National Security Situation

Lord Morris of Aberavon Excerpts

Thursday 19th April 2018 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, two issues concern me today. The first is the legality of the Syrian air strikes, and I am grateful to the noble Lord, Lord Campbell, for his remarks. In the past, he has made important contributions in this field in the other place. One of the most painful and onerous decisions that a Prime Minister has to take is to commit British troops to an act of war. Perhaps the use of air power may be easier than committing troops on the ground. We have examples of a reluctance to do this, particularly on the part of the Americans in recent years.

Under the charter, there are two grounds for such actions. The first is self-defence and the second is a decision of the UN Security Council. In recent years and now, because of the veto, it is hopeless to expect authority from the Security Council. As the Attorney-General, I faced this problem in Kosovo, and I believe that I also drafted the rules of engagement in Sierra Leone. In Kosovo, there was abundant evidence of the need for action: evidence of large-scale ethnic cleansing, murder and rape, causing suffering to many thousands. The precedents for acting without the authority of the United Nations were few. My Conservative predecessor had advised on the setting up of no-fly zones in the Iraq war to protect the Kurds in the north and the Marsh Arabs in the south. These were passive actions on our part. Our proposed action in Kosovo for large-scale NATO raids, repeated over what I believe were 69 days, was aggressive and of a different kind from the passive action for which I had some precedents. It was aggressive action, although I was persuaded against my better judgment by the former Attorney-General, Mr Dominic Grieve, to use as a substitute the word “proactive” in my book, otherwise it might not have been published.

Our Ministers and our Armed Forces have to obey international law. They needed my advice to give them the security that they were acting legally. The Prime Minister has repeated almost word for word the three conditions for action set out in my book. The first is widespread humanitarian distress, the second is that there is no practical alternative, and the third is that the use of force has to be proportionate and, in my words, the minimum necessary to achieve our objective. She has quoted, “These are the same criteria for the legal justification for the Kosovan action”. I earnestly hope that the support of the Prime Minister will not damage my future career.

As I told the House on Monday, legal advice cannot always be certain, but I presume that the Attorney-General believed that he had a respectable legal argument or, as is sometimes said, an arguable case, which would be enough to satisfy the Armed Forces that they were acting legally. In international law, I could not go further than that. Some distinguished academic lawyers have expressed their dissent. I am comforted that that most eminent of lawyers, the late Lord Bingham, in his book The Rule of Law, went no further than to comment that the doctrine of overwhelming humanitarian disaster is controversial. That was the only comment he made in a detailed analysis of the law generally. Having warned my Prime Minister of the possibility of legal challenge, it transpired that I had to act as leading counsel for the United Kingdom to respond to the challenge of an action by Yugoslavia against the United Kingdom along with, I believe, eight other NATO countries as defendants, before the International Court at The Hague. It was Yugoslavia’s attempt to stop the bombing by getting an injunction so to do. To my regret, the court did not deliver judgment on the legality of our actions. I trust that the Attorney-General, in his advice to Ministers, dealt with the possibility of a challenge by a country with an appropriate status before the court.

The mischief we are dealing with is the abhorrent use of chemical weapons, banned by the consensus of the international community under the Geneva Convention protocol in 1928. Some 10 years ago, I had the pleasure of addressing the Organisation for the Prohibition of Chemical Weapons in The Hague. The spirit of the conference for maintaining the ban on chemical weapons was absolutely solid and therefore we must be very careful that there is no departure from that. The charter of the United Nations regrettably does not provide adequate cover where a wrong-doing state has the umbrella support of a veto-wielding nation. That goes to the very heart of the problem in Kosovo and now. In Cape Town 10 years ago and in St Petersburg last October, I tried to raise before the committee of the Inter-Parliamentary Union the need to reform the charter of the United Nations. That was a bridge too far for other countries, and perhaps ourselves.

My second point concerns the need for the approval of the House of Commons. Given the heavy build-up of briefing over seven days, the element of surprise would not have been lost in any event. They would have lost nothing except the grim possibility of losing the vote in the House of Commons if it were consulted. This is the real reason the House of Commons was not consulted. In February 2006, Lord Mayhew of Twysden and I, both former Attorney-Generals, gave evidence to your Lordships’ Constitution Committee. At the time it was engaged in investigating evidence for its report, Waging War: Parliament’s Role and Responsibility. We both came to the conclusion that the use of the royal prerogative to go to war, save in exceptional circumstances and emergencies, was outdated. We agreed that the consent of the House of Commons should be required first. The committee accepted our advice. A convention was established by the decisions of three Prime Ministers, Tony Blair, Gordon Brown and David Cameron, to consult the House of Commons. Given that committing our Armed Forces is so fundamental, I do not believe that the Government were right to put the convention to one side and not get the support of the House of Commons.

I end with what I believe was the most important statement made in the debate in the other place: what next?