My Lords, I am pleased to have the opportunity to open this debate on your Lordships’ Constitution Committee’s report on the use of armed force. Our report was published in July and, because of the war in Syria, was very timely.
Interestingly, the extensive public commentary on the report that took place at the time of its publication focused on our finding that the Government had until that moment been rather unclear about UK military action in Syria. That question was of course resolved by what has been rightly described as a historic vote in the House of Commons on
Before moving on to the main body of the report, I place on record my warm thanks to all those who gave evidence to the committee and to its members for their diligent work on the inquiry. As always, I also warmly thank the committee’s clerk, our policy adviser and our special advisers on the law.
For some years now, there has been a debate about the role of Parliament in decisions about whether to use armed force overseas. In 2006, our predecessor Constitution Committee undertook a major inquiry into this area and produced a very substantial report. Since then, the position has continued to evolve, with various proposals put forward about how Parliament’s role could or should be formalised or, indeed, enhanced. Both the previous Labour Government and the coalition have considered whether to formalise Parliament’s role. It is also relevant that in recent years there have been significant changes in the nature of military intervention and the techniques of warfare. As a result of all these developments, both political and military, we decided to carry out a short inquiry into the constitutional arrangements for the use of armed force.
We very deliberately used the expression “use of armed force” although the 2006 report had spoken of “waging war”. The committee thought the term more accurately conveyed the different scenarios for intervention that may occur today. We thought it useful to examine developments in the Government’s internal processes for deciding on the use of force, as well as looking at how Parliament’s role may have changed.
Our report dealt first with the Government’s internal decision-making process. We were particularly interested in the significant innovation in 2010 when the coalition Government created the National Security Council. This is a Cabinet committee that meets weekly under the chairmanship of the Prime Minister. Its membership includes senior Cabinet Ministers and Armed Forces personnel. The National Security Council has a very wide remit, covering all aspects of foreign, defence, security and international development policy.
The committee explored the impact of the National Security Council in the political and military sphere. Several witnesses commented positively on how it has allowed a cross-departmental approach to develop in a way that reflects the very close connections between foreign policy, security and defence. Although not all the commentary on the council was complimentary, we were informed that its existence ensures that there is a regular and formal line of communication between Ministers, military officers and the heads of the intelligence services. The committee agreed that this was particularly valuable. It was clear that effective structures were essential when it came to decisions on deploying our forces overseas.
The evidence of Mr Jack Straw MP, who was Foreign Secretary from 2001 to 2006, was telling in relation to the invasion of Iraq. He said:
“I was uncomfortable … about the informality of decision-making that took place when Tony Blair was Prime Minister … I absolutely stand by the decisions we made on Iraq but, on this issue of legitimacy, they would have been regarded—then and today—as far more legitimate if there had been a much more formal process within the Government over making them”.
Of course, the committee recognised that informal discussions will always take place outside the Cabinet room and that smaller, ad hoc groups of Ministers and officials will no doubt make preliminary decisions. However, we re-emphasise the need for decisions on the use of armed force to take place in the full Cabinet, both to ensure that the principle of collective responsibility is engaged and to help to legitimise decisions to use force by the proper process.
We consider that, taken as a whole, the Government’s current formal internal arrangements seem appropriate. However, we were concerned that these processes may not be generally very well understood. For example, we looked at the Defence Council, which has been in existence since the 1960s and has formal legal authority for the conduct of defence in the UK. One might therefore think that the Defence Council is a significant factor in decisions on whether to deploy force. That is not the case. The evidence we heard was almost unanimous that its practical role in the UK’s defence arrangements is very limited. We were told that it meets infrequently and is not involved in the executive decision-making. Mr Andrew Robathan, who was then Minister for the Armed Forces, told us:
“Put it this way: I do not have an appointment for the Defence Council in my diary”.
Given the different players and the apparent lack of clarity even in Whitehall, we recommended that the Cabinet Manual should be amended to include a detailed description of the Government’s internal arrangements for advising and deciding on the use of armed force. I am very pleased to say that in their written response to our report, the Government undertook to include that information the next time a major revision of the Cabinet Manual is carried out. The last time that was done was of course some time ago. Could the Minister this evening give us an indication of when the next major revision is planned for?
I turn now to the committee’s consideration of Parliament’s role. Of course, the legal position on decisions to deploy force is not in dispute. Such decisions are made by Her Majesty’s Government, exercising the royal prerogative. Parliament has no legal role in authorising and approving the use of armed force overseas. However, that is not to say—as Members of the House will be very aware—that Parliament does not scrutinise such decisions closely. In recent years, the House of Commons has passed substantive Motions to approve the deployment of force in Iraq and Libya, and now to disapprove any intervention in Syria. Parliament has also scrutinised several other conflicts through regular debates, Questions and Select Committee inquiries. In 2013, it would be generally agreed that it is commonly accepted that the House of Commons should have the opportunity to debate decisions to use force before troops are committed, unless there is an emergency and such action would not be appropriate. The Government have stated that this is now a constitutional convention and it is accordingly recognised at the moment in the Cabinet Manual.
The debate in recent years has centred on whether this convention should be formalised in any way, so as to require precise parliamentary approval before force is deployed. Three possible options have been put forward for another role for Parliament: first, a detailed resolution of the House of Commons; secondly, primary legislation on this subject; and thirdly, continued reliance on a constitutional convention. In 2008, as part of its TheGovernance of Britain White Paper on constitutional reform, the previous Labour Government proposed that a detailed resolution should be passed by the House of Commons, requiring the Government to secure its approval for the deployment of troops overseas. It would be for the Prime Minister to decide when to seek approval. In emergency situations, retrospective approval would not be required. Nor would re-approval be required when the nature of the conflict changed. The proposed resolution would not have had the force of law, but would have meant that Parliament’s role was formally set out. Although a draft resolution was produced, no progress was made in implementing it before the 2010 election.
When the coalition Government came into office, they made no specific commitment to formalising Parliament’s role. However, during the debate on approving the intervention in Libya in March 2011, the Foreign Secretary, Mr Hague, said that the Government would,
“enshrine in law for the future the necessity of consulting Parliament on military action”.—[ Official Report , Commons, 21/3/11; col. 799.]
