Parliament: Waging War (Constitution Committee Report)

– in the House of Lords at 4:15 pm on 1st May 2007.

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Photo of Lord Holme of Cheltenham Lord Holme of Cheltenham Liberal Democrat 4:15 pm, 1st May 2007

rose to move, That this House takes note of the report of the Constitution Committee on Waging War: Parliament's Role and Responsibility (15th report, Session 2005—06, HL Paper 236) and the follow-up report (third report, Session 2006—07, HL Paper 51).

Photo of Lord Holme of Cheltenham Lord Holme of Cheltenham Liberal Democrat

My Lords, I ask the indulgence of the House when I apologise for having kept noble Lords waiting for 15 minutes. I was told that there was to be a Statement and I was not in the Palace when I was due to be. I am sorry about that, given the demands on your Lordships' time.

In introducing the Constitution Committee's report on war-making powers, I should start with several votes of thanks. The first is most obviously to members of the Select Committee, several of whom are in the Chamber and a number of whom plan to speak. Secondly, I thank our Clerk, Ian Mackley. This was his last report as a Clerk because he retired shortly afterwards. We are most grateful to him and to our specialist adviser, Professor Colin Warbrick. I particularly want to thank a large body of extremely expert witnesses who came to testify before your Lordships' committee, including noble and learned Lords and noble and gallant Lords.

This report was commissioned not long after the Iraq war. It took us 18 months. It was a careful report. I would not want to say that we were not all conscious of the war as we deliberated; we certainly were, but this was not part of a post-mortem into the Iraq war. It was, if anything, an attempt to learn from what has proved to be, in the majority opinion of both Houses and of the country, an unhappy adventure from which our security and foreign policy will take a long time to recover. It is incumbent on us to learn the lessons that can be learned; one of them is the circumstances in which young men and women of the Armed Forces should be committed to armed conflict overseas and how that should happen.

Even by the very high standards of this House and its Select Committee reports, this is an authoritative and timely report of considerable political and constitutional significance. I wish I could say that the same was true of the Government's response to it. We reported towards the end of July last year. It took the Government until early November to respond. That is well over the two months prescribed by the Leader of the House as the appropriate time in which there should be a response to Select Committee reports.

When the response came it was not only tardy but it would be fair to say that it was cursory to the point of discourtesy. It occupied one and a half pages. It said almost nothing and it certainly did not engage with any of the issues that we had raised. Then, for some reason, probably the same reason, it has taken a very long time to arrange this debate. I am glad that we are finally having it.

I shall revert in a moment to the Government's response to our report, but let me go straight to the nub of the question. This is not, in the end, an arcane constitutional issue, although there are certainly some interesting constitutional aspects to it. It is not primarily a matter of military command and control, although there are some important practicalities that were and need to be discussed. It is, at root, a question of democratic legitimacy. The question is: in a modern democracy, not a 15th century monarchy, on whose authority should the young men and women of our armed services be sent overseas to fight for their country? To that central question the committee answered unanimously and unambiguously that,

"the exercise of the Royal prerogative by the Government to deploy armed force overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy. Parliament's ability to challenge the executive must be protected and strengthened".

With every constitutional issue in this country there is a lot of history involved. I do not think that it is an exaggeration to say that British parliamentary history has been forged largely on the anvil of what is called supply: the point where the monarch's wars and his prerogative met the pressing reality of who should pay for those wars.

The lengths that kings and their advisers went to over history to avoid parliamentary reckoning and questioning were simply extraordinary. At the weekend I read a very racy and entertaining new biography of Sir Robert Walpole by Edward Pearce, whom many Members of this House will know, in which he recounted that in 1710 and 1711 the Great Duke of Marlborough's armies had to be paid off not just by a lottery but by a private lottery expressly raised to avoid having to go to Parliament to ask for the money.

Supply has always been central to our parliamentary development. Yet, paradoxically, even now these financial constraints on the exercise of the prerogative have largely disappeared. We have a standing army—which was the great issue of the 15th, 16th, 17th and 18th centuries—and a very good one, too. There are large defence budgets and appropriations, let alone substantial contingencies and reserves. Compared to a 17th-century Parliament, a 21st-century one has no financial strings that it can draw tight on an impetuous Executive, certainly not at the point of commitment—although retrospectively that may be argued to have happened sometimes. However, given the indisputable responsibility of the Government, with the Prime Minister in this respect assuming not only the powers of his monarchical predecessors but the responsibilities, too, for the defence of the realm, a number of concerns emerged in the Select Committee's evidence and deliberations about the proposition that I have just made—that Parliament should make the final decisions about war and peace.

It was asked whether the Prime Minister would have access to more and better intelligence on which to make decisions than mere MPs would. Might there not be genuine emergencies requiring rapid executive decision-making rather than measured parliamentary debate? From some of our military witnesses there was an ill concealed terror of politicians second-guessing their tactics and battle plans and interfering in some way with the professionals. That latter point was made by, among others, the noble and gallant Lord, Lord Bramall, whom I am very pleased to see in his place and who is himself an advocate of prior parliamentary approval. He said:

"Under no circumstances must parliamentary approval be allowed into the tactical field or the minute field of the way you carry out the operation".

In our report, we confirmed his strictures, saying:

"We ... do not ... question the principle that the conduct of military operations ... should remain the exclusive responsibility of military commanders. At the same time we should add that, clearly, the greater the clarity on the part of Government of their objectives in determining the mission objective, the more this assists military commanders in executing that responsibility".

Then there is the question of information and the intelligence on which it is based, a matter of legitimate concern that your Lordships will want to take seriously, given the understandable fear of warning a potential adversary of details of deployment and of the sources of intelligence. However, we concluded that the House of Commons Defence and Foreign Affairs Select Committees should and could keep a close watching brief on developments as the,

"vanguard of the parliamentary process", and a responsible filter for sensitive information.

That leaves, as a substantial operational objection to prior parliamentary approval, the often quoted issue of the Prime Minister needing to react swiftly to an emergency. I do not dismiss that, but the nature of our treaty obligations, under which the vast majority of military action is undertaken, the interconnected global information system and the way it has affected international relations make such "surprises" relatively unlikely—although the Argentine invasion of the Falkland Islands could be argued as something of an exception. However, we concluded that, even if they may be exceptional, emergencies and unwelcome surprises cannot be ruled out in all circumstances in the future.

This consideration, above all others, led the committee to prefer the flexibility of a new convention that the Government should seek parliamentary approval if they propose the deployment of British forces outside the UK into actual or potential armed conflict to, as some have suggested, a comprehensive statutory abolition of this prerogative power. Such a convention would continue to allow executive emergency action under prerogative powers but with the important proviso that, within seven days of its enactment, retrospective parliamentary approval should be sought.

Another consideration which weighed with the committee in recommending the convention route was the view that it would be unacceptable for there to be a possibility, however remote, of, for example, subjecting forces of the Crown to criminal procedures for action taken in good faith in protecting the national interest. However, the compromise preference for convention should not obscure the unanimous clarity of a cross-party committee that the exercise of the royal prerogative as the authority for the Government, in the person of the Prime Minister, to deploy armed forces is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st-century democracy.

The reaction of the Government, both in evidence given to the inquiry and in their subsequent peremptory reaction to our report, which I described, was to defend the status quo, asserting the general principle of ministerial accountability to Parliament—explanatory accountability rather than sacrificial, it should be said—and the unlikelihood, which may well be true, of any Government going to war in the face of widespread parliamentary opposition as adequate defences against any potential abuse of the prerogative.

That is a very curious reaction from a Government who gave Parliament a vote on the Iraq war. It is the more so given the wide consensus across the political spectrum that the prior approval of Parliament should be sought before deployment. This is the publicly held position of Gordon Brown and David Cameron—indeed, I chaired the meeting of the British-American Project at which David Cameron said that—together with Sir Menzies Campbell and Kenneth Clarke, chair of the Conservative Democracy Task Force. The fact that the Lord Chancellor's brief and negative reaction to the report also promised, contradictorily, to keep the matter "under review" suggests a recognition in Whitehall that the political weather might be about to change, and with it the defence of this anachronism. A Government who say that they are not presently persuaded of the case are indicating that they may well persuade themselves tomorrow.

A change would not be too painful, particularly given the compromise constitutional convention we suggested. Indeed, some constitutionalists maintain that the foundations for such a convention have already been laid by the vote on the second Iraq war—what Jack Straw, the Leader of another place, has called a clear precedent for the future. When the noble and learned Lord the Lord Chancellor replies at the end of the debate I should be very grateful if he could tell us in terms whether he and Her Majesty's Government disagree with his right honourable friend the Leader of another place that that first vote would be the precedent. Secondly, I would be very grateful if he could tell us in terms that he and Her Majesty's Government categorically disagree with the Chancellor of the Exchequer. Don't mind the great big clunking fist; just tell us if you disagree with the Chancellor of the Exchequer and tell us at the end of the debate. He is being quite clear that this is the way in which things should change.

For those who believe in more open, rational decision-making on big issues—I cannot think of a bigger issue than war and peace—it seems to me that the recommended reform puts the onus on the Government to place clearly before Parliament the objectives of any deployment together with its legal basis, its likely duration and an estimate of its size. That clarity would be welcomed by the military, who, whatever their reservations about the dangers of micromanagement by politicians, hunger for clear definitions of the macro-task to be undertaken on overseas operations and are becoming increasingly vocal when it has not been forthcoming, as we have seen in the cases of Afghanistan and Iraq. The discipline of full accountability to Parliament would help to ensure clearer ends and therefore a better match of means and ends.

Ultimately, the issue is not efficiency or even legality but, as I said at the beginning, legitimacy itself. Let me conclude on the prerogative. There are noble Lords speaking in this debate who have worked for the abolition of this whole set of pre-democratic principles or what the Government call "historical anachronisms". They may feel that this report does not go far enough. I simply say this: whether it is our convention or a total or larger measure of abolition of prerogative powers, the shrinking of the prerogative is and always has been a question of parliamentary determination. As we have seen yet again, the Executive on the whole will not want to let go of unfettered power; that is the way they are. The judiciary will tend to defer to them. I believe that it is squarely a matter for Parliament to find its voice and its confidence, and I hope that this report will help in achieving that. If not, dear Brutus, the fault will lie,

"not in our stars, but in ourselves, that we are underlings".

I beg to move.

Moved, That this House takes note of the report of the Constitution Committee on Waging War: Parliament's Role and Responsibility (15th report, Session 2005—06, HL Paper 236) and the follow-up report (third report, Session 2006—07, HL Paper 51).—(Lord Holme of Cheltenham.)

Photo of Lord Judd Lord Judd Labour 4:32 pm, 1st May 2007

My Lords, it is a great pleasure to follow the noble Lord, Lord Holme. I say to him that there are few people for whom it is worth waiting more than it is worth waiting for him. The report is of such significance that it, too, was worth waiting for.

I do not believe that I shall be alone in saying that I welcome the sensible recommendations in the report. They seem timely and self-evidently relevant. There are observations in the text of the report that are also important and worthy of serious consideration. I will focus for a moment on the reflections on the difference between war and armed conflict and the importance of care in terminology. I hope that my noble and learned friend Lord Falconer, when he replies, will agree with me on both these observations.

As the noble Lord said, this is not an abstract or academic issue; it is an immediate and acute issue. He was right, and I was reassured to hear, that the issue has to be approached in the context not only of what was happening when the committee was deliberating but what is happening as we discuss the report this afternoon. There is bitter fighting in Iraq. Courageous men and women are serving on our behalf in Iraq and in Afghanistan. Deplorably large numbers of innocent civilians are being killed. All of this has immense implications not only for those countries but for the entire region and the world. Huge demands are being made on our armed services. All of us in both Houses are individually and collectively morally responsible for those who are serving on our behalf. It is therefore right to spend time reflecting on how we have acquired that responsibility, because we need to consider how a responsibility of this magnitude is shouldered in the future.

There are some interesting quotations in the report. I was glad that evidence was forthcoming from people with distinguished service experience. I am sure that the House will forgive me if I emphasise a few parts of the report that made a particular impression on me. The noble and gallant Lord, Lord Boyce, put his position as follows:

"all my experience over conducting or being involved with the conduct of several wars over the last five or six years or so is that those allies who go through the parliamentary process are frankly in my view not as operationally effective as those who do not ... I cannot see any advantage whatsoever in shedding the current practice of going to war from an operator's point of view. I believe it would make us operationally far less effective and we would probably start to lose".

Coming from a former Chief of the Defence Staff, those words cannot be lightly dismissed. But, with the greatest respect, he does not reflect the reality of the age in which we live—the reality of instant communication, instant analysis and very well informed debate that inevitably takes place around a conflict of any significance.

I turn to the words of General Sir Michael Rose, who said:

"It would be enormously advantageous to members of the armed forces for such a formal and legal justification to be made by the government before entering into armed conflict. There can be no more debilitating effect on the morale of members of the armed forces [than] for them to know that their country does not support the mission or that the case for war is based on doubtful moral or legal arguments".

Throughout the story of the Iraq conflict, the noble and gallant Lord, Lord Bramall, has given powerful leadership in our debates and discussions in this House. The report sums up his position as follows:

"Field Marshal Lord Bramall considered that the Armed Forces would like to know three things before being committed to a large scale military operation: that they had the support of the country; that they had the support of Parliament and that what they had been asked to do was legal".

It is important that we take seriously and sombrely the observations of people with that kind of military background.

The report also contained interesting quotations from other significant people. I note that the words of my right honourable friend Gordon Brown were quoted in the report. He said:

"Now that there has been a vote on these issues so clearly and in such controversial circumstances, I think it is unlikely that except in the most exceptional circumstances a government would choose not to have a vote in Parliament. I think Tony Blair would join me in saying that, having put this decision to Parliament, people would expect these kinds of decisions to go before Parliament".

Indeed, what were the words of the Prime Minister? They are quoted as part of the Government's response to the report:

"The Prime Minister made clear at the Liaison Committee on 7 February 2006 'The fact of the matter is that I cannot conceive of a situation in which a Government ... is going to go to war—except in circumstances where militarily for the security of the country it needs to act immediately—without a full parliamentary debate'".

So I suggest to the noble Lord that there is room to take some heart about the possibilities.

I want to dwell on one matter in my final minutes. There is a reference in the report to the United Nations. I am glad that it is there but, frankly, I wish that the report had said a bit more about it. In my early, formative years of political consciousness, the creation of the United Nations was a terribly important and significant step. I sometimes think that we forget that its foundations were laid not in 1945 but in 1942—in the most intense years of the war, when people were looking to what would be necessary to ensure peace and stability for the future of humanity.

We argue that, whatever reforms take place in the United Nations, there can be no question of giving up our permanent seat on the Security Council. We were primary movers in the creation of the United Nations and leading experts among the draftsmen of the UN charter but, if we want this status in the global community, we have to show our commitment to living by what we have put our names to as essential for the stability of the world. That is set out right at the beginning in Article 1:

"To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace".

Discussing the nature of membership, the charter says:

"All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered ... All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes".

Again on the subject of membership, Article 4 states:

"Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations".

We stated what is required and then became founders of the organisation that makes these demands. It therefore seems self-evident that we have to be exemplary in our commitment.

On the specific settlement of disputes, the charter says:

"The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice".

The word "enquiry" stands out. Surely one anxiety at the time of the Iraq war was that the UN had embarked on exactly that course: its own inspectors were conducting an inquiry into the threat. There were those—I find myself in an unqualified position among them—who said that it was therefore ludicrous to suggest that we should move into action before the inspectors, who are referred to in, and endorsed by, the charter, had had time to report and before their report could be considered. Indeed, Article 34 repeats the point about investigation. I could go on quoting the charter, but it does not rule out force. It says that it has to be with the endorsement of the international community if need be.

