Armed Forces Deployment (Royal Prerogative) Bill [HL]

Baroness Falkner of Margravine Excerpts

Friday 8th July 2016 Lords Chamber

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[Baroness Falkner of Margravine]

That the Bill be now read a second time.

[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.

--- Later in debate ---

[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.