At the time, that was understood to imply primary legislation, but since then we understand that there has been an internal debate within the Government as to the desirability or nature of any formalisation. Once again, no further action has been taken.
The Deputy Prime Minister, Mr Clegg, told us that that was still under review, and Mr Andrew Robathan told us that there was a division of opinion between Ministers in the coalition. Those in favour of a formal process argue that Parliament is the only body that can provide the necessary democratic legitimacy for a decision as important as this. It is argued that Parliament’s role should be enshrined so that no Government can bypass it. If Parliament’s role is formalised, all concerned will understand the process that must be followed before force is deployed and that following due process will itself increase the legitimacy of any action.
In addition to the democratic principle, some of our evidence from military experts and generals suggested that knowing that they had the clear backing of Parliament was very important to troops in the field. The noble and gallant Lord, Lord Guthrie of Craigiebank, who I am delighted to see will be speaking today, told us that,
“there were huge advantages if Parliament could be involved. When you visit people in the field on operations … the questions you were asked were, ‘is the country behind us? Is Parliament, the Government, behind us?’”.
On the other side of the current debate, none of those against formalising Parliament’s role sought to argue that Parliament should have no role. However, the committee heard several arguments against having either a formal parliamentary resolution or primary legislation. They were problems of definition, the risk of challenge in the courts, the risk of parliamentary engagement in operational decisions, the need to preserve political and military flexibility, and the argument that, given our convention, more formal procedures are just unnecessary.
Perhaps I can elaborate briefly on some of those arguments. First, there are the definitional problems. Formalisation would require Parliament’s role to be codified in a workable way. There would be major problems in what were called operational definitions. It will be necessary, for example, to specify what type of action would engage formal parliamentary involvement. For example, if the deployment of ground troops—boots on the ground—was the trigger, as was suggested in the 2008 proposed resolution, that would risk leaving out such interventions as the bombing of Kosovo in 1999 and imposing the no-fly zone over Libya in 2011.
A further decision would have to be made about the potential escalation of any activity and about at what point approval would have to be sought or might have to be renewed in different circumstances. The military might want a blanket approval at the outset, but parliamentarians might, for obvious reasons, want to keep their options open. A further dilemma would be whether there should be exemptions for emergency or secret deployments. If so, should Parliament’s approval be retrospectively sought? If so, what would happen if approval was declined? Having looked at such complexities, the committee was not surprised that Ministers still had difficulty in agreeing the best way forward.
Another objection to formalisation was the need to ensure strategic political and military flexibility. It was suggested, for example, that when the UK’s international obligations required the Government to commit to action with fellow NATO members, it would be detrimental to the Government’s position for there to be any doubt about whether they could commit. Any Government would also want to preserve flexibility to take defensive action or deploy force in an emergency. It is likely that any formalised process would leave a wide margin of discretion to the Prime Minister about when and where to seek Parliament’s approval, and there might in the end be so many exemptions that the formal process itself became only theoretical.
Additionally, there was the question of whether, if Parliament passed a formal law on authorisation, for example, the statute might be liable to be challenged in the courts and there might be judicial review. This was a new risk raised, which I thought was very interesting. Our witnesses were united in thinking that the appropriate forum for controlling and scrutinising such decisions is Parliament. In noting a recent judgment of the Supreme Court in Smith v Ministry of Defence, we were concerned that this demonstrated the court’s apparent willingness to become more involved in decisions relating to the battlefield. The committee shared the concerns expressed to us about the negative effect on the morale and operational independence of the Armed Forces when the courts scrutinised some operational decisions. In response, again, the Government have agreed with these comments and say that they will vigorously defend cases which call into question the principle of combat immunity, and will take further action as necessary.
To me, perhaps the final and most persuasive argument against greater parliamentary formality is that it is unnecessary. We understand that, in practice today, any Prime Minister seeking to deploy force overseas would politically be obliged to obtain the approval of Parliament, except in very exceptional circumstances.
The committee concluded that formalising Parliament’s role would involve significant difficulties and that such difficulties would outweigh any benefits. We concluded that much of the impetus for formalisation was to make a political statement rather than to correct deficiencies in the existing legal or military process. We therefore recommended that neither primary legislation nor a resolution should be introduced in an attempt to formalise Parliament’s role.
Finally, and without wishing to be unduly wise after the event, I will return briefly to the events of last summer in relation to Syria. Your Lordships will remember that at the time of the report in July, there was widespread and agitated discussion about whether the Government would arm opposition forces in Syria. It was only after sustained parliamentary pressure that Ministers gave an undertaking that the House of Commons would be given a vote before any decision to arm the so-called rebels was taken. As I said at the outset, it was the committee’s view that the Government’s intentions had perhaps been unhelpfully opaque. Very importantly, it was also unclear about how the Government might intend to involve Parliament should Her Majesty’s Armed Forces get further engaged in what seemed then, and seems now, an escalating conflict.
In late August 2013, the Government reacted to the apparent use of chemical weapons by President Assad’s forces in Syria by recalling Parliament. The proposal then was for the House of Commons to debate a government Motion, authorising the Government to take action in response to the attack. However, the business for
These August events had major constitutional importance. First, the Government recalled Parliament before any decision to deploy force was taken. The Government respected the existing constitutional convention and, I would say, perhaps further entrenched it. Secondly, the Government immediately undertook to abide by the decision of the House of Commons, even though Ministers legally retain the power to commit the Armed Forces to action through the prerogative. Again, that can be seen as strengthening the convention. Thirdly, the fact that the Motion, if passed, would have involved a two- stage process of agreement by the Commons showed the benefits of keeping these matters flexible. It seems fairly clear that as a two-stage process of approval had not occurred in any previous conflict, it is unlikely that it would have been foreseen in any formalised resolution or legislation. In other words, the practical and contemporary experience of the intense debate on Syria underlined and demonstrated the correctness of our report’s conclusions and recommendations.
I look forward very much to the contributions this evening from speakers who, although they are somewhat small in number, are extremely distinguished, expert and authoritative on this very important subject. I beg to move.