As a final observation, I take those legal and moral obligations to the UN as central to our approach on the need on any occasion to wage war. But it is not just a formal, legalistic requirement. Just as we need to have a strong national consensus behind our armed services when they are put into extremely demanding and difficult circumstances, so it is necessary when one is undertaking a war or military action with profound global implications, to ensure that one has built a sufficient global consensus for what is being undertaken. We have to have that in mind when talking about waging war, as well as the excellent recommendations put forward by the committee.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative 4:46 pm, 1st May 2007

My Lords, all the members of the Select Committee owe a sincere debt of gratitude to our chairman. The inquiry was such an utterly fascinating experience that the temptation to wander down side tracks was difficult to resist at times. The noble Lord, in an unfailingly calm and courteous manner, skilfully guided us back to the matters in hand.

Perhaps it was because we had such a fascinating experience and a raft of truly stimulating and hugely well informed witnesses, some of whom have already been quoted by the noble Lord, Lord Judd, that I expected an appreciative and constructive response from the Government. The work programme was enormous and the quality of support from both our specialist adviser and the Committee Clerk was awesome. It seems that, other than giving a cursory nod in the direction of accepting that the issue is important, the Government have metaphorically thrown the report into the waste basket. I read and reread the Government's response—not an arduous task as, apart from a reiteration of the terms of reference of the Constitution Committee, there are 44 lines of type—and I am struck by its innate and inane superficiality.

In my contribution to the debate, I will concentrate mainly on Chapter 3 of the report, which is headed, "Parliamentary involvement: The balance of argument". However, before doing so, I draw the attention of the House to the Government's response in paragraph 4, which makes it clear that the Government are not presently persuaded of the case for establishing a new convention determining the role of Parliament in the deployment of our Armed Forces. They state:

"The existing legal and constitutional convention is that it must be the Government which takes the decision in accordance with its own assessment of the position. That is one of the key responsibilities for which it has been elected".

Does that not smack of arrogance? In effect, the response could be described as, "We know best and do not intend to consult". There is not even a nod in the direction of considering one of our conclusions, in paragraph 100, to the effect that there is an anxiety to ensure as far as possible that the action to use military force in pursuit of policy,

"is not only legal but legitimate and is seen to command the support of the nation as a whole".

Another conclusion, in paragraph 103, states:

"Parliament's ability to challenge the executive must be protected and strengthened. There is a need to set out more precisely the extent of the Government's deployment powers, and the role Parliament can—and should—play in their exercise".

The statement in the Government response is:

"That is one of the key responsibilities for which it"— the Government—

"has been elected".

That ignores totally the methods by which the Government discharge this responsibility.

If we take this attitude to its logical conclusion, the Government need not consider any views on policy formation other than those discussed with a tight-knit group in a superficial manner on the sofa. Doubtless the Ministers involved would have had detailed advice and opinions from the defence staff. But are the Government so experienced in military matters and so aware of the structure, nature and ethos of our Armed Forces that they believe that they can arrive at the correct decision without debate or discussion in Parliament? There is no merit in holding as a virtue the ability,

"to take decisions flexibly and quickly"— that is from paragraph 5 of the Government's response—if the decision-making is flawed, with no input from a Parliament that, let us not forget, represents the public. The tone of the whole response makes me smile wryly, bearing in mind that the Government keep asserting that the House of Lords has no legitimacy because it does not represent the people. The Government's response does not even nod in the direction of being representative of the people.

The Select Committee report makes interesting yet easy reading, and I commend it to noble Lords. More than that, as we are rapidly moving to a situation where most Members of both Houses will have had no hands-on experience of the armed services, it is vital that we read and understand their role and objectives. The evidence of the giants of the defence staff is so important, and I am glad to see some of them here today. Their emphasis on morale is vital. The report should be on the required reading list of all in Parliament.

Chapter 3, which is headed "Parliamentary involvement: The balance of argument", is the core of the report. The noble Lord, Lord Lester, whom I see in his place, considered it anomalous for the Crown to be able to exercise public powers without parliamentary authority on the basis of medieval notions of kingship and through Crown Ministers. The European situation was referred to, where the principle of law in most constitutions means that there has to be specific authorisation to exercise powers.

Nobody needs reminding that going to war involves potential loss of life and serious national consequences. Surely such a decision should be discussed and approved by Parliament. My noble and learned friend Lord Mayhew said in evidence:

"I do not think today that it is practicable to suppose that the public will be satisfied in terms of confidence in the commitment of our Armed Forces to what we might call an 'armed conflict' situation solely on the exercise of the prerogative by the Prime Minister".

Too much power in very few hands—or even in one pair of hands—is not acceptable in any democracy. We pride ourselves on being a democratic country, but the accretion of power and its possession in fewer and fewer hands is both unhealthy and seriously worrying. As is pointed out in the report, the Government of the day control the House of Commons through parliamentary majorities, the finances of the nation, the use of Whips to manipulate business, the timetable of parliamentary business, plus the exercise of the royal prerogative. Paragraph 40 of the report says that,

"it could be said that the ability of United Kingdom governments to use the royal prerogative power to engage in conflict is paradoxically less democratic than when the Monarch exercised the power personally".

Can this be right?

Managing dissemination of information is a tool of power, probably the most pernicious one. Time and time again we recognise that information is power, and there is a natural reluctance to relinquish any power as, obviously, power is finite and any power given away is a reduction in the power of the giver. That truth applies in every walk of life, and the Government are more aware of it than most. Where there is a perception—I emphasise "perception"—that a situation of unfettered power persists, it is imperative that there should be a robust system of accountability, otherwise the position becomes untenable, and is certainly undemocratic.

The tendency to equate accountability with regular information updates seems to be growing, but that raises another problem. As the noble Lord, Lord Garden, said in evidence:

"When we keep on saying Parliament is informed, we all know how Parliament is informed: we get a statement, if we are lucky we get it ten minutes before it is given and we debate it for under an hour. That does not seem to me to be a democratic process".

The noble Lord is right. We might well ask what category of information is presented. Is it minimum, sufficient, complete or even—if anyone can define the word—reasonable?

The more we consider this whole subject, the more we are likely to conclude that the current process leaves a lot to be desired. Using war-making powers is probably the most serious decision that any country has to take, for all the reasons already referred to and likely to be referred to in the debate. Yet listening to, questioning and reading the evidence with which we were presented gave me an uneasy feeling that the very manner in which decisions are taken leaves them fraught with much more risk than could necessarily be the case.

On the basis of my experience—it is nothing at all to do with government or the Armed Forces—I truly believe that most large and even small corporate organisations engaged in business and commerce adopt a much more rigorous approach, consult more widely and have access to more varied expertise from a raft of advisers than appears to be involved in the exercise of the royal prerogative in the case of war-making powers. The case for post-deployment scrutiny was well made by my noble friend Lord King of Bridgwater when he was a witness. Again, I draw an analogy with the corporate sector, where most successful companies adopt a continuous post-audit programme.

My observations in this debate have led me to just one conclusion: namely, that it is in the best interests of the country, our Armed Forces and our international relationships, and that there is more chance of the right decisions being taken, if Parliament is given a proper role in challenging the Executive in this most serious exercise of war-making powers.

Photo of The Bishop of Ripon and Leeds The Bishop of Ripon and Leeds Bishop 4:56 pm, 1st May 2007

My Lords, I am grateful for the report and for the energy and effort that have gone into it. I am also grateful for the opportunity to explore the relationship between Parliament and what is in any circumstances the horrific decision to wage war, committing us to the deaths of our own citizens and of the fellow human beings with whom we engage. War is barbarous, and that needs to be borne in mind in the whole debate.

As such, it can be justified only within the tight constraints that Christian ethics have come to call the "just war tradition". Among the requirements for a just war are a just cause, proportionality and a realistic anticipation of a just peace. Alongside those is the requirement for a just or legitimate authority. Since the 17th century wars of the European princedoms, it has been rightly argued that the individual ruler cannot be that legitimate authority. War is too destructive to be undertaken by any individual, however eminent, and that is why the use of the royal prerogative to wage war is outdated and inappropriate. The just authority in our own country is Parliament, and that needs to be expressed in the legislation governing the waging of war. For that reason, I still need some convincing that the convention route is the right one along which to go. I look forward to learning in this debate and subsequently about the different arguments in favour of the convention route over that of legislation, which seems on the face of it to be the more appropriate way to establish the authority of Parliament.

In addition to the question of who can legitimately declare war, we now have the problem of defining war. In 1939, it was clear when this country and Germany were at peace and when they were at war. That is far less clear in our own generation and the danger of creeping war seems to me also to require that we have a much firmer parliamentary watch on the deployment of our Armed Forces.

I fear that we live at a difficult moment in history. In our generation, there is increasing respect for human life, expressed, for example, in Pope John Paul II's simple cry before the 1991 Gulf hostilities, "Never again war". At the same time, there is the threat of ever scarcer resources of water and food. The dangers of climate change include greater violence over those scarcities, and it is interesting that in the Comprehensive Spending Review analysis the pressures on human resources and on water and food are seen as being among the key threats to prosperity and to the peace of the world. It is likely that in coming years we shall find ourselves being highly critical of the waging of war by others. If we take that attitude, as we may find ourselves rightly doing, we need to be very clear that our use of our Armed Forces, our own waging of war, is on a secure and legitimate basis.

In a week that has seen scathing criticism of the Israeli Prime Minister over the waging of war in Lebanon, it is crucial that we work for parliamentary safeguards over the waging of war and the deployment of troops with violent intent. There will certainly need to be much work on details about emergency situations, the safety of troops and cases where there is a genuine need for pre-emption in self-defence. Those details would need to be worked out as we continue to develop the right way forward in response to this report. All of that needs to be done in the context of a clear principle that war should be engaged in only with the overwhelming consent of the people of our country, and that consent needs to be expressed through debate and decision in Parliament.

Photo of Lord Bramall Lord Bramall Crossbench 5:02 pm, 1st May 2007

My Lords, I, too, support the Constitution Committee's conclusions, which advocate the constitutional involvement of Parliament in any national decision to wage war overseas. I use the term "war" in its established and generally recognised sense, which has legal connotations nationally and internationally. War generally and usually embraces a conflict between states with a clearly defined enemy and sizeable forces operating in accordance with a clear political aim and towards a planned, successful—one hopes—and, as the right reverend Prelate the Bishop of Ripon and Leeds said, just conclusion. With or without a formal declaration, the term should cover any expeditionary-type operations into the territory of another state. Today the terminology has become confused by those who, for whatever reason, coined the phrase "war on terror". Whatever we should do to contain and reduce the threats from international terrorism—and there is much we can do, sometimes involving military forces in one form or another—it is not war in the accepted sense and in the sense covered by the committee's report any more than is a war on crime or a war on drugs, both phrases not infrequently used.

It has to be hoped that war has never been entered into lightly by this country, except, perhaps, in the era of Lord Palmerston, the pugilist. In Her Majesty Queen Victoria's day, the royal prerogative may have meant what it implies, with the Queen imposing some restraint on the Executive or perhaps, if General Gordon was getting into trouble in Khartoum, advising in the reverse direction. But today, as is well known, given the way that our democracy has developed, the responsibility for deciding whether the country goes to war lies squarely with the Prime Minister, however much he may sensibly keep Parliament informed.

In the past, it was said—by George Clemenceau, I think—that war was too serious a business to leave to military men. The report implies—I entirely agree—that today, waging war is too complicated, sensitive and serious, politically and legally, nationally and internationally, and with the increased power of the media, to be left exclusively to the whims, vision and personal ambition of one politician, however well intentioned.

I say that not so much as a personal criticism but because the character of war has changed so radically that, except under very precise circumstances, the moral, economic and public-opinion pressures and constraints have made interstate wars for advanced nations virtually no longer an instrument of sound rational government policy. So getting involved in them deserves, even more than it used to, the most careful checks and balances. War invariably creates more problems than it solves, especially if it cannot be brought to a successful conclusion in a very short, definable period.

There are obvious exceptions which are more just. I recall the various definitions of a just war. They include self-defence; the defence of sovereign territories, individual or grouped in specific defence organisations; the recovery and repossession of such territories illegally occupied by another power; or any operations specifically authorised by the Security Council or under a UN mandate. In such operations, and in any other case that the Executive consider appropriate and in the national interest, it can no longer be sufficient for a presidential-style prime minister who can call on all the wiles, Whips and devices of a majority party leader, votes of confidence and the manipulative release of information and intelligence merely to keep Parliament informed, so that it cannot threaten his decision-making.

If such a decision is to be truly in the national interest with the country manifestly behind it, approval on the deployment of British forces outside the UK for actual or potential armed conflict amounting to war must, I suggest, be given by Parliament and no one else. That need not involve compromising intelligence sources. Under no circumstances must parliamentary approval be allowed to enter the tactical field: deciding on and endorsing the forces to be used and how they should be employed, which is entirely a matter under the war Cabinet for the chiefs of staff and chain of command. However, in seeking parliamentary approval, the Government should, as the report concludes, show the deployment's political objectives, the legal basis of the deployment and subsequent conflict, if that becomes necessary, and the anticipated duration of both the operation and consolidation phases.

For instance, in the Falklands War, which falls into the category I mentioned, Parliament would have had no difficulty in approving the sailing of the task force to the south Atlantic to project our commitment and power and the use of force to repossess the islands, if that proved necessary. Nor in the first Gulf War would Parliament have had any difficulty in approving the co-operation of British forces with the Americans and other allies to kick Saddam Hussein out of the illegally occupied Kuwait using whatever force became necessary.

If, as the report concludes, a government resolution seeking approval is laid before Parliament with clarity—which is at the essence of any successful planning and execution, and its absence is at the heart of any failure—and honesty, Parliament, on its mettle, should have no difficulty in acting quickly, responsibly and in the national interest. If there is confusion about aims and legality, and a Prime Minister cannot make a convincing case to Parliament, it may judge it not to be in the national interest to proceed any further.

One of the problems with Iraq was that so many different aims—at least five, to my mind—were at one time or another being flaunted, discarded or picked up again, depending on the type of presentation or what the audience demanded at the time. It was so easy to get the impression that the country was being misled. Yet, with the Prime Minister in the driving seat, with all the machinery for control and manipulation behind him, Parliament was convinced and gave approval to the decision which the Prime Minister sought. With that approval went immediately the openness of popular backing and some sort of legal basis—at least, the law of the land, if not necessarily international law. But, had the basis and the scope of the operation been put to Parliament with sufficient clarity, it might have come to a very different conclusion.

To require parliamentary approval before any deployment leading to an operation can get under way may be a little more time consuming, which is not necessarily a problem with large-scale operations, and it may run some risks. But it could prevent the Government of this country making fools of themselves, whereas full parliamentary authority would ensure that the country was manifestly behind any operation and that it had a sound legal basis, both of which are greatly beneficial to the morale, commitment, effectiveness and protection of the Armed Forces taking part.

Nothing in what I have said is intended to imply that the world is getting any less dangerous or more stable or that the Armed Forces will not be required in some form in a variety of tasks to back up and reinforce our diplomacy. Some of it may be required at very short notice and involve clandestine operations, with surprise all-important if the aim is to be achieved. The release of prisoners and hostages, and the Sierra Leone operation are excellent examples.

