Conflict Decisions and Constitutional Reform

(Limited Text - Ministerial Extracts only)

Thursday 19th June 2014 Westminster Hall

[The Minister of State, Cabinet Office (Greg Clark)]

It is a pleasure to serve under your chairmanship, Mr Weir, and to respond to two reports by the Political and Constitutional Reform Committee. May I say how useful it is that the Committee has given us the opportunity to debate these issues? The hon. Member for Nottingham North (Mr Allen) presides with great accomplishment over the Committee, which the hon. Member for Newport West (Paul Flynn) accurately described as comprising a lot of the most thoughtful and well-motivated people dealing with this issue. However, I am not sure that the hon. Member for Newport West chose his adjectives correctly when he talked about opinions on the Committee ranging “from the deepest red to the densest blue”—I think he meant the most brilliant blue, but we know what he means.

Let me start with the constitutional convention. I thank the hon. Member for Nottingham North for his generous remarks about my involvement in that particular question of devolution. Given that the Government responded to the report in November—however opaquely, in the view of my hon. Friend the Member for Christchurch (Mr Chope)—I will be relatively brief, although I hope I can clarify some of the opacity he alluded to.

As the hon. Member for Liverpool, West Derby (Stephen Twigg) said, there needs to be a compelling case for establishing a constitutional convention, but none has been made at this time. Indeed, some members of the Committee, including my hon. Friend, took the same view.

When we say that our approach to constitutional reform should be guided by public demand and responsiveness to local circumstances to have the greatest chance of success, my hon. Friend the Member for Christchurch regards that as unclear. However, having known his views for many years, I should have thought that that was exactly the kind of Conservatism he would espouse—that things should emerge in the most appropriate way, rather than being engineered by some central body and imposed on a surprised nation. That—I perhaps put it less elegantly than he could—was the intention behind the Government’s response.

Like other members of the Committee, my hon. Friend knows that, unlike the constitutions of other countries, the UK constitution was not born out of revolution or an independence movement—it evolved. Nor do we owe our constitutional settlement and political institutions to a single point in time or a uniform set of principles; we owe them, of course, to centuries of history, throughout which the differing cultures and traditions of these islands have woven together.

Indeed, if we look at the devolution settlements to date, we recognise that. We have different arrangements in Scotland, Wales and Northern Ireland, reflecting their different historical and political identities, their differing needs and the appetite for devolution in different places. Each took a different path to devolution, and their individual settlements reflect that.

In the same way, the original devolution Acts contain a range of order-making powers, which have allowed for adjustments over time to make each individual settlement work better. This Government, too, have made commitments on devolution, and we have delivered. For example, in Northern Ireland, the transfer of policing and justice functions to the Assembly and Executive in 2010 reflected the continuing development of the political process there. Last year, the Government and the Northern Ireland Executive committed to examining the potential for devolving additional fiscal powers.

In Wales, we delivered a referendum, which resulted in the Assembly assuming primary law-making powers. We have established the Silk commission to consider the Assembly’s powers. The outcome of that work is the Wales Bill, which sets out a significant package of reforms giving the Welsh Government more levers to deliver economic growth and strengthening their accountability.

In Scotland, the Scotland Act 2012 will see the Scottish Parliament take on responsibility for raising as well as spending money, which will see the amounts it is responsible for increase from 16% of devolved spending in Scotland to nearly a third of the total block grant.

In each case, devolution has been driven by, in the words of the Committee, a continuing conversation about the differing needs of the nations and regions of the United Kingdom. Devolution in England is a case in point. The previous Government promoted the prospect of greater regional devolution—an idea that did not resonate. With some justification, many people in the north-west, for example, feel a greater attachment to, and identification with, cities such as Manchester and Liverpool than with an administrative Whitehall-conceived region called the north-west, which would submerge those historical identities.

This Government have not, therefore, continued to pursue devolution to those regions, and the Committee’s findings support that. We have established the McKay commission to explore how the House of Commons might deal with legislation that affects only England, and Ministers are considering its recommendations, so I am afraid that, on this matter, my hon. Friend the Member for Christchurch will have to continue showing his legendary patience a little longer.

The fact that devolution has not happened in England in the same way as in Scotland, Wales and Northern Ireland does not mean that power is not being pushed out from the centre. The remarks of the hon. Member for Nottingham North underlined that. I have had the great privilege of being associated with a Government programme that has decentralised more power than has happened for decades. In fact, members of the hon. Gentleman’s own party have been generous enough to acknowledge that the present Government have made greater progress, in many respects, than was achieved in the 13 years of the previous Government. We have introduced local enterprise partnerships, and we signed two waves of city deals. I shall be in Cambridge this evening to sign one, and I was in Teesside and Sunderland on Monday to sign another.

