Armed Forces Deployment (Royal Prerogative) Bill [HL]
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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.