Clearly, the so-called royal prerogative that gives the Executive the right to deploy forces without parliamentary approval, which would be informed subsequently, is still required for operations of limited size where urgency and surprise are essential. This could be constitutionally linked to the deployment of Special Forces and, perhaps, the Royal Marines, rather like the American president's powers are restricted to the deployment, without Congress's approval, of the Marine Corps.

Of course, it will have to be carefully worked out exactly how parliamentary approval is to be sought, on what terms, whether it would be under a statute or a convention and what machinery Parliament would use to consider the request. But the principle that war on a significant scale should be a matter for Parliament, not for the unfettered or today's scarcely fettered Executive, is very important. I hope that your Lordships' House will consider it with favour and be prepared to endorse the report.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 5:14 pm, 1st May 2007

My Lords, I am very glad that, when following the noble and gallant Lord, I can agree with him so very extensively. If I were a member of the Select Committee, I should be rather offended by the Government's dismissal—for that, in essence, is what it is—of my report. Eight paragraphs, covering one and a half pages, are a pretty cursory response to the committee's inquiry, which, as the noble Lord, Lord Holme, reminded us, is the product of 18 months' cogitation of evidence taken from November 2005 to July 2006 and recorded in some 240 pages. Nor would I be greatly mollified to read in the response that my report,

"is a significant contribution to the public debate", although that is more than can be said for the Government's response, which is devoid of any argument worthy of the name.

If I were a member of the Select Committee, I would regard my report as having dealt seriously and fairly with a matter of the gravest constitutional importance, and as having topicality. Yet the response concludes with this sentence, as we have already been reminded:

"The Government will of course continue to listen to views about the deployment of the armed forces and keeps its policies under review".

That formula suggests to the seasoned eye that it was selected with satisfaction from the office file of reach-me-down brush-offs. The committee, the Armed Forces and the public deserve better than that.

Today, our Armed Forces face dangers that are at once more brutal and more subtle than they have had to face even in the recent past. In Northern Ireland, for example, terrorists of either colour took good and only occasionally insufficient care not to blow themselves up in the course of their attacks. Our present suicidal opponents are even more difficult to forestall, and they do not face the fear of being prosecuted for making mistakes in the course of their duty, as our military do. Thank heavens, as we all recognise, our Armed Forces are well led and accept these dangers with a phlegm that we all enormously admire. However, it is correspondingly incumbent on us to give them the quiet minds that will come from reassurance about two things: first, as the noble and gallant Lord, Lord Inge, has said on more than one occasion, that the country is behind them; and, secondly, that what they are tasked with is lawful.

I am convinced that the services need to know that the country is behind them. They need to know this just as much when warlike operations are in preparation as they do when they are in progress, and perhaps even more so, because they have more time to think about these matters when they are in preparation. We now owe them the assurance that, save in the utmost of sudden emergencies, if they are to be ordered into war or serious armed conflict—the distinction that the noble and gallant Lord, Lord Bramall, makes between the two needs very careful examination and resolution—this can no longer simply be at the behest of a presidential Prime Minister wielding the prerogative power. In contemporary political language, they deserve evidence of greater legitimacy than that, and such evidence can come only from Parliament. They can have no better means of knowing that, in their language, the country is behind them. It is no longer enough to say, as the Prime Minister says in effect in the report, "Oh, but we would always seek to take Parliament with us anyway. Not to do so would be unimaginable". In recent years, too many things that were previously unimaginable have happened to our constitution for that to reassure. Mr Gordon Brown at least seems to recognise this. As we have already been reminded in this debate, the report cites him, at paragraph 87, as apparently leaning towards a further restriction of executive power in the context of Parliament's role in declaring peace or war.

To go back to the Government's response, it asserts but hardly argues their disagreement with all this. After citing the Prime Minister, the response merely states at paragraph 4:

"The Government is not presently persuaded of the case for going beyond that to establishing a new convention determining the role of Parliament in the deployment of the armed forces".

Notwithstanding the insertion of "presently" into that formula, the Government's tone is one of, "Don't ring us, we'll ring you". That is not worthy of the hour. The committee has set out a considered argument for a parliamentary convention—not a statute with all the legalism to which that could give rise—determining the role Parliament should play in making decisions to deploy forces outside the UK to war, or to the risk that they will be engaged in it.

I support this. I like the four characteristics of such a convention set out at the end of the report, but if they are too stark for Ministers, I would have hoped that they might have reacted favourably to, or at least mentioned, a variant also noticed in the report. This was for a convention which would make it the duty of government to seek the prior approval of Parliament, probably the House of Commons advised by this House, in respect of any proposed deployment of UK Armed Forces overseas which for the purposes of the convention the House of Commons itself would have identified. So you would have a general rule which the Commons could tap into in a proper case, but not one that had to be of universal application. I find this attractive, which is why I proposed it.

Lastly, as to lawfulness, the second matter about which the forces need to be reassured, parliamentary authority will not of itself guarantee lawfulness, but at least it will not have been given without the Government having had to assert and justify their claim that what they propose will be lawful. They will have had to expose the character of their legal advice and it is unlikely, to say the least, that any Parliament will commit itself and our Armed Forces to action that it knows to be unlawful.

The further examination of these matters will deserve less dismissive contributions from the Government. If only under the leadership of Mr Gordon Brown, I hope that we shall get them.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Women & Equality, Cross-Portfolio and Non-Portfolio Responsibilities 5:22 pm, 1st May 2007

My Lords, it is valuable for a parliamentary Select Committee to examine the constitutional implications of public Bills and to keep the operation of the constitution under review. The committee's report on Parliament's role and responsibility for waging war, introduced so clearly by its chairman, my noble friend Lord Holme of Cheltenham, contains a valuable analysis of the origins, nature and evolution of the royal prerogative and of the arguments for and against increasing parliamentary involvement in its operation. Perhaps I may say that my noble friend has a long and distinguished record in promoting necessary constitutional reforms, democracy and the rule of law.

Other noble Lords speaking in the debate on war powers are much better equipped to do so than a National Service officer who served during the inglorious Suez fiasco. I shall therefore deal largely with wider matters. I have a broad interest in the subject matter of this report because of my Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill to place prerogative powers, including war powers as one example, under Parliament rather than the sovereign. The committee's report noted my evidence in which I submitted that a key concern is one of constitutional principle: that Parliament should be the source of government power, not the Crown. The key question I suggested is this: should it be Parliament that is sovereign and to whom the Executive are constitutionally accountable, or should it be the monarch? I submitted that it is anomalous for the Crown to be able to exercise public powers without parliamentary authority on the basis of medieval notions of kingship and other Crown Ministers.

I should correct something my noble friend said at the outset: I did not and do not suggest the abolition of prerogative powers. I submit that Parliament, rather than the sovereign, should be their source and that the exercise of those powers should ensure parliamentary oversight and accountability. It is a profound misunderstanding to suppose that I and other likeminded reformers seek to abolish the prerogative. As I say, we seek to place it under proper parliamentary control, as happens in other democracies. The report noted considerable support for this view from other witnesses, and the committee reached this important conclusion, part of which my noble friend quoted. It stated that,

"the exercise of the Royal Prerogative by the Government to deploy armed force overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy. Parliament's ability to challenge the executive must be protected and strengthened. There is a need to set out more precisely the extent of the Government's deployment powers, and the role Parliament can—and should—play in their exercise".

Everyone who has spoken so far has agreed with that conclusion.

The committee's conclusion is important and welcome, although I wish the committee had adopted wider terms of reference, like the Public Administration Committee of the other place, to examine parliamentary control of prerogative powers generally, not only the war powers. The treaty-making powers and the powers in relation to the Civil Service are of greater day-to-day importance than the happily rare use of the power to wage war and make peace.

My other regret is that the committee decided to reject the evidence from witnesses including myself—and, by implication, the recommendation of the Commons Public Administration Committee—about the need for a legislative scheme, preferring instead the weaker option of a constitutional convention. The committee explained that it saw,

"no merit in legislative architecture which creates the possibility of judicial review of Government decisions over matters of democratic executive responsibility. In addition, the need to provide for 'emergency' exceptions would create loopholes that could be readily exploited by a future administration with ambitions less benign than those to which we are accustomed".

I beg to differ, and I was glad to hear the speech of the right reverend Prelate the Bishop of Ripon and Leeds on that matter.

A statute along the lines of my Private Member's Bill—which was not analysed by the committee—would not give rise to the possibility of judicial review of government decisions over matters of democratic executive responsibility, and I cannot understand how the committee could have reached that conclusion. If my Bill did that, it would be quite wrong; the last thing I sought to do was produce a Bill that fell into the trap of undue legalism. Like the guarantees of judicial independence and the rule of law contained in the Constitutional Reform Act, for which the noble and learned Lord the Lord Chancellor should take credit, my Bill or similar Bills would create a statutory duty, but one that would be unlikely to give rise to judicial review proceedings unless the Government were to act in breach of the core obligation to consult Parliament.

The second objection made by the committee, that the need to provide for emergency situations would create loopholes that could readily be accepted by future Governments, is also, with respect, unpersuasive. It would be much more difficult for a future Government to flout or misuse a statutory exception for emergencies than a mere soft constitutional convention of the kind proposed by the committee. The constitutional convention proposed by the committee contained an emergency exception, as did my Private Member's Bill, the Bill drafted by the Public Administration Committee and several other Private Members' Bills introduced in the other place.

While I disagree with the committee over the form of reform in this area, I do not disagree over the basic substance. As the committee concluded, the essential elements must be that Government should seek parliamentary approval for military action; provide Parliament with details of any proposed action, including its objectives, legal basis, likely duration, size, and so on; be able, in circumstances of emergency, to take action before consulting Parliament, provided that they come back to Parliament to give an account as soon as possible; and keep Parliament informed of the progress of any military action. Those seem elementary principles in any modern working democracy.

There is fundamental agreement on the content of this approach from my party, the Public Administration Committee, Members in the other place and Her Majesty's Opposition. The Chancellor of the Exchequer, the right honourable Gordon Brown MP, has, as has been said, indicated his support for reform. In an interview with Andrew Marr on "Sunday AM" in January this year, he said that perhaps we should legitimise the role of Parliament in questions of peace and war in the constitution itself. He continued:

"I cannot conceive of a situation other than an extreme emergency where Parliament would not wish to, and should not, have a role to play in this".

The committee cannot be criticised for being radical in its approach. On the contrary. The dismissive way in which the Government have responded to this exceedingly modest proposal is characterised by this modest committee as "inadequate". The noble and learned Lord, Lord Mayhew of Twysden, expressed the matter in more robust terms with which I entirely agree. I find the way in which the Government have failed to respond objectionable. As the committee rightly points out, a cross-party consensus appears to be emerging that the current arrangements are unsustainable.

The Government continue to rejoice in a situation under current arrangements in which power is delightful and absolute power is absolutely delightful. Let us hope that a future Administration place the prerogatives under Parliament so that executive powers are exercised subject to Parliament rather than the monarch. The Chancellor of the Exchequer and the Leader of the Opposition agree with my party about the need for reform by statute.

It is a misfortune that on this issue, the noble and learned Lord the Lord Chancellor opposes sensible constitutional reform. He does not normally remind me of another Lord Chancellor, Lord Halsbury, but on this occasion I am afraid that he does. Let us hope that glasnost comes soon.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench 5:33 pm, 1st May 2007

My Lords, this issue has been brought sharply into focus because of the commitment of our forces in 2003 into a coalition invasion of Iraq. In the distinction drawn by the inquiry, this was involvement in a "war of choice". I sense that the concentration of the committee and many who gave evidence to it has been, excessively, on this particular example: an outright pre-emptive assault on a sovereign nation with no clearly controlled exit strategy—a most unusual event, I hope, for the United Kingdom. It is worth looking at other examples to help in forming a view.

I considered two wars of choice of which I had close experience. In the Falklands conflict, I was Vice-Chief of Air Staff, involved in staffing air aspects of the operation and attending chiefs of staff meetings to represent my chief when, on occasion, he was not available to attend. My second war of choice was the first Gulf conflict, when I was Chief of the Defence Staff and a member of the War Cabinet.

I am not as confident about timely parliamentary approval as my noble and gallant friend Lord Bramall was a moment ago, but some issues about both events had great importance months, if not years, before the actual involvement of forces. Von Clausewitz maintained that,

"war is the continuation of politics by other means".

The political and foreign policy decisions taken by successive Governments set the scene for the Argentinian invasion of the Falklands in 1982. For example, Governments were unwilling to build a major airfield which would have made an assault on the island a far riskier operation for the Argentinians, apart from demonstrating the Government's commitment to protecting the inhabitants. It would have been far more cost-effective to have built Mount Pleasant airfield beforehand rather than having to do so after the conflict and after considerable loss of life, equipment and treasure. The Shackleton committee of the day strongly recommended construction of an airfield.

Against that background, Parliament sat on 3 April 1982 to debate the crisis and to be informed of the forthcoming deployment of forces that had already been put in hand. While it was clearly an emergency situation, there was no immediate prospect of hostilities. If the proposed convention had been in place, this could have been an opportunity for Parliament to be asked to agree to a deployment. How would it have reacted? In the circumstances, it was a matter of moral commitment as much as confidence in the outcome, if it came to conflict in the south Atlantic, that guided the Government. With the benefit of hindsight, it was indeed a close-run thing, which in no way detracts from the superlative efforts of all involved.

We should also remember that through the long days and weeks before we reached the Falklands, strenuous efforts were being made on the diplomatic front. Who can forget the shuttle diplomacy of the American Secretary of State, Al Haig? With the convention approach, it might have been reasonable for Parliament to have taken the view that diplomacy should be given its head before we embarked on the hazardous voyage south, although the Government would surely have pointed out that the massive deployment showed our determination—important in trying to persuade the Argentinian Government to withdraw without a fight.

The views of the doubters about the validity of such an operation—8,000 miles away in the far southern ocean; 4,000 miles between the Falklands and Ascension Island, which had the nearest airfield that we could use; appalling weather; an opposed landing, with three, four or more to one manpower advantage for the Argentinians—might have led to a different conclusion about going ahead, and a less satisfactory outcome would have been achieved.

In the first Gulf War, once again there was an immediate defensive reaction with fighter aircraft and the positioning of naval vessels, and months of diplomacy. A later deployment of ground and offensive air forces had to be massively increased when it was realised that the diplomatic efforts were not going to work and that offensive action would be required. As in the Falklands, the strategic mission was clear—to boot the Iraqis out of Kuwait and deplete the strength of their Republican Guard formations to ensure that they would not form a renewed threat to Kuwait when we and coalition allies withdrew.

However, I can recall pointing out to Ministers that the preferred operational manoeuvre, following the initial air assault, would be a left hook through Iraq. This would be the optimum way to achieve the stated objective. But we would be invading Iraq to do so—something, Suez apart, that we had not done for a very long time and was not, I think, totally consistent with the United Nations charter. How would a convention-prescribed Parliament have reacted? The emergency deployment of defensive forces to protect, with its agreement, Saudi Arabia would have probably had overwhelming support. So, too, would the many diplomatic moves in hand. But would it have been so straightforward to deal with the two significant increases in our commitment of forces? The first was as much to put further political pressure on Saddam Hussein but it was not deemed by the US theatre commander, General Schwarzkopf, to be adequate to achieve military success, so a further coalition effort, including a British brigade and other forces, was dispatched. Some might call this mission creep.

