Armed Forces Deployment (Royal Prerogative) Bill [HL]
(8 years, 4 months ago)
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Baroness Falkner of Margravine (LD)
My Lords, I will start with a figure: 179 men and women, who proudly wore the uniform of Her Majesty’s Armed Forces. They are the 179 casualties of the war in Iraq, whose families expected the Government and Parliament to do the right thing by them at the time and to take the right decisions. Through the Chilcot report they now know more of what happened but find themselves listening to Mr Blair saying that he takes responsibility for the actions which led to their deaths, but no more, no less. Where, then, does democracy stand when no one is culpable and all were acting in an institutional capacity? Democracy stands diminished, but so too do the people’s elected representatives. The country expects the House of Commons, their representatives, to be the place where the buck stops, not a single powerful individual, who himself was never held accountable for his judgments through a general election after the facts were revealed. However, democracy stands diminished too when MPs are misled or are simply given inadequate information or inadequate time to reflect on the most serious decision they will ever take, of committing the Armed Forces to conflict overseas and potentially to death and injury.
We live in an age where public trust in those who govern us is so low and causality between action and accountability so ephemeral that we need to rely on rules more than ever before. I wish it were not so, but we are at a place where the Government need the security of knowing that there is a mechanism for individual accountability for decisions, albeit through a general election. This is what I seek to do in formalising the role of the House of Commons in what is effectively a war powers Act, but one set squarely within the United Kingdom’s own special constitutional arrangements.
The convention of referring to Parliament to authorise taking the country to war is relatively new, having first been used by Mr Blair in 2003. Nevertheless, the constitutional position is still that the Prime Minister acts under royal prerogative. This means that the commitment of British forces to military action is authorised by the Prime Minister on behalf of the Crown. In constitutional terms Parliament has no legally established role and the Government are under no legal obligation with respect to their conduct, including keeping Parliament informed.
Since 2003, Parliament has been consulted on the deployment on Iraq, where it was misled, on Libya, when it was assured that its role in consenting would be formalised, and on Syria, when it was recalled in the middle of the August break with inadequate time for information or consultation. It was also consulted on action against Islamic State, but where the parameters were tightly drawn. However, we know through the practice of embedding that the reality on the ground is that UK troops and materiel are possibly deployed in Syria too, although we are told that we cannot know.
Ever since the convention was introduced, Parliament has not been consulted in other key situations where considerable loss of life has happened. It was not consulted in the expansion of the Afghan mission to Helmand. This is relevant, as British military forces were initially deployed to Afghanistan in 2001 in a post-conflict, building and regional reconstruction role, whereas their deployment to Helmand put them very directly in the line of fire, some would say disastrously, as that is where the vast majority of the loss of life was incurred. Moreover, at the time of the Libya intervention the then Foreign Secretary, the noble Lord, Lord Hague, made his commitment in March 2011 that the Government would move to,
“enshrine in law for the future the necessity of consulting Parliament on military action”.—[Official Report, Commons, 21/3/11; col. 799.]
Yet there has been stasis.
In the meantime, there have been deployments to Mali, albeit in a non-combat role, and we know now that there are 550 military personnel in Iraq, including soldiers. While they too may not be in a formal combat role, were they to be involved in firefights resulting in death and destruction, that would not be construed by the public as anything other than combat, irrespective of the technical description. So we are in a place where we can neither rely solely on the exercise of the royal prerogative—where we might be able to see that the buck stops with the PM—nor we do we have a war powers Act whereby we might hold elected representatives and/or the Executive responsible.
I turn to my Bill. The greatest objections I have heard to formalising the House of Commons role in giving consent is that it is hard to define what combat is, that the action might be justiciable and the courts would be involved, and that Parliament would be a constraint on operational freedom for the military. I come to the definition. While the generals erect arguments to say that it is impossible to define armed conflict overseas, referring to technological advances such as the use of unmanned and/or autonomous weapon systems, I do not go for that level of sophistication in the Bill, although I accept that international law will have to change to acknowledge those advances and the ethical dilemmas they pose.
I am concerned with what the man or woman in the street might define as combat. When the House of Lords Constitution Committee took evidence on this point, the noble and gallant Lord, Lord Guthrie, held the view that the definition was key. However, Professor Michael Clarke, the director of RUSI—our foremost think tank on these matters—put it plainly. He said that it is defined as where “death and destruction” occur. Others, such as the former Lord Chancellor, Mr Jack Straw, agreed, as did a number of other lawyers.
In this House we have passed some four counterterrorism Acts in my time here. We have had arguments as to what constitutes terrorism or the glorification of terrorism or extremism, and we have always found a way forward. I note that these laws are being used in the courts today without any controversy over those definitions, so I will not linger on that point.
The second, more substantive issue—that of tying up more powers in the courts—is unfounded. We know from just these past few days that, even without this Bill, the families of those who lost their lives in Iraq are contemplating both criminal and civil remedies through the courts, so legislation will not affect judicial intervention one way or another.
However, I turn to the findings of the Commons Political and Constitutional Reform Committee. It took evidence on these powers and its constitutional experts have repeatedly looked at the position of the courts. Rosara Joseph, in her book The War Prerogative, stated that courts do not consider this issue as they see it as axiomatic, and as a matter where they should properly defer to the Crown. If you substituted “Crown” for “Parliament”, the same exception would apply. Moreover, Professor Nigel White argued in his evidence that, while the courts would be concerned with a clear abuse of the process of the exercise of war powers, including as they currently stand, they would not be concerned with,
“detailed arguments about the legality of going to war under international norms”.
He went on to say:
“The Courts already recognise that these are decisions for the political organs making difficult judgements in constantly changing international security situations”.
Further, he said:
“Such an approach would continue under a War Powers Act given the rationale is that it is the type of governmental decision that is not reviewable whether it is derived from prerogative powers or not”.
Another professor, Dr David Jenkins, shares the view that a war powers Act will not open up the possibility of judicial review. He says that it is not a danger, for,
“as the American example shows, American courts, even under the constitution, will not involve themselves in these questions”.