My Lords, I start by paying tribute to our chairman, the noble Baroness, Lady Jay of Paddington, and our legal advisers, notably Professor Adam Tomkins, for an extremely intellectually stimulating inquiry.
I was enthusiastic about it as the follow-up to the 2006 report, because in the types of armed conflict in which the United Kingdom may be engaged, as well as in the deployment of technology, much has changed. Many of these armed conflicts have the potential to draw in the United Kingdom, as the permanent member of the United Nations Security Council, leading member of NATO and contributor to several other alliances that our history, international outlook and diplomatic responsibilities call upon us to be. We will continue to see these foreign engagements posing difficulties for parliamentary scrutiny, as we witnessed recently during the recall of Parliament for a vote on our response to the crisis in Syria.
I want to devote my remarks to two issues: formalising the process for securing parliamentary approval; and how Parliament might be best placed to take the decisions that it needs to take. In doing so I will refrain from wholehearted endorsement of the committee’s report, as I believe its conclusions have been overtaken by the parliamentary discussion and vote on Syria on
I turn to the events of
“enshrine in law for the future the necessity of consulting Parliament on military action”.—[ Official Report , Commons, 21/03/11; col. 799.]
I fear that this Government have failed to formalise that process and I suspect that they have no intention of doing so.
In the period since 2008, we have seen from successive reports by the House of Commons Political and Constitutional Reform Committee, and from several discussions with the Minister, Lord Wallace of Saltaire, why we have not achieved a satisfactory outcome. I should say that the Minister is ideally placed to be answering this debate given his long experience of all three relevant ministries in this discussion: the MoD, the Foreign and Commonwealth Office and the Cabinet Office. Moreover, lest there be any doubt, one of our witnesses, the former Foreign Secretary Mr Jack Straw, who was the originator of the Labour Government’s proposed detailed war powers resolution, told us when he gave evidence for this report that he still believed that a formal resolution was the way forward.
I will not labour the point that all sides were and have recently been committed to giving the House of Commons a formal role in approving the use of armed force in conflicts abroad. What sets me apart from the committee’s report and the government position is whether we rely on convention, which is necessarily ad hoc, or whether we have a formal and more transparent process for engaging Parliament, which I favour.
Let me go through the arguments that the committee poses as obstacles to formalisation. The report highlights the difficulties of definition, specifying the kind of action that would engage parliamentary involvement. The detailed war powers resolution goes some way to spelling out the definition of a conflict decision: this is if the use of force is outside the UK and is regulated by the law of armed conflict. For those who feel that this is too narrow, I suggest that its definition is that of the director of Royal United Services Institute, Professor Michael Clarke, who said,
“if one was looking to establish a rough working threshold [for engaging the need for parliamentary approval], it might be where troops were going to be deployed overseas with the clear intention of engaging in conventional military combat operations”— that is, death and destruction.
Other obstacles include what we would do if Parliament was not in session. The vote of
The committee was also concerned about retrospective approval being sought for certain emergency deployments. What would happen if approval was declined? The draft detailed war powers resolution could be improved in order to make provision for that through being provided with a 90-day period when, retrospectively, it could call for UK deployments to cease. That is what the US has, were Congress not to approve a deployment under the War Powers Act. In other words, the action could go ahead contingent on retrospective approval.
The report also talks about problems of disclosing secret, legal and tactical information. We saw all of them come into play on
At paragraph 53, the Committee also covers the difficulty of lifting the arms embargo to Syria, finding that if the 2008 resolution had been in force, it would not have covered a decision to provide arms to the Syrian National Coalition. I specifically asked Mr Straw about this. He replied:
“It is a plainly conflict decision, in my view. The emergency condition is not met because everybody knows about this and it is hard to argue that the security condition is met because this is a very public decision. So I think it would be triggered”.
At best, experts disagreeing prove that there is a question mark over our assessment in terms of what a key witness believes. My view is the same as that of the committee: the condition would not be met, but these different interpretations make my point precisely. It is that until a draft resolution has been put forward by the Government for consideration and a chance has been given to the relevant committees in the House of Commons and this House, we cannot arrive at any consensus about what conditions would require parliamentary approval and what would not.
Let me come to the final point against formalisation: the justiciability of deployment decisions. A parliamentary war powers resolution rather than an Act of Parliament was the chosen instrument of the previous Government in order to avoid these decisions reaching the courts. In other words, they chose a resolution over legislation.
I shall briefly touch on the reasons why I believe the time has come for us to formalise the role of Parliament in the use of armed force.
In today’s world, it is right that our citizens expect that major decisions of war and peace which are made in their name are made with deliberation, accountability and lawfulness. It is also right that in a representative democracy their representatives have access to a clearly defined and reliable process which is employed in all circumstances, whether they are predictable or not. Where they are predictable, the maximum information should be provided in advance. Where the actions have to be taken as an emergency, they should be guaranteed the right to disagree and have the tools with which to seek to draw back from the decision. A parliamentary resolution such as that proposed in 2008 may be capable of amendment and improvement. What is not in dispute in our report is that Parliament has a role to play in these decisions; what is regrettable is that all three political parties have pledged in the past to formalise the role of Parliament on these decisions yet, in office, seem to be incapable of honouring that commitment to the electorate, who are, after all, the very people to be sent into harm’s way.
We are at a time when trust between the public and Parliament is at an all time low. The public have not had the opportunity to know much about the lead-up to the Iraq war, as the Chilcot report is not published. They may have concurred with the outcome of the vote on
My Lords, I first thank the noble Baroness, Lady Jay, for initiating this important debate and for the way in which she chaired the Constitution Committee, before which I appeared.
The power to send men and women abroad into a situation of armed conflict is one of the most important decisions a Government can ever take. In a democracy, it is surely desirable that decisions by Governments to use armed force should be taken extensively and substantially on the basis of thorough and accurate information made publicly available, and of candid and consistent explanation by Governments, fully involving Parliament in advice and decision. However, although it is highly desirable, can it be fully entrenched in our constitutional practice?