The Government spent much time with Statements and so forth to advise Parliament and the country what was afoot. But if parliamentarians had been invited by the Government to approve two further enhancements, building up from an initially defensive posture, through threat of action, to a determination to mount attacks into Iraq itself by air and ground forces, the timing of our deployments could have been delayed, as they nearly were because of the Conservative leadership crisis that overlapped with the Cabinet decision about the further increase in our commitment.

Unlike the latest conflict in Iraq, when the decision to attack Iraq—if not its announcement—had been taken some time before hostilities began, my two examples underline the parallel running of diplomacy to settle the problem without conflict, and the truism of von Clausewitz's dictum. Of course, there were also diplomatic efforts ahead of the second invasion of Iraq. But the specific issue of regime change and all that that meant in the aftermath of initial hostilities in order to reach that objective, added a further complication which was not present in my earlier examples. Indeed, in the first Gulf War, we were committed to leaving Iraq and only a residual force in theatre once the objectives were met.

In deliberation about a convention, the complexities and interweaving strands of foreign and defence policy, and the continuous impact of the one on the other, have yet to be fully explored. Nor has much thought been given to the issue of being part of a coalition and the grand strategy of the Government which may underpin their intention to deploy.

One other aspect of the convention may also have to be considered; whether the obverse of deploying forces for operations overseas—their withdrawal—would be a matter for Parliament to direct even against the wishes of the Government of the day. I cite that as a further complication. We saw a telling example of that only last week when Congress decided that it wanted US forces withdrawn from Iraq. It would seem illogical for those who support the convention of parliamentary approval for initial deployment overseas or later increases to them not to seek a responsibility to require a Government to bring home forces that Parliament felt were no longer serving the national interest.

The Armed Forces are structured around the concepts of command and duty. It is in their nature to accept direction and to respond to executive authority, clearly stated and unambiguous. Parliament, as remarked on by a number of witnesses to the inquiry, does not have executive powers, and to bring it into the decision-making process could risk damaging the clarity of the message that the forces must receive and expect.

Little thought has so far been given to what I might call the law of unintended consequences if a convention were adopted. What about clarity if there is only a small majority in Parliament or even a hung Parliament? What effect would the inevitable media briefings, comment and political spin in the run-up to a convention decision have on the forces themselves? Their role is to respond to executive authority, not to the mixed views of a parliamentary debate. What if Parliament rejected deployment? Would the PM resign? He has no power of veto as does the President of the United States. We would be seen to abandon our coalition allies at a critical moment, our foreign policy in tatters. We would be lampooned around the world for a loss of nerve and a full blown political and national crisis would erupt. Therefore, I am fully behind the Government stance and hope, on further reflection, that Opposition parties will be as well. I reject the convention approach in this case as inappropriate.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 5:44 pm, 1st May 2007

My Lords, I join others in congratulating the Constitution Committee on producing an extremely important and timely report.

I accept the principle underpinning the report. The Executive rests on the confidence of Parliament—it derives its legitimacy from Parliament—and it must be accountable to Parliament for its actions. I accept that Parliament's ability to challenge the Executive must be, to use the words of the committee at paragraph 103, "protected and strengthened".

However, the committee has missed, or rather failed to focus on, what I consider to be core to achieving that. The committee has, quite justifiably, addressed the issue in terms of the current debate. That debate has focused on strengthening Parliament through statute, hence the various Private Members' Bills cited in the report, or through developing a constitutional convention. This debate misses the fundamental nature of the problem. The problem is not one of statutory powers or developing constitutional conventions. One has only to put the debate in comparative context to appreciate that.

The US Congress is vested with significant powers. The war-making power is vested in Congress, not in the president. The president does not rely on the confidence of Congress. It can challenge him without jeopardising its own existence in office. It can seek to use the power of the purse or it can legislate to constrain the president. It did precisely that in 1973 when it enacted the War Powers Act.

One can contrast that position with that of Parliament. The war-making power in the United Kingdom is a prerogative power. It can be employed without reference to Parliament. On the face of it, Congress and Parliament can be argued to be at opposite ends of the spectrum: Congress is powerful, Parliament is weak. In practice, the difference between the two to affect executive decisions to commit troops to combat is not particularly great. The war-making power, as Professor Warbrick notes in Appendix 4 of the report, is an obsolescent power. Some scholars have seen the War Powers Act as enhancing presidential authority, through formally recognising in statute the power of the president to commit troops to action. It has not proved a significant check on the president in committing forces abroad. Congress has not been a notable constraint on the president in recent years. Norman Ornstein and Thomas Mann in an article in the journal Foreign Affairs at the end of last year, contend that:

"In the past six years... congressional oversight of the executive across a range of policies, but especially on foreign and national security policy, has virtually collapsed".

Even now, with a Democrat-controlled Congress, problems remain.

The argument that there is little difference between Congress and Parliament in their capacities to constrain the Executive in committing forces abroad is well made in an article in the latest issue of Public Law by David Jenkins of Aberdeen University. As he argues:

"Neither the constitution's 'declare war' clause itself, nor the War Powers Act, have effectively hedged the President's increasingly unilateral power to commit the United States to armed conflict, a power that substantially resembles the Crown's war prerogative".

The president's power as commander-in-chief can be seen to confer on the president not dissimilar powers to those conferred on the Prime Minister by the prerogative in this country. An American president, when determined, can commit troops just as can a determined British Prime Minister. The problem is not one of formal capacity to constrain government. There is certainly something lacking, but it is not formal powers. Why does a determined president get his way? Because Congress lacks the information and the political will to challenge him. Why do a determined Government get their way in this country? Because Parliament lacks the information and the political will to challenge them.

One only has to look at what has happened in respect of Iraq. The House of Commons voted on the issue—and I accept that, on issues of going to war, it should be the House of Commons that votes. It voted on the basis of information provided by the Executive. Would it have voted differently had it had the information that we now have? We cannot know for certain. We do not need to know for the purpose of my argument. The problem was not one of the mechanism for parliamentary approval. If there had been a statutory requirement for a vote, or a convention to that effect, it would not have affected the outcome. The problem was one of incomplete information. Even with far greater resources at its disposal than Parliament, Congress faces a similar problem.

The committee touches on this in its report in its discussion of whether there is a need for independent legal advice for Parliament and for a Joint Committee on the Armed Forces, but it does not get to the heart of it. That discussion merits expansion. We need to consider how Parliament can be better informed for the purpose of assessing whether the Government are justified in committing troops to war. It may be a difficult, if not a near impossible, task, for fairly obvious reasons; but, if Parliament is not furnished with the information necessary to make an informed judgment, the Executive will get their way. Parliament does not have the basis on which to challenge them.

Information is a necessary but not sufficient condition for strengthening Parliament's ability to challenge the Executive. One also needs the political will. That applies as much to Congress as to Parliament. If members are not prepared to challenge the Executive, especially when furnished with the information necessary to make a judgment, then again the formal powers are rendered nugatory and the Executive get their way. One cannot do anything in a formal or mechanistic way to generate political will. Popular pressure may help engender a more critical stance, but that will be limited if there is incomplete information. It is also limited once forces are committed and troops are in action. However, what may help Members think more critically is access to the information that has prompted or forced the Government to act.

Governments are strengthened if they take Parliament into their confidence. In the 20th century, Parliament was, perhaps paradoxically, at its strongest during the Second World War. The Government were extremely powerful in executing the war, but they relied on the cross-party support of Parliament. Governments that are confident in their reasons for committing forces to action should be willing to share their knowledge with Parliament. However, that willingness should not be assumed. We therefore need to address ways in which Parliament can help itself to make informed judgments on a government decision to commit forces to action. Is it through a joint committee, through strengthening the resources of existing Select Committees in the other place or through other routes? These are the questions we need to be addressing and addressing quickly. If we come up with answers, we then need the political will to deliver. They will not deliver of their own accord or as a result of government munificence.

On the issues raised by the report, I would draw attention to the fact that conventions are not made; they develop and they rest on the willingness of those at whom they are directed to abide by them. A convention may develop along the lines favoured by the committee and, in any event, it is not clear that a Government could necessarily prevent a vote taking place, certainly not without the support of the Opposition or opposition parties. However, holding a vote on the basis of incomplete information is not a means of strengthening Parliament. It is likely to legitimise the Government, because, as I have said, Parliament is dependent on the information provided by Government. Hence my contention that we need to address the need for a better informed Parliament. That, to my mind, is the fundamental issue.

Talking of incomplete information brings me to the Government's response to the committee's report. I have little to add to what the committee has said in its follow-up report or to the comments made already this afternoon. The stance that has been taken by the Government largely beggars belief. Ministers knew that the report would be debated, yet produced a document that fails completely to engage with the report. The response did not appear for three months, but could have been written in 10 minutes. In the reply to this debate, we are entitled to expect the noble and learned Lord the Lord Chancellor to explain why it took so long to produce what for all intents and purposes is a non-response. We are also entitled to expect from him a proper engagement with the committee's report. The relationship between Parliament and Government at time of war or conflict is crucial to the health of our polity. It is crucial that the Government recognise that and are prepared to take Parliament into their confidence. Acknowledging that fact will be a start, but only a start. We as a Parliament have a lot more to do.

Photo of Lord Parekh Lord Parekh Labour 5:54 pm, 1st May 2007

My Lords, I begin by thanking the noble Lord, Lord Holme of Cheltenham, and his colleagues on the Constitution Committee for this excellent report. It is timely, closely argued, politically balanced and backed up by an impressive body of views from experts in the field. The Government's response is disappointing, not so much because it rejects the recommendations of the report but because it does so on grounds that I find completely unconvincing.

The Government's response rests on two grounds. First, it says, no Government would ever dream of going to war without a parliamentary debate. Fine—so why not make it clear and accept a binding convention? Secondly, the point is not about parliamentary debate or support but about parliamentary approval prior to the action. It is also important to bear in mind, in response to the Government's first argument, that the debate could be held at a time when Parliament may have no choice but to approve what has already happened.

The Government's second argument is that the ability to take decisions using prerogative powers,

"is an important cornerstone of our democracy".

That, I am afraid, is a half-truth. First, the use of prerogative powers has been constitutionally regulated over the centuries. That has been the process of our political evolution. I see no reason why the process of historical restriction and regulation of prerogative powers should stop now. Secondly, this Government, to their credit, have either loosened up or broken quite a few cornerstones in the 10 years in which they have been in power.

I remember very clearly the debate on devolution. Before that, the noble Baroness, Lady Thatcher, and many others in the Conservative Party argued that a unified or unitary constitution of our state was the cornerstone of our democracy. Parliamentary sovereignty was important and devolution was going to create "anti-parliaments" in Scotland and Wales. We have got rid of that—and at that time no question was raised about the cornerstone of democracy being shaken by accepting the policy of devolution.

The third reason why I find that argument specious has to do with the fact that I should have thought that parliamentary sovereignty was also the cornerstone of our democracy. That requires that the power to declare armed hostility or war should be accountable to and approved of by Parliament.

As I am puzzled by the Government's reasons, and even more puzzled that the Constitution Committee's tightly argued report has not been persuasive to the Government, I should like to have another go at it and try to reinforce some of the report's conclusions by advancing a different set of arguments and, in some cases, going a little further than the report does.

I should have thought that if democracy means anything at all, it certainly requires that people should be involved in taking decisions affecting their lives—and wars certainly do that. By wars, I mean not only declarations of war but conflicts involving engagement or deployment of armed forces outside the territory of the United Kingdom. All wars take lives, make the country more vulnerable than before, and involve huge expenditure of scarce resources. They are also fought in the name of the people of the country, and people have a right to be satisfied that what is done in their name is acceptable to them—and that they are prepared to accept moral responsibility for the decisions taken by the Executive. If wars or armed hostilities were to be ill conceived or unwise, they would diminish all of us individually as well as collectively; induce a sense of shame or guilt, as the war in Iraq has done; and affect the quality of our lives. It is therefore a matter of absolute urgency and importance that, in any democratic society, decisions involving wars or armed hostilities must be taken by the representatives of the people.

If we accept the conclusion of the report—that Parliament should authorise the declaration of war or engagement of armed hostility—then there are many good reasons why that should happen. I have already talked about the principle of democratic legitimacy, but I could give many other reasons as well. Parliament would have the opportunity to examine the political case for the war and to decide whether the case had been well made. It would also have the opportunity to examine the legality of the war and to say whether it was legal. Parliamentary debate prior to the engagement of hostilities would ensure that any secret commitments made by the Executive on behalf of the country would come out into the open and be carefully discussed. It would give the chiefs of staff the confidence that the decision had the support of the country at large and would contribute to strengthening the morale of our forces. No less importantly, it would reassure the country and the families of those who die in wars that their lives were not lost in vain.

When I talk about parliamentary authority I have in mind not just the House of Commons but also the House of Lords. Even after careful thought I do not understand why armed hostilities should be authorised only by the other place and not by your Lordships' House. I give three good reasons why I find that argument unconvincing. First, your Lordships' House is a constitutional part of Parliament and has the appropriate legal and constitutional authority. After all, no measure becomes law unless it is passed by both Houses of Parliament. Therefore, I cannot see why the declaration of hostilities should be an exception.

Secondly, the fact that the composition of the House of Lords is disputed does not detract from the fact that it is part of our constitutional architecture. However it is composed, it has constitutional authority of almost equal magnitude to that of the Commons. If your Lordships' House were to be elected, that might increase its legitimacy but I do not see how it could increase its authority.

Thirdly, in our country people speak—I mentioned their approving what is done in their name—in two different voices: the House of Commons, where Members represent their various constituencies, and your Lordships' House. It is important to bear in mind that your Lordships' House has an enormously proud record of maintaining civil liberties, which is an important tradition of our country. It is very striking that in this respect the other place was found wanting. Your Lordships' House was widely acclaimed and applauded for speaking in the name of, and on behalf of, the country at large.

For those and other reasons I strongly urge that the report be modified and that the approval of not just the other place but your Lordships' House should be taken into account. I am tempted to go a little further. If one has a bare majority in favour of the initiation of armed hostilities, it is sometimes asked what kind of messages that sends out. Are we prepared to commit our troops and risk their lives on the basis of 51 per cent of Members voting for this or that action in either of the two Houses? In that situation, half the Members of both Houses would be against initiating hostilities, which would send out different messages. I do not want to push my point further, but I have argued it in my academic writings and perhaps I should do so in political platforms such as this. It might not be a bad idea to explore the possibility, as some countries are doing, of insisting that a declaration of war and armed hostilities should command at least a two-thirds majority of the legislature of the country concerned. To commit and endanger people's lives without that is extremely dangerous.

The report goes through the various reasons why people might raise objections to its recommendation for a constitutional convention. It successfully answers almost all those objections, including those raised by the noble and gallant Lord, Lord Craig of Radley. Responding to an emergency in self-defence is easily covered. People say that if parliamentary authorisation is required there is a danger of media pressure. However, media pressure takes place everywhere all the time, and in many cases is to be welcomed rather than resented or resisted. We are told that parliamentary authorisation opens up the possibility of judicial review. The evidence of the noble Lord, Lord Lester of Herne Hill, was very striking in that regard; namely, that judicial review comes into play only when a Prime Minister is stupid enough to declare war while disregarding the Act. In such situations judicial review has much to be said for it.

It was said just now that parliamentary authorisation was likely to politicise the Armed Forces. On the contrary, I should have thought that it would put the issue beyond party politics because it was likely to enjoy cross-party support. As for operational security, I think it is already recognised that we are talking about approving a decision to go to war, not micro-management of how the war should be conducted.

