Armed Force: Constitution Committee Report

Baroness Jay of Paddington Excerpts

Thursday 28th November 2013 Lords Chamber

Moved by

[Baroness Jay of Paddington]

To move that this House takes note of the Report of the Constitution Committee on Constitutional arrangements for the use of armed force (2nd Report, HL Paper 46).

[Baroness Jay of Paddington (Lab)]

My Lords, I am pleased to have the opportunity to open this debate on your Lordships’ Constitution Committee’s report on the use of armed force. Our report was published in July and, because of the war in Syria, was very timely.

Interestingly, the extensive public commentary on the report that took place at the time of its publication focused on our finding that the Government had until that moment been rather unclear about UK military action in Syria. That question was of course resolved by what has been rightly described as a historic vote in the House of Commons on 29 August. I will return to that vote and the events leading to it later in my remarks. The other important findings of our report remain extremely relevant to future strategic decisions.

Before moving on to the main body of the report, I place on record my warm thanks to all those who gave evidence to the committee and to its members for their diligent work on the inquiry. As always, I also warmly thank the committee’s clerk, our policy adviser and our special advisers on the law.

For some years now, there has been a debate about the role of Parliament in decisions about whether to use armed force overseas. In 2006, our predecessor Constitution Committee undertook a major inquiry into this area and produced a very substantial report. Since then, the position has continued to evolve, with various proposals put forward about how Parliament’s role could or should be formalised or, indeed, enhanced. Both the previous Labour Government and the coalition have considered whether to formalise Parliament’s role. It is also relevant that in recent years there have been significant changes in the nature of military intervention and the techniques of warfare. As a result of all these developments, both political and military, we decided to carry out a short inquiry into the constitutional arrangements for the use of armed force.

We very deliberately used the expression “use of armed force” although the 2006 report had spoken of “waging war”. The committee thought the term more accurately conveyed the different scenarios for intervention that may occur today. We thought it useful to examine developments in the Government’s internal processes for deciding on the use of force, as well as looking at how Parliament’s role may have changed.

Our report dealt first with the Government’s internal decision-making process. We were particularly interested in the significant innovation in 2010 when the coalition Government created the National Security Council. This is a Cabinet committee that meets weekly under the chairmanship of the Prime Minister. Its membership includes senior Cabinet Ministers and Armed Forces personnel. The National Security Council has a very wide remit, covering all aspects of foreign, defence, security and international development policy.

The committee explored the impact of the National Security Council in the political and military sphere. Several witnesses commented positively on how it has allowed a cross-departmental approach to develop in a way that reflects the very close connections between foreign policy, security and defence. Although not all the commentary on the council was complimentary, we were informed that its existence ensures that there is a regular and formal line of communication between Ministers, military officers and the heads of the intelligence services. The committee agreed that this was particularly valuable. It was clear that effective structures were essential when it came to decisions on deploying our forces overseas.

The evidence of Mr Jack Straw MP, who was Foreign Secretary from 2001 to 2006, was telling in relation to the invasion of Iraq. He said:

“I was uncomfortable … about the informality of decision-making that took place when Tony Blair was Prime Minister … I absolutely stand by the decisions we made on Iraq but, on this issue of legitimacy, they would have been regarded—then and today—as far more legitimate if there had been a much more formal process within the Government over making them”.

Of course, the committee recognised that informal discussions will always take place outside the Cabinet room and that smaller, ad hoc groups of Ministers and officials will no doubt make preliminary decisions. However, we re-emphasise the need for decisions on the use of armed force to take place in the full Cabinet, both to ensure that the principle of collective responsibility is engaged and to help to legitimise decisions to use force by the proper process.

We consider that, taken as a whole, the Government’s current formal internal arrangements seem appropriate. However, we were concerned that these processes may not be generally very well understood. For example, we looked at the Defence Council, which has been in existence since the 1960s and has formal legal authority for the conduct of defence in the UK. One might therefore think that the Defence Council is a significant factor in decisions on whether to deploy force. That is not the case. The evidence we heard was almost unanimous that its practical role in the UK’s defence arrangements is very limited. We were told that it meets infrequently and is not involved in the executive decision-making. Mr Andrew Robathan, who was then Minister for the Armed Forces, told us:

“Put it this way: I do not have an appointment for the Defence Council in my diary”.

Given the different players and the apparent lack of clarity even in Whitehall, we recommended that the Cabinet Manual should be amended to include a detailed description of the Government’s internal arrangements for advising and deciding on the use of armed force. I am very pleased to say that in their written response to our report, the Government undertook to include that information the next time a major revision of the Cabinet Manual is carried out. The last time that was done was of course some time ago. Could the Minister this evening give us an indication of when the next major revision is planned for?

