Armed Force: Constitution Committee Report

Lord Kennedy of Southwark Excerpts

Thursday 28th November 2013 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

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 agreed 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 Lords 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.

--- Later in debate ---

[Lord Wallace of Saltaire]

The question of where the threshold should lie and 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 are 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, and 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.

[Lord Kennedy of Southwark]

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.

[Lord Wallace of Saltaire]

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.