Armed Forces Deployment (Royal Prerogative) Bill [HL]

Lord Touhig Excerpts

Friday 8th July 2016 Lords Chamber

[Lord Touhig (Lab)]

My Lords, I have lost count of the number of times we in this House have considered matters relating to the unwritten constitution during the short time of six years that I have served here. As someone who believes that constitutional affairs, no matter how important, are a major turn-off for the British public and an electoral cul-de-sac for politicians, why do I think this particular piece of constitutional fine-tuning is so important?

The main reason is that I believe that the first duty of any Government is the care and well-being of the British people, and that includes the defence of our country. The deployment of British forces into conflict must always be a major concern for the people, for Parliament and for Government. In the many debates on matters constitutional that I have already mentioned, the one theme that is most common to all is the ability of this House in particular, and Parliament in general, to hold the Executive to account.

In the 20-plus years I have served in both Houses of Parliament, there has been a drift, although it is sometimes not immediately obvious, towards adding more and more powers to the Executive at the expense of Parliament and therefore at the expense of the rights of the British people to hold their elected Government to account. This small Bill is worthy of our support, because it attempts to place a check on that drift.

From the earliest times of structured government in these islands, the Executive—as embodied first in the Crown and now in the elected Government—have on so many areas been able to exercise authority over the people without the people or their elected representatives in Parliament being consulted. The Bill is a step towards reversing that. It underpins the need for the Government to show that they draw their powers from the people, through Parliament. In any democracy, the flow of power from the people to the Government should be balanced by the ability of Parliament to hold the Government to account. However, when the Executive rely on the powers of the royal prerogative—powers where the Government act on the monarch’s authority—it is difficult for Parliament to scrutinise and to challenge the Government’s actions.

If voters do not believe that the Government are wielding their power appropriately, or that they are properly accountable, then public confidence in the accountability of decision-making risks being lost. The Bill could start to strengthen our democracy by codifying the power of the Prime Minister, and thereby the Executive, and making the Prime Minister come to Parliament when seeking to commit British troops to conflict. It is important that the key decisions that affect the whole country, such as the decision to send troops into armed conflict, are made in the right way and with Parliament’s consent. The Bill does just that.

My own party, when last in government, planned a piece of legislation just like this. One does not need a long memory to look back at the time when the present party of government also wanted such a piece of legislation. In March 2011, the then Foreign Secretary, William Hague, now the noble Lord, Lord Hague, said that the Government planned to,

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

Since then, we have seen a change of heart on the Government Benches. The Defence Secretary, Mr Fallon, said that the Government in 2011 acknowledged that a convention had developed in Parliament that before troops were committed, the House of Commons should have the opportunity to debate the matter. The Government pledged to observe the convention, except where there was an emergency and such action would not be appropriate. But Mr Fallon then said:

“After careful consideration, the Government has decided that it will not be codifying the Convention in law or by resolution of the House”.—[Official Report, Commons, 18/4/16; col. 698WS.]

The Defence Secretary said that this was to retain the ability of Governments and Armed Forces to protect the security and interests of the United Kingdom in circumstances that cannot be predicted. That is eminently sensible, but the Bill retains the Government’s ability to protect Armed Forces operations. It sets that out in Clause 3(2) and Clause 4.

On these Benches and in other parts of the House, there has been growing concern about the use of embedded forces: British forces committed to a potential field of conflict and, as embedded forces, placed under the command of the armed forces of the country in which they are operating or a coalition operating in that country. Mr Fallon said that, in those circumstances, the convention would not be observed at all. This is in danger of prosecuting war by stealth.

On these Benches, we recognise that there are occasions when to protect the safety of our forces and for reasons of national security it would not be right to come to Parliament, but our worry is that this is now becoming the rule, not the exception. That is why we need a Bill such as this. In a statement published in December, I think, last year, the Ministry of Defence told us that there were 147 of our troops in embedded forces in various parts of the world—the large majority of them, 94, in coalition HQs. We do not even know where they are, yet they are under the command of the power of another country who can commit them to conflict and Parliament has not even been told. This is not the way we should be going.

As I mentioned, in July 2007, in a document entitled Governance of Britain, the then Labour Government stated:

“In most modern democracies, the government’s only powers are those granted to it by a written constitution or by the legislature. A distinguishing feature of the British constitution is the extent to which government continues to exercise a number of powers which were not granted to it by a written constitution, nor by Parliament, but are, rather, ancient prerogatives of the Crown”.

It also stated:

“It is important that Parliament is strengthened to ensure that its own powers—whether ancient or more recently acquired—continue to be exercised effectively within appropriate limits and in a way that means the people whom it serves understand its work and have faith in its decisions”.

That is why we need a Bill such as this.