But let us go beyond that and look at the actual jurisprudence. Two court cases in 2010—Regina (on the Application of Abbasi) v Secretary of State for Foreign and Commonwealth Office and CND v the Prime Minister of the United Kingdom—both considered that such matters were non-justiciable. In the latter case, CND sought a ruling on the legality of military action against Iraq without a further UN resolution. Ruling on the case, Mr Justice Richards stated that,
“it seems clear that the legal issue cannot in practice be divorced from the conduct of international relations and that by entertaining the present claim and ruling on the interpretation of Resolution 1441 the court would be interfering with, indeed damaging, the Government’s conduct of international relations. That would be to enter a forbidden area”.
He went on to say:
“In my view it is unthinkable that the national courts would entertain a challenge to a Government decision to declare war or to authorise the use of armed force against a third country. That is a classic example of a non-justiciable decision”.
So it is clear that both constitutional experts, as well as the courts, have themselves ruled out judicial intervention in the area of war powers.
I turn to the other main objection—that parliamentary consent for going to war will imply interference with operational decisions. It blatantly will not. I arrived here in 2004, when the failure of Snatch vehicles was becoming evident. We questioned the Government about that and about insufficient helicopter support. It was right that we did so, and this was never construed as interference in operational decisions. In the myriad interventions we have taken under royal prerogative or under the new convention, parliamentary interference has never been an issue, and there is no reason why it will underformalise the role of the House of Commons. We are told that the success of military operations relies on three things: secrecy, security and surprise. I accept that and take account of it in my Bill.
Furthermore, Conservative Government Ministers who echo the military in saying that they support the new convention of seeking parliamentary approval nevertheless go on to say “except in emergencies”. I agree. My Bill goes beyond that and makes exceptions not only for emergencies but for conditions where it will be imperative to have an element of secrecy—hence my emergency exception and security exception.
In Clause 3, those exceptions provide for the PM expressly not to seek the approval of Parliament and it clearly defines an emergency in Clause (3)(2)(a) and (b). It then goes further and says in subsection (3) that Parliament will have no role where public disclosure of information would prejudice operations and if the Prime Minister therefore decided that he did not wish to put this into the public domain by consulting Parliament. In those circumstances, all the Prime Minister has to do is to lay a report before the House of Commons within 30 days after his decision to deploy, telling us why he decided to engage in military action under the emergency or security condition and what objectives, locations and legal issues he thinks are appropriate in the circumstances. The Bill gives almost complete discretion to the PM in terms of emergencies or for the purposes of secrecy to tell us what he thinks is appropriate. Moreover, he can decide not to lay a report before the House of Commons at all if he believes that national security concerns are still a risk.
So some might ask: if my Bill is so flexible, why bother? The answer is: for a very simple reason, which is that we currently have a situation where we simply do not know where we stand. Those in the House of Commons do not know; the public do not know; and the military does not know. We know that the Government of the day now consult in most circumstances, but we also know from the examples that I have given—pace Helmand; some would say Yemen and Syria—that sometimes they do not. We have situations where individual MPs try to hold the Government’s feet to the fire. This type of ad hoc process is bound to misfire, as it did in late August 2013. Then, under Back-Bench pressure, the Prime Minister had to recall Parliament in late August when MPs were on holiday and lost the vote by 13—not because the merits of the argument had been exhaustively considered but because it happened under pressure and the Government were not able to prepare the ground sufficiently both with the Opposition and with their own Members of Parliament. Under my Bill, such a situation would be covered by the emergency condition whereby the Prime Minister would have 30 days to explain his decision to the Commons. In that particular case, the Commons was due to return just about two weeks later, so there would have been considered reflection before the Commons debated and voted on the matter if it had so wished. We would not have had the unedifying sight of MPs getting off flights and going into Commons Divisions without information. I would argue that the failure of the 2013 vote exacerbated the war in Syria. Presidents Assad and Putin knew that they would be unchallenged from that point, which has led to the refugee crisis among other things.
It is clear that the present situation is unsatisfactory because of the uncertainty it creates. We know, for example, that Mr Jesse Norman MP, the biographer of Edmund Burke, that great Conservative political philosopher, believes that the current convention is not fit for purpose, because once the Commons gives its consent it cannot do proper scrutiny of the aftermath. My Bill would deal with that, as Clause 2 would require the PM to set out the terms of approval, the objectives, the locations and the legal matters that he or she considered relevant. Mr Norman’s objection to the current situation would be dealt with.
Let me reiterate: this is a simple and straightforward Bill. It contains four substantive clauses, but it is cleverly crafted—here I pay tribute to my noble friend Lord Lester of Herne Hill, who I believe was the originator of the draft Bill. It has been scrutinised by the Commons Political and Constitutional Reform Committee and recommended as the basis of its resolution. The Lords Constitution Committee looked at it in relation to its brief inquiry. While it did not change its mind, it did not find the Bill to be wanting. If there are gaping omissions, they can be corrected as the Bill goes into Committee. My motivation and that of the Liberal Democrats in seeking to enshrine a statutory basis for parliamentary approval for war powers is to give the country in whose name our Armed Forces deploy in the face of death and destruction constitutional security. After Chilcot, they need to know that one lesson of the Iraq war has been heeded and that never again should the country shed blood and treasure on the basis of sofa government and inadequate, hurried information and processes. This Bill is an attempt to ensure greater deliberation by all. That is the least we can do as a debt of gratitude to those who have given their lives. I beg to move.
Earl Attlee (Con)
My Lords, I congratulate the noble Baroness on the way in which she explained the purpose of her Bill. She has much experience in international affairs and we benefit greatly from it. If I wanted to draft a Bill to have the same effect as that of the noble Baroness, it would have more or less the same provisions. I was not surprised when she told the House that the noble Lord, Lord Lester of Herne Hill, was heavily involved in the drafting. It is obvious that the noble Baroness has carefully researched this matter.
I must declare an interest as I think that I am still commissioned in the Army Reserve—but not for very long, because my 60th birthday is rushing up in October. However, I served in Iraq in the spring of 2003.
