obligations under the NATO treaty, as there will be under the Lisbon treaty, and there is Article 51 of the UN charter. Perhaps the most fundamental problem is that of intelligence, which I shall come to later. Whatever the formal positions, as one saw in the United States on Vietnam, the role of the legislature may be quite limited. There is the problem of definition. For example, would the very successful intervention in Sierra Leone have required parliamentary endorsement?

To balance the experience of the Executive, Parliament must become more expert, and a number of mechanisms, including Select Committees and joint committees, can in practice be devised for that. Fundamental to informed parliamentary debate is access to intelligence. Certainly we have not solved that problem, as the Foreign Affairs Committee in the other place has frequently said. I went often to Langley to talk to members of the Central Intelligence Agency prior to the Iraq war. At least we were made to feel as parliamentarians that we were on their side. I did not have that same feeling when talking to our own intelligence people, who have a certain institutional mistrust of parliamentarians.

So far as concerns the parliamentary vote, there is necessarily a note of scepticism about what would happen in practice. The case study of Iraq is not helpful. When Parliament did have a substantive vote, the war drums were already beating, there was a certain momentum and our forces, along with coalition forces, were already at the border—so it could be construed almost as stabbing our soldiers in the back to take a different view at that point. It is clear that the problem of pre-emptive strikes would be ruled out by a formal vote, giving advance notice to any potential enemy. It is also true that your Lordships' House has considerable expertise. I adopt what the noble and gallant Lord has said about at least having a debate here prior to any decision and vote in the other place.

I shall make some brief conclusions. There is general agreement—which democrat could be against it?—that Parliament should have a greater say, and that the presumption should be that Parliament should be given information unless there are clear interests of national security to the contrary. The problem is to devise mechanisms to inform Parliament, and those mechanisms need to be flexible. Therefore I would favour the evolution of conventions, rather than statutory duties. Much depends on mutual respect and understanding to redress the balance between the Executive and Parliament. But overall, this debate is a welcome initiative by the Government and they deserve our congratulation.

11:56 am
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Lord Mayhew of Twysden (Conservative)

My Lords, I thank the noble and gallant Lord, Lord Guthrie, for giving us the opportunity to debate what he rightly describes as this difficult, complex and important subject. I thank him especially for his speech, with which I found myself in respectful agreement almost throughout.

We all know—and they certainly do—that generals, admirals and air marshals have to take care not to train their subordinates to fight the last war, or the last type of war. We in Parliament have a parallel duty. It is relevant especially to conservatives like myself. By temperament and experience, we have a strong attachment to constitutional arrangements of long standing. But if today's and tomorrow's circumstances are different, we have to look closely, and with the caution enjoined by the noble and gallant Lord, Lord Guthrie, at whether our constitutional arrangements will continue to serve. We have to anticipate as best we can the unintended consequences of keeping them.

When we consider the royal prerogative of going to war, it is very hard to find a more central pillar. Of course, the classical military advantages are easily identified—they have been before and were again today by the noble and gallant Lord. For example, flexibility, surprise and overall national security are all well served by our present arrangements. However, it is not just the propriety, but the overall utility of this central prerogative power that nowadays is called vigorously into question, and it behoves us to understand why. I think the driving reason is that the international polity has changed abruptly and profoundly since the end of the last war. The founders of the United Nations meant it to do so. From that time, we have increasingly accepted the growth of supranational obligations enforced by supranational jurisdictions. Thus, for example, the long arm of the International Criminal Court can reach out to every individual in every participating member state, including our own.

Not surprisingly, these developments have not gone unnoticed among those who may have to go and do the fighting when this country is committed to war or to any eruption of armed conflict which may call for them to risk their lives. No longer is it an appropriate reassurance—if ever it was—for authority to say to them, "Do what you're told, lad. The Army will stand behind you". Some of them may now be expected to reply, in Ernest Bevin's succinct words, "I've 'eard different". I do not think that we should expect this development to subside.

Of course, anyone with only the limited, and now distant, military experience of national and reserve service will speak of these matters with considerable diffidence in the presence of noble and gallant Lords. But I am able, if I may put it like this, to fall in behind the most senior of them all—the noble and gallant Lord, Lord Bramall, in his evidence to your Lordships' Constitution Committee on 18 January 2006. Describing the three points that he said the Armed Forces need to be reassured of before being committed to a large-scale military operation, he said:

"First, they would like to know that they had the support of the country, secondly, that they had the support of Parliament and, thirdly, that what they had been asked to do was legal, not just within the law of the land but if possible within a wider international context which would put the legality of the use of force beyond doubt".

I noted, not with surprise, that the noble and gallant Lord, Lord Guthrie, virtually repeated those words—certainly those thoughts—in his speech today. None of that is surprising. I have also heard the noble and gallant Lord, Lord Inge, say much the same to this House on previous occasions.

Because of that, I now believe that if we do not provide for an obligation to rest upon government, with sensible provision for emergencies, to obtain the approval of at least the House of Commons before committing our forces to war, there will be at least one serious unintended consequence. I believe we can foresee an increasing propensity among our servicepeople to question the chain of command as to the legality of an operation, and even to mark their uncertainty and anxiety by refusing to take part in it. If the Chief of the Defence Staff can ask that question, we might expect them to ask why they should not ask it too.

What a military and personal disaster that would be. We owe them our protection from that agony. Of course, parliamentary approval will not guarantee legality but it will at least make illegality more unlikely and more difficult, and it should provide a guide as to whether the country is behind them.

How is that to be achieved? The Government's consultation paper, to which the noble and gallant Lord referred us, discusses impressively, and with possible drafts, the respective merits of legislation and convention. Along with him, I believe that the most serviceable means will be the detailed House of Commons resolution in one or other of the variants described at pages 44 to 49 of annexe A to that paper. By whatever means, however, I am now persuaded, with your Lordships' Select Committee, that a change of this character in our constitutional arrangements must be made.

12:03 pm
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Lord Craig of Radley (Crossbench)

My Lords, I, too, thank the noble and gallant Lord, Lord Guthrie, for raising this topic. Last May, in the debate on the Constitution Committee's report, Waging War, the then noble and learned Lord the Lord Chancellor put up a spirited Government defence for the Prime Minister's royal prerogative. Mine was a lone voice in support. All other speakers advocated parliamentary involvement. The consultation paper before us—signed by three senior members of the Government and echoing remarks made by the present Prime Minister last July—turns on its head the view espoused by this Government only eight months ago. Am I now also persuaded to do a somersault?

The issues are complex and some key factors are barely mentioned. First, are there not two broad categories of conflict in which we might become involved? As shorthand, I class these as "wars of necessity" and "wars of choice". In the former, the country or key national interests are directly threatened or even under hostile attack. The international right of self-defence can be invoked. It would be a formality—were it to be required—to have parliamentary approval. Our forces would act to defend themselves and our interests. So I confine my remarks to wars of choice: that is, to offensive operations overseas on which the Government wish to embark.

I question whether this is to be the norm, rather than the rare exception of the past few years, when this Government have so actively engaged in wars of choice. For any British Government, the use of force in a war of choice should be a last resort; not the first, nor even an early, action to be taken to achieve a strategic aim. What preparations have the Armed Forces put in hand for this war of choice? The paper pays too little attention to this and to prior parliamentary scrutiny and challenge in the pre-deployment phase and to the backdrop of diplomatic and economic treaty obligations and other relevant leverages. The paper does not deal adequately with what might be termed the deterrent use of forces or prolonged campaigns—for example, by deploying part way to the theatre, or even threatening to do so with the object of persuading the adversary that they should back off and so deterring conflict; or remaining poised over the horizon.

I am not considering the nuclear deterrent, which I assume the Government are not addressing, but they should make that clear. Setting aside the very valid questions raised about the definitions of "armed conflict" and "armed forces", what is Parliament formally to approve? References are made to the,

"power to engage the country in war";

To the need for,

"Parliament to have a substantive vote on a proposed deployment";

to the need to,

"commit armed forces to armed conflict abroad";

and to the need to approve,

"decisions by the executive on substantial deployments of armed forces into potential or actual armed conflict".

There is some confusion, it seems. Governments must distinguish between the principle or aim of a deployment abroad; the order to prepare to deploy abroad; the actual movement overseas and its scale, but not its employment, in an overseas operation; and the use or threat of use of force in conflict. The document merely proposes that it would be for the Prime Minister to decide at what stage of the above he must seek parliamentary approval. Is this approval to be confined to British boots on the ground abroad, or to the use of force against an overseas opponent? That force could be delivered by aircraft or UAVs operating from home or friendly bases—the RAF has been involved in operations over Iraq almost continuously since the first Gulf War in 1991—or force could come from naval vessels on the high seas. On top of this lack of clarity, the Government foresee a series of situations when pre-clearance by Parliament would not be sought—in recess or dissolution and even if Parliament were sitting, on grounds of security. In such situations, it would be for the Prime Minister to decide. Would not decisions to withdraw or reduce force levels, even to surrender, also remain with the Prime Minister? Parliament's sovereignty could only be partial and the Prime Minister would in effect continue to use his royal prerogative. Even in the 2003 invasion of Iraq, when the Commons took a pre-combat vote, Parliament was given to understand that it was not regime change but the threat from WMDs that justified and made legal our invasion.

The proposals before us, though superficially attractive, are still flawed. Parliament will be attempting to judge and formally approve a difficult and dangerous situation, possibly misled over and/or in ignorance of key facts. More critically, there are too many ways in which the Prime Minister of the day might choose to his advantage the timing of a formal vote or even sidestep it altogether. Is there, in fact, any greater assurance of parliamentary sovereignty over the prerogative than can be exercised by the normal, well tried and tested means of votes of confidence and other methods of challenging the Executive?

Noble Lords should be clear on this point: the Government propose that there could be occasions when the Prime Minister continues to use the royal prerogative and bypasses Parliament and that thereafter it will not be necessary to seek retrospective approval. That negates the argument that parliamentary approval is a necessary precursor to conferring legality. It should remain the Prime Minister's responsibility to give clear direction to the Armed Forces; he should not look to Parliament to absolve him of that responsibility and so possibly avoid the political dangers of facing a vote of confidence.

How often in future will we be embarking on offensive wars of choice? Have we not had enough of them? We are not arming ourselves to carry them out at such a rate in the future as we have done in the past decade; we are even now sending ill-prepared troops into operations in Afghanistan. Is not the whole concept rather too academic and devoid of realism? I have not somersaulted and, on reflection, nor should the Government.

