Chris Grayling: I am certain that there will be individual cases where it may be sensible to scrutinise legal advice. What concerns me is the writing into statute of the obligation always to publish legal advice in all circumstances. Those are two different things.
I presume that the hon. Gentleman wants us to continue to be bound by international law. If Parliament is to vote on a war, it needs legal advice about the legality of that war. I cannot understand his
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objection to that. If we want to respect international law it is right that Parliament be given legal advice about the proprieties and legalities of any proposed war.
Chris Grayling: I refer the right hon. Lady to my earlier comments. If we go down the road of wrapping up our national decision makers in a legal framework when they face difficult strategic decisions on behalf of the nation, we risk unintended consequences that will be to the nation's disadvantage.
The hon. Member for Somerton and Frome asked me about my party's view. We have thought carefully about the matter. I have much sympathy with the aspirations of the right hon. Member for Birmingham, Ladywood, even though I am unhappy about the structure of her Bill. It is my view that the Bill should pass into Committee because the issues that have been raised in the House today merit further discussion and analysis. However, she and the House should not take that as an expression of ultimate support for the Bill. I have misgivings and I have set them out. I do not think that what she has proposed today is necessarily the right solution. However, these are matters of great gravity and my colleagues and I will not oppose the Bill's passage into Committee, even though I shall not give her a guarantee that when it has passed through Committee she will have my support or the support of my colleagues in taking it any further.
The Leader of the House of Commons (Mr. Geoffrey Hoon): I congratulate my right hon. Friend the Member for Birmingham, Ladywood (Clare Short) on her success in the ballot and readily acknowledge the conviction with which she has moved her Bill today. Her views on these matters are well known. I also recognise the support that the Bill has received from Members on both sides of the House and, equally, the powerful speeches that have been made against it.
I hope to set out certain issues that I anticipate should affect any hon. Member's prospective support for the Bill. I believe that the approach set out in the Bill would risk inhibiting the Government's ability to act swiftly to deploy our armed forces to defend our national security and national interests. I also believe that it has the potential to cause unforeseen and undesirable legal consequences.
The Bill would impose a general requirement for the prior approval of both Houses of Parliament before our armed forces were committed to armed conflict. Armed conflict is defined by reference to the Geneva conventions and their additional protocols. If the Prime Minister proposed that our armed forces should participate in armed conflict, he would be required to lay before each House of Parliament a report setting out the reasons for the proposed participation, the legal authority for that participation, and information on the geographical extent and duration of the participation and on the forces expected to participate. A motion
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would then need to be moved in each House approving that report. In the House of Commons, that motion would need to be moved by the Prime Minister.
The Bill recognises that prior approval might not be possible: the general requirement for prior approval is relaxed in cases of urgency. In such cases, retrospective approval would have to be achieved as soon as reasonably practicable and within a maximum of 10 days. Provision is made for the recall of Parliament, where necessary during periods of Adjournment or Prorogation. The procedures in the Bill would in principle not apply in cases where immediate action is needed in defence of members of our armed forces.
If both Houses did not resolve to approve the Prime Minister's report within 10 days of its being laid before Parliament, the continued participation of the armed forces would cease to be lawful after 30 days, unless the Prime Minister judged that continued participation was required as a necessary precursor to withdrawal or had laid a further report within 20 days of the first report that had been approved by further resolutions in each House.
The Government have repeatedly emphasised that we are accountable to Parliament for any armed conflict that British forces engage in. We have given repeated assurances that Parliament will be given an opportunity to debate and scrutinise decisions about the deployment of British forces in armed conflicts overseas. For example, the Prime Minister told the Liaison Committee in January 2003:
"I cannot think of a set of circumstances in which a Government can go to war without the support of Parliament, so I do not think it is real. I think you can get into a great constitutional argument about this, but the reality is that Governments are in the end accountable to Parliament, and they are accountable for any war that they engage in, as they are for anything else."
My distinguished predecessor, the right hon. Robin Cookwhom we all miss in this debate and to whom I paid tribute last week, and who, I fully recognise, might have been speaking in support of the Bill if he were herestated in January 2003, when he was Leader of the House, that the Government had made it clear that Parliament would be given
"The Government recognise the desire for parliamentary scrutiny of decisions to deploy our armed forces, and has shown that it will provide opportunities for debate when this arises."[Official Report, 15 June 2005; Vol. 434, c. 384W.]
In making those commitments, the Government have emphasised that it might not always be possible to hold a debate in advance of a deployment if the effect of doing so would be to give the enemy advance notice of our military activities and endanger our national security and possibly the lives of our troops.
In the case of the military operations in Iraq, as a number of right hon. and hon. Members have observed, it was possible to hold a debate and to vote on a substantive motion in advance of the start of the military operations. There were debates on substantive motions in November 2002 and February 2003, indicating the possibility of military action if Iraq did not comply with resolution 1441. Ultimately, a debate
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on a substantive motion took place on 18 March 2003, before hostilities commenced two days later. The Prime Minister has made it clear, however, that that cannot be a binding precedent. As he explained to the Liaison Committee in February 2005:
"in other words, if the urgency of the situation does not demand otherwise, then I suspect that is what will happen with future conflicts, but I do not think that is setting a constitutional precedent".
As for the form of the consultation, it, too, will depend on all the circumstances. On some occasions, for example, the House has accepted a series of statementsas in the case of Sierra Leonebut any substantial commitment has usually been debated. Sometimes, the debate has been on a substantive motionas in the case of Iraq, as I have mentioned already. Sometimes, the debate has been on an Adjournment motionas in the case of Afghanistan in 2001, when such debates were held on 4 and 8 October, either side of the commencement of military operations.
I accept that a substantive motion would allow a clearer expression of opinion and the moving of amendments, but that will not always be appropriate, particularly where the situation is fast-changing. Reference has been made in the debate to the 1940 example, when following military operations in Norway, a Government resigned despite having won the vote on the Adjournment. That must demonstrate to hon. Members how flexible and effective our existing procedures can be.
The Government are also aware of the need to keep Parliament closely informed of developments during the course of a conflict through statements and Adjournment debates as necessary. I do not believe that anyone could challenge this Government's record on that. For example, in the case of the military action in Kosovo, there were eight statements and three debates during the period between the commencement of hostilities on 24 March 1999 and their suspension on 10 June 1999. At the time of the intervention in Sierra Leone, four statements were made within a month. In the case of the conflict in Iraq, between September 2002 and the commencement of hostilities on 20 March 2003 there were four debates and 11 statements. In the period up to the close of major combat operations, there were a further nine oral statements. I hope that the House will accept that coming from me, because I rather think that I made the majority of them.
The Government have also shown that they are willing to recall the House when important issues have arisen during a recess. Since 1997, the House has been recalled six times. Four of those occasions concerned the possible involvement of our armed forces in military action. At least one related to Afghanistan and the most recent, in September 2002, was to consider the situation in Iraq.
The Government therefore strongly believe that the detailed statutory arrangements provided by the Bill are unnecessary. As I have set out, the Government recognise the need for parliamentary scrutiny of such
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vital matters as the deployment of our armed forces and have shown in practice that they will provide significant opportunities for debate when that arises.