Armed Force: Constitution Committee Report

Baroness Falkner of Margravine Excerpts

Thursday 28th November 2013 Lords Chamber

[Baroness Falkner of Margravine (LD)]

My Lords, I start by paying tribute to our chairman, the noble Baroness, Lady Jay of Paddington, and our legal advisers, notably Professor Adam Tomkins, for an extremely intellectually stimulating inquiry.

I was enthusiastic about it as the follow-up to the 2006 report, because in the types of armed conflict in which the United Kingdom may be engaged, as well as in the deployment of technology, much has changed. Many of these armed conflicts have the potential to draw in the United Kingdom, as the permanent member of the United Nations Security Council, leading member of NATO and contributor to several other alliances that our history, international outlook and diplomatic responsibilities call upon us to be. We will continue to see these foreign engagements posing difficulties for parliamentary scrutiny, as we witnessed recently during the recall of Parliament for a vote on our response to the crisis in Syria.

I want to devote my remarks to two issues: formalising the process for securing parliamentary approval; and how Parliament might be best placed to take the decisions that it needs to take. In doing so I will refrain from wholehearted endorsement of the committee’s report, as I believe its conclusions have been overtaken by the parliamentary discussion and vote on Syria on 29 August. If we were writing this report today, our witnesses might with the benefit of hindsight of that vote have taken a different view, thus affecting our conclusion in terms of relying on convention rather than formalisation of the process of parliamentary approval.

I turn to the events of 29 August and the vote on Syria and my belief that we must now formalise the process for consulting Parliament on the use of armed force. As a member of the Constitution Committee, I had been concerned for some time that the previous Government’s failure to act on their Governance of Britain White Paper of March 2008, which proposed a draft detailed war powers resolution to formalise Parliament’s role, had left us with a vacuum. As the noble Baroness, Lady Jay, has pointed out, we had had assurances from the Foreign Secretary in the other place when in the debate on Libya he stated that the Government of the day would,

“enshrine in law for the future the necessity of consulting Parliament on military action”.—[Official Report, Commons, 21/03/11; col. 799.]

I fear that this Government have failed to formalise that process and I suspect that they have no intention of doing so.

In the period since 2008, we have seen from successive reports by the House of Commons Political and Constitutional Reform Committee, and from several discussions with the Minister, Lord Wallace of Saltaire, why we have not achieved a satisfactory outcome. I should say that the Minister is ideally placed to be answering this debate given his long experience of all three relevant ministries in this discussion: the MoD, the Foreign and Commonwealth Office and the Cabinet Office. Moreover, lest there be any doubt, one of our witnesses, the former Foreign Secretary Mr Jack Straw, who was the originator of the Labour Government’s proposed detailed war powers resolution, told us when he gave evidence for this report that he still believed that a formal resolution was the way forward.

I will not labour the point that all sides were and have recently been committed to giving the House of Commons a formal role in approving the use of armed force in conflicts abroad. What sets me apart from the committee’s report and the government position is whether we rely on convention, which is necessarily ad hoc, or whether we have a formal and more transparent process for engaging Parliament, which I favour.

Let me go through the arguments that the committee poses as obstacles to formalisation. The report highlights the difficulties of definition, specifying the kind of action that would engage parliamentary involvement. The detailed war powers resolution goes some way to spelling out the definition of a conflict decision: this is if the use of force is outside the UK and is regulated by the law of armed conflict. For those who feel that this is too narrow, I suggest that its definition is that of the director of Royal United Services Institute, Professor Michael Clarke, who said,

“if one was looking to establish a rough working threshold [for engaging the need for parliamentary approval], it might be where troops were going to be deployed overseas with the clear intention of engaging in conventional military combat operations”—

that is, death and destruction.

Other obstacles include what we would do if Parliament was not in session. The vote of 29 August demonstrated that a recall can be effective when the situation is serious enough. As for when Parliament has been dissolved, I argue that the Government of the day would have to take the relevant decision through the exercise of the royal prerogative and seek retrospective approval from the fresh Parliament.

The committee was also concerned about retrospective approval being sought for certain emergency deployments. What would happen if approval was declined? The draft detailed war powers resolution could be improved in order to make provision for that through being provided with a 90-day period when, retrospectively, it could call for UK deployments to cease. That is what the US has, were Congress not to approve a deployment under the War Powers Act. In other words, the action could go ahead contingent on retrospective approval.

The report also talks about problems of disclosing secret, legal and tactical information. We saw all of them come into play on 29 August, and I know, from having read Hansard extensively, that the advice provided was insufficient for the Members voting in the other place. I think that the proposal put to the other place’s Political and Constitutional Reform Committee by my friend Professor Philippe Sands is a good one. He argues that since the Attorney-General is not Parliament’s law officer, the House of Commons should consider appointing its own law officer who would interface with the Attorney-General on the extent of disclosure to be provided. That law officer could also interface with the Intelligence and Security Committee and provide assurance of the legality of a course of action.

At paragraph 53, the committee also covers the difficulty of lifting the arms embargo to Syria, finding that if the 2008 resolution had been in force, it would not have covered a decision to provide arms to the Syrian National Coalition. I specifically asked Mr Straw about this. He replied:

“It is a plainly conflict decision, in my view. The emergency condition is not met because everybody knows about this and it is hard to argue that the security condition is met because this is a very public decision. So I think it would be triggered”.

At best, experts disagreeing prove that there is a question mark over our assessment in terms of what a key witness believes. My view is the same as that of the committee: the condition would not be met, but these different interpretations make my point precisely. It is that until a draft resolution has been put forward by the Government for consideration and a chance has been given to the relevant committees in the House of Commons and this House, we cannot arrive at any consensus about what conditions would require parliamentary approval and what would not.