We should be cautious of letting the experience of Iraq, Afghanistan and Syria, which has undoubtedly given impetus to the debate, overinfluence our deliberations. Recent armed conflict has taken many forms. The background and run-up to the Korean War, Suez, the Falklands, the Balkans, Kosovo, Sierra Leone, Afghanistan, Iraq and, of course, Special Forces operations have all been different. Often, the nature of the conflict has quickly and dramatically changed, and the rules and objectives of our forces have had to be amended. What is certain is that, historically, it has not been easy to predict armed conflicts far in advance of hostilities.
The services want to know that the country is behind them before they are committed, that they are supported by Parliament and that what they are being asked to do is legal. Parliament’s stamp of approval is important, but Parliament must not run the risk of hazarding the lives of service men and women. Secrecy, security and surprise are critical to many operations and if, for instance, one day it became necessary militarily to pre-empt an enemy attack—which is not inconceivable—how would Parliament debate such actions in advance?
The deployment of a military force for armed conflict is complex and takes—as it did for Iraq or Afghanistan—considerable time. Of course, the very deployment before hostilities can be a deterrent in itself, but our current arrangements allow quick decisions to be made and we have been able to act quickly, often before the situation on the ground has deteriorated. As a member of NATO we are committed to aid other members who are attacked, and the United Nations charter mandates countries to undertake operations should the Security Council require them. As a signatory to NATO and UN treaties, we are expected to commit troops quickly when called on to do so.
We also have to recognise the difficulties that arise once a force is deployed. Circumstances change. Humanitarian and peacekeeping operations can suddenly become peace enforcement and develop into armed conflict. All four of these states can take place in a theatre at the same time. Deployments often lead to unforeseen consequences and mission creep.
Formal declarations of war have been described by some as an historical anachronism, and it is difficult now to see occasions when they would happen. I understand why many think that the royal prerogative being the legal basis for the Government’s war powers is an outdated state of affairs in a modern democracy. Having said that, it has not served the country all that badly over the years.
One should not legislate and have a statutory solution. Deployments vary so much and are accompanied by much uncertainty. One template would rarely work for all situations. I see the best solution as a formal but non-statutory convention. It should be necessary, whenever it is possible and sensible, to seek parliamentary approval for deployment before service men and women are committed, but there is a need for some flexibility and it would not always be wise or practical to debate prior to deployment, even though parliamentary debate and approval would be highly desirable. It would also be reassuring for the Armed Forces. I do not see it as particularly helpful for us to vote in the House, but it would be of immense value if we were to debate, preferably before the House of Commons had their debate, and were able to inform MPs and the Government of our views. There is much experience in this House that could be used.
If, for some reason, armed conflict or substantial deployments occur without Parliament’s approval, it would be important for Parliament to meet at an early opportunity to endorse the decisions that had been made. I also see a necessity for Parliament to watch and discuss the progress of a campaign from time to time, always bearing in mind the effect that such a debate would have on our troops in the field. It is almost inconceivable for the Prime Minister and Government to commit troops without thinking they had the backing of Parliament.
We should be concerned that parliamentary oversight could lead, unless we are careful, to pressure to debate how operations should be conducted. Parliamentarians are not qualified to do this and they must avoid micromanaging and taking tactical decisions. Those are the province of the commanders on the ground. In very general terms, the size of a deployment and the likely direction should be discussed. Those last two matters are notoriously difficult to predict, as they depend very greatly on the actions of the ill intentioned that are causing the problem in the first place. We are not in control of what the enemy’s reaction to us will be.
We must avoid an overly prescriptive solution and maintain flexibility. Slavishly following a statutory parliamentary procedure on every occasion, whatever the circumstances, could endanger the very people we are trying to help.
My Lords, it is a privilege, and one that humbles a speaker, to follow the noble and gallant Lord, Lord Guthrie of Craigiebank, in this debate. His knowledge and experience are unrivalled in this House. I must say that I do not wholly agree with his conclusions, and I will explain why.
In the first place, it is a widely perceived truth that the royal prerogative in the area of committing forces to overseas conflict is an anachronism. It was described in evidence to the House of Commons by Professor Nigel White as an unregulated vestige of former times. It is certainly the case that the movement of governmental opinion since 2003 has been rapid—and, to my mind, it has moved in an appropriate constitutional direction. I do not think that it would be wise to reach a final conclusion about these matters until we have heard from the Chilcot committee of inquiry into the origins of the Iraq war, because it is to be hoped that that will reveal something about the inner workings of the decision-making process that have not yet been fully revealed.
I fully acknowledge and accept the comments of the Minister who is to reply to this debate when he said on
Another factor brought out very clearly in the report is that the country needs reassurance that action is being taken in accordance with international law. I repeat my noble friend’s recommendation, taken from evidence given by Professor Philippe Sands, that Parliament should have a legal adviser. The Attorney-General does not, and cannot, fulfil that role because doing so could involve a conflict of interest between the advice that he gives to the Executive and that which he gives to the legislature. However, if Parliament is to make decisions such as that which it made on
I accept the committee’s view that judicial review of such action is neither appropriate nor desirable if one is to maintain the sense among our fighting troops that they are acting in accordance with the law and public opinion. I hope that the possibility of a statute will not be pursued. None the less, there is a strong case for parliamentary resolution: for setting out the requirements for the taking of action and for approving or rejecting the proposals of the Executive. Parliament, in particular the House of Commons, is the representative of the people, and the decision in most cases should be that of the people through their representatives. I therefore urge the Government not to seek hurriedly to reconcile the differences that have been made clear within it, but to think about the possibility of couching a resolution in terms that are wide enough to cover most eventualities. In so doing, they would strengthen the basic protections of our constitution.
My Lords, I declare my membership of the Chief of the Defence Staff’s Strategic Advisory Panel, though I have not given my views on the matter before your Lordships’ House this evening during any of the panel’s deliberations.
It was the late Viscount Stansgate, father to Tony and David Benn, who said that the fundamental purpose of the House of Commons was to control the purse and the sword. It used to be thought that Parliament controlled the sword by controlling the purse; that kings, and later Prime Ministers and Cabinets, could wage war only if the House of Commons granted sufficient supply to pay for them. That changed in the era of “fight with what you have got” conflicts, such as the Falklands War, which came out of the blue in 1982, requiring the putting together of a task force without time to convert British defence industries to a war footing, although some crucial procurements were very swiftly stepped up.