I shall discuss briefly the final question that is raised—whether parliamentary authorisation should be a matter of statute or convention. I can see arguments for both but I have a mild preference for statute. If you have a convention, you risk two or three dangers arising. Conventions are not necessarily binding and can be circumvented by all manner of means. There is also the danger that a convention would not necessarily reassure the country. In the aftermath of what has happened in Iraq and elsewhere, one of the most important political questions in a democracy is to find ways of reassuring the country at large that when armed hostilities are engaged in they are carefully thought through. I do not think we fully appreciate how much the legitimacy of our democracy is undermined by this ill-conceived act of war. It is therefore important that rather than simply thinking in terms of a constitutional convention we should rather think in terms of a binding statute.

I urge the Government to bear in mind that there is already a momentum for a great historical change. For all kinds of reasons different political parties and currents of thought in our country are beginning to converge on broadly what the Constitution Committee recommended. I very much hope that the Government, whose record in these matters has been excellent so far, will seize the opportunity and accept the recommendations of the Constitution Committee with some of the qualifications that I introduced.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence 6:07 pm, 1st May 2007

My Lords, I congratulate my noble friend Lord Holme of Cheltenham and the members of the Constitution Committee on their report. It is a pleasure to read an analysis of such clarity which distils the weighty, comprehensive and complex evidence in such an easily understood manner. However, as some other noble Lords have said, when I got to the end I was somewhat disappointed that we ended up with a convention rather than a statutory basis.

I was one of the committee's many witnesses giving my thoughts from the perspective of a former military officer and from having spent the past 11 years as a defence academic. Having read the report and other witnesses' evidence, and in the light of subsequent events during the past 18 months in Iraq and Afghanistan, my view has not changed. I shall not go through all the evidence that I gave to the committee as it is in the report. However, my views can be summarised as a belief that the use of military force is a unique kind of authority. The state authorises some of its citizens, members of the Armed Forces, to use lethal force. It also expects these soldiers, sailors and airmen to be prepared to be killed in the service of the state. Before such authority is given, it seems to me self-evident that there must be democratic legitimacy and accountability and that Parliament must be the source of that democratic approval. I say as an aside to the noble Lord, Lord Parekh, that until your Lordships' House is an elected Chamber, our appropriate role is to inform the other place, which makes the decision. However, that will change when we are an elected Chamber.

This need for parliamentary approval was true in the past when, once upon a time, we fought wars of necessity which concerned the protection of our people and the defence of our sovereignty. Today the need is even greater. We have entered an era that is characterised by wars of choice. There is no urgent, direct, state-based threat to the United Kingdom that motivates our decision to send troops to the Balkans, to Sierra Leone, to East Timor, to Iraq or to Afghanistan. Also, we have a responsibility to weigh up the importance of playing an appropriate and proportionate international role as a force for good, against the very real limitations on the ability of our military to conduct simultaneous operations. We say "yes" to Afghanistan but "no" to Lebanon; we say "yes" to Sierra Leone but "no" to Rwanda. These are wars of choice. Having made the choice, young people aged 18 and upwards are put in harm's way and are authorised to kill other young people if necessary.

I do not argue, nor would we from these Benches, that such operations are not needed. They will continue to be needed and, as the noble and gallant Lord, Lord Bramall, said, in this chaotic and unjust world they are likely to be needed more than ever. The question is whether the decision should be taken, as now, under the royal prerogative—in effect by a single person, the Prime Minister—or whether, in a democracy, it should be taken by the elected representatives of the nation. I am delighted that the report moves us firmly towards the latter.

As I said in my evidence to the committee, that must be the default position in any democracy. From that position, one then looks at the problems and limitations that may be necessary to make it work. That is not an impossible problem. I must admit that, like the noble Lord, Lord Judd, I was worried on reading some of the evidence from those who opposed such a change. In particular, I was struck by the remarks made by my former colleague, the noble and gallant Lord, Lord Boyce, who said that he believed,

"that going through Parliament for approval for deployment will compromise military success in every circumstance".

I fundamentally disagree with that assessment. Recent events have suggested to me that those who make the grand strategic decisions, which are what we are talking about, might make better informed ones if they were to be exposed to proper scrutiny by Parliament.

The noble and gallant Lord, Lord Craig, was right to draw us away from the Iraq 2003 event on which many have focused. He looked at the Falklands and the first Gulf War. At the time of the evidence-taking session, I used the then-prospective increase in deployments to Afghanistan as an example of where we ought to apply that principle. In the light of subsequent events over the past year, I strongly believe that a proper debate over the move into the south and the east of the country, the strategic aims, the resources—both our own and those of our allies—the expected timelines, the co-ordination between nations and the co-ordination between departments would have been very helpful. We might all have gone in with the same plans instead of different plans. It perhaps would have prevented a somewhat hesitant and uncertain start. It might have taken longer, which is one of the worries that noble Lords have talked about. The Dutch had a difficult time taking their decision, but they came to it, they are there and they are doing the operation. It is not always a question of whether it is just a "go" or "no go" decision. The process itself means that you have a better chance of ending up with a coherent strategy where everyone knows what the country is trying to achieve and how it is going to do it.

In summary, I am broadly content with the report, because it moves us forward towards democratic control. I would have preferred a stronger approach than a convention, but it is a start. I was also absolutely astonished by the cursory response from the Government to what is a very serious report about a very serious subject. Among the areas that still need to be addressed is the question of thresholds for further parliamentary authorisation. Parliament must not micromanage troops at the tactical level, but it must have input to significant force level changes, up or down. In the sorts of operations that we are talking about, it needs to have a regular review of sustained operations, perhaps annually, where parliamentary authority has to be renewed and progress is looked at to see whether the strategy has changed. That is particularly apposite, four years to the day after President Bush declared, "Mission accomplished" in Iraq. To pick up the point made by the noble and gallant Lord, Lord Craig, that would be the occasion to look at possible draw-downs, if they were necessary, which are as important as force increases.

However, despite those caveats, I wish the report well. I hope that it will be one of the new Prime Minister's surprises on taking office to remove the royal prerogative. The country needs it, but so do the Armed Forces, who are sent to do the nation's difficult and dangerous work.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench 6:15 pm, 1st May 2007

My Lords, I was also privileged to serve on the committee and took a particular interest in this inquiry because of the effect of the prerogative on the conduct of our foreign affairs. I congratulate our chairman, the noble Lord, Lord Holme, on finally achieving this debate. We had an impressive array of witnesses and, with expert help, we produced a report of more than 300 pages which includes solid original evidence.

As our chairman said, the Government's response was on a single sheet so thin that you could see through it, although it stated that the paper contained 75 per cent fibre content. There was no fibre in that response; it said nothing of any value. How appropriate that our chairman dismissed it as "woolly" as well as "temporising", "tardy" and "inadequate".

To be fair to the noble and learned Lord the Lord Chancellor, the responsible Minister, he did apologise in October for the "extended delay", but it was especially disappointing on such an important subject. As one of the key witnesses, he had already given the Government's position, which may be summarised in two sentences. The prerogative is vested in the Executive, who must have the power to deploy troops in difficult and fast-moving circumstances; and they do. The Executive are fully accountable to Parliament, and the Government cannot go to war without the support of Parliament. This is where this debate comes in. This Government genuinely believe that they are already consulting Parliament through debates, Statements and Questions, and that they are adequately held to account through Select Committees. Most of us accept that there has been a degree of consultation and scrutiny, but from Parliament's point of view that process is too informal and is at the whim of the Government. It is not statutory, and it lacks structure. In particular cases it may have proved satisfactory, but in practice it is constitutionally inadequate.

Parliament's ability to challenge the Executive must be strengthened, especially in regard to deployment. The Armed Forces need not ultimately worry about this too much because under the royal prerogative no Government would ever give up emergency powers. We therefore suggest there must be some limited form of convention to ensure that future Governments and Parliaments are mutually aware of and bound by some quasi-legal procedure. That was well stated in paragraphs 85 to 93 and in our conclusion in paragraph 108. We were fortunate to have the advice of two former Attorneys-General who were sympathetic to the idea of a flexible convention, while recognising, as we all did, and as evidence from the Armed Forces had plainly shown, that there must ultimately be no restraint on the power to deploy. The noble Baroness, Lady O'Cathain, has already quoted the noble and learned Lord, Lord Mayhew, on this, and I fully agree with her points on accountability.

Gordon Brown's position, so far as I have understood it, may be a fraction closer to ours in that he has accepted an evolutionary role for Parliament, which implies a desire to stand back and review the constitutional position without the need for legislation. It was unfortunate that we were not able to hear Mr Brown's evidence directly.

We have not gone down the path of recommending a special Select Committee as some of our witnesses were urging us to do. The Select Committee procedure is in itself a pillar of the constitution, and we do not want more committees. I still wonder, however, whether the present Select Committees, while they do an excellent job of scrutiny on particular themes, might not in a crisis be strengthened by seconding members to an ad hoc committee with access to intelligence, similar to the quadripartite Select Committee. My only criticism of our report is that it did not spell out how Parliament could be better consulted. This may be because of the evidence of Professor Sir Lawrence Freedman, who was an adviser to the Defence Committee during the Falklands war. At question 127, page 72, he said:

"What the Committee was able to do was provide first a platform for people to grumble and complain but then, as time went on, it was able to bring a degree of realism from both sides to the discussion, by which time, of course, the conflict was well over".

More seriously, I take the important points made by the noble Lord, Lord Norton, on the lack of information and the difficulty of fully involving any Select Committee in the process.

To some extent, things have moved on with the publication of this report, which the Government should regard as a landmark in itself, because of the careful interpretation of policy that lies in the evidence as well as in the conclusions. However, none of us is convinced by the Government's attitude so far, judging from last year's response and occasional Answers to Questions in the House. I hope that the Minister can be more forthcoming this afternoon.

I found helpful, as did the noble Lord, Lord Garden, the evidence we heard on the Dutch Parliament regarding the war in Afghanistan. The war gradually grew in importance while we were taking evidence because of our deployment of additional forces there. Article 96 of the Netherlands constitution states that its Parliament must give prior approval unless consultation proves impossible. Article 100 states that the Government must inform the States-General of any deployment, including the provision of humanitarian aid. As a result, Dutch MPs were able to challenge the proposal to deploy Dutch troops to NATO-ISAF in December 2005, which was approved only in February 2006. That was two months' delay, to which some objected as operationally disadvantageous; but in my opinion military critics would disapprove of any such delay. These were ISAF troops and there was no compelling reason for their deployment, since they did not form part of Operation Enduring Freedom, and that was precisely why the MPs were interested. They wanted to know exactly what their troops were undertaking.

In Britain, by contrast, a significant new deployment of more than 1,300 troops was announced and we had Statements and Questions, but there was no contract with Parliament such as we ultimately had before the Iraq war. It was a blatant use of the prerogative and parliamentarians were not properly consulted. It showed a lack of respect for our constitutional arrangements, which to my mind can be met only with a more formal convention. I must emphasise that this would not be a straitjacket, but a statement of the role of Parliament.

The British public have not been consulted adequately on Afghanistan. As my noble and gallant friend Lord Bramall said, there were different aims in Iraq and the same is true of Afghanistan. The public still think that we are fighting a war for reconstruction and development, and there is some ambiguity about the role of NATO, which is engaged in Operation Silicon in the mountains of Helmand, in contrast to the peacekeeping work of ISAF further north. That is precisely what Parliament should be debating before these major decisions are taken.

That is why I wholeheartedly support our committee's proposal, which is backed up by eminent witnesses with considerable combined experience, including military historians and representatives from our Armed Forces—not all of whom agree, as we know. My noble and gallant friend Lord Bramall will not mind if I quote his evidence from page 64. In an interesting summary, he said that,

"if Parliament supports the action, which it did in Iraq, the Armed Forces can take heart that constitutionally the country supports it".

But I repeat what he also said—that this does not mean that parliamentary approval should ever extend to tactical decisions; the committee was unanimous on that.

I hope that the noble and learned Lord the Lord Chancellor will therefore consider this report a little more seriously today than before, and I hope that he will accept that, whatever the good intentions of the Government, the example of Afghanistan should cause them to reflect a little more deeply than they have hitherto.

Photo of Lord Goodlad Lord Goodlad Conservative 6:25 pm, 1st May 2007

My Lords, I, too, had the privilege of serving on the committee and I join my noble friend Lady O'Cathain in paying a warm tribute to our chairman, the noble Lord, Lord Holme of Cheltenham, who led us through an extremely complicated series of shoals, dealt with an enormous number of expert witnesses and documents, and steered us to conclusions that have been warmly welcomed on almost all sides of the House.

I entered into the committee's proceedings on this investigation complacent in the belief that, in the Government's words,

"adequate mechanisms for intense parliamentary scrutiny of executive action are already in place".

Throughout our history, there have always been questions, debates, Select Committees and so on during, and usually before, times of conflict. I was also concerned by the practical difficulties of seeking parliamentary sanction for action during times of emergency, when use of the strategic deterrent might have been contemplated, when reconnaissance and covert operations were considered—as in Sierra Leone—and because of the difficulties inherent in giving the enemy a potentially lethal advantage over our service people by signalling specific military intentions in advance. Such problems were described by the noble and gallant Lord, Lord Boyce, and other witnesses. Those concerns remain and any future convention agreed to by the Government and Parliament must take them into account.

The committee's arguments for parliamentary involvement have been eloquently rehearsed, notably by the noble Lord, Lord Holme, as well as by my noble friend Lady O'Cathain, the noble and gallant Lord, Lord Bramall, my noble and learned friend Lord Mayhew and others—I shall not repeat them all. The recommendations in paragraph 110 that parliamentary approval for military action should be preceded by the laying of a resolution, including objectives, the legal basis of the action and its likely duration and scale—retrospectively, if necessary—should not be too controversial in principle. In fact, they were, in effect, endorsed by Jack Straw, the Leader of the other place.

The fourth recommendation in paragraph 110, that the Government should as a matter of course keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly, should seek a renewal of the approval, is more difficult. Arguably in Iraq, and certainly in Afghanistan, we have seen what is known as "mission creep". In Helmand in Afghanistan, we are approaching the nature of an army of occupation, and Parliament has not reacted in the Division Lobbies. During that time, the attitudes of our allies have also changed substantially and they are, as we see in the United States and NATO, continuing to change.

So is the onus on Parliament—by which, in effect, we mean the opposition parties—to exercise scrutiny and activate such scrutiny, or should the onus be on the Government, who control the parliamentary timetable, to make the necessary arrangements? I believe that we must seek consensus on this and similar points.

I agree with other members of the committee that Parliament should mean both Houses of Parliament, but I strongly believe that primacy should remain with the Commons, even, or perhaps particularly, if there is an elected element in your Lordships' House in the future. The likelihood of the two Houses voting in opposite directions is sufficiently high for it to be necessary beyond peradventure to be understood that the primacy is in the House of Commons.

There is, I believe, a growing consensus behind the proposals in the Select Committee report, as evidenced by our deliberations today. I, in common with other members of the Select Committee, saw more dangers in legislation than advantages, and I believe that a convention is more consistent with the practicalities of the way in which we run our constitution than the statutory authority recommended by the noble Lord, Lord Lester.

As has been noted, in January last year Gordon Brown said that,

"a case now exists for a further restriction of executive power and a detailed consideration of the role of Parliament in the declaration of peace and war".

David Cameron has also stated that,

"the time has come to look at those powers exercised by Ministers", under the royal prerogative. He said:

"Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making Government more accountable".

Jack Straw, the Leader of the other place, said:

"the parliamentary votes on military action against Iraq not only showed Parliament at its best, but also set a clear precedent for the future".