Some say that we should not effect major constitutional change by means of Private Members’ Bills. I disagree, the obvious recent precedent being the European Union (Referendum) Bill, which my party tried to get through as a Private Member’s Bill. The House decided in the end not to pass it. I believe that the noble Baroness is using the correct parliamentary tool to achieve her objective. She is not seeking merely to have the Government do or stop doing something; she is seeking to change the law and the constitution.
However, I am concerned about the number of Private Members’ Bills going through and being passed by your Lordships’ House that would be unlikely to find favour if your Lordships decided to vote on the matter. Some noble Lords think that it is a convention in this House not to kill a Private Member’s Bill, but it is a statistic not a convention. In other words, I have seen a few Private Members’ Bills that were so objectionable to noble Lords that they decided not to proceed with them past Second Reading.
If a noble Lord proposes a Private Member’s Bill that is on a small regulatory matter, be it deregulatory or putting a little regulation in, and the House acquiesces in it, I do not see that as a huge problem—we all know perfectly well that such a Bill might not find favour in the House of Commons, so we do not get too excited about it. However, if your Lordships pass a Bill of major constitutional and security significance, the general public may erroneously believe that it represents the considered view of your Lordships’ House when it does not.
I have serious objections to this Bill. If your Lordships did not have other, very pressing matters in hand, I would have tabled a fatal amendment to the Second Reading. The noble Baroness is held in very high regard in your Lordships’ House and I would not dream of taking such action without giving her at least seven to 10 days’ notice, so I just ran out of time to do it.
I do not support even the evolving convention that the House of Commons should vote on a military deployment, both for parliamentary and for practical reasons. Such decisions should be made by the whole Cabinet after detailed discussions and with relevant JIC reports in front of them as the well as the JIC. Most importantly, the leaking of any such discussions by Cabinet members should come under the Official Secrets Act, The Prime Minister should make it quite clear that if any Cabinet Minister leaks details of such a discussion he will charge the security services with finding out where the leak came from, using all necessary resources to find out. That is because it is deeply damaging to national security to have these leaks, which is why Mr Blair used sofa government; he could not trust other members of the Cabinet to have a detailed and frank discussion about the issues. I hope that if I had been sat at that Cabinet table—I obviously do not have the capability of doing that, but if I did—I would have said, “This 45-minute claim. Does it relate to battlefield weapons or strategic weapons? Is the source signals intelligence or human intelligence?” As a Cabinet Minister, I would expect to get the answers to those questions and, if I did not, I would have to consider my position.
Conversely, Parliament is unsuitable because it does not have all the intelligence available. It cannot get answers to the obvious questions. I remember when your Lordships debated whether we should invade Iraq. I remember noble friends saying, “Fine. I’m sure we’ve got the combat power to get the regime to collapse, but what happens afterwards?” We were told, “Oh don’t worry about that”, but actually that is why the campaign failed, as Operation Telic 1 was a brilliant operation—I will address it when we discuss Chilcot. I do not believe that it is right for parliamentarians to make such decisions without access to the information that they need, and they cannot have it for obvious reasons. Of course, I fully agree that, if we do go to war, it is a matter for the Commons to agree or acquiesce with that decision. We can express our view, but it is very much a matter for the elected House.
There are many problems with the noble Baroness’s Bill. First, an opponent may miscalculate the resolution of the UK by believing that the House of Commons will vote against the resolution or the Whips in the House of Commons will calculate that the Government would lose such a vote. That could have serious consequences for the diplomatic effort that should be taking place before you go kinetic. It might make conflict more likely rather than less likely. We only need to think of the Falklands conflict—I see the noble Lord, Lord West, is in his place—where it appeared that the Argentinians miscalculated our resolve.
I am not saying that there should be no parliamentary involvement or no check on the Executive. The noble Baroness suggested that the House of Commons had no role. The House of Commons has a very powerful tool indeed: it can have a vote of no confidence in the Government and the Government are in deep trouble if they lose that. In those circumstances, we used to have a general election straightaway. Unfortunately that has been slightly unwound by the Fixed-term Parliaments Act. Normally, the Leader of Her Majesty’s Opposition will have access to Privy Council briefings with the Prime Minister and the Secretary of State for Defence, so he or she should be much better briefed than ordinary Members of the House.
The Bill would not have the effect that the noble Baroness desires. I do not believe that it will have any utility. When the Commons voted to go to war in 2003, it was far too late in the process of transition to war. I was there. Our troops were just about to cross the start line and engage the enemy. We were certainly vulnerable to a pre-emptive attack by Iraqi forces, if they had had the capability. We were just about to engage them and legally they could have launched a pre-emptive attack on us and we would have sustained significant casualties. I know that the issue of casualties is very important to the noble Baroness and I can quite understand that. Very often we have our own forces in harm’s way long before the Commons makes a decision. I will not go any further along what I will call the Chilcot route because we will have a debate next week on that, but if in 2003 the Commons had voted no, it would have seriously damaged the relationship between the UK and the United States and, indirectly, seriously damaged NATO, although I accept that it was not a NATO operation.
From where I was, sat in Kuwait, the vote in the House of Commons was irrelevant. We were going to cross the start line. We were told that it was irrelevant and I suspect that our commanders knew perfectly well the arithmetic in the House of Commons. The Government of the day were confident that they would get a yes vote because of the support from Her Majesty’s Opposition. It was too late, but it would have been compliant with the noble Baroness’s Bill.
During Op Telic 1, there were some cases of servicepeople being unwilling to deploy to the operational theatre and claiming spurious legal reasons for doing so. In an operation such as Telic 1—a large-scale mission—it is not surprising that there are a few of those cases. It is disappointing, but there are disciplinary methods for dealing with it. But if a serviceperson refuses to put themselves in harm’s way because the House of Commons has not yet authorised it, we could be creating a legal problem that we never had before. That is yet another problem with the noble Baroness’s Bill.
