Armed Conflict (Parliamentary Approval)

Part of Opposition Day — [11th Allotted Day] – in the House of Commons at 5:31 pm on 15th May 2007.

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Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee) 5:31 pm, 15th May 2007

Certainly, the Prime Minister and the Government were persuaded that they had to move to a substantive vote. I give credit for that to the Government, and particularly to Robin Cook, who, according to the account that we heard from the Leader of the House earlier, persuaded his colleagues that it was not possible to carry on resisting the demand for a substantive motion in the House of Commons. That changed things to a certain extent. I understand why the Leader of the House should have tabled a motion, and should make a speech today, pointing out that that is a precedent on which we will never go back; it is skilful advocacy to take credit for that now, and to claim that that is the basis on which the change is being made.

I urge caution, however. For the reasons given by the right hon. Member for Oldham, West and Royton, on which I shall try to expand in my speech, that was not a satisfactory precedent in many ways. The circumstances in which the vote was taken revealed the weakness of not having had a vote before. Although it became impossible for a present-day Government to resist putting a substantive motion to the House of Commons, that was not satisfactory. Indeed, continued dissatisfaction with the recent process led Clare Short to table her Bill, which I supported, led the right hon. Member for Oldham, West and Royton to table his Bill, and should lead us all to clamour for reform. Now that things have moved, the consultation should lead to our considering in great detail how to enshrine the process to make sure that when Parliament is given its right to vote and scrutinise in future, it can do that properly, without a pistol held at its head, in full knowledge of all the relevant information, and in a position actually to influence the outcome. We are not there yet.

I would adopt as a starting point the recommendations of the House of Lords Constitution Committee. I was pleased that the Leader of the House referred to those recommendations with apparent approval, and I hope that that means that the Government will look to the report of that Select Committee, chaired by Lord Holme, a Liberal peer, as the starting point. It is important that we consider what that Committee eventually recommended, on page 43 of its report. To save time, I shall paraphrase it, but only a little.

That report said that the Government should be required to seek parliamentary approval if they propose the deployment of troops outside the United Kingdom in an area of conflict, and that that decision should probably be subject to scrutiny by a Select Committee and in other appropriate ways. It recommended that prior approval should be required as the trigger for the deployment of troops, and that subsequent ratification of that approval should take place if circumstances change after the deployment is first made. It also said that the Government should be required to put forward the legal basis of the possible warfare or conflict that may arise from the deployment, and that the case for going to war should be set out clearly for parliamentary scrutiny.

The one point on which I differ from the Select Committee—and which is open to further argument—is that I would prefer as much of this as possible to be put on a statutory basis, whereas the Committee came down on the side of parliamentary convention. There are enormous difficulties involved in the drafting of a suitable statute. We do not want too rigid an arrangement to cover an infinite variety of circumstances, which may on occasion require some common sense and flexibility. I regret to say, however, that I have declining confidence in the power of convention in the British constitution. I used to be a great supporter of the place of convention in the constitution, because I prefer political sanctions to legal sanctions and intervention wherever possible, but I regret to say that in modern times I have seen more parliamentary conventions laid on one side when expediency determines than I have seen statutes defied or revised. Other countries have found it possible to put similar processes on a statutory foundation, and I do not think it should be beyond proper consultation, and the wit of parliamentary draftsmen, to find an appropriate basis for this process, as long as suitable discretion is allowed not only for emergencies but for all the other myriad circumstances to which Members have already referred today.