12:12 pm
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Baroness Williams of Crosby (Liberal Democrat)

My Lords, this is one of those significant moments in the quiet evolution of the British constitution when often we fail to recognise the significance of what we are discussing. I am extremely grateful to the noble and gallant Lord, Lord Guthrie, for giving us the opportunity to debate this crucial moment in our constitutional evolution, because it is nothing less than that. I also congratulate the Government on their courage in getting hold of the issue of the royal prerogative in two of the most important areas that can affect the role of Parliament and on recognising the need to empower Parliament to be part of that decision-making process. I listened with great interest to the points raised by the noble and gallant Lord, Lord Craig of Radley, but to my mind the arguments made by the noble and gallant Lord, Lord Guthrie, and the noble and learned Lord, Lord Mayhew of Twysden, are conclusive. We live in a different world and we cannot commit our troops without a much wider process of decision-making than the one on which we have rested for so many centuries.

I shall speak today not about the war-making power but about the other leg of this set of proposals: parliamentary accountability with regard to treaties. On this, there is quite a long history. My noble friend Lord Lester of Herne Hill proposed that Parliament should be involved in the ratification of treaties as long ago as his 2003 Bill and he repeated the proposal in 2006. In another place, Kenneth Clarke, leading the Conservative Party's study of the changing constitution, proposed that there should be parliamentary accountability in respect of the ratification of treaties. I am delighted that we have now reached something very close to consensus.

In our society today, treaties are of the greatest possible significance. Let me mention just two groups of them so as not to take up too much time. There is a whole group of treaties concerned with climate change, becoming more and more important and likely to grow in significance in the next few years. We no longer talk about the thinness of the ozone layer because, in the words of the former UN Secretary-General Kofi Annan, the Montreal protocol was one of the most successful treaties ever passed and actually managed to push back that threat a long way. Since then, we have had the Kyoto treaty, about which I need say little more except that up to now it is the only international treaty with force across the whole global pattern of climate change. Even now, as we sit, there is a major discussion about the renewal of that treaty, and it could not be of more significance for our citizens and the world.

There is another group of treaties of great significance, on arms. Even now, there is wrangling over the cluster bomb treaty between those who wish to weaken it by excluding what are called "clever" cluster bombs, and the wish of most of our fellow citizens throughout the world to have an effective cluster bomb treaty. It is still under discussion.

The small arms treaty is strongly supported by the British Government, to their credit. It is still not actually being implemented, and one does not need to look much further than the terrible events in Kenya to see how critical it is to have some sort of small arms treaty that will prevent the desperate outcomes in much of Africa and some parts of Asia from local civil wars, fed by the arms trade which makes a great deal of money from, essentially, the destabilisation of one country after another.

I could go on, but will just mention one other treaty which has so far not been put into practice at all, although passed by the General Assembly of the United Nations as long ago as 1993: the proposed treaty for the fair treatment and recognition of the human rights of migrants. Our country is today deeply caught up in a discussion about the rights of migrants, but there has never been a debate in this House on the issues raised by the treaty, which is now nearly 20 years old.

How can we look at accountability for treaties? I am clear that there must be more to it—in this respect it is very different from war powers—than simply agreeing that Parliament should approve the ratification of treaties. It is essential, in as complex an area as this, that it be matched by a parliamentary Select Committee which would look into treaties and decide which ones were so significant for our citizens, in this country and beyond, to be discussed and debated in Parliament before the Government finally give their approval. In this respect, the Ponsonby rules, to which the noble Lord, Lord Anderson of Swansea, referred, while impressive in their day—laying treaties for 21 days and leaving it for the House to decide which ones should be debated—are simply no longer adequate machinery. There must be a much more careful look at treaties, and a decision made by the House itself about which ones should be debated before they can be agreed to.

We therefore need a combination of those two things. To that end, I recently submitted a memorandum to the Liaison Committee, asking that it should seriously consider the possibility of a Select Committee on treaties. The committee said that this was a major issue which rather went beyond, in its view, its own competence and jurisdiction. Long ago, the noble Lord, Lord Wakeham, also proposed, in his well known report on the reform of the House of Lords, that there should be a careful look at treaties and that they should become part of the responsibilities of this House—possibly jointly with the other House; that is a matter for discussion which I shall not go into right now.

This is the moment for Parliament to seize this opportunity. It is particularly appropriate for this House, with its responsibilities and experience. That has been matched in other parts of the world, such as Germany, Canada and the United States, where the upper House has a special responsibility in this field. However, I strongly urge that, as a result of this debate, the Government, as part of their reform of the constitution of the United Kingdom and their exciting proposals, look closely at treaties and consider whether there should not be some form of Select Committee of Parliament, linked to—I stress that—a decision by the Government to accept that there should be parliamentary approval before major treaties are ratified. That would very much strengthen democracy in this country, and enable us to reach more considered decisions than some which are currently taken, virtually negatively, by a failure to ask for a debate.

12:20 pm
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Lord Bramall (Crossbench)

My Lords, I, too, am very grateful to my noble and gallant friend Lord Guthrie for obtaining this important debate and for leading us into it so very clearly. It is not easy to decide how the royal prerogative should be constitutionally changed because, as has been said, the whole issue is complicated and there are many divergent factors. At the outset, I should make it clear that I am enthusiastic about what the Government are now seeking to do to involve Parliament more in it.

It is unthinkable that in this day and age our democratic Government should commit armed forces to a substantial war without the prior and manifest assent of Parliament. Only in this way can it be properly established that the country, which after all will have to see the war through to its conclusion, and at least the law of our land are formally behind such an enterprise, which may have many quite unpredictable international consequences. Such authority is also necessary both to sustain the highest morale of our Armed Forces, who have to carry out these operations and want to know that the country is fully behind them, and as a guarantee of some legal basis and authority for the war, for which further international authority may also be required.

At the same time, the responsibility for deploying forces, which is quite separate from commitment—in accordance with, say, treaty obligations, initially perhaps in a deterrent or a warning posture—and for actually carrying out war-like operations once they are embarked on, must for obvious reasons remain with the Executive and the chain of command that they set up or inherit. Nor must anything be done to compromise the secrecy and security of operations still in their planning stage, as this might remove the element of tactical surprise that is often so vital for any success in battle. This would be particularly applicable in operations to rescue British hostages or to pre-empt terrorism of the sort that occurred in Sierra Leone; then there would be no alternative but to act first and inform Parliament later. Moreover, any force deployed to put pressure on a potential adversary to comply with or not break international law would hardly want its impact weakened by a debate that might throw doubt on whether such force would ever be used in practice.

However, these diverging requirements can be reconciled by mixing regular, sensibly led and informative debates in both Houses, as is quite normal, with a clear commitment that before armed forces are actually committed to any large-scale, military action, assent of the other place is obligatory. This could easily have been achieved in the Falklands War before the landings, before the Anglo-American advance to recapture Kuwait, and before the coalition invasion of Iraq. In the latter case, there was an assenting vote in the other place, but it was on the wrong premise; otherwise, the result might have been different. It might not have been easy to get a supportive vote before the British and French landings at Port Said in 1956; I ask noble Lords to draw their own conclusions about that.

It comes down to a question of timing and the leadership of the Prime Minister. If the Prime Minister cannot persuade Parliament, either the country is embarking on the wrong war or there is something adrift in the Prime Minister's leadership. It is of course a matter for the Government to decide whether what they seek can be achieved within the royal prerogative by parliamentary convention or whether legislation is needed that combines the essential requirement of parliamentary authority with some flexibility to meet a wide range of circumstances. The views expressed in this debate will no doubt be helpful to the Government in making up their mind. The important thing is that the principle of Parliament having the final say must be paramount. Wars in which this country gets involved fall broadly into one of two categories: those of survival and those of choice. If it is one of survival, parliamentary approval is no problem; indeed, Parliament might well be in the lead. If it is one of choice, it is even more necessary that Parliament and the country have the final say, otherwise hideous errors may occur and the best interests of the country may not be served, particularly if the royal prerogative has ever been abused. If noble Lords think that all this may make it more difficult to "slide" into war—to make no declaration of war is now our tendency—I would find that infinitely reassuring.

After all, when you think about it, unless the reasons for entering a war are cut and dried—as they have been in the past and may well be in the future—not only within the sensible interpretation of the age-old principles of a just war but above all over self defence of our own or allied territory, full scale war, as opposed to the more indirect and selective use of military force, can no longer be considered a rational instrument of national policy. The concept that a state can improve things by charging into the middle of alien territory to rearrange the pieces according to its own political philosophy, however desirable that philosophy may appear, seems to me wholly out of keeping with the age. As the great Duke of Wellington, a man of such infinite common sense, put it two centuries ago, at another time when British Governments were not backward in indulging in wild assaults here, there and everywhere:

"I always had a horror of revolutionising any country from outside for political object. I always said that if they rise up themselves, well and good, but to stir them up is a fearful responsibility".

If that or similar responsibilities are to be taken on board, they can be properly borne only by Parliament on behalf of the country, and not by a lone and perhaps lonely Prime Minister.

12:26 pm
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Lord Goodhart (Liberal Democrat)

My Lords, I am delighted to follow the noble and gallant Lord, Lord Bramall, for two reasons. One is that in 1944 he was my brother Philip's platoon commander. The other reason, more relevant today, is that with great respect I agree with everything that he has said. However, like my noble friend Lady Williams, I want to concentrate on the second part of the consultation paper covering treaties. The first part is extremely important, of course, and I welcome the proposals for requiring parliamentary consent to the sending of troops into armed conflict, but I do not feel that I have anything to contribute which cannot be said, or indeed has not already been said, much better by others.

But I do have some experience of dealing with treaties as a result of my involvement in the recent disputes over the United Kingdom/USA treaty on extradition. That is probably the most controversial treaty in recent years. It is controversial because it is unequal. The standard of evidence required for extradition from the United States to the United Kingdom is higher than that required for extradition in the other direction. It is a classic example of the defects of the system and plainly shows the inadequacy of the involvement of Parliament in the treaty-making process. This treaty was in fact signed before Parliament knew anything about it. The Ponsonby rule or convention is, I believe, inadequate, and the noble Lord, Lord Anderson, was unduly complacent in thinking that it was of any significant value. The Ponsonby rule or convention confers no power on Parliament to do anything whatever except hold a debate. Not surprisingly, very few Ponsonby debates have been held in recent years.

Parliament does have powers where changes in United Kingdom law are needed before a treaty can become effective because the Government, quite rightly, do not ratify a treaty unless any necessary changes in United Kingdom law have been enacted. That was the case in relation to the extradition treaty with the USA. That treaty needed an Order in Council under the Extradition Act 2003 to enable the United Kingdom to ratify it. Either House could have blocked the treaty by rejecting the Order in Council. Neither did so, although we on these Benches voted against the Order in Council in your Lordships' House. One problem that applies to this is that once a treaty has been signed by a representative of the Government, they come under an obligation to use their best efforts to ratify it. If amendments or changes are needed to a treaty, it is very difficult to reopen negotiations which have already been concluded and have resulted in a signed treaty. It is essential, therefore, that parliamentary scrutiny should take place and, further, should begin even before a treaty is signed. Had that happened with the extradition treaty, the problem could—and very probably would—have been solved simply by the omission of six words from the text. The omission of those words would have converted it into an equal treaty.