Ours is also an era when wars are no longer declared, a point to which my noble and gallant friend Lord Guthrie alluded a moment ago. The last time the United Kingdom did so was, I think, against Siam in January 1942. A declaration of war against Argentina was considered over what one might call the “Falklands weekend” in the first days of April 1982 and the 1939 file on how to do it was sent for. It could not be found. A search was mounted in what was then a called the Public Record Office. Still no file was found. It turned up 12 years later in 1994. It was just two sides of paper, drawn up for the Foreign Secretary, Lord Halifax, by the Foreign Office’s legal adviser, Sir Gerald Fitzmaurice, on the day of the Molotov-Ribbentrop Pact,
A number of Select Committees in both Houses, as we have heard, have examined the shift of war-making from the ancient prerogatives of the Crown exercised by Ministers to the convention that, if time and circumstances permit, the House of Commons will have the ultimate say on peace and war in a substantive Motion. I welcome the latest of these examinations, the report from your Lordships’ Constitution Committee, which lays out the current position on future options clearly, concisely and persuasively—so persuasively that I have to confess that its report of July 2013 has changed my mind. I used to think it desirable that at least some of the war-making powers should morph from the back of an envelope not just into a convention, which is where we are now, but on to the face of a Bill, so profound, fundamental and laden with consequences, foreseeable and unforeseeable, is the question of peace and war. I shall return in a moment to my second thoughts.
There is a spectrum—a hierarchy of needs and contingencies—on this most sensitive of constitutional matters. Some threats by their very nature require the specific constitutional arrangements for tackling them to remain what one might call prerogative pure.
I shall give two examples. The first is the almost unthinkable contingency of a Prime Minister authorising nuclear retaliation after a nuclear assault on our islands. This responsibility falls to the Prime Minister and to usually two so-called nuclear deputies, lest the PM is wiped out straightaway by a bolt from the blue. If the alternates are killed as well, the Prime Minister’s instructions, to retaliate or not to retaliate, from beyond the grave are inside the inner safes in the control rooms of all four of the Royal Navy’s Trident missile-carrying Vanguard-class submarines. As we debate this evening, the boat carrying one of David Cameron’s so-called last resort letters is somewhere deep and undetectable in its patrol area beneath the swell of the north Atlantic.
A second example of prerogative pure decision-making is the, I regret to say, far more likely contingency of the Prime Minister and his three or four alternates having to make the decision—which they have all exercised—on whether to authorise RAF Typhoons to shoot down a civil aircraft which there is reason to believe is on a 9/11 mission against our country and is ignoring an array of indicators and instructions from the Typhoons and air traffic control to divert and land at Stansted.
The central question before us focuses, however, on the deployment and use of British Armed Forces beyond our territory in circumstances that allow for sufficient time for the question of peace and war to be placed before Parliament. Developments this century have created a near consensus not just on the desirability of the House of Commons voting on a substantive Motion, but on the Government providing ingredients for the debate that should be placed before the Chamber before the Division Bells sound.
They include a full opinion, not a shrivelled one, from the Attorney-General on the legality of the deployment proposed—an intelligence assessment containing as much as can be safely divulged about what is known to the Government through their mix of secret and open sources. Also desirable, though humility is needed here on the part of all Governments, is an assessment of the duration of operations and the eventual exit arrangements from foreign soil.
The question is whether the existing convention on consulting the House of Commons is all that is needed to ensure that future Governments in anxious and uncertain times retain a sense of due process and a duty of care and consultation to Parliament. I was pleased when the Foreign Secretary said on
“enshrine in law for the future the necessity of consulting Parliament on military action”.—[ Official Report , Commons, 21/3/2011; col. 799.]
I understand, however, that real difficulties have been experienced in framing such a statute in a way that reflects the contingencies that our country might face. The noble and gallant Lord, Lord Guthrie, was very eloquent and persuasive on that. The report of your Lordships’ Constitution Committee makes plain how stretching such a task is, which is why I have changed my mind somewhat on the feasibility of a use of Armed Forces Act for the UK.
However, we need to buttress the existing convention with a House of Commons resolution. Conventions can be friable and fragile. They can crumble at the touch of a powerful, insensitive and determined Executive, especially in circumstances where one’s country and its allies are living and breathing in the shadow of potential armed conflict.
House of Commons resolutions, by contrast, are things of sinew and, one would wish, endurance. I hope that the noble Lord, Lord Wallace, when he winds up, will give a more detailed explanation of why the coalition has ruled out the framing of a “Use of Armed Forces” resolution in time for it to be put to the House of Commons before the end of this Parliament, although I recognise the force of what my noble and gallant friend Lord Guthrie was saying.
In the mean time, I thank the noble Baroness, Lady Jay, and her colleagues for the considerable service that their committee has provided for your Lordships’ House with this report on such a fundamental constitutional matter.
My Lords, I wish to intervene briefly. First, I congratulate the noble Baroness and her committee on what I think is an absolutely excellent report and on the way in which she introduced this debate. The report is certainly extremely timely, coming so soon after the recent debates on Syria that exercised us all.
I do not know why the Defence Council ever got involved in this. I never thought that it had any relevance to this problem, and I am not surprised that it was quickly dismissed. I certainly agree with the Cabinet role. I served in a war Cabinet, which then had to report to the formal Cabinet. I recall that at the time of the Falklands War, Mrs Thatcher went round every single member of the Cabinet to ask for their support for the action she proposed to take.
The role of Parliament and the support of Parliament, as the noble and gallant Lord said, are absolutely crucial. When I was involved in the first Gulf War, I used to go out to talk to the troops in the Gulf. It was hugely important for me to be able to say to our forces, “Not only is there support for you from the Government and the Prime Minister”—and I had a change of Prime Minister halfway through—“but there is enormous support from the people in the form of their representatives in the House of Commons”. That was extraordinarily important.
I think that the convention is a stronger element than some might give it credit for, although I will be interested to see whether the noble Lord, Lord Hennessy, who gave a most interesting speech, can find a resolution that can be drafted.