I said that the Bill is not properly drafted to have the effect that the noble Baroness wants. Seriously, it excludes operations by Special Forces and Her Majesty’s Armed Forces supporting Special Forces. The noble Lord, Lord West, will know perfectly well that nuclear submarines are also involved in deploying Special Forces—so you can insert Special Forces using very significant military power. I am not well briefed on Special Forces operations, for obvious reasons, but I can safely surmise. It seems to me that successful Special Forces operations have strategic effect but also very often the opponent is completely unaware that the operation has taken place. However, if our Special Forces were detected, that could have a significant effect. You could get yourself in an awful lot of hot water and quite easily be the genesis of a conflict. In other words, use of our Special Forces could get us in a lot of trouble if it went wrong. Again, there is no authority by the House of Commons to deploy forces, including nuclear submarines with Special Forces, designed to have strategic effect—not just a little exercise.
If Parliament wanted to put controls on operations, especially medium and large-scale operations, it would have to do so much earlier in the process. For instance, controls would have to be put on outloading the ammunition from the base depot because that is a major indicator to one’s opponent. You want to put controls on armoured vehicles subject to the CFE treaty—again, a major combat indicator. As soon as you start making those sorts of movement, you are vulnerable to pre-emptive attack and could take casualties as a result. I would not advocate putting those controls on the Government because I firmly believe in trusting the Government of the day. When I deployed to Iraq, I believed that the Prime Minister of the day was doing the best job that he could in the interests of the nation.
In conclusion, I fully appreciate the issue that the noble Baroness seeks to address, but I just do not believe that the Bill will have the positive effect that she intends. At the same time, it will create several serious new problems. It is not the right solution. I look forward to further discussions on these matters when we debate the Chilcot report.
Baroness Smith of Newnham (LD)
My Lords, I welcome the Bill brought forward in the name of my noble friend Lady Falkner. It comes at a very appropriate time. Unlike the noble Earl, Lord Attlee, I plan to support the Bill. I note that he said that, had things not been so busy in the last seven to 10 days, he would have tabled a fatal Motion. So for those of us who were rather keen that the UK should vote to remain in the European Union—I assume it was the referendum that deflected the noble Earl—there is at least, if not any sunlit upland, a little glimmer of light coming from the fact that no fatal Motion was tabled. For that we can be grateful.
Earl Attlee
My Lords, if I had tabled a fatal Motion, a difficulty would have been that it might well have had to be debated in prime time. I think the noble Baroness, Lady Falkner, would have been thrilled to bits by that. She would probably not have been that worried about the end result and we would have had a much bigger debate—so I was actually being a bit cruel by not tabling a fatal Motion.
Baroness Smith of Newnham
My Lords, this is actually a very serious Bill. Decisions to go to war and engage in military conflict always necessitate deep reflection, expert intelligence and other appropriate military advice. They must be taken responsibly and with due regard to not just the short-term military intervention but the medium and long-term consequences. We should never engage in military conflict without thinking through what the exit strategy might be. Leaving failed states behind is clearly not acceptable or morally right.
Of course, the decision to go to war is a prerogative power—but, as we have already heard, a convention has emerged in terms of consulting Parliament. Other states with written constitutions have rather more clarity in this regard. Finland, Spain, Ireland and Italy all require parliamentary votes before going into military conflict. Unless there is a direct attack on Germany, it has an even higher threshold of a two-thirds vote in Parliament before engaging in military conflict. Clearly, we do not have a codified constitution. It may be appropriate to have such a thing, but that is not something for a Private Member’s Bill. But surely clarity would be helpful.
I share some of the concerns outlined by the noble Earl, Lord Attlee. Even Members of Parliament who are well informed and have been led to understand some of the military implications of a decision will not be the same as a Cabinet sitting round the table, fully briefed with all the relevant military intelligence. But the Bill of my noble friend Lady Falkner addresses some of these issues as it explicitly refers to emergency and security conditions. So if we are talking about issues that necessitate significant amounts of military intelligence that cannot be divulged to 650 Members of the House of Commons, that is presumably an area where the Prime Minister would be able to say that action would be taken under the existing prerogative.
Arguably, this leaves the Prime Minister with slightly more wiggle room than we as Liberal Democrats would want, because our party policy is very clearly that a decision should be taken by the House of Commons before going into military conflict, but I think that the balance is about right with the inclusion of the emergency condition and the security condition.
One key thing is that there should be clarity of thinking ahead of military decisions, but that does not always seem to have been the case. In the last few days, we have heard that the decision to intervene militarily in Iraq was taken without an adequate plan being in place and without adequate reference to intelligence, even if at the time it was thought to be there. Somebody has to take responsibility for decisions to go into military conflict. That could be left to the royal prerogative but, since we have a representative democracy and we have parliamentarians to take decisions for—
Lord Framlingham (Con)
I am following what the noble Baroness is saying with great interest. Is there not a basic conundrum here that long and detailed debate on the action you plan to take against your opponent gives him the opportunity to decide exactly how he is going to deal with it? While I accept in a way that this is necessary, it is also a problem.
Baroness Smith of Newnham
My Lords, I am most grateful for that intervention. I think that there are two things to disaggregate. I had intended to speak only very briefly; I seem to have been on my feet talking about the EU for weeks and weeks, so I had not particularly planned to speak in this debate. But I think it is different in cases such as that of Sierra Leone, or in actions where we as a country are engaged in military conflict and there is a military operation but no direct threat to the United Kingdom. If there is a direct threat to the United Kingdom and emergency action were needed, the situation would be rather different, but I think that there will be some cases where it is entirely appropriate for the country to take the decision that it wants to be engaged in a particular country.
Syria is probably a case in point—a decision to intervene in Syria is not about the direct security of the United Kingdom. But the noble Lord is absolutely right that it is not appropriate to lay out precisely what the battle plan would be. I am talking about a decision in principle to engage in conflict, with some guidelines or clear assurances from the Government that a plan is in place, but not specifics and certainly not day-by-day outlines, such as “This is what the RAF is going to be doing today. This is what the RAF is going to be doing in two weeks’ time”—because that could clearly jeopardise the operational capabilities. So clearly there are areas where greater specificity in the Bill might be appropriate. My noble friend has already indicated that she would be grateful for ideas that could improve the Bill.