I agree with my noble friend about the need for consideration of these matters by a parliamentary committee, preferably a Joint Committee of both Houses. It follows that the Government should send a draft of a proposed treaty to that committee before the Government sign it. The committee could then take evidence, if it wished to do so, and publish a report on whether there were likely to be serious objections to it. The committee could also at that stage decide whether the treaty is one which needs the consent of Parliament or, as a considerable number of them are, is a relatively unimportant or uncontroversial treaty which does not need further parliamentary consideration. Treaties which are not controversial and not of great importance could then go through without any further parliamentary procedure.

The role of this Select Committee would be very similar to the role played by the Select Committee on the European Union of your Lordships' House in dealing with scrutiny of proposed EU legislation and the scrutiny reserve system which applies to that legislation. If the committee reported that the treaty would give rise to objections, the Government could continue negotiations with a view to modifying the draft, or they could go ahead with a signature but with the knowledge that this might well give rise to a rejection of the treaty by Parliament.

Treaties give rise to rights and obligations in international law. This is part of the definition of a treaty under the Vienna Convention of 1969. The Government are not allowed to make laws for the United Kingdom by the exercise of the prerogative, and they should not be allowed to use the prerogative powers to commit the United Kingdom to obligations under international law without the consent of Parliament. The details of the form of that consent can be left for a future date.

Parliamentary consent is needed in many countries—notably the USA, where the Senate must consent before a treaty can be ratified by the Government. I firmly believe that Parliament in this country should have similar rights.

I look forward with great pleasure to the next speech, which will be the maiden speech of the noble Lord, Lord, Janvrin.

12:33 pm
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Lord Janvrin (Crossbench)

My Lords, it is a great privilege to be on my feet for the first time in this historic House. I should like to take this opportunity to thank so many noble Lords for their welcome here. They have all been very kind and generous. I should also like to express my gratitude for all the advice I have received from many of the excellent staff of this House at every level; they could not have been more helpful. This is indeed a very warm and friendly place in which I find myself.

I add my thanks to the noble and gallant Lord, Lord Guthrie, for introducing the debate today. As I joined the Navy straight from school, later became a member of the Diplomatic Service and subsequently found myself spending the past 20 years at Buckingham Palace, it seemed appropriate to use this opportunity to make my maiden speech in a debate that brings together the services, diplomacy and the constitution.

At first sight, we seem to be entering a pretty esoteric corner of our constitution. However, as many before me have said, these are vital issues. At a time when there appears to be a worrying decline in the level of engagement between many in this country and the political process, it is surely right to look for ways in which the Executive can be made more accountable to Parliament and so make the Government less remote from people.

That said, we should always approach constitutional change with caution, precisely because our constitution has evolved over the centuries rather than being the careful construct of constitutional lawyers. The law of unintended consequences, to which the noble and learned Lord, Lord Mayhew, referred, seems to apply all the more. Moreover, in a constitution which allows for change through evolving convention, better governance may not always be best served by more statutes, more rules and more regulations; nor is it necessarily right to limit flexibility in the name of greater clarity.

On the first issue of war-making powers it is difficult to disagree with the House of Lords Constitution Committee report which proposed that the formal role of Parliament in this area should be strengthened, both in the interests of greater accountability and ensuring that those committed to armed conflict know they have the support of Parliament. I could not possibly state that with more eloquence than the noble and gallant Lord, Lord Bramall. But this should be by way of the general acceptance of a new convention rather than by statute. I wonder whether there is a danger, if there is any strict statutory provision, that this could lead to uncertainty over the legality of the actions of our service men and women. This would surely put them in an impossible position and be unacceptable.

Moreover, flexibility and discretion are required for the many reasons which the noble and gallant Lord, Lord Guthrie, and others have pointed out. We do not want to be in a situation where parliamentary involvement might for some reason delay or distort decisions in an emergency; or constrain the Executive when great secrecy or surprise is required; or when intelligence could be compromised; or where the precise nature of the deployment might change. Such discretion and flexibility would be more appropriately provided in a convention which allows that flexibility, particularly on the timing of the debate and the timing of parliamentary involvement.

It would nevertheless be worth giving further thought to the extent of any convention which finds acceptance. For example, when I was listening to the debate of the noble Lord, Lord Fowler, last week about the call for an inquiry into the lessons learnt from Iraq, I found myself wondering whether a convention setting out the obligations on the Executive at the start of an armed conflict might also encompass an obligation for a report to Parliament on lessons learnt after an armed conflict.

Turning briefly to the treaty-making powers, parliamentary involvement in the ratification of treaties is already the subject of a convention, the Ponsonby rule. The question is whether this should be put on a statutory footing. While I can see the attractions of codifying the existing conventions for greater clarity, I wonder whether in practice it is worth trying to replace an existing convention which has evolved successfully over time and appears to be working satisfactorily.

Rather than going down any statutory route, the alternative approach, already mentioned today, to strengthening Parliament's involvement might lie with the suggestion included in the Royal Commission report on the reform of the House of Lords that treaty scrutiny might be the task of a House of Lords Select Committee. This would be in line with much of the important work done by this House.

In conclusion, I want to pick up the point about the importance of the work of this House. I spoke earlier about the warmth and friendliness I have found here. I also pay tribute to the wealth of knowledge, expertise and experience that surrounds me on every side; the civility with which our affairs are conducted; and, above all, the unique part this House plays in the governance of our nation, often unheralded and unreported but no less essential for that. I very much look forward to trying to contribute to that work in the future.

12:40 pm
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Lord Borrie (Labour)

My Lords, on behalf of the whole House I thank the noble Lord, Lord Janvrin, for the excellence of his maiden speech. As he himself indicated, it was most appropriate that with his experience and background he should speak on today's subject, which impinges on the royal prerogative. Not only has he had a distinguished career in the Royal Navy, he was in the diplomatic service, serving, I believe, in NATO and in New Delhi. Then in 1987 he joined Her Majesty's service for the first time as press secretary—not the easiest of jobs, I am sure. He went on from there and latterly has been the Principal Private Secretary to Her Majesty the Queen. We have been privileged to listen to an excellent, insightful and knowledgeable speech. I am sure the whole House will wish to hear more from him frequently in future. I would add only that I hope he will not feel unduly inhibited by the conventions of official secrets and rules of confidence, but I am sure he knows how to deal with such matters and yet be a valued Member of this House. We thank him for his speech.

In the debate on the gracious Speech, I ventured in a few sentences to welcome the consultation papers and the Government's view with regard to committing our Armed Forces to conflict outside these shores. I welcomed the notion that Parliament should be involved. However, I raised a number of queries. If I may dare to say so, as they were not answered on that occasion, I shall put them again very briefly. What should be the consequences of a Government not acting with parliamentary approval given either in advance or retrospectively? What information must be given to Parliament to enable it to perform its functions? It is clearly of no use for Parliament to have functions without having information put in front of it that it can sensibly and usefully debate. Those questions are still important.

Having thought about the matter since then, I believe the time is ripe to put into statute the principle that parliamentary authority should be sought before our Armed Forces are sent into armed conflict, except in cases made out to Parliament by the Government that there is a situation of clear emergency. The value of establishing such a general principle is evident from the seriously mistaken Suez adventure of 1956. A leading constitutional expert, the late Professor Robert Houston, said that,

"if the conduct of foreign affairs and the disposition of the armed forces of the Crown had not been included within the prerogative, the Cabinet might have hesitated in 1956 before embarking on the Suez adventure".

Eighty years ago, in the aftermath of the massive slaughter of World War 1, President Woodrow Wilson said that wars are more than anything the result of secret machinations of statesmen. Wars are much less likely to be entered into by a properly functioning democracy because young men cannot be asked to die for reasons that are not made public. If the Government are accountable to Parliament for their decision to go to war—I am talking about "wars of choice", to use the phrase uttered earlier today—and have to explain themselves to Parliament, the media and the public, the Government's reasons will need to be pretty convincing.

I shall say a little more on the subject of treaties, although I followed and agree with the comments of the noble Baroness, Lady Williams of Crosby, and the noble Lord, Lord Goodhart. If I may make a party-political point, it is most appropriate that a Labour Government should wish to extend the principle of the Ponsonby rule, which of course was named after the Under-Secretary for Foreign Affairs in the first Labour Government of 1924. His great-grandson, my noble friend Lord Ponsonby of Shulbrede, may not be in his place today, but he is a valued colleague. If that has been a useful rule, in my view it has not gone quite far enough. If Parliament has insisted on a debate and it has seen the Government's explanatory memoranda that are now so often produced in relation to treaties, it does not have any real say in whether the treaty is to be ratified. I venture to say, although this may be even less popular with my Front Bench than the remark I have just made, that unless the Government have made out a special case—unless there is a certificate for the Secretary of State, or something of that sort—no treaty should be ratified unless both Houses of Parliament have approved it. I say both Houses because of the point that is frequently made—that in this House there is a lot of expertise. We are seeing it today, in defence and foreign affairs matters. It seems somewhat perverse to say that all that is needed is the approval of the House of Commons.

12:47 pm
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Lord Hannay of Chiswick (Crossbench)

My Lords, today's debate on the Government's consultation paper, Limiting Executive Powers, is an important stage in remedying what has become an increasingly indefensible anomaly in our constitutional practice whereby one of the world's oldest parliamentary democracies leaves matters of great significance, such as decisions on war, peace and treaty-making, to be taken under the royal prerogative, perhaps more accurately described as on the say-so of the Government of the day.

The consultation paper itself provides a good deal of material for thought, although it does not cover adequately all the complexities of the subject matters we are discussing. Much still remains to be teased out before a sound basis for proceeding to parliamentary action can be said to exist. I therefore greatly welcome the initiative taken by my noble and gallant friend Lord Guthrie of Craigiebank for this debate on the consultation paper. It is a bit odd that the first debate should be taking place in Cross-Bench time and not at the initiative of the Government and in their own time, but it is none the less welcome for that.

I intend to limit my remarks on this occasion to the issue of war powers, by far the more important of the two fields covered by the consultation paper and the one in which the most significant changes to current practice are proposed. As I said at the outset, it would seem hard to gainsay the case for giving Parliament a determining voice on this matter, but it would be unwise to think that this will be a simple open or shut decision; it simply bristles with complexities, of which some can be solved in advance but some will find responses only when new procedures are put into practice. Among the latter, I would identify the need for our armed forces to feel that they have the full legitimacy of parliamentary support when they are asked to risk their lives and those of others. Unfortunately, the nature of our highly adversarial parliamentary system and the fact that a majority in Parliament often does not represent anything like a majority of the electorate will make that objective pretty hard to achieve in practice.

