Armed Force: Constitution Committee Report

Lord Hennessy of Nympsfield Excerpts

Thursday 28th November 2013 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, I declare my membership of the Chief of the Defence Staff’s Strategic Advisory Panel, though I have not given my views on the matter before your Lordships’ House this evening during any of the panel’s deliberations.

It was the late Viscount Stansgate, father to Tony and David Benn, who said that the fundamental purpose of the House of Commons was to control the purse and the sword. It used to be thought that Parliament controlled the sword by controlling the purse; that kings, and later Prime Ministers and Cabinets, could wage war only if the House of Commons granted sufficient supply to pay for them. That changed in the era of “fight with what you have got” conflicts, such as the Falklands War, which came out of the blue in 1982, requiring the putting together of a task force without time to convert British defence industries to a war footing, although some crucial procurements were very swiftly stepped up.

Ours is also an era when wars are no longer declared, a point to which my noble and gallant friend Lord Guthrie alluded a moment ago. The last time the United Kingdom did so was, I think, against Siam in January 1942. A declaration of war against Argentina was considered over what one might call the “Falklands weekend” in the first days of April 1982 and the 1939 file on how to do it was sent for. It could not be found. A search was mounted in what was then a called the Public Record Office. Still no file was found. It turned up 12 years later in 1994. It was just two sides of paper, drawn up for the Foreign Secretary, Lord Halifax, by the Foreign Office’s legal adviser, Sir Gerald Fitzmaurice, on the day of the Molotov-Ribbentrop Pact, 23 August 1939. On 12 September 1939, it had been consigned to the FO’s registry in a collection known as “General and Miscellaneous” and therefore lost for 55 years.

A number of Select Committees in both Houses, as we have heard, have examined the shift of war-making from the ancient prerogatives of the Crown exercised by Ministers to the convention that, if time and circumstances permit, the House of Commons will have the ultimate say on peace and war in a substantive Motion. I welcome the latest of these examinations, the report from your Lordships’ Constitution Committee, which lays out the current position on future options clearly, concisely and persuasively—so persuasively that I have to confess that its report of July 2013 has changed my mind. I used to think it desirable that at least some of the war-making powers should morph from the back of an envelope not just into a convention, which is where we are now, but on to the face of a Bill, so profound, fundamental and laden with consequences, foreseeable and unforeseeable, is the question of peace and war. I shall return in a moment to my second thoughts.

There is a spectrum—a hierarchy of needs and contingencies—on this most sensitive of constitutional matters. Some threats by their very nature require the specific constitutional arrangements for tackling them to remain what one might call prerogative pure.

I shall give two examples. The first is the almost unthinkable contingency of a Prime Minister authorising nuclear retaliation after a nuclear assault on our islands. This responsibility falls to the Prime Minister and to usually two so-called nuclear deputies, lest the PM is wiped out straightaway by a bolt from the blue. If the alternates are killed as well, the Prime Minister’s instructions, to retaliate or not to retaliate, from beyond the grave are inside the inner safes in the control rooms of all four of the Royal Navy’s Trident missile-carrying Vanguard-class submarines. As we debate this evening, the boat carrying one of David Cameron’s so-called last resort letters is somewhere deep and undetectable in its patrol area beneath the swell of the north Atlantic.

A second example of prerogative pure decision-making is the, I regret to say, far more likely contingency of the Prime Minister and his three or four alternates having to make the decision—which they have all exercised—on whether to authorise RAF Typhoons to shoot down a civil aircraft which there is reason to believe is on a 9/11 mission against our country and is ignoring an array of indicators and instructions from the Typhoons and air traffic control to divert and land at Stansted.

The central question before us focuses, however, on the deployment and use of British Armed Forces beyond our territory in circumstances that allow for sufficient time for the question of peace and war to be placed before Parliament. Developments this century have created a near consensus not just on the desirability of the House of Commons voting on a substantive Motion, but on the Government providing ingredients for the debate that should be placed before the Chamber before the Division Bells sound.

They include a full opinion, not a shrivelled one, from the Attorney-General on the legality of the deployment proposed—an intelligence assessment containing as much as can be safely divulged about what is known to the Government through their mix of secret and open sources. Also desirable, though humility is needed here on the part of all Governments, is an assessment of the duration of operations and the eventual exit arrangements from foreign soil.

The question is whether the existing convention on consulting the House of Commons is all that is needed to ensure that future Governments in anxious and uncertain times retain a sense of due process and a duty of care and consultation to Parliament. I was pleased when the Foreign Secretary said on 21 March 2011 during the Commons debate on Libya that the coalition would,

“enshrine in law for the future the necessity of consulting Parliament on military action”.—[Official Report, Commons, 21/3/2011; col. 799.]

I understand, however, that real difficulties have been experienced in framing such a statute in a way that reflects the contingencies that our country might face. The noble and gallant Lord, Lord Guthrie, was very eloquent and persuasive on that. The report of your Lordships’ Constitution Committee makes plain how stretching such a task is, which is why I have changed my mind somewhat on the feasibility of a use of Armed Forces Act for the UK.

However, we need to buttress the existing convention with a House of Commons resolution. Conventions can be friable and fragile. They can crumble at the touch of a powerful, insensitive and determined Executive, especially in circumstances where one’s country and its allies are living and breathing in the shadow of potential armed conflict.

House of Commons resolutions, by contrast, are things of sinew and, one would wish, endurance. I hope that the noble Lord, Lord Wallace, when he winds up, will give a more detailed explanation of why the coalition has ruled out the framing of a “Use of Armed Forces” resolution in time for it to be put to the House of Commons before the end of this Parliament, although I recognise the force of what my noble and gallant friend Lord Guthrie was saying.

In the mean time, I thank the noble Baroness, Lady Jay, and her colleagues for the considerable service that their committee has provided for your Lordships’ House with this report on such a fundamental constitutional matter.