I have been thinking about the things that have happened since I had any responsibility in this area. We never had drones or conducted anti-piracy operations. We did not have counterterrorism. We had not had 9/11 by then, so there was not the need for the speedy reaction that the noble and gallant Lord referred to. We had not had cyberattacks. We had not had sanctions supported by military force or the threat of military force. Certainly, I never declared war, even though we were involved in an exercise in which we sent 45,000 troops fully armed and equipped to evict Saddam Hussein from Kuwait.
I do not know under what authority we set up something called Operation Provide Comfort. We had a United Nations resolution to evict Saddam Hussein from Kuwait—a country that he should not have been in—but at the end of that conflict, as some may recall, we found that he was attacking the Kurds in northern Iraq. We sent into Iraq a Marine commando unit, based, I think, on a Turkish air base at Incirlik, and we conducted air patrols over northern Iraq. I am not sure under what authority we did that, but it illustrates exactly the point made by the noble and gallant Lord: things develop and you get mission creep, although mainly very desirable mission creep, and that has to be covered.
Against that background, I entirely understand why the Minister, in giving his evidence to the parliamentary committee and discussing Mr William Hague’s assertion that the necessity to consult Parliament would be enshrined in legislation, said that we had found that things were a bit more complicated—“a bit more complex” was, I think, the phrase that he used—than we had previously imagined. I agree with that very much. There are complexities and difficulties, and when our forces are put into “harm’s way”—an awful phrase—it is very important to ensure that their position is protected.
Noble Lords may be aware that I serve on the Select Committee that is looking at the operation of the Inquiries Act 2005. Yesterday we took evidence from a senior official at the Ministry of Defence whose job never existed in my time. He is head of claims, judicial reviews and public inquiries. This covers a whole range of activities in which we see the problems of our forces being faced with the threat of legal actions of one sort or another. In the brief and necessarily quick remarks that I will make, I will say that the noble Baroness’s committee came to the right answer.
I will make one further point. As was rightly said, this is a decision for the House of Commons; the House of Lords can only advise. Looking back to those debates on Syria, would it not have been a good thing if the House of Lords debate had been the day before, when the considerable experience of this House and the advice brought to the subject would have been available to the House of Commons? By accident, fortunately, the House of Commons prevented us going to war. I was highly relieved about that, which I made clear in my speech. That is one element that might be added to convention. Otherwise, the Government’s response is that they are now considering which way to proceed. I do not think that they need to proceed very far. We have the right basis on which to operate.
My Lords, along with other noble Lords who have spoken in this excellent debate, can I put on record my thanks to my noble friend Lady Jay of Paddington for bringing this report to the House? I also thank other members of the committee under her chairmanship for the thoughtful, well argued, incisive and timely report into the constitutional arrangements for the use of armed force.
As the report and the noble Baroness, Lady Jay, said, the committee looked at the issue in 2006 and conducted an extensive inquiry. It came to the conclusion more recently that with the establishment of the National Security Council in 2010, the lack of clarity in the role of the Defence Council and the changing nature of military interventions overseas, it should have another look at the constitutional arrangements. We are all grateful to the committee for that.
The position on the use of force by Her Majesty’s Armed Forces is clear. As noble Lords know, it is exercised by the Prime Minister of the day and the Cabinet. It is a decision of the Government, and Parliament has no legal role in authorising or approving the use of our Armed Forces overseas. Parliament looks carefully at the use of force and we in this House benefit from enormous expertise, such as that of the noble and gallant Lord, Lord Guthrie of Craigiebank, on such matters. Members will be aware that for the conflicts in both Iraq and Libya, there were votes to approve the use of force, that recently a vote in respect of Syria was not carried and that the Government respected those votes.
It is also important to point out that there could be emergency situations when the immediate use of force is necessary. It would be helpful to the House if the noble Lord, Lord Wallace of Saltaire, could elaborate, as other noble Lords have asked, on the Government’s decision-making process in respect of Syria. The committee rightly highlighted that the Government took some time to make their position clear. The committee during the course of its inquiry looked at the internal decision-making processes of the Government, and at the major difference since the 2006 inquiry with the creation of the National Security Council. The view of many is that this has been an important and significant development that is proving beneficial to the decision-making process—I am very much in agreement with that—and helps allow an institutional memory to develop.
The inquiry also confirmed the position of the Defence Council, and noble and gallant Lords, such as Lord Guthrie and Lord Stirrup, confirmed the process of providing advice to the Prime Minister of the day in respect of the Armed Forces. We on these Benches very much agree with the committee when it says that the processes and mechanisms of the Government are not well understood and that the Government should amend the Cabinet Manual to include a detailed description of the internal arrangements for advising and deciding on the use of armed force. I am pleased that in the response to the report the Government have confirmed that they will do so the next time a major revision of the Cabinet Manual is carried out.
On the role of Parliament, it is Parliament’s job to hold the Executive to account, and it does that in both Houses through asking questions, scrutinising and challenging the Government of the day. This House benefits enormously from the specific expertise of Members who have held senior positions in the military, the foreign and diplomatic service and other senior Civil Service positions, such as previous Cabinet Secretaries, along with former Ministers such as the noble Lord, Lord King, who have held Cabinet positions in some of the most senior offices of state.
I very much agree with the committee when it highlighted the need for parliamentary approval, not only in holding the Executive to account for their actions but in securing legitimacy and improving the morale of service men and women who are away from home and putting their lives at risk to keep us and our fellow citizens safe.
I congratulate the committee on how it sets out the three options for Parliament’s role, to which many noble Lord have referred today. First, primary legislation; secondly, a detailed resolution of the House of Commons; or, thirdly, remaining with the existing convention whereby the House of Commons is given the opportunity to debate and vote on the deployment of Armed Forces overseas. As I mentioned earlier, the House of Lords also has a role to play in debating the merits of deployment decisions.
I am sure that in years to come the committee will look again at this issue but, from these Benches, the Opposition agree with the committee and the Government that, save in exceptional circumstances, the House of Commons should be given the opportunity to express its view by way of a debate and a vote. This will enable the House of Commons to exercise political control and confer legitimacy on such decisions. As the committee said, it is flexible, effective and consistent with the existing structure of parliamentary scrutiny of the Executive.