A second major complexity is the question of the information basis on which Parliament will reach its decisions. It is fashionable to claim that if we had known in March 2003 what we now know about Iraq's weapons of mass destruction—or, rather, the lack of them—the large majority supporting military action would have been reversed. That cannot in fact be proved, but we should have no illusions; these decisions will always have to be taken on the basis of incomplete and imperfect information. Adversaries, particularly if they are authoritarian or totalitarian regimes, do not willingly reveal their assets or their future intentions. Intelligence is one way of remedying that lack of knowledge, but it never provides the whole picture.

I turn to areas that I do not believe have yet been adequately covered—indeed, barely covered at all—in the consultation paper that we are debating. In so doing, I declare a non-pecuniary interest as chair of the board of the United Nations Association of Great Britain and Northern Ireland, which has submitted some separate observations on the consultation paper. These areas arise as a result of our membership of a number of international organisations and alliances, which are committed to taking action in common to achieve collective security. The UN and NATO are the most significant of these, although in future the European Union may, too, come to play a bigger role in that field.

Already, we can see how national decision-making on collective action by both NATO and the UN can impose serious delays and constraints on effective action by those organisations. That is the case with the caveats exercised by certain NATO members in Afghanistan, and over any number of NATO peacekeeping operations, most topically Darfur. If, as I believe, it is in our national interest to make those organisations more effective, not less, we are going to need to proceed with some care so as to ensure that the parliamentary changes we introduce do not cut across their interest and undermine it.

The case of UN peacekeeping operations is likely to be particularly complex. In many of those, it is simply not possible to say in advance with any certainty whether such an operation is going to take place with a full ceasefire in operation, or whether it might, at an indeterminate later stage, involve hostilities and the use of military force. On many occasions, British involvement in a particular UN peace operation will be extremely modest; a few observers, perhaps, or some logistical or specialist personnel. On which side of the parliamentary authorisation line will such examples fall? Nothing has damaged UN peacekeeping operations more in the past than the slowness and delays in deploying forces authorised by the Security Council. Remedying that, by developing a better rapid reaction capability for the UN, must surely be a high priority, otherwise the field is left open to spoilers. We will need to ensure that our national parliamentary procedures are fully consistent with that objective.

How are those UN complexities best handled? In theory, there are at least two ways in which we could proceed, and probably more. One would be to limit the scope of the parliamentary authorisation procedure so as to exclude certain scales or types of UN activity. The other would be to have what I call a light option procedure for handling such deployments. That second possibility is the one being operated in Germany; it is described on pages 66 and 67 of the consultation paper. Under it, the Government inform the key parliamentary chairmen of action that they plan to take, but no full parliamentary authorisation procedure is required.

I do not believe that it makes sense to try to settle the matter at this preliminary stage. What is needed urgently is some detailed consideration by the Government and further public consultation on these aspects. The bland recognition in paragraph 40 of the consultation paper that these NATO and UN complications exist, without the slightest indication of how to address them, will simply not suffice. Can the Minister give some indication of how the Government intend to respond on those matters?

In reviewing this consultation paper in this House, the matter of the powers or role of your Lordships' House arises. My views there coincide precisely with those of my noble and gallant friend Lord Guthrie of Craigiebank, who said that this House should have an opportunity to debate the matter in government time before the other place takes the decision on the matter. That is how it should be, but the decision should not be for this House.

I conclude as I began by indicating my broad support for the Government's intention, in bringing forward this consultation paper, to move our constitutional practice on to a sounder basis where Parliament plays a full and decisive role. In so doing, however, let us not forget the virtues of pragmatism and flexibility or fall victim to the law of unintended consequences that the noble and learned Lord, Lord Mayhew, referred to so eloquently in his contribution.

12:55 pm
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Lord Inge (Crossbench)

My Lords, I start by declaring an interest as the non-executive chairman of Aegis, a private security company. I, too, thank my noble and gallant friend Lord Guthrie for introducing an extremely important debate.

As the consultation paper makes clear, the decision to send armed forces into conflict is one of the most important that a Government can be asked to make. It is important to remember, as the noble and gallant Lord, Lord Guthrie, reminded us, that few armed conflicts turn out as expected. They usually last longer, take unforeseen directions and demand greater sacrifice. Therefore, given the seriousness of the decision to commit our Armed Forces to conflict, it is clearly right that the House of Commons should be involved. The key question, for me, is: how involved?

Different phrases have been used in different documents about this issue. The Prime Minister said, in July 2007, that

"the Government will now consult on a resolution to guarantee that on the grave issue of peace and war ... this House of Commons ... will make the decision".—[Hansard, Commons, 3/7/07; col. 816.]

We need clearer definition of what we want this new convention—and I hope that it will be a convention—to say. That grave issue of peace and war is rather different to some people talking about sending armed forces into conflict, or the words used by the report of the House of Lords Select Committee on the Constitution, called Waging War: Parliament's Role and Responsibility.

I rather agree with the noble Lord, Lord Hannay, that we must be careful not to be too restrictive on this, because if we look, for example, at the operation in Sierra Leone, and its need not only for urgency but for secrecy, it would have been difficult for Parliament to be consulted in that instance. As I have said, I am certainly much more in favour of a convention than a statutory requirement, which could be too restrictive. Let me also make it quite clear that I am strongly in favour of Parliament being involved to debate any significant military deployment.

As noble Lords have said, in preparing for war and complex military operations it is important for the Armed Forces to have clear decisions, and to get them in a timely manner. Whatever we put in place will remain of paramount importance. That preparation is normally fraught with difficulties, and it needs to be made in good time. If there is any delay in getting the support of Parliament for the Armed Forces it is bound to affect not only planning but, much more importantly, their morale. I need hardly add that it would be fatal for Parliament to dabble in the planning detail, and for the Executive to have to refer back continually for guidance on key issues.

I noted that in its report, Waging War, the House of Lords Select Committee on the Constitution stated clearly on Parliament's role and responsibility that,

"our enquiry should not extend to any aspect of operational decision-making once force has been deployed".

Later, it went on to say, in what I read as a major caveat, that,

"major instances of 'mission creep' or anything that represented a significant change, qualitative or quantitative, to an existing deployment would ... be treated as a new proposal".

It quoted Afghanistan as a possible example. I would be very cautious about allowing Parliament to dabble in that sort of military planning. As I mentioned earlier, each operational situation, no matter how careful one's planning, writes its own individual script, and it usually gets worse before its gets better. We need to be careful, for example in Afghanistan, not to dabble in that detail.

However, I recognise that it is enormously important that soldiers, sailors and airmen deployed on military operations feel that they have the support of the nation behind them. When the noble and gallant Lord, Lord Guthrie, and I visited troops in the desert in Iraq just before the first Iraq war, it was interesting how many of them asked us: "The nation is behind us, isn't it?". It is terribly important that we never forget that.

The report of the House of Lords Select Committee on the Constitution suggested the excellent idea of a joint parliamentary committee to assume strategic oversight of international defence and foreign policy. It deserves serious consideration. I realise that such a committee could not resolve the underlying issue of parliamentary sovereignty over the deployment of military power, but it could play an important role in educating both Houses of Parliament about the implications of the use of military force. It is a sine qua non that any important issue is considered by all Cabinet Ministers and not just by the Prime Minister and a few key advisers. The commitment of Armed Forces on operations is certainly such an issue.

A key part of that process—it may be teaching my grandmother to suck eggs—will be the proper preparation of papers by departments such as the Foreign Office, the Ministry of Defence, the Treasury and others. For any dangerous complex military operation, the Cabinet should be formally briefed by the Ministry of Defence, the Foreign Office and the Chiefs of Staff. We know that, at times, that has not happened in the past. I would not be opposed to key opposition party members being included in those war Cabinet briefings. I need hardly add that, in presenting the facts to the nation, we should not try to produce dossiers that are "improved" to justify the case of war.

When I was in the Ministry of Defence, I often felt that it would have encouraged the MoD and the Armed Forces if an annual briefing were given by the Cabinet about the Armed Forces, their capabilities, their training, their strengths and weaknesses, and what it would mean if they were committed to operations, because ever fewer people have a real understanding about what the commitment of Armed Forces to conflict entails.

1:02 pm
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Lord Goodlad (Conservative)

My Lords, I join other noble Lords in congratulating the noble and gallant Lord, Lord Guthrie, on the authoritative and eloquent way in which he raised this important question. I reiterate our thanks to him. Reference has been made by a number of noble Lords to the report of your Lordships' Select Committee on the Constitution, Waging War: Parliament's Role and Responsibility. The committee had the report debated last year. I am glad to see that three other members of the committee, the noble and learned Lord, Lord Morris of Aberavon, the noble Lord, Lord Rowlands, and the noble Viscount, Lord Bledisloe, are participating in this debate.

The committee welcomes the consultation paper, War Powers and Treaties, and is grateful for its recognition of the conclusions of the report produced under the chairmanship of my predecessor, the noble Lord, Lord Holme of Cheltenham. The paper takes account of a number of the key recommendations. We welcome, first, the Government's commitment to investigate ways of,

"seeking to give Parliament the final say in decisions to commit UK troops to armed conflict overseas".

It is a central point. I trust that the Government, in framing a resolution for the House of Commons, will find a way to take account of the concerns expressed by the noble and gallant Lord, Lord Craig of Radley, because they are extremely serious and were considered in detail by the committee. The essential flexibility of the armed services to which the noble and gallant Lord gave reference, and considerations of security and surprise, must be maintained. The essential proposition seems now to have the assent of noble Lords on all sides of the House.

Secondly, the committee welcomes the Government's view that is "entirely appropriate" that the House of Lords should have a role in the process. I agree with the noble and gallant Lord, Lord Guthrie, that any debate in this place should precede that in the Commons; it is clear that immense expertise is here. It would be a problem if this House took a different view from that of the other place. It would particularly acute if, at some future date, we had a wholly or predominantly elected House of Lords—but that argument is for another day.

Thirdly, we welcome the commitment to ensure that service personnel are protected from criminal prosecution for actions taken in good faith. Fourthly, we welcome the Government's recognition that the committee's favoured option of a parliamentary convention,

"has the advantages of being more flexible and adaptable".

We welcomed the Lord Chancellor's comment in his evidence to the committee in October that,

"the balance of opinion is in favour of the conventional approach".

However, the committee is disappointed at the Government's preference for a requirement merely to inform Parliament, rather than to seek retrospective approval for deployment, in cases where forces have been deployed without prior parliamentary approval for reasons of urgency or national security. The committee's preferred option is that if, for reasons of emergency or security, prior application for parliamentary approval is impossible,

"the Government should provide retrospective information within seven days of [the deployment's] commencement or as soon as it is feasible",

at which point, parliamentary approval should be sought.

The committee is concerned also at the Government's proposal that,

"Parliament's involvement should be limited to approving the initial engagement".

