Armed Forces Deployment (Royal Prerogative) Bill [HL]

Earl Attlee Excerpts

Friday 8th July 2016 Lords Chamber

[Earl Attlee (Con)]

My Lords, I congratulate the noble Baroness on the way in which she explained the purpose of her Bill. She has much experience in international affairs and we benefit greatly from it. If I wanted to draft a Bill to have the same effect as that of the noble Baroness, it would have more or less the same provisions. I was not surprised when she told the House that the noble Lord, Lord Lester of Herne Hill, was heavily involved in the drafting. It is obvious that the noble Baroness has carefully researched this matter.

I must declare an interest as I think that I am still commissioned in the Army Reserve—but not for very long, because my 60th birthday is rushing up in October. However, I served in Iraq in the spring of 2003.

Some say that we should not effect major constitutional change by means of Private Members’ Bills. I disagree, the obvious recent precedent being the European Union (Referendum) Bill, which my party tried to get through as a Private Member’s Bill. The House decided in the end not to pass it. I believe that the noble Baroness is using the correct parliamentary tool to achieve her objective. She is not seeking merely to have the Government do or stop doing something; she is seeking to change the law and the constitution.

However, I am concerned about the number of Private Members’ Bills going through and being passed by your Lordships’ House that would be unlikely to find favour if your Lordships decided to vote on the matter. Some noble Lords think that it is a convention in this House not to kill a Private Member’s Bill, but it is a statistic not a convention. In other words, I have seen a few Private Members’ Bills that were so objectionable to noble Lords that they decided not to proceed with them past Second Reading.

If a noble Lord proposes a Private Member’s Bill that is on a small regulatory matter, be it deregulatory or putting a little regulation in, and the House acquiesces in it, I do not see that as a huge problem—we all know perfectly well that such a Bill might not find favour in the House of Commons, so we do not get too excited about it. However, if your Lordships pass a Bill of major constitutional and security significance, the general public may erroneously believe that it represents the considered view of your Lordships’ House when it does not.

I have serious objections to this Bill. If your Lordships did not have other, very pressing matters in hand, I would have tabled a fatal amendment to the Second Reading. The noble Baroness is held in very high regard in your Lordships’ House and I would not dream of taking such action without giving her at least seven to 10 days’ notice, so I just ran out of time to do it.

I do not support even the evolving convention that the House of Commons should vote on a military deployment, both for parliamentary and for practical reasons. Such decisions should be made by the whole Cabinet after detailed discussions and with relevant JIC reports in front of them as the well as the JIC. Most importantly, the leaking of any such discussions by Cabinet members should come under the Official Secrets Act, The Prime Minister should make it quite clear that if any Cabinet Minister leaks details of such a discussion he will charge the security services with finding out where the leak came from, using all necessary resources to find out. That is because it is deeply damaging to national security to have these leaks, which is why Mr Blair used sofa government; he could not trust other members of the Cabinet to have a detailed and frank discussion about the issues. I hope that if I had been sat at that Cabinet table—I obviously do not have the capability of doing that, but if I did—I would have said, “This 45-minute claim. Does it relate to battlefield weapons or strategic weapons? Is the source signals intelligence or human intelligence?” As a Cabinet Minister, I would expect to get the answers to those questions and, if I did not, I would have to consider my position.

Conversely, Parliament is unsuitable because it does not have all the intelligence available. It cannot get answers to the obvious questions. I remember when your Lordships debated whether we should invade Iraq. I remember noble friends saying, “Fine. I’m sure we’ve got the combat power to get the regime to collapse, but what happens afterwards?” We were told, “Oh don’t worry about that”, but actually that is why the campaign failed, as Operation Telic 1 was a brilliant operation—I will address it when we discuss Chilcot. I do not believe that it is right for parliamentarians to make such decisions without access to the information that they need, and they cannot have it for obvious reasons. Of course, I fully agree that, if we do go to war, it is a matter for the Commons to agree or acquiesce with that decision. We can express our view, but it is very much a matter for the elected House.

There are many problems with the noble Baroness’s Bill. First, an opponent may miscalculate the resolution of the UK by believing that the House of Commons will vote against the resolution or the Whips in the House of Commons will calculate that the Government would lose such a vote. That could have serious consequences for the diplomatic effort that should be taking place before you go kinetic. It might make conflict more likely rather than less likely. We only need to think of the Falklands conflict—I see the noble Lord, Lord West, is in his place—where it appeared that the Argentinians miscalculated our resolve.

I am not saying that there should be no parliamentary involvement or no check on the Executive. The noble Baroness suggested that the House of Commons had no role. The House of Commons has a very powerful tool indeed: it can have a vote of no confidence in the Government and the Government are in deep trouble if they lose that. In those circumstances, we used to have a general election straightaway. Unfortunately that has been slightly unwound by the Fixed-term Parliaments Act. Normally, the Leader of Her Majesty’s Opposition will have access to Privy Council briefings with the Prime Minister and the Secretary of State for Defence, so he or she should be much better briefed than ordinary Members of the House.

The Bill would not have the effect that the noble Baroness desires. I do not believe that it will have any utility. When the Commons voted to go to war in 2003, it was far too late in the process of transition to war. I was there. Our troops were just about to cross the start line and engage the enemy. We were certainly vulnerable to a pre-emptive attack by Iraqi forces, if they had had the capability. We were just about to engage them and legally they could have launched a pre-emptive attack on us and we would have sustained significant casualties. I know that the issue of casualties is very important to the noble Baroness and I can quite understand that. Very often we have our own forces in harm’s way long before the Commons makes a decision. I will not go any further along what I will call the Chilcot route because we will have a debate next week on that, but if in 2003 the Commons had voted no, it would have seriously damaged the relationship between the UK and the United States and, indirectly, seriously damaged NATO, although I accept that it was not a NATO operation.

