Armed Conflict (Parliamentary Approval)

Part of Opposition Day — [11th Allotted Day] – in the House of Commons at 4:19 pm on 15th May 2007.

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Photo of Jack Straw Jack Straw Chair, Modernisation of the House of Commons Committee, Leader of the House of Commons and Lord Privy Seal 4:19 pm, 15th May 2007

For very good reasons, neither I nor my noble Friend the Attorney-General favours having the advice offered to the Prime Minister and the Cabinet by Attorneys-General and Law Officers disclosed publicly, whether to this place or in any other way. In evidence to the Lords, my noble Friend drew a distinction between disclosing the advice and disclosing what amount to his conclusions in respect of that advice—whether, in other words, the conflict was lawful.

That was the practice that the Attorney-General adopted in respect of the Iraq war. He answered a parliamentary question in the other place, which I repeated here, and published a briefing document setting out why he believed—and it was his decision, not the Cabinet's—that the war was lawful. Of course Parliament should be informed about matters such as that, but the arguments against making the legal advice available, as opposed to the conclusions stemming from it, are overwhelming. I hope that the question is not pushed further.

There are two models for making Parliament's role more explicit: one is by statute, the other by resolution of this House, including Standing Orders and convention. When the right hon. Member for Richmond, Yorks gave evidence to the Public Affairs Committee—and in his speech he slightly slid over this as, unlike some of us, I think he has changed his mind—he said that a more explicit role for Parliament could be laid down in an Act of Parliament or in the Standing Orders of the House. However, the report states that he went on to call

"for a measure that was 'simple and flexible' to ensure that the House was able to discuss whether it should give its approval for military action. He was, however, concerned, that a comprehensive War Powers Act on the American model would find itself 'overtaken by events' because 'an international situation will arise in the next 20 years that is entirely different from anything we have ever experienced—and we would find such an act did not cater for it".

As we proceed with the consultation, we will look at the various ways to achieve the objective that I believe the whole House shares. As it happens, the Constitution Committee came down firmly against the statutory route, and raised a number of objections to it. The Committee said that a statutory requirement could create confusion about the legal status of our armed forces, and added that any challenges to the legality of a deployment could have a negative impact on the morale of the forces involved. Furthermore, it said that the possibility that troops could face prosecution was wholly unacceptable.

Aside from creating legal problems and potentially drawing the courts into the decision-making process, a legislative framework would have to ensure explicitly that it did not have a negative impact on an ability to react to emergencies. Examples of such emergencies might be the hostage rescue mission in Sierra Leone or, more recently, the UK evacuation of civilians from the Lebanon, where secrecy and speed, respectively, were essential.

The deployment of our forces in the modern world will almost always be part of a coalition. Timetables are not necessarily under our control, and flexibility is needed. Our military involvement could be less timely, and therefore less effective, if an inflexible statutory process and legal challenges to a deployment further delayed commitment. However, I make it clear that we will look at and consider both sets of suggestions that have been put before the House.

The alternatives to statute could be a resolution of both Houses, Standing Orders or conventions. As my hon. Friend Chris Bryant noted, that inevitably raises the question of differences between the two Houses and their respective roles. Of course, both Houses have an absolute right to discuss decisions relating to military action, and to be consulted and kept informed by Government. However, in the final analysis, the primacy of the Commons must be upheld—and I believe that that must apply even after the other place has been reformed. I rely on the words of the noble Lord Norton of Louth