Your Lordships' committee would prefer that, in addition to keeping Parliament informed of the progress of deployments, the Government should be required to seek a renewal of parliamentary approval if a deployment's nature or objectives alter significantly. Such a requirement is vital to ensure that mission creep does not become a problem. It is possible to argue that the House of Commons can do anything that it decides. There was a large number of debates during the Falklands conflict; there have been a large number of debates about Iraq; but it is argued that this would be far better spelt out in a convention agreed by the Government in Parliament.

There is currently no agreed definition in the Geneva Convention of the term, "armed conflict". It will therefore be necessary for the Government to look elsewhere for a meaningful definition, as we all know that there has been no declaration of war by this country since that on Thailand in the Second World War. I am strongly convinced that it will be possible for the Government and Parliament to agree a resolution that enshrines an appropriate convention reflecting the concerns that have been expressed today. The military covenant, which has been so much discussed in recent months, demands no less.

1:08 pm
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Lord Armstrong of Ilminster (Crossbench)

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.

1:15 pm
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Lord Morris of Aberavon (Labour)

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.

1:23 pm
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Lord Thomas of Swynnerton (Crossbench)

My Lords, it is a pleasure to take part in this debate initiated by my noble and gallant friend Lord Guthrie. The document giving the agenda for the debate seems to be well written, although as a pedant of many years' standing I cannot avoid noting that the Secretary of State for Defence and for Scotland on page 8 spells his name in two ways—once with an "e" at the end and once without. Can we assume that the "e"-less Brown is for the Scots, or the Picts perhaps? Paragraph 44 refers to the fact that this country last declared war in 1942. The noble and learned Lord, Lord Morris, and the noble Lord, Lord Goodlad, told us that the declaration was against Thailand but the Library assured me it was against Romania. That is of no great importance now, except to note that a formal declaration of war has not been made since the Second World War.

The proposal in the consultation document argues that we should put on a formal basis the discussions with Parliament which, as the excellent table on page 21 explains, have almost always happened informally and effectively. The Government also suggest that a discussion with Parliament should be limited to,

"a vote in the Commons alone",

as mentioned on page 23, paragraph 37, so there are two important matters to be discussed.

On the first matter of the legal requirement, like the noble and gallant Lord, Lord Guthrie, and many others, I think we would be better served by a convention. Parliament depends for its good working on convention as much as on legal requirements. No two international threats are quite the same. Iraq was different from Suez, even though both were put forward as issues for international intervention on what my noble and gallant friend Lord Bramall rightly described as false premises. I do not see that a legal requirement to consult Parliament would remove the risk of false premises but I could be convinced of the benefit of a legal requirement if it were successfully argued that the armed services desired or needed it.

The second matter is the consultation of your Lordships' House. The Government think this is unnecessary but I think that view is mistaken. The other place is still known for its great debates but on important issues, as we in this House know only too well, it is usually easy enough for the Government of the day to secure a majority. The great change experienced in the other place in the last century has been the lamentable vast increase in the number of members of the Government who are Members of that other place—98 last week before the reshuffle. There also are about 50 Parliamentary Private Secretaries and I dare say at least another 50 Members of Parliament are hoping to catch the Whip's eye so that they might one day become Parliamentary Private Secretaries themselves. The Government's strength is perhaps 200. With that number it must be always easy for good Whips to secure good majorities. One subject many of us would like to see treated in the context of a future discussion on the governance of Britain would be the reform of the other place. The noble Lord, Lord Anderson, implied that that would be desirable, perhaps by cutting the number of Members, as was once suggested by a distinguished Labour Foreign Secretary, the late Mr Anthony Crosland.

It is also worth mentioning that this House has one or two important residual powers. For example, we are legally obliged to approve any plan by the other place to extend the life of a Parliament, as happened in 1939. Because the other place is not—and I hope this remark is in order—in an especially independent stage of its history, there would be a great benefit to requiring that this House be always consulted on matters of war and peace. It is generally admitted that this House is in rather good shape and always has had among its Members persons of military experience. Let us hope that whatever reforms are afoot, we will always have them. Our noble and gallant friends in this House are in a strong position in our legislature, considering that there are few Members of the other place with military experience, as was mentioned by the noble Lord, Lord Marlesford, in a fine speech in this House on 22 November.

If there is to be a legal requirement, my preference would be for the constitutional reform Bill introduced by the noble Lord, Lord Lester of Herne Hill, in January 2006, which is described on page 20 of the consultative document, whereby, unless there is overwhelming urgency, the Government would before an international armed conflict require backing from a resolution in both Houses of Parliament. That is, in fact, close to the present position, for there was an important debate on Iraq in this House—without a vote, it is true—on 18 March 2003, two days before the other place voted on 20 March.

1:30 pm
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Lord Wakeham (Conservative)

My Lords, I congratulate the noble and gallant Lord on initiating this important debate. He and I have served and are serving on a number of bodies together and I have good reason from time to time to be grateful for his judgment and wisdom. However, I have some hesitation in speaking as my military experience was as a subaltern doing my national service more than 50 years ago.

This was during the Suez crisis and it has already been mentioned that there is an echo from that time in some of the issues of today. Since then I served in the war Cabinet during the first Gulf conflict, which gave me some practical experience in these matters. It is that experience as a member of a war Cabinet that emboldens me to say something. I have seen a Prime Minister and her senior colleagues faced with some of these major issues.

With that in mind, I have read all the statutory options set out in the Government's consultation paper and my feeling is that each of them has difficulties. I would not want procedural matters to get in the way of effective decision-making in this difficult area. My view is that the Government of the day are the Executive with all the information and intelligence, and the Government have to make the decisions with, at times, awesome consequences. I would accept a convention, but in reality that is practically what we have now. No Government worth their salt would attempt a war without seeking to take Parliament along with them in whatever way seemed most effective.

I very much agreed with the evidence that the noble and learned Lord, Lord Falconer, gave to your Lordships' Constitution Committee some time ago, when he emphasised that Governments decide and Parliament approves, but that the arrangements were best settled on a case-by-case basis. I am not sure that those are the views of the current Government, but in my view no Government could stay in office if they sought to prosecute a war without the support of Parliament. I cannot conceive of a Minister or a Government staying in office for a single day without the support of the House of Commons. My long experience of the usual channels has shown me to what lengths a Government will go both publicly and privately to maintain understanding and support for their policies in this area. Obviously I shall not reveal examples of my experience of where that was a very important part of the way that the Government pursued their interests—making sure that they had the maximum support that they could get, because that is key for a successful operation. So the heart of my argument in this respect is: the House of Commons has either to back the Government or sack them. No other option is worthwhile in the end.

Turning to the other half of the consultation paper, the role of Parliament in relation to treaties should be more significant. Of course any treaty that affects our domestic law cannot be brought into effect without legislation, but treaties themselves do not need to be approved by Parliament. Successive Governments have invited consideration under the Ponsonby rule. As a number of noble Lords have said, those arrangements are not sufficient. I am not convinced that the 21-day period provided is long enough and the Royal Commission of which I had the honour to be chairman suggested that a Select Committee of your Lordships' House would be an ideal way for Parliament to scrutinise treaties and to draw its attention to matters of concern and importance, so that if necessary debates and votes could take place before ratification. The committee has not been set up and, as the noble Baroness, Lady Williams, indicated, a number of your Lordships know that the Liaison Committee has on more than one occasion turned such a proposal down. This is not the moment, nor am I the person, to question that, but such a committee should have a significant place in a reformed House of Lords.

I would not expect the Select Committee to have special powers, but the sort of expertise that this House can command would make it of great value to Parliament as a whole. I see no great advantage in setting up the committee in a bureaucratic way and thus would favour a convention as the best way forward. If for any reason the Government of the day failed to honour that convention or ignored any vote in the House of Commons, Parliament has the remedy—it should sack the Government. That applies to both the issues we are considering. Parliament cannot have its cake and eat it. Governments need the support of Parliament to stay in office. What they do not need are lap dogs barking at their ankles but refusing to bite.

1:37 pm
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Lord Vincent of Coleshill (Crossbench)

My Lords, I, too, am grateful to my noble and gallant friend Lord Guthrie for initiating this debate because, not least as a result of the Select Committee report and the response that it has received from the Government, a number of important issues that have been discussed clearly remain unresolved.

In today's changing world, with its complex and far less predictable security environment, these matters need to be considered further. I am mindful that when I received my national service commission in 1951 we were required to study a—then—War Office publication entitled, The Conduct of War. Not surprisingly, after two world wars in the previous 37 years, that document tended to focus on armed conflict between nations and such things as the Geneva conventions, the United Nations charter and Article 5 of the Washington treaty which established NATO. All of those determined our legal approach to the initiation and conduct of war.

Today our security has to be achieved in a far less predictable environment, particularly with the growing risks that have arisen from state-sponsored and other sources of international terrorism. Under these circumstances, it is becoming less straightforward to define "war" and "armed conflict", and even the identification of our "enemies" can be far from certain in operational environments such as Iraq and even in some parts of Afghanistan.

These changes have been further apparent in the approval of operations by the United Nations which have ranged from humanitarian aid, through peacekeeping and peace enforcement to fully fledged armed conflict. There is always the possibility that after we have committed our Armed Forces to a particular operation, it will escalate from one category to another for which different objectives, capabilities and rules of engagement will be required. In addition—as has already been mentioned—in operations such as the rescue of hostages in Sierra Leone, absolute security and surprise are needed, together with the authority at the outset to use the force necessary in order to achieve success in the face of uncertainties and risks that cannot prudently be debated, or even revealed, before such operations are launched. The Select Committee emphasised that the Government, in seeking parliamentary approval, should define the military objectives of an operation. This is essential if it is to be effectively planned and resourced, though some objectives may have to be protected initially for security reasons.

There is a wider dimension to this definition of objectives that also needs to be addressed at the outset if such operations are to come to a satisfactory conclusion. Military operations are a means to an end, not an end in themselves. It therefore behoves Governments to address at the outset the post-military phase of such operations, covering all other objectives—with the provision of adequate resources to achieve them, if necessary on a wider international basis, in order to rebuild the country or the society concerned. Several of us in this House asked that specific question about Iraq before our forces were committed in 2003. We received no adequate response and have, since then, seen all too clearly the consequences of that serious omission. Nor, in seeking to redefine our war-making powers, should we forget that in coalition operations, other nations can each have their own legal basis for organising such deployments. In terms of timescales and security, these can be difficult to reconcile with our own national procedures without undermining the effectiveness of the whole operation. As chairman of the NATO Military Committee when NATO was preparing to go into Bosnia and take over from the UN, I confirm what has already been said—that many other nations admired the straightforwardness and speed with which our decisions were taken.

