Armed Force: Constitution Committee Report

Lord Maclennan of Rogart Excerpts

Thursday 28th November 2013 Lords Chamber

[Lord Maclennan of Rogart (LD)]

My Lords, it is a privilege, and one that humbles a speaker, to follow the noble and gallant Lord, Lord Guthrie of Craigiebank, in this debate. His knowledge and experience are unrivalled in this House. I must say that I do not wholly agree with his conclusions, and I will explain why.

In the first place, it is a widely perceived truth that the royal prerogative in the area of committing forces to overseas conflict is an anachronism. It was described in evidence to the House of Commons by Professor Nigel White as an unregulated vestige of former times. It is certainly the case that the movement of governmental opinion since 2003 has been rapid—and, to my mind, it has moved in an appropriate constitutional direction. I do not think that it would be wise to reach a final conclusion about these matters until we have heard from the Chilcot committee of inquiry into the origins of the Iraq war, because it is to be hoped that that will reveal something about the inner workings of the decision-making process that have not yet been fully revealed.

I fully acknowledge and accept the comments of the Minister who is to reply to this debate when he said on 24 October, in giving evidence to the House, that we must recognise the urgency and secrecy requirements of decision-making in certain circumstances if defence is to be properly sustained and if the outcomes are to be favourable. Our troops will require as much evidence as may be made available, but the public are behind them in the actions they are taking. That, I believe, is one of the strong points made in the distinguished report of the noble Baroness, Lady Jay. It seems to me that there are precedents for making transparent the issues that face government. The law passed by Germany in 2005 requires parliamentary approval to be given before the Executive can take a decision. However, I admit that Germany’s global role is considerably more limited at present than that of the United Kingdom.

Another factor brought out very clearly in the report is that the country needs reassurance that action is being taken in accordance with international law. I repeat my noble friend’s recommendation, taken from evidence given by Professor Philippe Sands, that Parliament should have a legal adviser. The Attorney-General does not, and cannot, fulfil that role because doing so could involve a conflict of interest between the advice that he gives to the Executive and that which he gives to the legislature. However, if Parliament is to make decisions such as that which it made on 29 August this year in respect of Syria, we need to have the best evidence we can on the legalities of what is proposed. That may not mean that it is a final view, but it will be an opinion.

I accept the committee’s view that judicial review of such action is neither appropriate nor desirable if one is to maintain the sense among our fighting troops that they are acting in accordance with the law and public opinion. I hope that the possibility of a statute will not be pursued. None the less, there is a strong case for parliamentary resolution: for setting out the requirements for the taking of action and for approving or rejecting the proposals of the Executive. Parliament, in particular the House of Commons, is the representative of the people, and the decision in most cases should be that of the people through their representatives. I therefore urge the Government not to seek hurriedly to reconcile the differences that have been made clear within it, but to think about the possibility of couching a resolution in terms that are wide enough to cover most eventualities. In so doing, they would strengthen the basic protections of our constitution.