I turn now to the committee’s consideration of Parliament’s role. Of course, the legal position on decisions to deploy force is not in dispute. Such decisions are made by Her Majesty’s Government, exercising the royal prerogative. Parliament has no legal role in authorising and approving the use of armed force overseas. However, that is not to say—as Members of the House will be very aware—that Parliament does not scrutinise such decisions closely. In recent years, the House of Commons has passed substantive Motions to approve the deployment of force in Iraq and Libya, and now to disapprove any intervention in Syria. Parliament has also scrutinised several other conflicts through regular debates, Questions and Select Committee inquiries. In 2013, it would be generally agreed that it is commonly accepted that the House of Commons should have the opportunity to debate decisions to use force before troops are committed, unless there is an emergency and such action would not be appropriate. The Government have stated that this is now a constitutional convention and it is accordingly recognised at the moment in the Cabinet Manual.

The debate in recent years has centred on whether this convention should be formalised in any way, so as to require precise parliamentary approval before force is deployed. Three possible options have been put forward for another role for Parliament: first, a detailed resolution of the House of Commons; secondly, primary legislation on this subject; and thirdly, continued reliance on a constitutional convention. In 2008, as part of its The Governance of Britain White Paper on constitutional reform, the previous Labour Government proposed that a detailed resolution should be passed by the House of Commons, requiring the Government to secure its approval for the deployment of troops overseas. It would be for the Prime Minister to decide when to seek approval. In emergency situations, retrospective approval would not be required. Nor would re-approval be required when the nature of the conflict changed. The proposed resolution would not have had the force of law, but would have meant that Parliament’s role was formally set out. Although a draft resolution was produced, no progress was made in implementing it before the 2010 election.

When the coalition Government came into office, they made no specific commitment to formalising Parliament’s role. However, during the debate on approving the intervention in Libya in March 2011, the Foreign Secretary, Mr Hague, said that the Government would,

“enshrine in law for the future the necessity of consulting Parliament on military action”.—[Official Report, Commons, 21/3/11; col. 799.]

At the time, that was understood to imply primary legislation, but since then we understand that there has been an internal debate within the Government as to the desirability or nature of any formalisation. Once again, no further action has been taken.

The Deputy Prime Minister, Mr Clegg, told us that that was still under review, and Mr Andrew Robathan told us that there was a division of opinion between Ministers in the coalition. Those in favour of a formal process argue that Parliament is the only body that can provide the necessary democratic legitimacy for a decision as important as this. It is argued that Parliament’s role should be enshrined so that no Government can bypass it. If Parliament’s role is formalised, all concerned will understand the process that must be followed before force is deployed and that following due process will itself increase the legitimacy of any action.

In addition to the democratic principle, some of our evidence from military experts and generals suggested that knowing that they had the clear backing of Parliament was very important to troops in the field. The noble and gallant Lord, Lord Guthrie of Craigiebank, who I am delighted to see will be speaking today, told us that,

“there were huge advantages if Parliament could be involved. When you visit people in the field on operations … the questions you were asked were, ‘is the country behind us? Is Parliament, the Government, behind us?’”.

On the other side of the current debate, none of those against formalising Parliament’s role sought to argue that Parliament should have no role. However, the committee heard several arguments against having either a formal parliamentary resolution or primary legislation. They were problems of definition, the risk of challenge in the courts, the risk of parliamentary engagement in operational decisions, the need to preserve political and military flexibility, and the argument that, given our convention, more formal procedures are just unnecessary.

Perhaps I can elaborate briefly on some of those arguments. First, there are the definitional problems. Formalisation would require Parliament’s role to be codified in a workable way. There would be major problems in what were called operational definitions. It will be necessary, for example, to specify what type of action would engage formal parliamentary involvement. For example, if the deployment of ground troops—boots on the ground—was the trigger, as was suggested in the 2008 proposed resolution, that would risk leaving out such interventions as the bombing of Kosovo in 1999 and imposing the no-fly zone over Libya in 2011.

A further decision would have to be made about the potential escalation of any activity and about at what point approval would have to be sought or might have to be renewed in different circumstances. The military might want a blanket approval at the outset, but parliamentarians might, for obvious reasons, want to keep their options open. A further dilemma would be whether there should be exemptions for emergency or secret deployments. If so, should Parliament’s approval be retrospectively sought? If so, what would happen if approval was declined? Having looked at such complexities, the committee was not surprised that Ministers still had difficulty in agreeing the best way forward.

Another objection to formalisation was the need to ensure strategic political and military flexibility. It was suggested, for example, that when the UK’s international obligations required the Government to commit to action with fellow NATO members, it would be detrimental to the Government’s position for there to be any doubt about whether they could commit. Any Government would also want to preserve flexibility to take defensive action or deploy force in an emergency. It is likely that any formalised process would leave a wide margin of discretion to the Prime Minister about when and where to seek Parliament’s approval, and there might in the end be so many exemptions that the formal process itself became only theoretical.

Additionally, there was the question of whether, if Parliament passed a formal law on authorisation, for example, the statute might be liable to be challenged in the courts and there might be judicial review. This was a new risk raised, which I thought was very interesting. Our witnesses were united in thinking that the appropriate forum for controlling and scrutinising such decisions is Parliament. In noting a recent judgment of the Supreme Court in Smith v Ministry of Defence, we were concerned that this demonstrated the court’s apparent willingness to become more involved in decisions relating to the battlefield. The committee shared the concerns expressed to us about the negative effect on the morale and operational independence of the Armed Forces when the courts scrutinised some operational decisions. In response, again, the Government have agreed with these comments and say that they will vigorously defend cases which call into question the principle of combat immunity, and will take further action as necessary.