None of what I have been saying is intended to be negative about the review of war-making powers. I understand how the events in 2003, resulting in the invasion of Iraq, led to relevant concerns. But in today's less-clear-cut security environment, this can be an immensely complicated matter that needs to be considered further before, for example, we abandon completely the royal prerogative, or something equivalent to it. Nor, I believe, in this review—as again has been referred to—should we forget the effect of such war-making procedures on our Armed Forces. Having accepted the unique commitment of going whenever and wherever they are directed and, if necessary, placing themselves in harm's way, they need to believe that these important issues have been adequately addressed, without undermining their security, and that, above all, the uniquely demanding tasks to which they are committed are legal and have the support and understanding of the population.

In essence, I support the need for greater clarity and accountability in the use of our war-making powers. My concern is how this can be achieved in practice, in an open and unclassified debate in the other place and possibly here, without putting at additional risk the security and even the eventual outcome of some of the intended operations.

1:44 pm
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Lord Morgan (Labour)

My Lords, about 50 years ago I heard, in the examination schools in Oxford, Alan Taylor give his Ford lectures on The Trouble Makers: Dissent over Foreign Policy, 1792-1939, from Fox to the Left Book Club. The underlying theme of his lectures was the belief that ultimately the dissenters were always right and their views were ultimately confirmed. So it was to prove, I believe, over Suez and also over Iraq. Now it has been endorsed admirably—and I congratulate them—by the Government of Gordon Brown. They restate in their consultative document what the Union of Democratic Control, including the good Lord Ponsonby, stated in 1914—that no treaty arrangement or undertaking should be entered into without the sanction of Parliament, and that there should be democratic control over the war power. This excellent consultation paper carries the support not only of Gordon Brown but, more indirectly, of David Cameron and Mr Nick Clegg—all providing a consensus in favour of old radicalism. Cobden, Bright, Lloyd George, Keir Hardie and Nye Bevan, you should be living at this hour.

The present situation is an undemocratic absurdity. The royal prerogative is a symbol of the fact that the people of this country are not citizens—they do not have an organic relationship with the process of supreme decision-making that, for example, the Americans or, in some respects, the French do. Since time is limited, I do not want to say anything particularly about treaty-making powers. We have heard, notably from the noble Baroness, Lady Williams, and the noble Lord, Lord Goodhart, how the royal prerogative can be effectively nullified in relation to treaties and that, for all their other merits, the rules of Lord Ponsonby are not significantly robust in this connection. But above all, there is the prerogative of the war power. This is the supreme area where citizenship should be exercised. It is extraordinary that the procedures have altered hardly at all over the centuries—nor would they ever, frankly, if some views expressed in this admirable debate were accepted. There happened to be a vote over Iraq, but that was entirely due to the fortuitous influence of the late Robin Cook, and is not a binding convention.

The Government consultative paper considers how democratic control could or should be exercised through legislation, through resolution and through a more general convention. It is a very helpful document that sets out the principles clearly. Some things seem clear. I think that Parliament should have an automatic right to pass judgment on any deployment of troops overseas, so that we do not get into matters of semantics—whether it is a war, whether it is "armed conflict" or whether, as we were told in 1956, the armed conflict was actually a "police action". It should be a standard and statutory procedure. If there is armed conflict, Parliament should automatically be recalled if there is a recess—as it was not, for example, after the attack on the Lebanon in 2006. There should automatically be regular reports on military action to Parliament, in case there is what has been called mission creep. Parliament should have the same rights as the Government to call upon legal advice to consider the legal aspects of military action. After all, the Government do this—the Attorney-General is not commonly an expert in international law and he—or perhaps she—calls on legal advice, so Parliament should do so. This would also ensure that our conduct in any war observes the rules of war as well as human rights legislation, conventions and international law.

I firmly believe that the legal justification by the Attorney-General should be given in full to Parliament. It was not in the case of the Iraq war—it was like getting blood out of a stone, and that was one of the many regrettable features of the situation. Even worse was the situation in 1956, when the then Attorney-General, Manningham-Buller, advised that the action was unlawful, but his view was superseded and the slapdash view of Lord Kilmuir, the then Lord Chancellor, was taken instead. Manningham-Buller might have resigned, but did not, and indeed in due course became Lord Chancellor. It is important that there should be a full legal statement and if this is not observed, Parliament should simply refuse to authorise supplies.

The Constitution Committee argued against a statutory basis and called for a parliamentary convention. During a previous debate in May—unfortunately, I was abroad at the time—an extraordinarily wise and sensible observation was made by the noble Lord, Lord Norton of Louth, who said that a convention is not created but evolves over a long period. I do not think that a convention can be created. It can easily be too permissive and too vague and can easily be evaded by the Executive. Not that legislation is necessarily perfect either: we should always remember the 1973 war powers treaty in the United States, which was legislation. It has also been commonly evaded and has given undue authority to the president.

However, to be effective and meaningful, there has to be a legislative and statutory context for these matters. I should have thought that we could have a compromise between specific resolutions on particular emergencies and a broad context of legislative sanction to ensure that processes are followed and not evaded, as they have been century after century. Without Parliament's statutory approval of war-making powers, we will not be a democracy. We should have the information and it should be in the public domain. In the era of a technological revolution, frankly Parliament should have the same rights as those held by the press—the information and media authorities. Secrecy has been the curse of our constitution and we saw it here long before the era of sofa government.

Finally, I agree that approval and sanction by Parliament would strengthen the military. It would assure them that they had the nation and the legislature behind them; it would increase trust in our legislative and political institutions; and it would ensure that never again would hundreds of thousands of British citizens, including myself, go marching in the streets of London, as they did in 2003, saying that this action is "not in our name".

1:52 pm
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Lord Hameed (Crossbench)

My Lords, it is indeed a privilege to be here, although I must confess to a degree of unease and trepidation in addressing this august House. I am as conscious of noble Lords' scholarship and learning as I am of my own shortcomings.

Ever since my appointment, I have experienced a great deal of warmth and kindness from everyone, including many of your Lordships and the wonderful officers and staff of this noble House, for which I am truly grateful. I am especially grateful to my noble friends Lord Williamson and Lady D'Souza for their wisdom, advice and support, which has been most helpful and very happily received.

The discussion at present in the House is of wars and treaties, but wars, both in ancient and present times, have often been the result of a clash of faiths and beliefs. Perhaps I may suggest that a major component of the risk to our civilised lives is our intolerance of each other's beliefs and methods of worshipping God. As we know, religion can be a force for peace or war, it can heal or hurt, and it can create or destroy on a scale unimaginable to previous generations. History has recorded enough bloodshed in the name of religion. Moses, who led his people from slavery to the brink of the promised land, gave them a choice:

"See, I have set before you Life and Death, the Blessing and the Curse. Therefore, choose Life so that you and your children may live".

We have also seen how the absence of religion has led to wars and killing. While people have been killed in the name of God, others have killed believing that they were gods. The greatest crimes of the last century—in Stalinist Russia, Nazi Germany, Cambodia and Rwanda—are examples of great crimes committed by secular regimes.

We live and work in the United Kingdom. I must therefore, first, voice my gratitude to this country. Like many of your Lordships, I am grateful to this great country for the opportunities that we have received to fulfil our objectives and goals.

Of late, however, a shadow has been cast on our community relations. The events of 9/11 in New York in 2001 and 7 July 2005 in London, and the more recent shocking attempt at terrorism in Glasgow, brought that shadow into sharp focus. On these occasions, the killing and attempted murder of innocent people created a great conflict for Islam; a religion which sees itself as a religion of peace was associated with murder and mayhem.

I was born into the Muslim faith and brought up with the guiding principles of Islam, which I now find are in serious conflict with the activities and utterances of some of the Muslim extremists. Looking at Islam through its main reference source, the holy Koran, we see a religion completely at odds with the actions of the perpetrators of the vile acts of terrorism committed in its name. The Koran clearly instructs the believers to be tolerant and compassionate and to extend a helping hand to the sick and the infirm. It commands respect for scholars, women and minorities in any land. It also instructs Muslims to respect those of other faiths and to live with them as good neighbours in peaceful coexistence.

I beg your Lordships' indulgence in using the platform of this noble House to reach the minds and hearts of all people in saying that, along with other faiths, the Koran forbids hurting, harming or killing an innocent person, just as it forbids the taking of one's own life. I want the radicals and extremists in all faiths, but especially among my own co-religionists, to understand clearly that strapping oneself with explosives to kill others in an act of suicide in search of martyrdom is totally un-Islamic and against the instructions of the Koran—the holy book which all Muslims must obey. For any Muslim to ignore or question the truth of this message is like questioning the right of the sun to shine.

We in the Muslim community must oppose and resist extremists inflicting violence on society in the name of religion. We must raise our voices in protest and we must withhold, as a community, the robe of sanctity when it is sought as a cloak for violence and bloodshed, even if the perpetrators are from our own faith.

We have here in the United Kingdom a multi-religious and multi-ethnic society. Dialogue is the only way forward for addressing our differences based on mutual respect and trust for each other. It is imperative that we engage together in a continuing dialogue. Dialogue is no longer a luxury of a few well meaning individuals; it has become a necessity demanding action, and without it only catastrophe stares us in the face.

In conclusion, on a day when war is being talked about in this House, I beg noble Lords' indulgence by mentioning peace. There is a thought which I hold in great esteem that I wish to share with your Lordships. It is from a Hindu prayer from the ancient Vedas, which, translated from its Sanskrit form, goes thus:

"May there be peace in the celestial regionMay there be peace in our skiesMay there be peace on our earthMay there be peace in the watersMay there be peace in the plants and forestsMay that peace be mine also".

I conclude with a prayer of my own: may God also bless you all with that peace.

1:59 pm
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Lord Rowlands (Labour)

My Lords, it is a very special privilege to follow the noble Lord. I have heard many maiden speeches but he brought a fundamental and important message to us all with passion, and we welcome him very much. He comes to the House with a distinguished medical career in saving lives. However, as his speech has shown today, he has much wider and more fundamental concerns about society and community. The fact that he is a trustee of Muslim-Jewish Relations at the Woolf Institute is a perfect illustration of that commitment. He is also a passionate supporter of the Commonwealth and is chairman of the Commonwealth Youth Exchange. He has already been recognised and honoured in many ways. I was particularly intrigued by the fact that he has been honoured by the Order of the Burning Spear. I hope, one of these days, that he will explain to us what that honour involves. I am sure that the House will want to hear him more during the coming months.

As we grapple with this vital issue of parliamentary accountability in war, I briefly follow my noble friend Lord Morgan into a brief historical digression. I want to draw the attention of the House to the peculiar and particular contribution that war itself has played in the development of our parliamentary processes. If we go back to the 17th century, we see that if the king or the crown could avoid war, they also avoided calling Parliaments. It was war that eventually, and fatefully, forced Charles I to summon Parliament, with all the consequences that flowed from that. His son, Charles II, governed the last four years of his life without any Parliament at all; he stayed out of war and conflict. From five years after that—1690—to the present day, this House and the other place have sat every year. That is a unique record of representation.