The hon. Member for Liverpool, West Derby mentioned the city deal struck with Liverpool. I was at the international festival for business in Liverpool, which is already proving a great success at establishing a new reputation for the city; that contrasts with the reputation that it acquired in the dark days of the ’70s and ’80s, which my hon. Friend the Member for Suffolk Coastal (Dr Coffey) correctly said was injurious. It is now deliberately creating a reputation as a good place to do business, and an attractive location for businesses from around the world.

The approach to decentralisation and localism in those initiatives gives localities the right of initiative; they can tell central Government what can be done differently, so that they, knowing their economy and people, can operate in the way most likely to help them grow and prosper. We are totally committed to further empowering communities right across the United Kingdom.

The hon. Member for Nottingham North mentioned the evidence that Professor Iain McLean gave to the Committee, but I was struck by another part of his evidence, when he said:

“The main problem for a proposed UK constitutional convention is that nobody in England, representing 85% of the population, seems to feel much urgency about it.”

I think that is a fair reflection of the state of debate in the UK at present.

Against the backdrop of continuing reforms and without a strong political impetus, especially in England, for a constitutional convention, it is doubtful whether it would be as successful as some previous initiatives, which went with the grain of public opinion, might suggest. However, I know that the hon. Member for Nottingham North will accept my assurance that I and the Government will not give up. I sincerely hope that he is right in wishing me the opportunity to continue doing my job for many years; his Front-Bench colleague, for whom I have the highest regard, may want to enter a caveat about that. Nevertheless, I reiterate on the Government’s behalf the commitment that we share to the further transfer of powers outwards from the centre.

[Mr Chope]

I have a question about Scotland. Perhaps the Minister’s constituents are not like mine, but mine are increasingly concerned about the fact that people living in England seem to have no say over the future relationships of the United Kingdom. There is a prospect that on a simple majority vote the Scots could become separate from the United Kingdom, so where does that leave ordinary people who live in England but want to stay in the Union?

[Greg Clark]

My hon. Friend and I share a view, which you, Mr Weir, may not share but are constrained from commenting on, that that eventuality will not arise, and that the people of Scotland will commit themselves to being part of a United Kingdom that has proved an extraordinary success for all its nations. The McKay commission of course was set up to address those matters, and did so in a considered way, with a recommendation. My hon. Friend pointed out that the Government had not responded formally to the commission; we will do so, and it would be wrong to pre-empt that collective response to the advice we have been given.

We have had a useful and lively debate on the role of Parliament in conflict decisions. I must beg the Committee’s patience again, and say that we will respond to its report soon. It is right, as the hon. Member for Nottingham North said, to weigh things carefully, because the decision to deploy British troops in overseas conflicts is one of the most momentous that a Government can take. In 2011 the Government recognised that a convention had developed in Parliament that before troops were deployed overseas the House of Commons should have an opportunity to debate the matter except when there was an emergency and such action would not be appropriate. That convention has since been recorded in the Cabinet manual and the Government’s commitment to it was most recently demonstrated by the decision to request the recall of Parliament on 29 August 2013 to debate the role that the United Kingdom should play in relation to the conflict in Syria.

There have been suggestions that the convention should be formalised, either by parliamentary resolution or by statute, and both the House of Lords Constitution Committee and the Political and Constitutional Reform Committee have held inquiries to explore the matter. The hon. Member for Nottingham North will know that they reached different views. Their lordships concluded against formalisation in their report of 17 July, arguing that the existing convention was the most appropriate mechanism by which Parliament could be involved in conflict decisions. In our response to the Committee’s report, the Government communicated our continued support for the convention and advised that we would carefully reflect on the case for formalisation before informing Parliament of the position. Since then, of course, the Committee has put forward its case for formalisation.

The first recommendation from the Committee was that the Cabinet manual should be updated to include a reference to the events in the House of Commons on 29 August 2013. The current manual refers to the fact that

“In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate.”

The Committee makes a reasonable point in suggesting that that should be updated to reinforce the importance and value of that convention by reference to the events of 29 August. The Government accept the recommendation. We will respond in due course to the other recommendations, but it seems reasonable to tell the House today that we will change the Cabinet manual at the time of the next major revision.