In conclusion, care and attention are required before engaging in military conflict. We particularly need to think through both the plan for engagement and the exit plan. In recent times, we have perhaps taken too many decisions that have not had an appropriate exit strategy. Leaving power vacuums and failed states is surely a failure of policy decisions and does not make the United Kingdom or anywhere else more secure. A time to reflect, and for Parliament to review what the Government are proposing, may assist our decision-taking. I warmly support the Bill.
Lord Robathan (Con)
My Lords, I welcome the Bill of the noble Baroness, Lady Falkner. I was surprised by how much I agreed with what she said, particularly relating to the circumstances of the August 2013 vote—I think she was pretty much accurate in what she said. However, the Bill, although well-intentioned, is in my opinion very unwise. I was glad to see emergency provisions in it but I want to address the argument from the other end, if I may put it that way.
No Government can take this country to war—and survive—without parliamentary and, by extrapolation, public support. I do not want to go back to Neville Chamberlain and the debate that led to his resignation but I want to raise three, now quite historic, events in which I had a little concern; I speak from my experience. The first is what was termed the Gulf War but is now termed Gulf I. I was in Kuwait in 1991. There was no vote, but there had been a long build-up to this Gulf war: there had been UN resolutions; there was a self-evident case for expelling Saddam Hussein, as an aggressive invader, from Kuwait; and there was, I suspect, broad support throughout the country and indeed in Parliament, although I also suspect that a lot of people did not know where Kuwait was, just that it was a small country a long way away of which we knew very little, or nothing. Nevertheless, it was a successful war—with no parliamentary vote.
The second Iraq war, or Gulf II as it is now called, in 2003—the noble Baroness led with the 179 fatalities from that war—paradoxically did have a parliamentary vote, with a huge majority of 263. I confess, I voted for it. Tony Blair made arguably the best speech I ever heard in the House of Commons in that debate. He was courteous, he was reasoned and he took interventions and arguments both from the Opposition and from the opponents behind him, of whom there were many. I have to say, it was extraordinarily impressive. We now know that beforehand, in September 2002, he had—I would say—misled the House of Commons with talk of the weapons of mass destruction that could be activated within 45 minutes and the so-called dodgy dossier. Nevertheless, his persuasive speech was fantastic; I think that the noble Lord, Lord Touhig, might have been there as well.
This is not the time to discuss the Chilcot report, but the war in Iraq had parliamentary approval and was, frankly, a disaster. There are now questions over its legality, notwithstanding the vote. I recall the late Charles Kennedy leading a march of some 1 million people against the war. Perhaps he and the noble Baroness were right. I voted for it because I believed that it was unfinished business from 1991 and that Saddam Hussein would continue to cause serious trouble in the region, and because I believed that he had weapons of mass destruction. Yet it was not the actual war that was the disaster; it was not the military campaign that took Baghdad—my noble friend Lord Attlee is nodding—but the aftermath, Paul Bremer and the disastrous lack of clarity over what was to be done afterwards that caused such an appalling tragedy. But there we are—that had parliamentary approval.
My third example, which, as I said, the noble Baroness, Lady Falkner, analysed rather well, is the vote on Syria in August 2013. At the time, I was Minister for the Armed Forces in the MoD and on the Monday of that week, before the House was recalled, I remember a headline in the Times—which I saw at Rugby station—that said, “Blair says we must attack Assad”. I arrived at my office and said, “Actually, if Blair wants to attack Assad, I certainly don’t want to”. However, I was then convinced by the briefings that I had on the intelligence and what Assad had been doing that perhaps I was wrong. We will recall that President Obama said that there was a red line and that, if Assad used chemical weapons against his own people, “we will take action”. Assad used them. Parliament was recalled for, as the noble Baroness so rightly said, a rushed vote—for reasons connected with, I think, supporting the Americans early, but it was rushed and mistaken. The Labour Party, in the morning of that day, had said that it would support the Motion, which had been changed to accommodate it, and then reneged on that deal. We had nine Liberal Democrat rebels, 30 Tories voted against the Motion and there were many abstentions. As a result, the UK—bound by Parliament—took no action. President Obama then, without his key ally, took no action. That action would have been against President Assad over his use of chemical weapons.
We now have Daesh, which, frankly, is rather a greater threat to us. Some might say, therefore, that it was a good idea not to bomb President Assad’s troops, but I disagree. It is the consequence of not doing so that is most worrying. The message has gone out: “The West will warn, but the West is not to be taken seriously”. Our enemies believe that and so, as the noble Baroness mentioned, does President Putin, who has since annexed Crimea and moved into Ukraine. Today, we have 600 British troops deployed to Estonia, because the Estonians are extremely worried about what Russia is doing on their border. Whether or not anybody likes to describe it as such, we have a new cold war on our borders, with visible Russian aggrandisement in Crimea, Ukraine and elsewhere.
Why did the Syria vote in August 2013 fail? One of the reasons one needs to understand is the public pressure put on MPs who may not be very well informed about the issues, for obvious reasons. They are emailed—these days, one gets endless emails, including from 38 Degrees and self-selecting pressure groups, which particularly influence some MPs in marginal seats. Did the Tories who rebelled know more about the chemical weapons than the Government? Because Members of Parliament are not in a position to be as well informed as members of the Government, I think we must leave such decisions to the Prime Minister and that we should trust her.
The current Prime Minister made a characteristically excellent Statement on the Chilcot report two days ago. He detailed the changes he has made, and I will mention them, if I may. He said:
“First, taking the country to war should always be a last resort and should only be done if all credible alternatives have been exhausted”.—[Official Report, Commons, 6/7/16; col. 887.]
Of course, we all agree with that. Sadly, Chilcot has found that that was not done. The Prime Minister talked about setting up the National Security Council, of which the Attorney-General is a member, and that is hugely important. He has appointed a National Security Adviser, which is again hugely important. However, he also said—this is very important because the Bill would tie the Prime Minister’s hands—that,
“just because intervention is difficult, it does not mean that there are not times when it is right and necessary”.—[Official Report, Commons, 6/7/16; col. 888.]