Why is there such a tradition of representation, meeting and scrutiny? The prolonged conflicts and war between 1690 and 1715 ensured a permanent place for Parliament as a central institution of the state—as opposed to an event, which it had been before. War has played a significant part in the way in which our parliamentary processes have evolved. It was involved in the birth of the demand for scrutiny of estimates, in the beginning of the Public Accounts Commission and, above all, in the introduction of annual Sessions, with which came debates and inquiries. There was no squeamishness in the 1690s about debating war—strategy, cost and conduct of war was debated with vehemence and passion. That was the legacy for us from that post-Revolution Parliament.

Few would now suggest—this is the reason that we are debating an alternative parliamentary mechanism—that the old fashioned methods we adopted, of controlling the Executive by controlling supply, scrutinising estimates and delving into the details of government expenditure, are a relevant means of asserting parliamentary scrutiny in relation to war. I have noticed in my parliamentary lifetime in the other place an increasing lack of interest in or concern about the details of estimates. I am one of the last veterans of the old "jumbo" estimates committee of the Commons, which at least tried to tie its inquiry to a vote. The noble Lord opposite was also a member. All that has gone. We cannot use scrutiny and control of supply as a means of keeping a check on the Executive of the day.

As a number of noble Lords have said, in recent times, the character of armed conflict, and our involvement in it, has changed. The catchphrase is "wars of choice". Our involvement in recent conflicts has been a matter of choice. Where there is a choice, it behoves the Government of the day to justify particularly and thoroughly that decision and seek prior parliamentary approval for it. That was most forcefully expressed by the noble and gallant Lord, Lord Bramall.

The considerable practical issues have been rehearsed today, as was done in considerable detail in the report of the Constitution Committee, which I had the privilege to be a member of. I draw the attention of the House to evidence supplied by the Ministry of Defence. We could not publish it in full, but it is summarised in paragraph 27 of our report. Since 1990, there have been 60 military operations. It would have been absurd and dangerous to suggest that parliamentary approval could apply to each and every one of those operations. When members of the committee analysed those 60 operations, we saw that they flowed from a series of initial mission decisions: repelling the Iraq invasion of Kuwait; the enforcement of no-fly zones in Iraq; the coalition operations in Iraq from March 1993; our contributions to the Balkans in the UN Protection Force and the NATO-led Implementation Force; Sierra Leone; and, finally, Afghanistan.

I was in the other place when a number of those decisions were made—not for the latter two but I was certainly there for the Sierra Leone decision. Neither I nor any member of the committee really believed that if Government had had to seek prior parliamentary approval, that would in any way have jeopardised the military operations that followed. It would have given an additional degree of authority, particularly with regard to international legal obligations, legal rights and so forth; I refer in particular to the need for understanding and appreciating the legal basis of any such decision.

The principle of prior parliamentary approval is good and a good additional discipline for Government to have to go through. I disagree briefly with my noble friend Lord Morgan over his dismissal of the idea of a convention. A parliamentary convention can be created by the powerful all-party consensus that seems to be emerging as a result of discussions and debates. I believe that we will have the force of Parliament behind that. Governments will constantly err on the side of coming to Parliament for approval rather than trying to avoid it. If we established such a convention, that would involve not doing something radically new or dangerous, but restoring and renewing a degree of parliamentary accountability—our predecessors began that more than 300 years ago.

2:06 pm
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Earl Attlee (Conservative)

My Lords, I am grateful to the noble and gallant Lord, Lord Guthrie, for introducing this crucial debate today. I remind the House of my interest as a serving TA officer and that I served on Operation TELIC 1 in Iraq in 2003.

When contemplating a change in the constitution, the law or conventions, one must ask: what is the mischief that is to be dealt with? How did it come about and will the proposed changes eliminate any possibility of a recurrence? Finally, are there any unintended or undesirable consequences of the proposed changes?

The mischief is that we invaded Iraq when, according to most current informed analysis, that was not legal and it was not necessary. The post-conflict reconstruction plan was not properly executed or drafted, despite it being the legal responsibility of the occupying power to do so. How did this come to pass? The noble Lord, Lord Butler, in his excellent report tells us that the answer involved sofa government rather than Cabinet government and a dodgy dossier that could be torn to shreds in classified briefings with officials. Will the proposed changes prevent a recurrence? I suggest not, because they would not change the deeply flawed government decision-making process of the sofa government of the time. Also, it is not possible for 650 MPs to forensically examine a dodgy dossier or other classified documents. The fact is we have to rely upon the collective judgment of the Cabinet and the rest of the Government. I am afraid the Cabinet has been a miserable failure. The rest of the Government did not do very well, with the notable exception of the noble Lord the Minister on the Front Bench, who took a very honourable position at the time.

The final question to answer is about the unintended and undesirable consequences of an operation. Unless parliamentarians have seen the grand strategic plan for the operations, which I suspect would be a little bit classified, they cannot possibly know the answer to the question of whether the unintended consequences have been properly dealt with. I recall during the debates in February 2003 that your Lordships, while confident of the military outcome, were asking about post-conflict reconstruction. We asked the right questions. Apparently all had been considered, but of course we now find out that it had not.

I do not believe that the proposed changes will deal with the mischief and I intend to examine some of the other issues in a little more detail. There is an argument that the changes will bring us into line with similar democratic states. That may be true, but many of those states do not engage in military operations to the extent that the UK does and, because of their procedures, do not have the utility that the UK forces have; many noble Lords focused on that. In addition, they normally have secrecy and urgency provisions in their arrangements, which means that a malign or incompetent Government can easily circumvent the requirements.

I do not want to tie the hands of a future Government so that their grand strategic plan is skewed around the need for agreement in Parliament. Incidentally, I agree that these matters are for another place uniquely to make the final decision on; debates in your Lordships' House must precede debates in another place. If a significant proportion of the Members of another place are against government policy in a crisis, a vote of confidence can be called. An adverse vote would stop any military operation in its tracks. In practice, such a situation would never arise because the government Chief Whip in another place would report the views of Members of the House in confidence to the Prime Minister long before any vote took place. Of course, the view of Her Majesty's Opposition would be crucial. In 2003, the Government were confident of the support of the Opposition and could afford to have a vote in the House of Commons without any risk of it being lost.

If there are to be formal parliamentary procedures, we need to determine when Parliament should decide. I suggest that any authorisation should be far earlier than many noble Lords would expect. When I arrived in HQ 1 (UK) Armoured Division in March 2003, I had the words of the Minister, the noble Lord, Lord Bach, ringing in my ears that war was neither imminent nor inevitable. I confidently expected a month of intensive exercises before we started operations, so I was a little surprised when I got to headquarters and the question was, "Will we be going this week or next week?".

When the vote took place in the House of Commons, it caused us a slight delay, which was, as it happens, quite useful. However, the timing could have been a significant hindrance. If the vote in the House of Commons had been lost, the operation would obviously have stopped and our forces would have adopted a purely defensive posture. However, we would also as a nation have experienced immediate, catastrophic and permanent failure in our strategic relations with the United States, which no UK Government could afford to allow to happen. The noble Lord, Lord Anderson, articulated similar concerns, but I thought that he was rather muted when he talked about a "stabbing" in the back.

The Government would ensure that Members of the House were aware of the serious consequences of a no vote at a very late stage in the confrontation, so in practice Members of another place would have no choice; they would have to vote with the Government. So why do it? Why have a vote at a late stage?

If there were to be a formal parliamentary procedure, perhaps it ought to occur before any of the following took place: outloading of the ammunition depot other than for training; loading of armoured vehicles on to ships other than for training and for roulements, because that makes us vulnerable to attack by the other state—we are preparing for war; and deployment of combat aircraft overseas other than for exercises. These actions cannot be done easily without our opponent becoming aware of them through other intelligence agencies, but they would be taken early enough in the process not to affect the negotiating position of Her Majesty's Government and the diplomatic efforts. The difficulty with an early vote is that not all the diplomatic solutions will have been fully exhausted; therefore, it could not be the final decision.

I have run out of time but, speaking for myself, I believe that we should maintain the status quo and return to effective Cabinet government, which has served us so well to the past.

2:14 pm
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Viscount Bledisloe (Crossbench)

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.

2:22 pm
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Viscount Slim (Crossbench)

My Lords, I thank the Minister for allowing me to say a few words in the gap. I will not detain your Lordships long. I wish to refer to the Special Forces. They do jobs of strategic significance; they are commanded at the very highest level; they are of interest to a crisis Cabinet or a war Cabinet. They are often deployed before a war or crisis starts and I do not think that they should be muddled up in the business of parliamentary discussion or views. That can come, as has been said by the noble Lord, Lord Janvrin, in his excellent speech, in the wash-up afterwards. Will the Minister therefore ask his colleagues whether, within the convention and the royal prerogative, the Special Forces cannot have some special treatment so that they are not poured into the whole pot of the military? I hope that the Minister will take note of my words and that something will happen.

2:23 pm
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Lord Maclennan of Rogart (Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Scottish Affairs, Spokesperson in the Lords, Ministry of Justice; Liberal Democrat)

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—

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Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I am very sorry to interrupt. The noble Lord is now in the 11th minute, and we are running very short of time—

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Lord Maclennan of Rogart (Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Scottish Affairs, Spokesperson in the Lords, Ministry of Justice; Liberal Democrat)

My Lords, I am in my concluding sentence, and the Minister is taking up my time by intervening.

Noble Lords:

Oh!

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Lord Maclennan of Rogart (Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Scottish Affairs, Spokesperson in the Lords, Ministry of Justice; Liberal Democrat)

My Lords, the role of this House is of great importance. As it stands, the primary decision must be taken by the House of Commons, the elected representative House. If the House of Lords is reformed, however, its role in scrutinising international matters, like many second chambers in other democratic countries, would have to be reconsidered.

2:35 pm
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Lord Kingsland (Shadow Minister, Justice, Shadow Lord Chancellor, Parliament; Conservative)

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".—[Hansard, 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".—[Hansard, 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.

2:45 pm
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Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Ministry of Justice; Labour)

My Lords, I too thank the noble and gallant Lord, Lord Guthrie, for initiating what has been a quite splendid and high calibre debate. I am up against the clock, and if he is to respond I must finish absolutely in 20 minutes. I shall try to deal with a number of the most important matters that have been raised in your Lordships' debate.

First, I join other noble Lords in thanking the noble Lord, Lord Janvrin, for his exceptional maiden speech. We all look forward to hearing from him in the future. He made some most interesting remarks about changes to the constitution, and I encourage him to join us in our ever enjoyable debates on the future of your Lordships' House, which I think he will very much enjoy. The noble Lord, Lord Hameed, spoke most eloquently of the extraordinary risks that we face from religious intolerance. I commend him for his brave and robust stand against extremism.