The Committee requested that the Prime Minister should give a specific Minister responsibility for making progress on formalising Parliament’s role in conflict decisions, and appoint a senior civil servant to support the Minister in that work. The Government already have a clear governance structure in place, and of necessity that is an area that cannot be devolved to a single individual. It must command the attention and involvement of very senior Ministers in different Departments and cannot be compartmentalised in a pure way. Overall responsibility for constitutional policy rests with the Cabinet Office and is overseen by my right hon. Friend the Deputy Prime Minister, but he works on those matters in close consultation with other relevant Cabinet Ministers, including the Foreign Secretary, Defence Secretary and Attorney-General. Support to all Ministers is informed by advice from the national security secretariat. Decisions on the Government’s legislative programme are made collectively by the Cabinet.

The Committee ultimately recommends that the convention that Parliament be consulted before UK troops are committed overseas should be enshrined in law and that, as an interim and more immediate measure, a parliamentary resolution clarifying and formalising that convention should be adopted. The report contains a draft resolution.

It is worth noting the success of the existing arrangement, which has ensured that this Parliament has been consulted on both the major conflict decisions that have arisen since 2010: Libya and Syria. The Government believe that the Prime Minister’s decision to recall Parliament to debate involvement in Syria on 29 August 2013 further demonstrated the Government’s unwavering commitment to the existing convention.

The Government have been considering the complexities and risks associated with formalisation of the current convention, either by legislation or by resolution. As the Committee recognises, formalisation by statute risks rendering deployment decisions justiciable. The Government’s view is that either a statute or a resolution could increase the risk of challenges being brought in the courts to various aspects of Government deployment decisions or decision-making processes. They are concerned that, even when there would be good arguments against such challenges, the potential involvement of the courts could undermine the operational independence and effectiveness of the armed forces, as well as international reliability and credibility.

Furthermore, formalisation by legislation or resolution of the House presents significant definitional challenges, which would require the resolution of difficult questions on the type of action or deployment that would trigger parliamentary involvement, as well as the nature of the exemptions that would apply for reasons of urgency and secrecy. I readily acknowledge that the Committee not only reflected on and noted those issues but proposed some solutions.

If the nature of the military operation were to change, perhaps suddenly, the terms under which approval had been given might no longer apply, and there might be ambiguity about whether they did or did not apply. That could limit the ability of UK forces to conduct operations until the matter was clarified or Parliament had been consulted, or could require the Government to seek retrospective approval, which could undermine the authority and initiative of commanders in perilous situations in battle.

The nature of armed conflict is evolving, driven by the development of advanced military technology and the range of situations in which armed forces might be deployed. Any definition could quickly become redundant, which could constrain the activities of the armed forces when deployed on operations. In relation to any exemptions for urgency or secrecy, as well as presenting similar definitional problems, it would be necessary to accept certain important constraints on the information that could realistically be provided to the whole of Parliament—for example, if action were taken on the basis of sensitive intelligence information to which only certain Members of Parliament were authorised to have access.

There is no doubt that this is a particularly complex matter that presents challenges associated with effectively capturing the existing convention in statute or resolution. There has been much deliberation of the matter and the hon. Member for Nottingham North, who chairs the Committee, is aware that it has been and continues to be subject to serious reflection by the Government.

A range of views was expressed to the Committee and the two Houses of Parliament came to different views on the same subject. The Government continue to reflect carefully on those positions and to examine the available evidence, including the differing conclusions and recommendations of the two Houses of Parliament, and to reflect thoroughly on the experience of the current convention. We will provide the Committee with further details of our position in our formal response shortly.

The Government have demonstrated that they remain totally committed to the existing convention that, before UK troops are committed to conflict, the House of Commons should have the opportunity to debate and vote on the matter, except in an emergency when such action would not be appropriate. We expect future Governments to observe that convention, which is why it is outlined in the Cabinet manual and, as I noted earlier, we will certainly accept the Committee’s recommendation that the document is updated to include a reference to the debate on Syria next time a major revision is undertaken.

I am grateful to the Committee for its report on Parliament’s role in conflict decisions. The Committee, because of its character, makes an important, considered and thoughtful contribution to the debate on this important constitutional arrangement. I would like to thank others who have contributed to the discussion, not least those in their lordships’ House and the individuals who submitted evidence. I assure all contributors that the Government remain committed to ensuring that Parliament has the opportunity to scrutinise decisions to deploy our armed forces overseas. We have not rushed to a judgment, which is a reflection of the seriousness of the issue and our desire to ensure that the right decisions are made instead of peremptory and perhaps wrongly based ones.