Let me come to the final point against formalisation: the justiciability of deployment decisions. A parliamentary war powers resolution rather than an Act of Parliament was the chosen instrument of the previous Government in order to avoid these decisions reaching the courts. In other words, they chose a resolution over legislation. I shall briefly touch on the reasons why I believe the time has come for us to formalise the role of Parliament in the use of armed force.

In today’s world, it is right that our citizens expect that major decisions of war and peace which are made in their name are made with deliberation, accountability and lawfulness. It is also right that in a representative democracy their representatives have access to a clearly defined and reliable process which is employed in all circumstances, whether they are predictable or not. Where they are predictable, the maximum information should be provided in advance. Where the actions have to be taken as an emergency, they should be guaranteed the right to disagree and have the tools with which to seek to draw back from the decision. A parliamentary resolution such as that proposed in 2008 may be capable of amendment and improvement. What is not in dispute in our report is that Parliament has a role to play in these decisions; what is regrettable is that all three political parties have pledged in the past to formalise the role of Parliament on these decisions yet, in office, seem to be incapable of honouring that commitment to the electorate, who are, after all, the very people to be sent into harm’s way.

We are at a time when trust between the public and Parliament is at an all-time low. The public have not had the opportunity to know much about the lead-up to the Iraq war, as the Chilcot report is not published. They may have concurred with the outcome of the vote on 29 August, but will not have been provided with any reasoning other than that their representatives did not want to be embroiled in another conflict. That back-of-an-envelope process, hurried and mismanaged as it was, does not give reassurance that either Parliament’s will or the United Kingdom’s interests will be served by more of this muddling through that we now call a constitutional convention on the use of armed force.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, the Government welcome the report of this committee. As noble Lords will be aware, the Commons comparable committee, to which I gave evidence last month, is now compiling a similar report. We hope that that committee’s report will be published within the next few weeks and that it will take our debate a little further forward. The Government will reflect on both reports and respond to the Commons committee report. I have no doubt that in the course of the next year our conversation will move on.

As outlined in their response to this report, the Government are extremely grateful for the committee’s thorough and thoughtful consideration. As the committee recognises, the decision to deploy UK troops in overseas conflicts is one of the most difficult and important that a Government can take. We all recognise that the shadow of the decisions on Iraq, and the fact that the available information which led to the decision on Iraq was not entirely full, is part of the context in which we have been discussing this ever since.

In 2011, the Government acknowledged that a convention had evolved whereby the House of Commons should have the opportunity to debate and vote on such deployment decisions before troops were committed, except when there was an emergency and such action would therefore not be appropriate. Our commitment to that convention was demonstrated most recently by the Government’s decision to request the recall of Parliament on 29 August this year to debate the role that the UK should play in relation to the conflict in Syria, and then to respect the will of the House of Commons expressed by the subsequent vote. The committee’s report concludes that that convention provides the best framework for the House of Commons in which to exercise political control over, and confer legitimacy on, decisions to deploy UK forces in overseas conflicts.

There have been, in this debate, a number of interventions saying that we needed to go further and that we should formalise that convention through a resolution of the House of Commons, although there has been a great deal of sympathy in this debate for the view that formalisation through statute would perhaps attempt to make things too solid in a situation where, as the noble Lord, Lord King, remarked, the definition of armed conflict and the decisions about deployment we are taking could take many forms. Those include whether or not one puts troops on the ground, sends cruise missiles or drones or sends a training unit to Mali, supported by a couple of transport planes, to deal with a situation in which one is dealing not with conflict, let alone with forces of another state, but with armed groups operating across borders in states which do not entirely control their own territory and one does not know how far they may have to go once they are there. That is very much where we are now.

I have immense admiration for the noble Lord, Lord Hennessy, and indeed I recall a stage in 1996 when we regarded him as so much the living embodiment of the British constitution that my party arranged for him to give a lecture on how coalition government might be formed, because we thought that his would be an authoritative view if we found we had to do so. I say to him that the idea that any Government could now say, before committing troops to armed conflict, that we knew how long they might be deployed for, let alone what the exit strategy might be, does not fit with where we now find ourselves. Mali is a good example. There are a number of other conflicts in Africa at the present moment—indeed, there have been a number of other requests for a couple of British transport aircraft or a training team—of the sort that we are likely to be find ourselves in in the coming years where the question of where the threshold comes is very difficult to operate. That is part of the argument that we are going through within government at the moment and about which we are having a dialogue with Parliament.

My response is that I find myself—rather to my surprise—becoming one of the Government’s supposed experts on this area, and we need to have a continuing dialogue with Parliament about the numbers of deployments that we have. I remind the House—as I said in evidence to the Commons committee—that there are now 16 different operations overseas under European common security and defence policy. The British have contingents in 14 of these. I am sure all noble Lords taking part in this debate could name all of them. In most cases, these are very small numbers of people; some of them are policemen, not military. In all of them, we are not entirely sure how secure they are or how long these deployments will last. In places like Somalia and South Sudan, or in Darfur, where we are often working with UN, AU or other forces, the question of how far we are formally committed is itself not entirely clear. That is part of the uncertain world in which we live.

[Baroness Falkner of Margravine]

I do not want to make heavy weather of this, particularly not at this late hour. I do not think, however, that anyone in this House first of all talked of legally enshrining in statute a method of dealing with this. The difference between us is about a draft resolution or the convention. The conflicts that my noble friend has described are of course in a wide grey area, but several of them are not covered by the law of armed conflict, hence the Labour Party’s draft resolution would not need to come into force in that regard.

[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.