From where I was, sat in Kuwait, the vote in the House of Commons was irrelevant. We were going to cross the start line. We were told that it was irrelevant and I suspect that our commanders knew perfectly well the arithmetic in the House of Commons. The Government of the day were confident that they would get a yes vote because of the support from Her Majesty’s Opposition. It was too late, but it would have been compliant with the noble Baroness’s Bill.

During Op Telic 1, there were some cases of servicepeople being unwilling to deploy to the operational theatre and claiming spurious legal reasons for doing so. In an operation such as Telic 1—a large-scale mission—it is not surprising that there are a few of those cases. It is disappointing, but there are disciplinary methods for dealing with it. But if a serviceperson refuses to put themselves in harm’s way because the House of Commons has not yet authorised it, we could be creating a legal problem that we never had before. That is yet another problem with the noble Baroness’s Bill.

I said that the Bill is not properly drafted to have the effect that the noble Baroness wants. Seriously, it excludes operations by Special Forces and Her Majesty’s Armed Forces supporting Special Forces. The noble Lord, Lord West, will know perfectly well that nuclear submarines are also involved in deploying Special Forces—so you can insert Special Forces using very significant military power. I am not well briefed on Special Forces operations, for obvious reasons, but I can safely surmise. It seems to me that successful Special Forces operations have strategic effect but also very often the opponent is completely unaware that the operation has taken place. However, if our Special Forces were detected, that could have a significant effect. You could get yourself in an awful lot of hot water and quite easily be the genesis of a conflict. In other words, use of our Special Forces could get us in a lot of trouble if it went wrong. Again, there is no authority by the House of Commons to deploy forces, including nuclear submarines with Special Forces, designed to have strategic effect—not just a little exercise.

If Parliament wanted to put controls on operations, especially medium and large-scale operations, it would have to do so much earlier in the process. For instance, controls would have to be put on outloading the ammunition from the base depot because that is a major indicator to one’s opponent. You want to put controls on armoured vehicles subject to the CFE treaty—again, a major combat indicator. As soon as you start making those sorts of movement, you are vulnerable to pre-emptive attack and could take casualties as a result. I would not advocate putting those controls on the Government because I firmly believe in trusting the Government of the day. When I deployed to Iraq, I believed that the Prime Minister of the day was doing the best job that he could in the interests of the nation.

In conclusion, I fully appreciate the issue that the noble Baroness seeks to address, but I just do not believe that the Bill will have the positive effect that she intends. At the same time, it will create several serious new problems. It is not the right solution. I look forward to further discussions on these matters when we debate the Chilcot report.

[Baroness Smith of Newnham (LD)]

My Lords, I welcome the Bill brought forward in the name of my noble friend Lady Falkner. It comes at a very appropriate time. Unlike the noble Earl, Lord Attlee, I plan to support the Bill. I note that he said that, had things not been so busy in the last seven to 10 days, he would have tabled a fatal Motion. So for those of us who were rather keen that the UK should vote to remain in the European Union—I assume it was the referendum that deflected the noble Earl—there is at least, if not any sunlit upland, a little glimmer of light coming from the fact that no fatal Motion was tabled. For that we can be grateful.

[Earl Attlee]

My Lords, if I had tabled a fatal Motion, a difficulty would have been that it might well have had to be debated in prime time. I think the noble Baroness, Lady Falkner, would have been thrilled to bits by that. She would probably not have been that worried about the end result and we would have had a much bigger debate—so I was actually being a bit cruel by not tabling a fatal Motion.

[Baroness Smith of Newnham]

My Lords, this is actually a very serious Bill. Decisions to go to war and engage in military conflict always necessitate deep reflection, expert intelligence and other appropriate military advice. They must be taken responsibly and with due regard to not just the short-term military intervention but the medium and long-term consequences. We should never engage in military conflict without thinking through what the exit strategy might be. Leaving failed states behind is clearly not acceptable or morally right.

Of course, the decision to go to war is a prerogative power—but, as we have already heard, a convention has emerged in terms of consulting Parliament. Other states with written constitutions have rather more clarity in this regard. Finland, Spain, Ireland and Italy all require parliamentary votes before going into military conflict. Unless there is a direct attack on Germany, it has an even higher threshold of a two-thirds vote in Parliament before engaging in military conflict. Clearly, we do not have a codified constitution. It may be appropriate to have such a thing, but that is not something for a Private Member’s Bill. But surely clarity would be helpful.

I share some of the concerns outlined by the noble Earl, Lord Attlee. Even Members of Parliament who are well informed and have been led to understand some of the military implications of a decision will not be the same as a Cabinet sitting round the table, fully briefed with all the relevant military intelligence. But the Bill of my noble friend Lady Falkner addresses some of these issues as it explicitly refers to emergency and security conditions. So if we are talking about issues that necessitate significant amounts of military intelligence that cannot be divulged to 650 Members of the House of Commons, that is presumably an area where the Prime Minister would be able to say that action would be taken under the existing prerogative.

Arguably, this leaves the Prime Minister with slightly more wiggle room than we as Liberal Democrats would want, because our party policy is very clearly that a decision should be taken by the House of Commons before going into military conflict, but I think that the balance is about right with the inclusion of the emergency condition and the security condition.

One key thing is that there should be clarity of thinking ahead of military decisions, but that does not always seem to have been the case. In the last few days, we have heard that the decision to intervene militarily in Iraq was taken without an adequate plan being in place and without adequate reference to intelligence, even if at the time it was thought to be there. Somebody has to take responsibility for decisions to go into military conflict. That could be left to the royal prerogative but, since we have a representative democracy and we have parliamentarians to take decisions for—

--- Later in debate ---

[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.