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Let me disabuse the right hon. and learned Gentleman of one notion—that our amendment was drafted in response, literally, to the Opposition motion. Because the Opposition have departed from our practice of tabling Supply day motions early and have been very dilatory, and because I had something else to do yesterday—as the House is well aware—I drafted the amendment on Sunday. Had it been clear that the
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Leader of the Opposition had used words similar to mine, no doubt we could have agreed on the matter without a Division.

I can tell the hon. Members for Macclesfield (Sir Nicholas Winterton) and for North Essex (Mr. Jenkin), and indeed the right hon. Member for Richmond, Yorks, that if they examine the wording of the amendment they will see that we provide comfort for the Opposition that is absent from the Opposition’s own motion. I hope that after further consultation they will accept our amendment without a Division.

Let me answer the hon. Member for Macclesfield by saying, first, that our amendment spells out in more detail why caveats are needed in the exercise of this House of Commons power. It is important to say that, because reports of debates of this kind are read by the military. Secondly, it spells out that there will be consultation, and—as I was going to say later in my speech—of course there will be consultation with the Opposition parties as well as the public. Thirdly, and in many ways most importantly, it is intended to reassure the hon. Member for North Essex in the light of his entirely justified suspicion that those who inhabit the Whips’ Offices on either side at all times may just decide to cook something up for their own benefit. What the amendment says and the Opposition motion does not is that we are of the view that the processes adopted in 2002 and 2003 constitute a precedent, and that it is not conceivable that this House would ever depart from that precedent.

Mr. Hague rose—

Mr. Straw: Of course I give way to the right hon. Gentleman. I hope that there has been another Pauline conversion, and that he is about to say he will accept our amendment without pressing it to a Division.

Mr. Hague: As I pointed out and as the Leader of the House has pointed out, the Opposition motion and the Government amendment have a huge amount in common. However, if the Government’s response—a response calling on the Government to produce new proposals—was so well prepared in advance of the debate, I wonder why the Lord Chancellor said only two weeks ago that it would be both wrong and damaging to change the position.

Mr. Straw: The Lord moves in a mysterious way His wonders to perform. If I were the right hon. Gentleman I should be pleased that we are arriving at a consensus, and that the House is accepting advice of the kind that I was offering back in 1994.

Mr. Redwood rose—

Mr. Straw: If the right hon. Gentleman will allow me to make a little more progress, I will give way to him shortly.

As Professor Lawrence Freedman explained in his evidence to the Lords Constitution Committee, since the end of the second world war Britain has been involved in

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Some of them were against “anti-colonial independence movements”, but

The Lords Committee records that there have been 60 British deployments overseas since 1990, some of them minor, but five major—the Gulf war and the deployments in the Balkans, Sierra Leone, Afghanistan and Iraq, and, in the 1980s, in the Falklands. In each of the cases before Iraq, Government reported regularly to the House in the form of statements, and the issues were often debated, too.

Let me return to the first occasion in my parliamentary career when war was debated: in April 1982 in respect of the Falklands. There is no question but that Ministers at that time recognised the need to gain—in one way or another—the consent of Parliament. Indeed, Parliament was called to a special sitting on a Saturday. However, the debate was short—it was three hours long—and on the Adjournment, and those that followed were also on the Adjournment. I thought at the time that the Commons should have been able to express whether it consented in a tangible way—by vote. I thought that as a supporter—not an opponent—of military action against Argentina, because I considered that to be the proper role of the Commons. To echo a point made by Lord Bramall in the other place, I also thought that because I believed that our troops, some of whom came back maimed and others of whom never came back at all, deserved to know the level of support that was behind them from the people’s representatives in this Chamber.

Mr. Redwood: I quite understand the concern about committing troops on the ground, but what procedures should the House follow prior to a big missile bombardment or aerial bombardment—prior to the exercise of considerable force over a concerted period, not a sudden and extreme raid? I ask that question because when I tabled questions on the amount of bombing in recent years I was not given any answers.

Mr. Straw: The right hon. Member for Richmond, Yorks said that the matter we are discussing is not simple, and it is not. The question that the right hon. Member for Wokingham (Mr. Redwood) asks illustrates its complexity The exact circumstances in which this House should in advance have the right to give, or not give, its approval of military conflict decisions must be very carefully considered. Let us look back at the circumstances of the five major wars in which we have been involved and which I just mentioned. Were this new procedure in place, in each case there should have been a debate on a substantive motion, usually in advance—although perhaps, for special reasons, in the case of the Gulf war in retrospect, and an issue might also have been raised in respect of Afghanistan in 2001 to do with our treaty obligations. However, because this is not a simple matter we shall enter into a process of active consideration and consultation to ensure that we get it right and that we do so in a flexible way.

At the time of the Falklands war, the then Government followed precedent, as others before and since have done. Before 2003—the Lords report draws
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attention to this—there had been only one occasion when the House had voted in advance on a substantive motion: in July 1950 on the Korean war. The motion was agreed without a vote—after, I say to the right hon. Member for Richmond, Yorks, the then Leader of the House had persuaded the then Leader of the Opposition to withdraw his motion. I hope that the right hon. Gentleman takes note of that.

Mark Pritchard (The Wrekin) (Con): If there is a general election post deployment, how does the Leader of the House envisage that new Members elected to a new House will have their say? Would any new Parliament require a new vote?

Mr. Straw: Again, it depends. In principle, this House cannot bind its successor and that has to be the case, but exactly what should be done in each situation depends on the circumstances. No Member of this House—whether new or antique—would ever wish to put our troops at risk or our crucial national interests in jeopardy. That would have to be taken into account, but in principle if there were a new Administration—not a continuity of an existing one—it would be fully open to, and appropriate for, the Government of the day to propose a motion on such a matter.