The noble Baroness, Lady Falkner, made clear her support for a full resolution of the House of Commons, but I do not agree with her at this stage in that respect. I agree with the noble and gallant Lord, Lord Guthrie of Craigiebank. The noble Lord, Lord Hennessy, who was described by the
Independent as the giant of constitutional scholarship, in his excellent contribution, has given all in the House points to reflect on.
I agree with the committee when it expresses concern at the effect on morale and the operational independence of the Armed Forces that scrutiny by the courts of operational decisions could bring. I am pleased that the Government concur with that view. The Prime Minister of the day, with his or her Cabinet, often has to ask extraordinary servicemen and servicewomen to put their lives on the line to protect the country and keep us safe. As the report highlighted—this was referred to by the noble and gallant Lord, Lord Guthrie of Craigiebank—when the decision to deploy has been made, commanders must be given the freedom to command on the battlefield in the way that they think best. We have to trust the commanders to get it right. We cannot, as politicians, micromanage, conflict situations on the ground.
In bringing my comments to a close, perhaps I may ask the noble Lord, Lord Wallace, two questions. First, given the excellent and thorough report of the committee, will the Government commit to writing to the committee in 12 months’ time, setting out the relevant progress made on the committee’s recommendations and, in particular relation to the Cabinet Manual, can he tell us, as my noble friend Lady Jay said, what he means by a major review of the Cabinet Manual and how often it will happen?
Secondly, given the understandable public concern about the use of armed force, what ongoing work will the Government carry out to ensure that the conventions articulated in the report around the consultation with Parliament are fully understood by the public?
Finally, I thank all noble Lords who spoke in the debate; the Constitution Committee, under the chair of my noble friend Lady Jay of Paddington, for its thorough and excellent report; and my noble friend for bringing the report to the attention of the House and enabling us to have an excellent debate.
My Lords, the Government welcome the report of this committee. As noble Lords will be aware, the Commons comparable committee, to which I gave evidence last month, is now compiling a similar report. We hope that that committee’s report will be published within the next few weeks and that it will take our debate a little further forward. The Government will reflect on both reports and respond to the Commons committee report. I have no doubt that in the course of the next year our conversation will move on.
As outlined in their response to this report, the Government are extremely grateful for the committee’s thorough and thoughtful consideration. As the committee recognises, the decision to deploy UK troops in overseas conflicts is one of the most difficult and important that a Government can take. We all recognise that the shadow of the decisions on Iraq, and the fact that the available information which led to the decision on Iraq was not entirely full, is part of the context in which we have been discussing this ever since.
In 2011, the Government acknowledged that a convention had evolved whereby the House of Commons should have the opportunity to debate and vote on such deployment decisions before troops were committed, except when there was an emergency and such action would therefore not be appropriate. Our commitment to that convention was demonstrated most recently by the Government’s decision to request the recall of Parliament on
There have been, in this debate, a number of interventions saying that we needed to go further and that we should formalise that convention through a resolution of the House of Commons, although there has been a great deal of sympathy in this debate for the view that formalisation through statute would perhaps attempt to make things too solid in a situation where, as the noble Lord, Lord King, remarked, the definition of armed conflict and the decisions about deployment we are taking could take many forms. Those include whether or not one puts troops on the ground, sends cruise missiles or drones or sends a training unit to Mali, supported by a couple of transport planes, to deal with a situation in which one is dealing not with conflict, let alone with forces of another state, but with armed groups operating across borders in states which do not entirely control their own territory and one does not know how far they may have to go once they are there. That is very much where we are now.
I have immense admiration for the noble Lord, Lord Hennessy, and indeed I recall a stage in 1996 when we regarded him as so much the living embodiment of the British constitution that my party arranged for him to give a lecture on how coalition government might be formed, because we thought that his would be an authoritative view if we found we had to do so. I say to him that the idea that any Government could now say, before committing troops to armed conflict, that we knew how long they might be deployed for, let alone what the exit strategy might be, does not fit with where we now find ourselves. Mali is a good example. There are a number of other conflicts in Africa at the present moment—indeed, there have been a number of other requests for a couple of British transport aircraft or a training team—of the sort that we are likely to be find ourselves in in the coming years where the question of where the threshold comes is very difficult to operate. That is part of the argument that we are going through within government at the moment and about which we are having a dialogue with Parliament.
My response is that I find myself—rather to my surprise—becoming one of the Government’s supposed experts on this area, and we need to have a continuing dialogue with Parliament about the numbers of deployments that we have. I remind the House—as I said in evidence to the Commons committee—that there are now 16 different operations overseas under
European common security and defence policy. The British have contingents in 14 of these. I am sure all noble Lords taking part in this debate could name all of them. In most cases, these are very small numbers of people; some of them are policemen, not military. In all of them, we are not entirely sure how secure they are or how long these deployments will last. In places like Somalia and South Sudan, or in Darfur, where we are often working with UN, AU or other forces, the question of how far we are formally committed is itself not entirely clear. That is part of the uncertain world in which we live.
I do not want to make heavy weather of this, particularly not at this late hour. I do not think, however, that anyone in this House first of all talked of legally enshrining in statute a method of dealing with this. The difference between us is about a draft resolution or the convention. The conflicts that my noble friend has described are of course in a wide grey area, but several of them are not covered by the law of armed conflict, hence the Labour Party’s draft resolution would not need to come into force in that regard.
The question of where the threshold should lie what sort of triggers one has on this is very much part of what we need to discuss further.
I will try to answer some of the questions raised by noble Lords. Several noble Lords asked when the next revision of the Cabinet Manual will be. I think that I have to say, “In due course”. The latest revision came early in this Parliament under a new Government. I think it is likely that the next Government will find it convenient to take in a further revision but I hesitate to commit that Government, whoever they may be.
Much of what we are talking about is whether you are taking a decision—as on Syria, for example—where it is clear that you are making a major commitment. It would clearly have been a major event to send either cruise missiles or planes over Syria. We were over the threshold and therefore it was entirely proper for Parliament to consider it and take the decision.