To back up the noble Baroness, the Prime Minister said that he supported the growing convention of having parliamentary approval, but I, like my noble friend Lord Attlee, do not. I note that the Government have said they will not bring that forward in legislation, whatever my noble friend Lord Hague said in 2011 or 2012. If the wrong decision is made about fighting, the Prime Minister and the Government—and, indeed, Parliament—will have to answer for it, but parliamentary approval does not negate the possibility that things will go wrong, as we saw in Iraq. I suggest that a parliamentary refusal can have dire consequences, as we saw with the Syria vote in 2013.
The Bill would make it less likely that we would take the necessary military action in a time of crisis. If we were to pass such a Bill, I fear we would reinforce the view that this country is not to be taken seriously when we warn aggressors threatening us or our allies in future.
Baroness Deech (CB)
I have decided, more or less at the last moment, to jump in in the gap because of the Chilcot inquiry and the perspective it has given us. In brief, to agree with the noble Lord, Lord Robathan, it seems clear that if Parliament were presented with a similar situation again, it would vote the same way. In other words, MPs have no more, and probably much less, information than the Prime Minister in making such decisions. They are no better equipped to make the decision; indeed, the decision could be much worse. For example, it is not necessarily right to accede to public opinion in making a major decision, such as whether to invade Iraq. Votes may take place in Parliament not because of the global issue, but because of parliamentary in-fighting. If, for example, the leader of the Opposition says that we should not do so and his MPs want to undermine him, they may go the other way.
I was much struck by the fact that, when there was a vote on air strikes over Syria and 66 Labour MPs voted in favour, they received opprobrium—unpleasant emails and so on. It seems to me that it is not right that individual MPs should have on their shoulders the weight of those decisions. It is for the Prime Minister herself to take the glory—if it is such, as in the Falklands—or the disgrace, as has happened this week. That is what Prime Ministers are there for and it is not right to pick apart and play party games with MPs.
Briefly, I am of course in favour of democracy, while the royal prerogative has clearly been rolled back over the years. I am on record as having said that the use of a royal charter is not a good way forward. Whether it is for the BBC or on other issues, a royal charter covers territory where Parliament’s input would be much better. We had the benefit of a report by a Commons committee on this some years ago, which seemed in favour of having statutory definition. We also had the Lords Select Committee on the Constitution recommend a few years ago that a better way forward is through convention, which I would support. Gradual convention is one of the glories of our unwritten constitution.
I congratulate the noble Baroness, Lady Falkner, on giving us the opportunity to open up this enormous and important topic but, in relation to her Bill, I am worried by the disclosure provisions in Clause 2(2)(b) and, in an emergency, Clause 3(9) because there would undoubtedly be opposition. We would for sure be in court with a judicial review if opponents of the decision decided that the Prime Minister had or had not withheld information that should be before Parliament. Moreover, what would happen to troop morale if a vote was taken and it was very narrow? Would individuals feel that they did not have the wholehearted backing of the country? That would be extremely important. In other words, knowing lawyers as I do, the Bill would open the door wide to endless litigation if it became law. We see the beginning of that today in the aftermath of the Chilcot inquiry, so I say: let convention grow. This is not an area that I would put into statute or one where MPs ought to have the responsibility as individuals. They do not have the information and should not personally have to bear the weight of the aftermath.
Baroness Jolly (LD)
My Lords, I shall not delay the House too long in speaking to my noble friend’s excellent Bill. It is not only timely but very clear and overdue. This has been quite a week and the timing of this debate is serendipitous. Wednesday saw the long-awaited publication of the Chilcot report, which was critical of the decision, made by the Cabinet and led by the Prime Minister, to go to war against Iraq. Noble Lords are all too aware of the details and my noble friend outlined them in her excellent and comprehensive speech.
This simple but comprehensive Bill puts it beyond doubt that the decision to commit our country and our excellent, dedicated and professional Armed Forces to war is to be put firmly in the hands of the elected Parliament. The process outlined is clear, not protracted, and with the option of consulting your Lordships’ House. With Clauses 3 and 4, the Bill more than allows for the objections of the current Secretary of State for Defence and gives complete discretion to the Prime Minister in the writing of the report.
I remind noble Lords that the convention which has arisen since the Iraq conflict is just that—a convention. As we have heard, the previous Foreign Secretary, the noble Lord, Lord Hague of Richmond, stated in 2011 that it was the position of the Government to introduce such a measure. It is also most certainly Lib Dem policy. However, also in 2011, the House of Commons Political and Constitutional Reform Committee called for greater clarity and for a draft for consultation to be presented. This did not happen. By contrast, your Lordships’ own Constitution Committee believed Parliament’s role should not be formalised. One House therefore seemed to be leaning in one direction, and the other in a different one. My noble friend Lady Falkner of Margravine was a member of that committee and disagreed with it. As a result, she got people to draft this Private Member’s Bill and produced it.
The current Secretary of State for Defence has stated that the Government have a strong commitment to the convention. I do no doubt that for a moment—the current Secretary of State is an honourable person, as I am sure the next Prime Minister will be, whoever she is. However, we make legislation not for the present but for the future—for when a Government may have ignored or forgotten the consequences of Iraq and the recommendations of Chilcot. This Bill is the right way to deal with this, and I am happy to support my noble friend in introducing it. Unlike others, I believe it certainly deserves further debate in Committee.
Lord Touhig (Lab)
My Lords, I have lost count of the number of times we in this House have considered matters relating to the unwritten constitution during the short time of six years that I have served here. As someone who believes that constitutional affairs, no matter how important, are a major turn-off for the British public and an electoral cul-de-sac for politicians, why do I think this particular piece of constitutional fine-tuning is so important?
The main reason is that I believe that the first duty of any Government is the care and well-being of the British people, and that includes the defence of our country. The deployment of British forces into conflict must always be a major concern for the people, for Parliament and for Government. In the many debates on matters constitutional that I have already mentioned, the one theme that is most common to all is the ability of this House in particular, and Parliament in general, to hold the Executive to account.