The vote on Iraq was indeed a precedent, but the scope of that precedent is far from wholly clear. There have been votes on many occasions in the past. As the Government's response to the committee report says, Parliament has at its disposal a range of methods of scrutinising the Government—questions, debates, Motions, votes and so on. There is a natural tendency by all parliamentarians not to wish to rock the boat when British service people are in action. No one wishes to damage morale or give comfort to the enemy by exposing divisions at home. I therefore think that it is incumbent on the Government to take the initiative in organising what I would describe as "reviewing" debates, rather than leave it to the Opposition.

In my view, there is now a widespread wish to establish a convention or, if a convention already exists, as is inherent in what Jack Straw said, to agree its scope. My noble friend Lord Norton said that you cannot establish a convention; it has to grow organically. I agree with that but, if a convention is half-formed, there comes a time when it has to be codified by agreement among all those concerned. That codification must meet the aspirations and responsibilities of Parliament in a way that does not prejudice national security or put our service people at any greater risk.

The Government have expressed their intention to keep the matter under review. Perhaps the time has now come—there is no ideal time and I suppose that we are likely to be engaged in conflicts for a very long time to come—for a committee similar to that which sat under the chairmanship of the noble Lord, Lord Cunningham, on the conventions governing your Lordships' House and the other place, to chart a way forward in this area, taking into account the considerations rehearsed in the committee's report and those emphasised by your Lordships today from all sides of the House.

Photo of Lord Luce Lord Luce Crossbench 6:36 pm, 1st May 2007

My Lords, I am very glad to follow the noble Lord, Lord Goodlad, who was a member of the Select Committee. In my view, the committee produced a sensible, pragmatic report with a good British evolutionary approach to the issue of executive powers in the deployment of our Armed Forces. In principle, I find myself in full support of finding ways of ensuring that Parliament has a stronger role in scrutiny. Therefore, I think that all the report's recommendations should be taken seriously and moved forward but that we should proceed with care and caution.

Of course, as has been pointed out by, for example, my noble and gallant friend Lord Craig, our debate today and the report are rather coloured by the events of Iraq. Of course, since the Second World War there has been a wide range of very different conflicts: from Korea to Suez, to Kuwait—even in 1961, when we had to deploy forces there to prevent an invasion by General Qasim—to a later Kuwait invasion, to Iraq and to the Falklands, of which I have some experience. They are balanced by operations of a more peacekeeping nature in places such as the Lebanon, the Balkans and Sierra Leone. All that points to the fact that conflicts take place in very different circumstances, and they need to be handled by Governments in different ways and with a flexible approach.

We need to take into account two major factors. First, before we commit our Armed Forces to the danger of losing their lives, there is a need for the nation to be united behind them. It is not just the case that it should be a just war but the servicemen should know that the majority of the nation supports them. After the Falklands conflict, I was struck by how many servicemen told me that the unity of the nation behind what they were trying to do mattered enormously to them. That was in sharp contrast to Suez, when I happened to be a national serviceman, and, more recently, to Iraq. A lack of unity puts our forces in an exceedingly difficult situation.

In my view, all that adds to the argument for the need for the Government of the day to carry Parliament and the nation with them. They need to disclose to Parliament the maximum possible amount of information, consistent with security considerations, in order to mobilise support for action. As my noble and gallant friend Lord Bramall stressed, in these circumstances, the onus is on the Government to demonstrate their clarity of purpose and objectives in going into a conflict and the overall reasons for deployment, rather than micromanagement in operational matters. A well informed Parliament can help to sharpen the Government's aims and objectives. It is in the Executive's interests to carry Parliament as best they can.

However, that aim has to be reconciled with one or two other factors. First, there is the type of conflict. Reference is made in the report to conflicts of necessity—self-defence. My experience was of the Falklands. That invasion, as we all know, was sudden and unexpected, and it required an immediate response. The decision had to be taken to recover those islands before Parliament could meet the next day—on the Saturday—to debate those issues. On that occasion it mattered less because, by and large, there was unity in Parliament behind the Government in the decision to recover the islands.

You may have another set of circumstances—you almost certainly will—when the Government, in making their case to Parliament, will, in the interests of security, have to withhold certain information, intelligence and so on. That means that often Parliament at that time will not be in a position to make a complete judgment on the Government's decision. That can come only later, with experience.

I shall recall to the House an experience of mine before I joined the noble Lord, Lord Carrington, in resigning from the Foreign Office, where I was a Minister of State, to demonstrate carrying the responsibility for the disastrous catastrophe that took place in the Falklands. Two weeks before the invasion, there was an incident in South Georgia, which produced a dangerous situation. We needed to try to settle the dispute in South Georgia peacefully and diplomatically. But throughout the period in which we tried to do that, Parliament—understandably, I suppose I should say—was demanding statements of what we were going to do and what deployment of forces there would be in the south Atlantic. As a result of that pressure, the situation became more and more tense. That is an example of Parliament getting too involved in issues to do with tactical considerations and deployment.

Secondly, there was public speculation in Parliament and in the press that nuclear-powered submarines had been sent to the south Atlantic. If Galtieri was considering invasion, the very news of that speculation would have urged or pressed him to bring the invasion forward. I use that experience to demonstrate that there are real dangers at that stage—just before a conflict, and even when it begins—in disclosing certain information.

It all boils down to the system and thoroughness of accountability of the Executive to Parliament. Governments have to decide and take their decisions, but in doing so they must realise that they face an effective system of accountability and that it is in their interests to carry Parliament with them. Surely Iraq and Suez should be a warning to any Prime Minister to act with care and restraint and to know that he must carry Parliament with him; he must be aware that appropriate Select Committees will be monitoring all the time and that there will be scrutiny not only before deployment but during and after deployment.

Something that has not been mentioned is that, after every major conflict, there should be an independent inquiry that reports to Parliament. The Franks inquiry on the Falklands did that job very effectively. No one could have been more independent than Lord Franks. It is important for the nation and it is important for Parliament to have that prospect of debating the experience of a conflict.

I find that I agree with paragraph 63 of the report, in particular, which says that,

"too strict a template for action should not be imposed on government".

Indeed, there was mention of Professor Freedman, but he expressed the view that,

"it would be unwise to create a very strict framework, although he recognised that any government which did not take Parliament into its confidence as much as possible could well pay for it".

We must recognise that circumstances vary and that there has to be flexibility, but we must strengthen the ability of Parliament to scrutinise government decisions at every stage.

Photo of Lord Smith of Clifton Lord Smith of Clifton Spokesperson in the Lords, Northern Ireland Affairs 6:46 pm, 1st May 2007

My Lords, I am grateful, as the whole House will be, to my noble friend Lord Holme of Cheltenham for introducing this debate on the report of the Select Committee of which he is the distinguished chairman. The noble Lord brings a wealth of constitutional expertise to the committee's deliberations, and his very skilful and wise orchestration of our events is appreciated by all my committee colleagues. His consummately delivered opening speech bears testimony to his many qualities.

The report, Waging War, deals with one of the most significant issues, as many noble Lords have said, of the past decade or more. The past 17 years, according to Ministry of Defence information, have seen the deployment in more than 16 engagements of British Armed Forces. Most of these deployments have been relatively minor excursions, but some, notably Iraq and Afghanistan, have been significant undertakings. Both continue to be major commitments.

No one, including the Select Committee, argues that the Government should not take swift action in the case of an emergency that threatens the national security of the UK. It does not need the archaic and anachronistic doctrine of the royal prerogative to justify such rapid action. All nations have a prime duty to protect their citizens; that is beyond dispute.

Much more debatable is whether the royal prerogative should continue to be deployed by Governments in deciding either to initiate or join in conflicts overseas. The contemporary context of military operations, as many noble Lords have said, differs from the past in two major respects: first, in respect of the nature of modern warfare, as the noble and gallant Lord, Lord Bramall, noted, and, secondly, in respect of modern liberal democracy, as many noble Lords have argued.

As regards modern warfare, the report distinguishes between the wars of necessity and wars of choice. Iraq, and to a slightly lesser extent, perhaps, Afghanistan, are pre-eminent examples of the latter category. Such wars, as the report states, should not be embarked upon without the prior approval of Parliament—effectively, the House of Commons. Almost all liberal democracies have such a provision, and it is high time that a provision should be made for the United Kingdom to adopt such a constitutional protocol. It cannot be acceptable for the noble and learned Lord the Lord Chancellor to assert before the committee that,

"The present arrangements, we believe, serve the country well. We would be unwise to change them".

That was after a long and excruciating rigmarole of obfuscatory, legislative discourse that begged many questions, and persuaded no one. It is an art form that the noble and learned Lord acquired and developed rapidly when he was the Minister responsible for the ill fated Millennium Dome. It is a desperate rhetorical expedient that inevitably fails to carry conviction.

Such an attempt at a rearguard action in defence of the exercise of the royal prerogative is no longer tenable, particularly in light of the developments in contemporary democracy. Iraq is the catalyst. As the situation worsens day by day, so public opinion both in the United States and in the United Kingdom finds the continuing allied intervention and occupation increasingly unacceptable. Both houses of the United States Congress have voted in favour of a specific withdrawal date for American troops and withholding future funds to finance operations beyond that date. The United States has the great advantage of a written constitution, providing for a fully delineated separation of powers which enables such legislative oversight and control of the Executive. By contrast, the UK's position is far weaker. It may be, as the noble Lord, Lord Norton of Louth, said, that Congress's powers have, de facto, been diluted. In fact, however, the symbolic act of Congress meant that there was a cathartic release in the United States which is not possible in this country. Therefore, no matter how truncated their powers may in effect become, Congress serves a useful role as an escape valve as well as constraining the presidency in its future actions.

Precisely because of Iraq, I predict, as other noble Lords have done, that provision for prior parliamentary approval for military deployments overseas—emergencies excepted, either by a new convention or statute—will come about in the near future. We must renew our constitutional arrangements in the light of recent and ongoing experience. Popular opinion will countenance nothing less. If trust is to be restored between government and the electorate—Iraq is a major reason for the breakdown of trust—prior approval provision must be introduced. It will come about, as many other noble Lords have said, sooner rather than later; the portents are favourable. When Mr Gordon Brown becomes Prime Minister, he will have to live up to his earlier expressed views in support of the proposal. As many noble Lords have said, Mr David Cameron has also stated his support for such provision.

To be successful, appropriate renewal of our Government's arrangements must be informed by prior democratic imagination. That faculty seems largely to have escaped commercial lawyers, to judge from the positions taken by both the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Attorney-General before the committee. By contrast, how your Lordships continue to miss the wise constitutional perspective of the late Leader of the House, Lord Williams of Mostyn. Mr Gordon Brown and Mr David Cameron, as aspirants to the office of Prime Minister, really have no alternative, given the present state of public opinion, but to cultivate and give full rein to their democratic imaginations. This report will have helped to inform them.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 6:52 pm, 1st May 2007

My Lords, I join many others in sincerely thanking our chairman, for both the clarity of his opening and the courtesy, charm and great knowledge with which he has conducted our affairs. I also join many others in expressing my view that the Government's response, which is less than a single page if you remove the formal preliminaries, is not merely inadequate but also a gross discourtesy to our witnesses, advisers and the members of our committee who spent many days considering this vital topic. I hope that I can be brief, both because I am sure that almost everything has now been said and, with the sole exception of my noble and gallant friend Lord Craig, not a single voice disagreed with the committee that there needed to be parliamentary control over this decision, albeit that there have been some differences as to how one will achieve that and the precise nuts and bolts required.

Quite apart from its inadequacy, there are two basic flaws in the Government's response. First, it invokes the need to take war-making decisions "flexibly and quickly". No one doubts that there could be cases where there is a need for instant action, and our report expressly recognises this, but they are now rare and can be governed by special procedure. The theoretical need for such speed, or the rarer cases where secrecy is needed, cannot override the proper control of going to war in normal circumstances. Secondly, the Government rely on the fact that there has recently been debate—debate only, save on one occasion when there was a vote—and questions by which Parliament can "review and investigate" what has already been done.

However, there is a vast difference between Parliament deciding whether or not we should go to war in advance and it merely considering in retrospect whether we should have done so. Once the die has been cast, it may be practically difficult to disengage. Once you have invaded a country, it is not easy just to say, "Oh, I'm sorry; I now find from Parliament that I should not have come. I am getting up and going away". The country in question might have something to say about that and, indeed, might attack you as you do so. Secondly, many would not have voted in advance to go to war but would be reluctant to force our country into the humiliation of having to withdraw ignominiously, saying, "I am sorry; we have made a mistake". A vast number of people will back our Armed Forces once they are there, even though they would have much preferred they had never gone. Thus an ability to hold the Minister to account after the event is no substitute for parliamentary approval in advance.

The Prime Minister has said:

"I cannot conceive of a situation in which a Government ... is going to go to war ... without a full parliamentary debate"— save, obviously, where immediate action is essential. If so, as the noble Lord, Lord Parekh, asked, why on earth not have a convention embodying this, fleshing out the boundaries and rules? In parenthesis and in deference to the semantic objection of the noble Lord, Lord Norton, to the use of the word "convention", it may be that you can only have a convention by growth but you can certainly have a parliamentary practice by the decision of both Houses that the Government shall not go to war without a vote. Flatly, I use "convention" to cover that.

There is considerable need to flesh out such a convention, as this debate has made clear. First, we do not have wars nowadays; we have apparently not had a war since we attacked Siam in 1942. It is therefore difficult to say precisely what is envisaged as needing parliamentary control. In particular, what about massive escalation? Say you send one regiment, and the situation suddenly deteriorates and a whole division is needed: when do you need a further decision? To take a point of the noble and gallant Lord, Lord Craig, he would probably not need parliamentary approval to put General Gordon on the boat to Khartoum, even nowadays, but it certainly should and would need parliamentary approval to send Kitchener and an entire army to rescue him.

The Government's response asserts, without evidence, that going to war is a decision they must take, as,

"one of the key responsibilities for which it has been elected".

Of course, it is for the Government to take the initiative of proposing war. Nobody is suggesting that Parliament can suddenly tell the Government to go to war when the Government do not want to. However, the electorate does not want the Government to make the final decision without a vote of Parliament. Certainly, many of our witnesses took the view that that was not what the electorate wanted. I do not know—we have no evidence—on what the Government base their assertion that it is a key responsibility which they and they alone have been elected to perform. But if we are to acquire parliamentary authorisation for war-making, it is necessary to think out carefully how this is to be done and what are the basic rules.

The report rightly and decisively rejects the concept of statutory control. It does so for various reasons, the two most important of which are, first, the virtual impossibility of precise definitions of the circumstances in which parliamentary approval is needed and so forth; and, secondly, the real danger of bringing the courts into the matter and enabling people to challenge the legality of what is being done. For my part, I do not regard that as a remote possibility. Someone may say that the authorisation is not valid—perhaps someone in the invaded country who says, "You've injured me. You weren't entitled to come and do so because you hadn't been through the procedure your Parliament set"—and it would be an actionable wrong. The possibilities of litigation are considerable and therefore we were right in coming down firmly in favour of a parliamentary convention.

To draft such a convention would undoubtedly require considerable care and skill; for example, in indicating the kind of deployment that would require a parliamentary vote. However, as the convention cannot give rise to court proceedings, it does not have to be detailed or precise in legislation. It would undoubtedly be possible to devise a formula which governed most situations, and in rare borderline instances Parliament could decide which side of the line it fell.

The members of the committee, the majority of those who have spoken today and I think that a convention is the right method. If the Government foolishly remain adamantly in favour of the status quo, there must be a grave risk that those who find that unacceptable will be driven to legislation.