The noble Baroness, Lady Williams, said that this was a most significant moment in the constitutional evolution in this country. I share that view. The key element of the paper that we are debating that runs through all of it is the need to limit the powers of the Executive and to subject them to greater scrutiny and control. That stems from a conviction that, in our democracy, the freedom of the Executive should be more formally constrained in order to respect their obligations to Parliament. This is especially true when the Executive derive their powers from the ancient prerogatives under the Crown, rather than those explicitly granted to them by Parliament—the context of which my noble friend Lord Rowlands put so well.

The noble and gallant Lord, Lord Guthrie, emphasised that the power to send the Armed Forces into conflict and to commit the country to international obligations through the conclusion of treaties are two of the most important powers that a Government can wield. It is axiomatic for a democracy rooted in the sovereignty of Parliament, as we are, that it should be Parliament that has the final say in such grave matters. I very much endorse the remarks of the noble and gallant Lord, Lord Bramall, when he talked of troops in the field needing the support of country and Parliament, as well as understanding that what they are doing is legal. I also entirely endorse the view that it is unthinkable that action could be taken without parliamentary approval.

We are in a very different world. The existing arrangements need to change, and the consultation paper, as noble Lords know, sets out a number of matters that will need to be fully discussed and worked through to effect those changes. The consultation closed on 17 January, but I assure noble Lords that today's debate will be taken fully into account. It is clear that there is widespread support in your Lordships' House for the direction of travel. Equally, it is also very clear, as a number of noble Lords have said—the noble Lord, Lord Wakeham, was particularly forceful about this—that the Government must have a degree of latitude in considering whether the Armed Forces should be deployed or engaged, and if and when they are, how to prosecute any conflict. We need to strike a balance here to guarantee the flexibility and members of the Armed Forces, and we are very much attuned to the need for reform to take into account the impact on the Armed Forces in the field. I hope that the consultation paper makes that clear, and certainly paragraphs 38 and 39 make the point that the impact on the morale of members of the Armed Forces themselves is critical, and that by providing a mechanism for explicit parliamentary approval of relevant deployment decisions, the intention is to show the Armed Forces that Parliament, and through it the nation, is fully behind them.

I understand the concerns of the noble and gallant Lord, Lord Craig of Radley, but there is no intention in any of our proposals discussed in the document to interfere in any way with the operational decisions of commanders in the field. These proposals are intended to ensure that Parliament is consulted. I know that the noble and gallant Lord raised some very detailed questions, but perhaps I may refer him to the remarks of the noble Lord, Lord Armstrong of Ilminster, who made the case for generality rather than getting too detailed and inflexible.

The options set out in the paper have been referred to. Again, they seek to strike a balance between approval by Parliament and flexibility. The paper sets out four options and we have yet to take a firm view on them. On the one hand, it makes clear the advantages of putting in place a structure around parliamentary resolutions so that they can be created with less formality and are more easily amended, but that failure to comply is not automatically unlawful and its interpretation is a matter for Parliament rather than the courts. On the other hand, however, there are disadvantages. It might appear to provide a weaker assurance of compliance by the Government and it does not formally constrain the prerogative. As the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Goodlad, pointed out, the Constitution Committee came out firmly against the idea of the legislative route, and that view seems to be supported by many noble Lords. We recognise the various concerns that have been cited and we will look carefully at these matters. I also accept, as my noble friend Lord Morgan suggested, that conventions evolve and are not made.

I turn to the definition of a conflict. The noble and gallant Lord, Lord Vincent, described some of the challenges here with changes in the nature of conflict. He will know that the consultation paper proposes that the meaning of "armed conflict" is that used in international humanitarian law and sets out an example in draft as Option B of Annex A. It is worth remarking that this is linked to the issue of how the Government would continue to fulfil their international obligations and their ability to participate in any multinational obligations that would form part of those very obligations. The Government will have to continue to work with coalition partners and any procedure would need to reflect those continuing obligations. Similarly, the consultation paper sets out where there should be an exemption for exceptional circumstances, when in order to maintain operational security and effectiveness it may be necessary to allow deployments without parliamentary approval.

I thank the noble Earl, Lord Attlee, for his kind remarks. He discussed Cabinet government and its loss. I do not agree, but I would say to him that parliamentary scrutiny is the best answer to his issues and concerns. Of course the information supplied to Parliament is critical, and the noble Lord, Lord Kingsland, was right to say that there will be limits to the information that can be provided. There is and has to be a question of trust, but I am confident that the current arrangements which have been put in place will respond to the question he raises. I would also say to my noble friend Lord Morgan that the advice given by the Attorney-General is a matter that is being considered as part of the current consultation process being undertaken by the Attorney-General.

The information may be imperfect, as the noble Lord, Lord Kingsland, suggested, because any information supplied should not put the Armed Forces in jeopardy or compromise the effectiveness of operations. One of the suggestions put forward in the consultation paper to allow Parliament greater access to some information would be for Parliament and the Government to agree the way in which sensitive information could be presented. There might, for instance, be a Joint Committee of both Houses, and the views of noble Lords on that proposal would be extremely interesting.

That leads to the question of when. I am grateful to the Constitution Committee for its very interesting comments on that. Sometimes, for reasons of urgency or national security, it would not be possible for Parliament to give prior approval. The Constitution Committee does not favour a requirement put forward in the consultation paper that it would be the duty of the Government merely to inform Parliament rather than to seek retrospective approval for deployment. The committee's preferred option is that in regard to such an application, if it were not possible to seek prior approval, the Government should provide retrospective information within seven days or as soon as was feasible, at which point parliamentary approval should be sought. I should say on this that there are a number of issues on which to reflect. If Parliament did not then provide retrospective approval, there would be an expectation that forces would be withdrawn or remain in theatre as part of a coalition but under different terms. That might involve a breach of international obligations or damage international relations, and to take action quickly might put the Armed Forces at risk. The Government consider that the preferable alternative would be to introduce a procedure under which the Prime Minister would be obliged to inform Parliament when Armed Forces had been committed under exceptional circumstances with no further proceedings. Indeed, I think that that was the approach favoured by the noble Lord, Lord Lester, in his Private Member's Bill.

The noble Lord, Lord Hannay, asked a series of interesting questions about the impact of delays and constraints in making decisions by international organisations. He asked how one could ensure that parliamentary exchanges do not cut across or undermine the procedures leading to agreement among international organisations. That is a very important question that we will need to consider. Again, the question of what has been described as mission creep is also something that will need very careful consideration. The Constitution Committee made clear its concern at the Government's proposal that Parliament's involvement should be limited to approving the initial engagement. The committee would prefer that in addition to keeping Parliament informed of the progress of deployments, the Government should be required to seek a renewal of parliamentary approval if a deployment's nature or objectives were to alter significantly. It went on to say that such a requirement is vital to ensure that mission creep does not become a problem. As several noble Lords have pointed out, recent experience has shown us that military operations often change in size, scope and nature as situations develop, so it is important that the mechanism is triggered at an appropriate point during a routine deployment or out of scope operation if a developing situation requires it. I noted the caution of the noble and gallant Lord, Lord Inge, on this and here operational flexibility is of vital importance. It is important that any processes or procedures do not hold up an operation or compromise operational effectiveness, so we have to ensure that we get the balance right.

As to the question raised by the noble Lord, Lord Hannay, about what he described as a "light option procedure", I understand that the German model requires parliamentary approval for all deployments but also provides for a simplified procedure in cases of deployments of low intensity and importance. The terminology "low intensity and importance" applies if the number of soldiers is small and the deployment does not involve participation in a conflict. That might include reconnaissance, armed missions for the purpose of self-defence, and where individual soldiers are deployed in the framework of personnel exchanges in a UN, NATO or EU mission. The Government will give further consideration to those matters.

The noble and gallant Lord, Lord Craig, asked whether the mechanism will cover the Navy and Air Force. Our intention is that any deployment of the Armed Forces—which of course would include the Army, Navy and Air Force—into armed conflict overseas would be covered by the mechanism.

What should be role of the House of Lords in this? The noble Lord, Lord Thomas of Swynnerton, was supportive of the proposal that the House of Lords should have to pass a resolution, save where there are reasons of urgency. The general consensus of your Lordships' House is that the House of Commons has to have primacy in that matter, but that the House of Lords could have an important role in providing advice to the House of Commons. There is a great deal of support for that.

My understanding is that it is true that the last time the UK declared war was in 1942, and my advice is that it was Siam. No doubt we will discuss that further when we come to eventual legislation.

I should say to the noble Viscount, Lord Slim, that the draft clauses proposed by the Government in all of the options contained in the paper already set out an exemption for special forces. The Government would not want in any way to compromise the nature of the use of special forces in the field.

I have a little time to talk about treaties. Generally, the proposals in the paper have been welcomed by noble Lords. Like my noble friend Lord Anderson and the noble Baroness, Lady Williams, I also pay tribute to the noble Lord, Lord Lester. I have no doubt that parliamentary involvement in the scrutiny of treaties will take us further forward.

A number of important points were made about which treaties should be scrutinised. We shall shortly be debating a European treaty in the House and the unique nature of the constitutional relationship between this country and the European Union means that the effect of such a treaty is of great significance. In such circumstances it is right that special provisions are made that would not be appropriate for a wide variety of the treaties that the UK enters into each year.

In answer to the noble Lord, Lord Goodhart, the proposals in the consultation document do not preclude special arrangements being made for other specific treaties. It remains open to the Government to use a more stringent scrutiny for any given treaty where they consider that that would be the right course of action. I note the preference of the noble Lord, Lord Maclennan, for a binding vote, with the Government able to come back to Parliament for a further view at some stage if the vote should turn down a treaty.

As to the suggestion that a parliamentary committee should scrutinise treaties, that would be a matter for Parliament to decide. It is a decision best taken in the light of the eventual conclusion of the Government in this matter. I should have thought that a committee of this House or both Houses could have a very important role to play.

On pre-scrutiny, I should say to the noble Lord, Lord Kingsland, and other noble Lords that it is already common practice for Ministers to communicate with the relevant Select Committee prior to signature of a treaty. However, it is important to remember that there is often a long time between treaty negotiations commencing and treaty ratification and it would not be practical to involve Parliament in the negotiation process without risking excessive delay. That is why we have gone for the balanced approach suggested in the consultation paper.

If the noble and gallant Lord, Lord Guthrie, is to have any time at all, I should now sit down. This has been a marvellous debate and the speeches have been of high quality. I can assure noble Lords that the Government will take very careful account of all the contributions that have been made.

3:05 pm
Photo of Lord Guthrie of Craigiebank

Lord Guthrie of Craigiebank (Crossbench)

My Lords, I thank all noble Lords who have taken part in the debate. Both the noble Baroness, Lady Williams of Crosby, and the Minister have said that it was a significant and important occasion. It is very good that we have had significant and important contributions from all parts of the House, which I hope will be helpful. I thank the Minister for his response. The Government deserve great credit for continuing to bring this important subject to the fore. I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.