In the 20-plus years I have served in both Houses of Parliament, there has been a drift, although it is sometimes not immediately obvious, towards adding more and more powers to the Executive at the expense of Parliament and therefore at the expense of the rights of the British people to hold their elected Government to account. This small Bill is worthy of our support, because it attempts to place a check on that drift.
From the earliest times of structured government in these islands, the Executive—as embodied first in the Crown and now in the elected Government—have on so many areas been able to exercise authority over the people without the people or their elected representatives in Parliament being consulted. The Bill is a step towards reversing that. It underpins the need for the Government to show that they draw their powers from the people, through Parliament. In any democracy, the flow of power from the people to the Government should be balanced by the ability of Parliament to hold the Government to account. However, when the Executive rely on the powers of the royal prerogative—powers where the Government act on the monarch’s authority—it is difficult for Parliament to scrutinise and to challenge the Government’s actions.
If voters do not believe that the Government are wielding their power appropriately, or that they are properly accountable, then public confidence in the accountability of decision-making risks being lost. The Bill could start to strengthen our democracy by codifying the power of the Prime Minister, and thereby the Executive, and making the Prime Minister come to Parliament when seeking to commit British troops to conflict. It is important that the key decisions that affect the whole country, such as the decision to send troops into armed conflict, are made in the right way and with Parliament’s consent. The Bill does just that.
My own party, when last in government, planned a piece of legislation just like this. One does not need a long memory to look back at the time when the present party of government also wanted such a piece of legislation. In March 2011, the then Foreign Secretary, William Hague, now the noble Lord, Lord Hague, said that the Government planned to,
“enshrine in law for the future the necessity of consulting Parliament on military action”.—[Official Report, Commons, 21/3/11; col. 799.]
Since then, we have seen a change of heart on the Government Benches. The Defence Secretary, Mr Fallon, said that the Government in 2011 acknowledged that a convention had developed in Parliament that before troops were committed, the House of Commons should have the opportunity to debate the matter. The Government pledged to observe the convention, except where there was an emergency and such action would not be appropriate. But Mr Fallon then said:
“After careful consideration, the Government has decided that it will not be codifying the Convention in law or by resolution of the House”.—[Official Report, Commons, 18/4/16; col. 698WS.]
The Defence Secretary said that this was to retain the ability of Governments and Armed Forces to protect the security and interests of the United Kingdom in circumstances that cannot be predicted. That is eminently sensible, but the Bill retains the Government’s ability to protect Armed Forces operations. It sets that out in Clause 3(2) and Clause 4.
On these Benches and in other parts of the House, there has been growing concern about the use of embedded forces: British forces committed to a potential field of conflict and, as embedded forces, placed under the command of the armed forces of the country in which they are operating or a coalition operating in that country. Mr Fallon said that, in those circumstances, the convention would not be observed at all. This is in danger of prosecuting war by stealth.
On these Benches, we recognise that there are occasions when to protect the safety of our forces and for reasons of national security it would not be right to come to Parliament, but our worry is that this is now becoming the rule, not the exception. That is why we need a Bill such as this. In a statement published in December, I think, last year, the Ministry of Defence told us that there were 147 of our troops in embedded forces in various parts of the world—the large majority of them, 94, in coalition HQs. We do not even know where they are, yet they are under the command of the power of another country who can commit them to conflict and Parliament has not even been told. This is not the way we should be going.
As I mentioned, in July 2007, in a document entitled Governance of Britain, the then Labour Government stated:
“In most modern democracies, the government’s only powers are those granted to it by a written constitution or by the legislature. A distinguishing feature of the British constitution is the extent to which government continues to exercise a number of powers which were not granted to it by a written constitution, nor by Parliament, but are, rather, ancient prerogatives of the Crown”.
It also stated:
“It is important that Parliament is strengthened to ensure that its own powers—whether ancient or more recently acquired—continue to be exercised effectively within appropriate limits and in a way that means the people whom it serves understand its work and have faith in its decisions”.
That is why we need a Bill such as this.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, the noble Baroness, Lady Falkner of Margravine, is to be congratulated on introducing the Bill and I thank her for the characteristically clear and cogent way in which she introduced it. Her desire to formalise the war powers convention that Parliament should be consulted before troops are committed to conflict overseas may be considered understandable given the events of the past few years. It is clear that she also recognises the difficulties in the existing convention and believes that her Bill would serve as a useful measure of clarification. I also fully appreciate her concern not to constrain the Government’s room for manoeuvre during crises and conflict.
In drawing up her Bill, she has undoubtedly—as she explained—consulted expert legal opinion and the excellent report into the subject produced by the House of Lords Constitution Committee in 2013, of which she was a member. The report’s conclusions are highly pertinent and worth repeating. It found that the existing convention was the best means by which the House of Commons can exercise control over decisions to use force, that Parliament’s role should not be formalised by way of legislation or resolution, and that the risks associated with formalisation outweigh the benefits. This report was of considerable assistance to the National Security Council, chaired by my right honourable friend the Prime Minister, which decided earlier this year that the war powers convention should not be codified. It took that decision in order to retain the ability of this and future Governments to protect the security and interests of the UK in circumstances we cannot predict, and to avoid such decisions becoming subject to legal action. The noble Baroness, Lady Deech, spoke very powerfully on that point, as did my noble friends Lord Attlee and Lord Robathan. We are debating this Bill in a week when the findings of the Chilcot report are much on everyone’s minds. To the extent that that report has raised concerns about the role of the Cabinet, and the accuracy of the information available to Parliament, it is worth reflecting that formally codifying the convention would not address those concerns in any way.
The Government’s policy position was set out recently by my right honourable friend the Defence Secretary, in an admirably clear Written Statement. That Statement said:
“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 that the Government—
“proposed to observe that convention except where there was an emergency and such action would not be appropriate.”—[Official Report, Commons, 18/4/16; col. 11WS.]