I want to deal with three points mentioned by the noble and gallant Lord, Lord Craig of Radley. First, he doubts whether Parliament would have backed the Falklands War or the first Gulf War. I do not know, although I find that a surprising proposition, but if it would not have wanted the country to enter into those conflicts, so be it. Secondly, he talked about the difficulties created by the parallel running of diplomacy and war preparation. I do not see what difficulty is created in that by having to gain parliamentary approval. Of course, if Parliament gives approval while the forces are on their way, say, to the Falklands or Iraq and the other side suddenly says, "I see what I have done. I shouldn't have been here. I'll withdraw from Kuwait"—or from the Falklands—or if it says, "Yes, I'll let the arms inspectors look at everything and I'll destroy anything I have", the forces can turn around whether they have parliamentary approval or not.

Thirdly, the noble and gallant Lord asked whether parliamentary approval would be needed for withdrawal. Surely, it would be needed only if the withdrawal involved abandoning the entire purpose for which one went there, rather than merely because we had won or the situation was largely in control and fewer forces were required. The noble and gallant Lord said that we would be lampooned if we did that. I thought that we were being lampooned now and that a large part of the world would be pleased and congratulate us if we withdrew. But in fact that point will not arise. The reason one can go to war without parliamentary sanction is that the funds are there, but as the war goes on and a new budget and a new vote are required, if Parliament wants the forces to withdraw, it can severely cut the military budget so that the military has no choice but to withdraw.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson in the Lords, Scotland, Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Cabinet Office 7:05 pm, 1st May 2007

My Lords, many who have participated in the preparation of the report have spoken directly of their appreciation of the chairmanship of my noble friend Lord Holme of Cheltenham, who opened the debate with such clarity and economy. I join them and others who have congratulated him on the manner in which he steered the report to a subtle and important conclusion. I profoundly hope that it will inform the thinking of the Government when they undertake what the noble and learned Lord the Lord Chancellor has described as the continuing review to which this issue is to be subjected. I have known my noble friend Lord Holme in a number of circumstances, although I have not had the pleasure of sitting at his feet in this committee. His role in promoting constitutional reform and the rule of law is probably unrivalled in this House.

The core message in the report and of today's debate is that, however appropriate the governing of the decisions on war or peace and whatever their manner and their constitutional foundation, the process is not suitable for today. The report spoke of an historical anomaly and warned against replacing it by a political anomaly. Consequently, the measured and extremely informed contributions to the debate make it exceptionally helpful to those who will have to bring forward proposals to meet what I perceive to be the public wish that their representatives in Parliament should decide whether to commit troops overseas to the unique task of taking life on our behalf.

The quality of the debate and its multidimensional nature were nowhere more strongly demonstrated than in the contribution of the noble and gallant Lord, Lord Bramall, whose experience and responsibilities make it appropriate that we should give considerable weight to his perceptions. He dealt with the practical impact of parliamentary approval of the decision-making required of political leaders, the Prime Minister and those responsible for our Armed Forces, which was particularly helpful. He said that in most circumstances the time factor would not be a constraint and that nowadays most armed conflict is heralded in advance by the diplomatic exchanges and the build-up of force. We were warned—again, with the benefit of experience—by the noble Lord, Lord Luce, that the timing could be awkward, as it had been in the case of the Falklands invasion. However, he did not support the view that Parliament should be excluded from the decision-making. He simply advised that detailed information that might be necessary for the security of the troops and the effectiveness of the operation should not be revealed at too early a stage. That view will have commanded widespread support.

The quality of the exchanges raised sharply the question of why the Government's reply to this report was so dismissive. The noble and learned Lord, Lord Mayhew, and the noble Baroness, Lady O'Cathain, spoke of the tardy and threadbare nature of the single-page response. The noble Earl, Lord Sandwich, said that it lacks fibre. It is appropriate that these Benches ask the noble and learned Lord the Lord Chancellor to say in his winding-up speech whether he shares the view expressed by the noble Lord, Lord Holme, in opening this debate. The words of Mr Gordon Brown were quoted a number of times. In April 2005, he said:

"I think it is unlikely that except in the most exceptional circumstances a government would choose not to have a vote in Parliament", and in January 2006, he made a similar remark. Does the noble and learned Lord think that that is indeed a portent of a serious reconsideration of the line of argument so summarily put forward last autumn?

It is not enough to say that the Government are not presently persuaded of the force of the argument as the evidence summarises it. The argument is important and needs to be addressed. We owe nothing less to our troops, whom we are deploying, at great risk to themselves, in Iraq and Afghanistan today and who will, no doubt, be deployed in a number of other situations of armed conflict that, it does not take the powers of a crystal-ball gazer to apprehend, will be the consequences of the underlying tensions in the world in which we are living.

The report raised interesting points and underlined the importance to the armed services of public backing for their objectives and of the legality of the operations. In his evidence to the committee, the noble and learned Lord, Lord Mayhew, carefully described what he perceives as the requirement that the character of the legal advice given about the international legality of armed conflict should be made known to Parliament. The Government would be wise to adopt that approach. There are difficulties in the position of the Attorney-General, whose first responsibility is to advise the Government, and there is nobody able to do the task for Parliament alone. In any event, the arguments that have moved the mind of the Government are important in order for Parliament to understand their legal case.

The core of this debate rested on whether accountability to Parliament and Parliament's responsibility for choosing whether to commit troops to armed conflict should be secured by parliamentary convention or legislation. Opinion on this was less united than it was on the core principle that Parliament should give its consent. My noble friend Lord Lester sought to answer the criticism that legislation as a basis for war powers would inevitably give rise to the risk of judicial review. The argument continued with a contribution from the noble Viscount, Lord Bledisloe, who doubted whether it could entirely be avoided. This debate deserves to be continued. I doubt that it is beyond the wit of Parliament to construct legislation that makes the intervention of the courts extraordinarily unlikely. In any event, if the courts were to intervene, the result would not necessarily be catastrophic.

The noble Lord, Lord Norton, forcefully and persuasively expressed the view that conventions are not made. I was reminded of a story about a dean of an American college who announced that, as from the next day, it would be the tradition of the college that no one would walk on the grass. I do not believe that such conventions can be plucked out of a short and easy dialogue between party leaders or even between the usual channels. The actuality is rather different. The conventions, in the sense of a treaty or the kind of concordat arrived at between the noble and learned Lords the Lord Chancellor and the Lord Chief Justice, are highly unusual in our constitution. In any event, I question whether a convention would be a strong enough basis to stand up to changes in circumstances. The report by the noble Lord, Lord Cunningham, on the conventions of this House was cited, but in the debate that followed the publication of that report, even he indicated that conventions would not necessarily survive a change in the composition of the House. If there are changes of circumstances, who would rely on such a fragile basis? I throw my weight behind those, including the noble Lord, Lord Judd, and the right reverend Prelate the Bishop of Ripon and Leeds, who say that we should look to construct a statutory basis on which to found our goal of ensuring that Parliament decides.

We have a serious obligation to do this at this time. The noble Lord, Lord Judd, spoke movingly and powerfully about our commitment, which is more than one of language, historically to resort to the use of force only in specified legal circumstances. When we do, it potentially has serious consequences for those who fight on our behalf. I cannot believe that it is satisfactory to them that their only assurance that that represents the will of the people is the voice of the Prime Minister. We must broaden the basis of consent for the most grave action that a modern nation state can take.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament 7:19 pm, 1st May 2007

My Lords, all those members who served on the committee have already paid tribute to the chairman, the noble Lord, Lord Holme of Cheltenham, and the manner in which he conducted all the sessions and, ingeniously, put together at the end of a large volume of evidence such a compelling report. I would like to join in their congratulations. I have also been fortunate, as have all your Lordships, to have heard the noble Lord open this afternoon, and have admired the way in which he has managed to condense so much information in such an eloquent and persuasive manner.

I share the views expressed by almost all your Lordships who have spoken in this debate. If I single out the noble and gallant Lord, Lord Craig of Radley, it is not out of any lack of admiration for him, but simply because I think that his approach was discordant with that of all other of your Lordships. Once again, I find myself admiring the noble and gallant Lord's courage in the face of so much hostility.

Perhaps I can start—if that does not sound too ominous an introduction to what I trust will be a relatively short speech—by referring to paragraph 50 of the report, which summarises the evidence given by the noble and gallant Lord, Lord Boyce. It states:

"Lord Boyce told us that an open debate in Parliament on deployments could undermine six key aspects of Armed Forces operations:

escalating the conflict through rhetoric; skewing decisions through access to only limited information ... compromising operational security by publicly discussing too much detail prior to action ... impairing flexibility ... undermining clarity about the timetable ...

[and] giving the opponent early notice of intent".

The noble and gallant Lord, Lord Bramall, has given some compelling answers to many of the concerns raised by the noble and gallant Lord, Lord Boyce. Nevertheless, as the convention develops during what I hope will be the months, rather than the years, ahead, I am sure that your Lordships will agree that its desirability will need to be tested against those criteria—a point especially emphasised by the noble and gallant Lord, Lord Craig.

I wish to draw your Lordships attention to only one of the six concerns expressed by the noble and gallant Lord, Lord Boyce, which is the skewing of decisions through access to only limited information. At page 22 of the evidence, Professor Loveland emphasised that that might lead to Parliament giving,

"spurious and undeserved legitimacy to whatever it is that the Government has decided to do".

All of your Lordships have met some honourable Members from another place who voted for the war in Iraq, only to say later that, had they known a certain piece of intelligence that was not available to them at the time, their vote may well have been different. I do not suggest that even now—supposing that a hypothetical vote could be taken now, given all the evidence that we now know about the war—the vote would be any different. But it is plain that the view of Members of another place is that the information that they had was, to say it in the least uncontroversial manner, incomplete.

The problem is that the information on which another place will vote to deploy troops abroad will always be incomplete. Manifestly, a Government cannot allow certain pieces of intelligence to become public. In a sense, the vote will always be on the basis of skewed information. So, in developing a new convention—with which I entirely concur—your Lordships have to find a way to allow another place to have confidence in the Government's conclusions, without at the same time being in possession of evidence which it should not anyway have because it would undermine the chances of our troops being successful.

The noble Lord, Lord Holme of Cheltenham, was quite right to draw our attention to the historical position. When the modern law of prerogatives was developed at the end of the 17th century, Parliament was in a much more powerful position than it is today to stop Governments going to war. Parliament had control of the purse and the Government and the King did not have control of Parliament. Nowadays, the situation is completely different, because the Government not only have the prerogative power but dominate Parliament in the manner with which we are all familiar. We need to flesh out a convention about the deployment of troops abroad; but, in doing so, we will need to look very carefully at other prerogatives—in particular, the prerogative to make treaties and the prerogative that the Government decide, exclusively, the shape of government machinery.

With a typically imaginative initiative, about a year ago the noble Lord, Lord Lester of Herne Hill, introduced a Bill to your Lordships' House concerning the whole range of prerogative powers of the Government, seeking ways in which Parliament could gain greater control. One of the most important areas touched on in the debate concerned the Government's prerogative to make treaties. Since the conflict that your Lordships' House had with another place about the treaty with the United States on extradition, I have been convinced that no treaty should be signed by the Government until its terms have been made plain to Parliament and Parliament has had a chance to debate its content.

The relevance of that is that on so many occasions we deploy troops because we have a treaty obligation to do so. The individual rights of citizens were adversely affected by the extradition treaty with the United States, which was negotiated and concluded in secret. Yet there is no individual right that is more important than the right to life. If our soldiers are to be deployed as a result of a treaty, it is vital that any future treaty that is negotiated and which requires the deployment of our troops is properly scrutinised by Parliament before it is signed. That is the first component of the new convention, which I believe should have serious consideration.

The second concerns the machinery of government. When the right honourable Clare Short gave evidence to the committee, at page 3 of the evidence, she said:

"When you look at the royal prerogative, it is not the prerogative of the Cabinet, it is the prerogative of the Prime Minister, so that helps to encourage a lack of accountability to the Cabinet. I think even worse, the Cabinet Committee Defence and Overseas policy, to which come all the heads of the ... Armed Forces, the Permanent Secretaries and Secretaries of State of all the departments which have any foreign policy intervention, normally would meet and scrutinise all the diplomatic, political and military options in a crisis situation like this. It did not meet".

For corroboration, one has to turn only to the report by the noble Lord, Lord Butler, entitled, The Review of Intelligence on Weapons of Mass Destruction. At page 146, in the concluding section of the report on the machinery of government, the noble Lord laments the fact that powers originally exercised by the Cabinet secretariat were handed over to the personal advisers of the Prime Minister. He concludes:

"One inescapable consequence of this was to limit wider collective discussion and consideration by the Cabinet to the frequent but unscripted occasions when the Prime Minister, Foreign Secretary and Defence Secretary briefed the Cabinet orally. Excellent quality papers were written by officials, but these were not discussed in Cabinet or in Cabinet Committee. Without papers circulated in advance, it remains possible but is obviously much more difficult for members of the Cabinet outside the small circle directly involved to bring their political judgement and experience to bear on major decisions for which the Cabinet as a whole must carry responsibility. The absence of papers on the Cabinet agenda so that Ministers could obtain briefings in advance from the Cabinet Office, their own departments or from the intelligence agencies plainly reduced their ability to prepare properly for such discussions, while the changes to key posts at the head of the Cabinet Secretariat lessened the support of the machinery of government for the collective responsibility of the Cabinet in the vital matter of war and peace".

An essential component of a convention, therefore, should be Parliament's confidence that the proper processes of Cabinet government are respected by the Government. If we are confident that intelligence we will never see has been properly assessed by the people in government who are responsible for assessing it, we are much more likely to have confidence in the Government's judgments about the deployment of troops. I believe that a second component of this convention must be an overhaul of the machinery of government in respect of decisions of war and peace so that Parliament can be absolutely confident that intelligence has gone through the proper, responsible committees and the people in whom Parliament are entitled to have trust; namely, the intelligence services, the great departments of state and the chiefs of staff. If that happens, Parliament is much more likely, and rightly, to give the Government's judgment about deployment of troops the benefit of the doubt.

I think that the noble and learned Lord the Lord Chancellor will find himself in agreement with my third component, just in case he is not in agreement with my other points. It is essential that the legal position is made absolutely clear before any deployment of troops, now crucial to the individual soldier. Since the development of the law under the International Criminal Court, the soldier is entitled to know where he stands and must have confidence that the conflict is legal. It is right that the Attorney-General comes to Parliament to make a statement about the legality of war.

It would not, of course, be appropriate for Parliament to see the advice that the Attorney-General gave to the Government. Inevitably, any responsible Attorney-General is bound to have to assess all the arguments, some of which might be contrary to the final position that he takes. If that document should become public, it is as sure as night follows day that there would be a very big dispute about its merits. Nothing could be more damaging to the confidence of the soldier who is about to fight.

The Government have to take a view about the legal position. If, ultimately, they are proved wrong, that is a matter for future accountability. The only way they can do that is on one piece of advice from the Attorney-General which is summarised and is clear—it should not express doubts—about the legality of the conflict or otherwise.

I have spoken long enough. There is more, of course, that I should say. This convention cannot be created overnight. We will need to think of a number of other things in addition to those that I have expressed from the opposition Dispatch Box today.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor 7:35 pm, 1st May 2007

My Lords, first, I join noble Lords in expressing my genuine and profound gratitude to the noble Lord, Lord Holme of Cheltenham, for this report and for the debate he has procured. Perhaps I may say more widely that under his leadership the Constitution Committee of the House has made a genuine and profound contribution to the constitution of this country. Every Member of the House joins me in thanking the noble Lord for that contribution. Secondly, I apologise to the noble Lord, Lord Holme of Cheltenham, and to every member of the committee for the delay in the Government's response. There were considerable internal discussions about the response. I have made that apology directly to the committee, but I repeat it in the Chamber today.