To me, perhaps the final and most persuasive argument against greater parliamentary formality is that it is unnecessary. We understand that, in practice today, any Prime Minister seeking to deploy force overseas would politically be obliged to obtain the approval of Parliament, except in very exceptional circumstances.

The committee concluded that formalising Parliament’s role would involve significant difficulties and that such difficulties would outweigh any benefits. We concluded that much of the impetus for formalisation was to make a political statement rather than to correct deficiencies in the existing legal or military process. We therefore recommended that neither primary legislation nor a resolution should be introduced in an attempt to formalise Parliament’s role.

Finally, and without wishing to be unduly wise after the event, I will return briefly to the events of last summer in relation to Syria. Your Lordships will remember that at the time of the report in July, there was widespread and agitated discussion about whether the Government would arm opposition forces in Syria. It was only after sustained parliamentary pressure that Ministers gave an undertaking that the House of Commons would be given a vote before any decision to arm the so-called rebels was taken. As I said at the outset, it was the committee’s view that the Government’s intentions had perhaps been unhelpfully opaque. Very importantly, it was also unclear about how the Government might intend to involve Parliament should Her Majesty’s Armed Forces get further engaged in what seemed then, and seems now, an escalating conflict.

In late August 2013, the Government reacted to the apparent use of chemical weapons by President Assad’s forces in Syria by recalling Parliament. The proposal then was for the House of Commons to debate a government Motion, authorising the Government to take action in response to the attack. However, the business for 29 August stated that the proposal was in two stages and that before any direct British involvement, a further vote of the House of Commons would take place. The House will not need reminding that the Government’s Motion was defeated, and that in response the Prime Minister immediately stated that the Government would respect the wishes of the House of Commons. No further consideration of military intervention has, at least publicly, taken place.

These August events had major constitutional importance. First, the Government recalled Parliament before any decision to deploy force was taken. The Government respected the existing constitutional convention and, I would say, perhaps further entrenched it. Secondly, the Government immediately undertook to abide by the decision of the House of Commons, even though Ministers legally retain the power to commit the Armed Forces to action through the prerogative. Again, that can be seen as strengthening the convention. Thirdly, the fact that the Motion, if passed, would have involved a two- stage process of agreement by the Commons showed the benefits of keeping these matters flexible. It seems fairly clear that as a two-stage process of approval had not occurred in any previous conflict, it is unlikely that it would have been foreseen in any formalised resolution or legislation. In other words, the practical and contemporary experience of the intense debate on Syria underlined and demonstrated the correctness of our report’s conclusions and recommendations.

I look forward very much to the contributions this evening from speakers who, although they are somewhat small in number, are extremely distinguished, expert and authoritative on this very important subject. I beg to move.

--- Later in debate ---

[Baroness Jay of Paddington]

My Lords, I am grateful to the Minister for his very thoughtful and detailed response. Following the point just made by my noble friend Lord Kennedy of Southwark, it would be helpful to the Constitution Committee of your Lordships’ House if, in responding to the Commons committee, the Government could explicitly take note of and reflect on the points that have been made in this report, which I think will continue to be relevant.

Of course, everybody in the House understands that the Government are dealing with a rapidly evolving situation and, in the Minister’s words, are continuing the dialogue. I am sure that is something that we are all glad to hear.

I thank all noble Lords who have taken part in the debate. As I predicted, the speeches have demonstrated the knowledge and experience of all those who have spoken. I am particularly glad that the noble Lord, Lord King, as a former Secretary of State for Defence and member of war cabinets, found time to intervene. He was very helpful in making his observations about how rapidly things were changing, particularly how rapidly they have changed since he was making these decisions on the country’s behalf.

It was also very interesting that both the noble Lord, Lord King, and the noble and gallant Lord, Lord Guthrie of Craigiebank, referred to the role that the House of Lords can play in debates and decisions on these matters. I hope the Government will take note of that. I think everyone in the House would be convinced that the House of Lords would not be able to have a particular decision-making role in this. However, there is a necessity to use the experience here—which has been well described this evening and of which we are all very well aware—to spotlight the questions that arise in these different matters. That is very important.

Overall, frankly, the debate illustrated the complexities of the practical situations in which the Government and the country find themselves, and the difficulties of formulating any process more formally than the one we have at the moment. I know the committee will be particularly impressed to hear that it persuaded the noble Lord, Lord Hennessy, to change his mind. When I report back to it, that will be something of which it is particularly proud. The noble Baroness, Lady Falkner, illustrated the animated discussions that we had within the committee but she, as a good democrat, accepted the overall position of the committee in the report, which was—to summarise it in the phrase of the noble and gallant Lord, Lord Guthrie—that we could not be overly prescriptive. That reflects my continuing position.

Motion agreed.