That exception is one which I believe is widely understood and accepted. As the Statement explained, it is important to preserve the exception in order to ensure that this and future Governments can use their judgment about how best to protect the security and interests of the UK. In other words, while observing the convention, we must also ensure that the ability of our Armed Forces to act quickly and decisively, and to maintain the security of their operations, is not compromised.
The issues raised by the noble Baroness’s Bill have been thought about very carefully. I have to tell her that we do not believe that what she is proposing is the right way to go. We believe it would have the opposite effect to the one intended, potentially tying the Government’s hands in an unhelpful way, and at the same time muddying the waters. The combined effect would be to make our country less safe and less secure, rather than the reverse. I am of course happy to have discussions with the noble Baroness to explain the Government’s position in further detail, should she wish me to. Meanwhile, however, I fear that my overall message to her must necessarily be a disappointing one.
Baroness Falkner of Margravine
My Lords, I start by thanking all noble Lords who have taken part in this debate on a Friday. It has been a long week, and I genuinely appreciate that their interest and their concern for our country, and the situation in which these things can go wrong, is heartfelt.
I will start by going very briefly through some of the arguments that were put. I have great affection and respect for the noble Earl, Lord Attlee. We have known each other over many years and I have always listened to not just his wise words but his practical experience in these matters very carefully. He made the point that the House of Commons would not have access to the level of intelligence that these days the National Security Council obviously provides to the Prime Minister and that the full Cabinet would have.
That is of course true—except for two things. My Bill provides in Clause 3(6) for the Prime Minister to consult any of the existing committees of the House of Commons that he so chooses. Of course, the Intelligence Committee of the House of Commons would be one that one would expect the Prime Minister necessarily to brief, consult and provide assurances to. We also know that there is a convention that Her Majesty's Opposition are always briefed on Privy Council terms. In the past, it has not just been Her Majesty’s Official Opposition; I know that my party was briefed on Privy Council terms before being in government. That would continue to be the case; my Bill does not do anything in that regard.
The noble Lord, Lord Framlingham, said that our opponents would know what we were up to if we debated this openly in Parliament. Of course, to some extent that is right—but they would not have access to the intel or any of our strategic or operational details. The noble Lord sits behind the Minister on the Conservative Benches but may not be aware of how committed the current Government: indeed, the Prime Minister, speaking only two days ago on the Chilcot report, gave an assurance that he believes in consulting the House of Commons. He upholds this convention. So the noble Lord seems to want Parliament not to know anything about it at all and simply for the royal prerogative to be exercised. I respect his position. It is a perfectly fair position to say that we should be either there or there, and that when we find ourselves somewhere in the middle that he might not like—
Lord Framlingham
I do not know as much about this subject as the noble Baroness; I am just concerned that in warfare the element of surprise is often very important. That comes into the kind of things that we are talking about.
Earl Attlee
And I am just as naughty because I oppose the convention as well.
Baroness Falkner of Margravine
I say to the noble Earl, Lord Attlee, that his problem is one for the noble Earl, Lord Howe, to deal with—not me. But I completely accept the concerns of the noble Lord, Lord Framlingham, which were voiced by the noble Baroness, Lady Deech, as well. But, ultimately, either we trust MPs to do a job and have access to the information or we do not.
The concern expressed by the noble Lord, Lord Robathan—I am grateful to him; I know that he was a Minister for the Armed Forces and is therefore very knowledgeable and has huge experience in these matters—was that if the wrong decision was taken, parliamentary approval would not negate that. That is right; I completely agree with him. But the point that I am making is that although Parliament might not negate that, the country would not need to listen, as it did three days ago, to someone saying, “I take complete responsibility, but that is it, and I would not have changed anything that I did”. If the House of Commons was consulted, and if the country moved away from that decision, the country would have the ability to kick those people out at the next general election. In that sense, there is a direct line of accountability—the golden thread.
I am so grateful to the noble Baroness, Lady Deech, for having spoken—I count her as a friend, as well as somebody for whose legal prowess I have huge admiration. She supports the Lords Constitution Committee but she does not like the current convention of Parliament being consulted. But the Lords Constitution Committee supports the status quo ante. It wants Parliament to be consulted along the current method; it just does not want codification in the Bill. But of course these are details that we can move to in Committee, should that come to pass. I do not intend to detain the House very much longer.
I express huge gratitude to the noble Lord, Lord Touhig, and the Labour Party for their support. In public life, a lot of decisions are not straightforward and all of us, on all sides, sometimes take the wrong decisions. Sometimes we were culpable, sometimes the information was not accurate, and sometimes the imperative to move quickly took us to that potentially wrong decision. But what is really important, and what the country needs to hear from us now, is that we are learning from decisions that we have taken in the past. I think that the position of the Labour Party, which is so very welcome, is that there is an indication that things went wrong and that it has learned, as we all have. One of the things Mr Cameron said in the Chilcot debate was that he took responsibility for his own vote. I thought that was important.
The most important point made by the noble Lord, Lord Touhig, was that the reason the Labour Party supports this small, modest measure is that it recognises that this underpins the need for the Government to show that they draw their powers from the people. That is terribly important.
The Minister has been incredibly gracious and kind to me in having engaged in some discussion. We did not agree. We come from different positions. I come from a party that is internationalist in its outlook, trusts the people to the nth degree and takes its responsibilities as parliamentarians extremely seriously—which is not to suggest that other parties do not. Indeed, I mentioned Edmund Burke, and the Minister will know how important he was for Conservative Governments in historical times. The Minister raised some exceptions that are entirely valid, and I look forward to engaging with him privately, as he has invited me to come to talk to him, and as we move into Committee. But the point I do not understand is how this Bill ties the Government’s hands. The contrary criticism I am getting from NGOs—38 Degrees was mentioned, along with others—is that the Bill is too flexible and does not tie the Government’s hands enough. There are people who want to hold the Government’s feet to the fire and think that this Bill is too grown-up, too considered and too reflective to do that.
I do not wish to weary the House any more. We hope to move on. I beg to move.
Bill read a second time and committed to a Committee of the Whole House.