I should make it clear that the Government did not in any way intend any disrespect to an excellent report, which was balanced in the sense that it set out the arguments pro and con. It took evidence from a large number of distinguished people. It also took evidence from myself and other Ministers. I hope that we set out with clarity—despite the very obliging remarks made by the noble Lord, Lord Smith of Clifton, who I am delighted to see in his place—the Government's position.

In deference to the remarks made today, I shall try to deal with the detail of the report with a degree of fullness and try to set out the Government's position. As was made clear, this is an incredibly important issue. I completely accept the view of the noble and learned Lord, Lord Mayhew of Twysden, that this is important because it is about the circumstances in which we ask our Armed Forces to act on our behalf and put their lives at risk. It has an importance even beyond that in the context of what are the right democratic arrangements for those deployments to occur.

The report sets out accurately the current perceived constitutional position. The deployment power to use troops in war or armed force is the royal prerogative power vested in the Prime Minister who, as the report says at paragraph 12, would not dream of exercising it without taking advice before doing so. The report rightly states:

"The power to deploy the armed forces is not absolute. The Government are of course subject to certain constitutional constraints, including the general principle of their accountability to Parliament for the exercise of their powers".

As a matter of practice, in recent years—the past 100 years—the deployment of troops has almost invariably involved Parliament being both consulted and, sometimes, voting on it. Five of the most recent occasions on which armed force has been used include Korea in 1950 when there was a vote and the Falklands War when there was no vote. The noble Lord, Lord Luce, movingly and vividly described the events leading up to the parliamentary debate, as did the noble and gallant Lord, Lord Craig of Radley. There was no vote, although I believe—I was not there and I defer to the noble Lord, Lord Luce— that there was broad parliamentary support for intervention in relation to the Falklands and no need for a vote. As I understand the speech made by the noble Lord, Lord Luce, he said that the need to go to Parliament might have been positively damaging in the build-up to the Falklands because of the issues in relation to South Georgia. Therefore, there were no votes on the Falklands, Kosovo and Iraq 1, in which the noble and gallant Lord, Lord Craig of Radley, was involved. On Iraq 2, which in a sense informs this great debate, there was a vote and a resolution. Precisely that for which the convention argues occurred on that occasion.

That is the current position. The question posed by the report is that, despite that current position, should there nevertheless be something that the committee calls a convention? This convention comes in the form of paragraph 110 of the report, which says:

"(1) Government should seek Parliamentary approval ... by the laying of a resolution ... if it is proposing the deployment of British forces outside the United Kingdom ... (2) In seeking approval, the Government should indicate the deployment's objectives, its legal basis, likely duration and, in general terms, an estimate of its size; (3) If, for reasons of emergency and security, such prior application is impossible, the Government should provide retrospective information within 7 days of its commencement or as soon as it is feasible, at which point the process in (1) should be followed; (4) The Government, as a matter of course, should keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly should seek a renewal of the approval".

That is the convention that is argued for. 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.

Finally, on the Government's position, Mr Gordon Brown, the Chancellor of the Exchequer, said:

"Now that there has been a vote on these issues so clearly and in such controversial circumstances, I think it is unlikely that except in the most exceptional circumstances a government would choose not to have a vote in Parliament. I think Tony Blair would join me in saying that, having put this decision to Parliament, people would expect these kinds of decisions to go before Parliament".

My right honourable friend the Prime Minister said in the Government's response:

"The fact of the matter is that I cannot conceive of a situation in which a Government ... is going to go to war—except in circumstances where militarily for the security of the country it needs to act immediately—without a full parliamentary debate".

Both my right honourable friend the Chancellor of the Exchequer and my right honourable friend the Prime Minister set out the current position. Are we right to create what the noble Lord, Lord Norton of Louth, says that we cannot create—namely, a convention—because we cannot create it, or is the position adequately covered by the current arrangements? I believe that it is, and I think that there are considerable arguments against the idea of making it more rigid in the way that is suggested by the Constitution Committee.

I shall refer first to the question of what effect such a convention would have on operational efficiency. The noble Lord, Lord Garden, and the noble and gallant Lord, Lord Bramall, say that it would have no material effect on operational efficiency. Noble Lords will have read the report and seen the summary of the evidence of Sir Rupert Smith and the noble and gallant Lords, Lord Boyce and Lord Vincent of Coleshill. They will also have heard today the extraordinarily powerful speech of the noble and gallant Lord, Lord Craig of Radley. It is entirely a matter for this House to judge which of the contradictory pieces of evidence they find the more persuasive. I do not express a view about which is more persuasive. I think, however, that we would be extraordinarily unwise to change the current position in the light of that disagreement.

Secondly, there is the question of coalition-building. The noble and gallant Lord, Lord Craig of Radley, referred to this and to the need for countries—he was speaking about Iraq 1 and the Falklands—to be able to make arrangements and form a coalition. The speech that he gave in the House was reflected in the evidence to the same effect which the Minister for the Armed Forces gave to the committee. The Minister said that the Executive's ability to make those sorts of coalition arrangements was in sharp contrast to the inability of countries such as the Netherlands to make the same sort of arrangements because of their parliamentary process.

My third point, which the noble Lord, Lord Norton of Louth, made in a slightly different way from the way in which I am about to make it, is that of course there should be full parliamentary involvement. There needs to be reporting, and there need to be votes, if there is any issue, although I do not say that there should be votes when there is no issue. However, there needs to be clarity about where the responsibility lies. Although the noble Lord alleged that Parliament was misled, which I dispute, everyone in this debate accepted that the Executive will in many cases for entirely legitimate reasons not be able to lay all the facts before Parliament.

In those circumstances, therefore, why muddy the waters and say that, actually, Parliament is responsible? Involve Parliament as much as you possibly can—as this Government and all previous Governments have done in recent years, because they have to—but do not impose a rigid convention that was invented without reference to what the noble Lord, Lord Luce, was talking about. I hope that the noble Lord will not regard this as impertinent, but I thought that his support for the committee's conclusion was slightly lukewarm in this sense, and that he was saying that it was all well and good in the right case to do what the convention says, but that there will be other circumstances—he was not talking only about an emergency—in which the right course is not to have a convention but, in the interests of the country, to have some other means of seeking parliamentary approval. The noble Lord, Lord Goodlad, started off by setting out his concerns but then said that he was persuaded by the report. I venture to suggest, however, that he too had some considerable anxieties about the way in which it would work.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Women & Equality, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, the Lord Chancellor's thesis is that everything is working pretty well and we do not need to put in any safeguard. I wonder whether he would consider an example that he has not given; namely, what happened during the Suez invasion. We now know that even the law officers were not consulted about the legality of the invasion before it occurred. Instead, it went to the Lord Chancellor, the law officers gave their view afterwards, Parliament was not consulted, and I, as a member of the Armed Forces, was under orders to go under cover of darkness to conceal our deployment in order that the newspapers and Parliament would not know. I am not suggesting that this Government are guilty of that, but a future Government could be. Should there not be some kind of convention or statute that makes it less likely that that will happen in the future?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, with respect, the Suez example completely demonstrates the point made by the noble Lord, Lord Norton. It is, I think, widely accepted now that the Government of the day—I do not make a political point here—very actively misled the country and Parliament about what was happening. There was widespread parliamentary support for the Suez intervention at the time on the basis of what Mr Anthony Eden said, which was misleading, to Parliament. The convention that is argued for would have had no impact whatever, and it is extremely important that one focuses on that.

It is extremely important that responsibility is identified where it lies, and it is extremely important that parliamentary involvement is increased as much as possible, but not by this convention. I say with respect that the question to ask is the one that the noble Lord, Lord Norton of Louth, was asking: how does one, without compromising operational efficiency and without leading to undue inflexibility, ensure that Parliament is properly informed, bearing in mind that the Prime Minister and the Chancellor of the Exchequer are plainly right when they say that it would almost invariably be the norm that Parliament will be told and that, if there is any question about it, as there was in relation to Iraq, there would be both a prolonged debate and a vote?

I say with the greatest of respect to the committee that a convention is the wrong way in which to approach the problem. It leads to difficulties. In no way do I dispute—indeed I warmly endorse—what the Chancellor and the Prime Minister have said, but they are saying something different from the committee. They are not suggesting that there should be a rigid committee. So while I do not say that all things are fine, I do say that the proposal the committee has come up with is not the right one. To that end I was hugely impressed by the speech of the noble and gallant Lord, Lord Craig, and with that of the noble Lord, Lord Norton of Louth, although he was supportive of the proposals put forward by the noble Lord, Lord Luce. All those contributions contained powerful arguments against the proposition.

Perhaps I may go through briefly the contributions made to this high quality debate. The noble Lord, Lord Holme, put the argument to the House. I hope that in what I have said, I have responded directly to his points—but not, I hope, as the noble Lord, Lord Smith, suggested, in an obfuscatory way. I have dealt with the specific comments of my right honourable friend the Chancellor of the Exchequer. My noble friend Lord Judd made the important point that we should make sure that all we do is consistent with the view of the United Nations charter of the circumstances in which one should go to war. I completely agree with that, although I disagree with my noble friend on adopting the convention for the reasons I have given. The noble Baroness, Lady O'Cathain, described it as "arrogant" to say that one of the key responsibilities of government is the decision whether or not to go to war. Whether it is a good thing or a bad thing, I do not think there is any dispute that that is one of the responsibilities of the Executive, and I certainly regard it as one of the most important.

The right reverend Prelate the Bishop of Ripon and Leeds, my noble friend Lord Judd, and the noble Lords, Lord Maclennan and Lord Lester, all support something beyond the proposals made by the committee, and that is legislation. I strongly support the view of the noble Viscount, Lord Bledisloe, that the idea of the courts being involved in the question of whether or not the process had been gone through properly feels wholly inappropriate. The noble Lord, Lord Lester, argued that if one goes to war without going through the process, what is wrong with judicial review proceedings. One can only begin to imagine the consequences of that. So I strongly support the committee's assertion that there should not be legislation for all the reasons it has set out.

The noble and gallant Lord, Lord Bramall, is at odds in a friendly way with those with military experience who I referred to earlier in my speech. It is a matter for the House to decide whose material they found more convincing about the need for a convention.

Photo of Lord Bramall Lord Bramall Crossbench

My Lords, in case the noble and learned Lord thinks that I have no military experience, I was the Chief of the General Staff during the time of the Falklands, so perhaps that balances with the experience of others. However, that is not my point, and I apologise for interrupting. The Minister said that this is not the right way to make a change because it would create problems. Does he not agree that the way we went to war under this Government has produced infinite problems, and therefore one should be encouraged to look at a different way?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I apologise if I suggested in any way that I was not aware that the noble and gallant Lord was a very successful Chief of the Defence Staff. I know it and I hope that I did not suggest anything else.

Perhaps I may make this point to the noble and gallant Lord. What he appears to be suggesting is that we should do what we did in relation to Iraq 2; that should always be the way forward. Does that not demonstrate that it does not solve the problems, because I think that that was implicit in what the noble and gallant Lord has said? The issues he identified—namely, the questions people are asking about the Iraq 2 conflict now—are not in any way dealt with by the convention he is arguing for. It does not meet the point.

I agree with the noble and learned Lord, Lord Mayhew of Twysden, about the importance of the debate, but I fundamentally disagree about the need for a convention. The noble and learned Lord is normally someone who says that if something is broadly working, we should not change it, so I am surprised to find him supporting this change to the position. The noble Lord, Lord Lester of Herne Hill, supports an Act of Parliament. I am strongly against that for the reasons I have already given. I am completely persuaded by the speech of the noble and gallant Lord, Lord Craig of Radley, on the consequences of such a change. I hope that noble Lords will read his speech. While I do not agree with everything said by the noble Lord, Lord Norton of Louth, I agree completely with his basic premise that the convention proposed by the committee misses the point.

I do not agree with my noble friend Lord Parekh, who raised another point when he asked whether there should be a two-thirds majority. The committee quoted the evidence of Mr Sebastian Payne who asked what would happen if there was a 51/49 per cent vote in favour. With respect, all those difficulties are not thought through.

I recognise the great military experience of the noble Lord, Lord Garden—it is much greater than mine—but he supports the noble and gallant Lord, Lord Bramall. Again, I would say that the other side of the coin needs to be considered as well. The noble Earl, Lord Sandwich, put forcefully the views of the committee, but once more for the reasons I have given, I do not agree with him. I detected in the speech of the noble Lord, Lord Goodlad, a position quite similar to that of the noble Lord, Lord Luce, which is one of loyal support for the conclusions of the committee. But one is left with the sense that the flexibility of the current position might well be a better way to deal with these problems.

I have already referred to the speech of the noble Lord, Lord Luce. The noble Lord, Lord Smith of Clifton, said that Iraq is the catalyst, but he did not deal with the critical point that the convention argued for was followed in relation to Iraq. Therefore, what more is being sought? The noble Viscount, Lord Bledisloe, asks: if you always go to Parliament as a matter of practice, why not just agree to the convention? The current situation offers a huge degree of flexibility which works, as was described when I went through all the recent conflicts. The noble Lord, Lord Maclennan, supports legislation, but I am against it. The noble Lord, Lord Kingsland, was as measured as ever, being neither supportive of nor opposing the report.

I end by saying that this is a most impressive report. That I disagree with it for the reasons I have given does not in any way detract from the huge contribution made by the noble Lord, Lord Holme, to our constitution. The right thing to do is to encourage further debate on the issue. The Government will keep this matter under review. It is not just the Government who have a role in this debate, but all parliamentarians.

Photo of Lord Holme of Cheltenham Lord Holme of Cheltenham Liberal Democrat 7:58 pm, 1st May 2007

My Lords, the hour is late and it would not be profitable to reopen the whole debate, although after the Lord Chancellor's speech it is tempting to do so. I should like to confine myself to saying that in his advocacy of business as usual and everything is tickety-boo, I thought that the noble and learned Lord perhaps did not do justice to the contributions from around the House. If he was not impressed by the weight of the arguments set out in the report, which he clearly was not, I should have thought he would have been impressed by the near unanimity of an extremely distinguished selection of noble Lords with a great variety of experience. Although it is a joy for a non-lawyer to watch a skilled courtroom advocate seizing on little strands of straw here and there and trying to make a substantial brick out of them, I thought he was not altogether fair in the way he characterised some of the contributions to the debate. But that is what he is good at.

Incidentally, I thought that my noble friend Lord Smith was unkind to the Lord Chancellor. He adds greatly to the gaiety of life and I must say that if I were to be critical, it would really be more his Panglossian characteristics that I would seize on: everything is for the best in the best of all possible worlds. I had the great pleasure of starting my day with the Lord Chancellor in the Constitution Committee talking about the Ministry of Justice and ending it here at eight o'clock talking about this important issue. His sheer brio is overwhelming and I hope that whatever the future weeks have in store for him, we shall continue to be entertained by the way he can defend the indefensible. It is extremely impressive.

I conclude by thanking all noble Lords who have taken part in the debate. Some would like us to go further, some think our proposal is too modest, and the Lord Chancellor clearly thinks that it has no attraction at all. I suspect that the issue is not going to go away and a government permanent review will have to get active.

On Question, Motion agreed to.