There are a number of other areas where it is not entirely clear where the threshold is. The noble and gallant Lord, Lord Guthrie, rightly pointed out that the Gulf conflict involved a very major commitment of forces. However, we found ourselves carrying on afterwards in Kurdistan, with a number of much more shaded decisions to take. I think I recall being told that there was a point during that deployment when the colonel in charge of the Royal Marine commando issued orders to his companies, and the Dutch major who was part of the commando said, “If you ask my company to do that, I will need to refer back to The Hague”. We are all struggling with evolving situations in which one has to say, again, that the legality and legitimacy is also in play.
The noble Lord, Lord Maclennan, talked about legality and the need to make sure that we are in accordance with international law. Similarly again, as Professor Sands would accept, it is not entirely clear what international law requires. Do we have to have a resolution of the UN Security Council, with all five permanent members authorising the action? The western powers intervened in Kosovo with some real sense of legitimacy, in spite of the resistance of some permanent members of the Security Council. Do we have to be sure that we can justify what we did in terms of the concept of just war? In the aftermath of the Iraq war, I remember taking part in a rather large Anglo-American conference, jointly organised by the Anglican Church and the Roman Catholic Church, on the concept of just war and coming away thinking that we had failed to agree on what that concept really meant in the modern world. We have the doctrine of responsibility to protect, which is very attractive but also not entirely easy to pin down on the ground.
A number of noble Lords spoke about the importance of public confidence and of troops knowing, once deployed, that Parliament has given formal approval. In an extended conflict, it is important to make sure that Parliament continues to have confidence in the mission. Going to war nowadays, or committing troops to conflict, is not simply a decision but a process. It therefore requires a continuing dialogue between the Government and Parliament and, of course, between the Government and the wider public.
I would say to the noble Lord, Lord Hennessy, that conventions are not entirely fragile. Conventions are developed and are difficult for a Government to break. Commons resolutions have more solidity but they can also be bent—they have sinews but they do seem to move up and down. My own sense of all this dialogue is that we need to continue to reflect and argue.
Within a few weeks we will have the report of the Commons committee. The Government will have to respond to that committee and that will take us further along the road to deciding how far we can strengthen the existing convention, how far it should be formalised in a resolution—I recognise that there are those in both Houses who believe that the time has come for a formal resolution—and how far the convention should be written into the next edition of the Cabinet Manual. Rightly, this issue will continue to attract the attention of both Houses of Parliament. Mention has been made of the Chilcot inquiry, which we all hope will emerge soon, and that will feed into this debate.
I end by thanking the committee for this report. It has aroused further debate within the Government. I have met officials in recent weeks to discuss it further. We will continue to reflect on this. The Government’s response to the Commons committee will be the next stage in that. Part of that reflection will be whether we are satisfied that this convention has now become strong enough or whether we should yield to the demands in both Houses that what we now need is a resolution. If so, we need to reflect on how that resolution should be formed and what sort of threshold one might need to write into such a resolution, as well as the continuing dialogue that Parliament and the Government need to have about the commitment of armed forces. In future these are likely to be in relatively small elements, which are multinational, in which the British may not be a major element, in which we are in support of the troops of other nations, in which we are dealing with multiple conflict situations in weak states as often as we are dealing with a conflict against a state—after all, the Gulf conflict was a conflict against a state and therefore relatively clear—and we will come back to Parliament with our conclusions when they are ready.
My Lords, before the noble Lord sits down, I asked him two specific questions which perhaps he could clarify. I am very happy if he wants to reflect on these and come back to the House at a later date or write to Members and place a copy in the Library. I asked him about writing to the committee in 12 months’ time with regard to the progress of the recommendations. Secondly, I asked him what the Government are going to do about ensuring that the public more fully understand the conventions.
My Lords, I hoped that I had answered the question about the evolution of the conventions and the future of the Cabinet Manual. Before 12 months have elapsed, the Government will be responding to the report of the Commons committee, which will take us to the next stage.
Of course we wish to ensure that the conventions are understood by the public. I am not sure that the mass public all want to understand the exact nature of parliamentary conventions but we will do our best. Perhaps the Government should consider sending the noble Lord, Lord Hennessy, on a tour of the country to give a number of public lectures explaining the nature of this particular convention.
My Lords, I am grateful to the Minister for his very thoughtful and detailed response. Following the point just made by my noble friend Lord Kennedy of Southwark, it would be helpful to the Constitution Committee of your Lordships’ House if, in responding to the Commons committee, the Government could explicitly take note of and reflect on the points that have been made in this report, which I think will continue to be relevant.
Of course, everybody in the House understands that the Government are dealing with a rapidly evolving situation and, in the Minister’s words, are continuing the dialogue. I am sure that is something that we are all glad to hear.
I thank all noble Lords who have taken part in the debate. As I predicted, the speeches have demonstrated the knowledge and experience of all those who have spoken. I am particularly glad that the noble Lord, Lord King, as a former Secretary of State for Defence and member of war cabinets, found time to intervene. He was very helpful in making his observations about how rapidly things were changing, particularly how rapidly they have changed since he was making these decisions on the country’s behalf.
It was also very interesting that both the noble Lord, Lord King, and the noble and gallant Lord, Lord Guthrie of Craigiebank, referred to the role that the House of Lords can play in debates and decisions on these matters. I hope the Government will take note of that. I think everyone in the House would be convinced that the House of Lords would not be able to have a particular decision-making role in this. However, there is a necessity to use the experience here—which has been well described this evening and of which we are all very well aware—to spotlight the questions that arise in these different matters. That is very important.
Overall, frankly, the debate illustrated the complexities of the practical situations in which the Government and the country find themselves, and the difficulties of formulating any process more formally than the one we have at the moment. I know the committee will be particularly impressed to hear that it persuaded the noble Lord, Lord Hennessy, to change his mind. When I report back to it, that will be something of which it is particularly proud. The noble Baroness, Lady Falkner, illustrated the animated discussions that we had within the committee but she, as a good democrat, accepted the overall position of the committee in the report, which was—to summarise it in the phrase of the noble and gallant Lord, Lord Guthrie—that we could not be overly prescriptive. That reflects my continuing position. I beg to move.