Mr. Edward Leigh (Gainsborough) (Con): What if circumstances change? Given that the justification for that war—that there were weapons of mass destruction that threatened us—was completely different from the present justification, which is that we should try to install a democratic regime, will the Government now allow us a vote on whether our troops should remain in Iraq?

Mr. Straw: I do not accept that the justification is completely different. Of course I am aware, as all of us are—how could we not be?—of the deficiency of the intelligence in respect of Iraq, but the opinion that Iraq posed a

by reason of its proliferation of WMD was the opinion of the whole Security Council, unanimously expressed in resolution 1441 in November 2002. Indeed, I have just quoted its exact words. I know that the hon. Gentleman has taken a consistent and honourable position against the war from the start. The action that we are now taking to sustain a democratically elected Government in Iraq follows directly from a series of United Nations Security Council resolutions that, essentially, give us not just that discretion but that duty to do so.

Sir Peter Tapsell (Louth and Horncastle) (Con): At the very end of the 1951 general election, the Daily Mirror carried the sensational headline, “Whose finger on the trigger?” That is the question that will still have to be answered at the end of all these discussions.

Mr. Straw: As I remember, that was a question about which party should be elected —[Interruption.] The issue is that the decision making in our constitution is a matter for the Executive, and whether or not to approve a decision in respect of military action is a matter for this House. Our constitution works on the
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basis, as most others do, that the Executive propose and Parliament—this House—disposes. We are seeking—I am glad that there is a consensus—to ensure that the role of this House is made more explicit and formal, and that the circumstances in which it is asked by substantive resolution to exercise that role are clearer.

Sir Nicholas Winterton rose—

Mr. Straw: If I may, I shall give way to the hon. Gentleman in a moment. I need to make some progress, as I have already been speaking for just under 20 minutes.

When, in 2002, military action against Iraq loomed as a possibility, many inside and outside this House demanded that any decision be subject to a substantive resolution by this place. I pay tribute to my late and much-missed friend Robin Cook for the way in which, as the then Leader of the House, he faithfully represented in government this House’s views. I am glad to have worked with him on this, and the Cabinet unanimously agreed his propositions. In the event, alongside many statements, four full-length debates on Iraq were held in this place between September 2002 and March 2003. Three debates were on substantive motions: in November 2002; in February 2003; and then, of course, in the crucial determining debate in March 2003, which confirmed the decision for military action by a majority of 263.

That set of debates on substantive motions established a clear precedent for the future from which I do not believe there will be, or could ever be, a departure. Indeed, as my right hon. Friend the Prime Minister put it:

However, there has of course been an issue about whether these precedents and this clear consensus about the role of Parliament should, as I have indicated, be formalised and made more explicit. As the Government’s amendment spells out, we believe that the time has now come to do so. If the amendment is passed, we will make more detailed proposals for consultation—yes, including with the Opposition parties. It is important, if we can, to establish a broad agreement to any new process, precisely because of the gravity of its outcome.

Let me now deal—not with levity—with why there has been some hesitation in government on this issue. Hesitation to make more explicit our procedure has not arisen because of any nostalgia for our system of government before the 1689 Bill of Rights. It has done so because of concern about the adverse impact of any new process on the operational discretion of those in command and on the linked ability to respond to emergency situations and other instances requiring secrecy; and, above all, because of concern about the need not in any way to compromise the security and well-being of our troops or damage their morale. Each of those concerns is very serious and none should be dismissed. Many of them were raised by those who
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gave evidence to the Constitution Committee inquiry, not least those with military experience. Former Air Marshall Lord Garden and Field Marshall Lord Bramall, himself a former Chief of Defence Staff, both stressed that while they were in favour of greater parliamentary involvement in approving decisions on deployment, they strongly opposed parliamentary adjudication of operational decision making.

Former Air Marshall Lord Garden—now a Liberal Democrat peer—cautioned that:

Lord Bramall echoed his warning, stating that

Patrick Mercer: The point that gives me difficulty is the use of the word “substantial”. In our current experience, wars do not start with the massing of forces on borders. Instead, they evolve in dribbles. When do we decide that parliamentary permission is needed for a substantial deployment? Does “substantial” refer to firepower or to manpower?

Mr. Straw: I know that the hon. Gentleman has military experience and I say to him that this is a difficult issue. The motion sets out, as I have, the important caveats to taking a decision in advance of a deployment. I am sure that the hon. Gentleman has read the Constitution Committee’s report, but if he refreshes his memory on it, he will see the interesting discussion of various conflicts in which we have been involved in which, in the main, we have had the opportunity to consider the matter in advance. Sometimes that has not been the case, but it is significant that it has been the case quite frequently. If we go back through the last 100 years, we see that there has been a build up to every military action that I can think of, and it has been the British Government’s decision—to which Parliament consented in one way or another—that has led to the war. I include the second world war, which, yes, turned out to be an existential war involving this country, but the declaration of war was made by us against Hitler, not by Hitler against us.

Dr. Nick Palmer: Does my right hon. Friend agree that although it is likely to increase troop morale if there is solid parliamentary support in advance or at the beginning of an action, it is likely to risk troop morale if the issue is gratuitously reviewed during an action? The suggestions made earlier that the House should regularly return to the issue are therefore perhaps misplaced.

Mr. Straw: My hon. Friend makes an important point. The House should return to the issue in the sense that regular statements should be made and perhaps debates held, but I can think of nothing more damaging to forces’ morale—and many of us have family members in the armed forces—or that would create greater uncertainty and possibly put troops at risk than constant reviewing and the risk that the House would effectively make operational decisions in place of those in command.

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Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): The Leader of the House might recall that in March 2004 we had a lengthy debate, which I opened, on the disclosure of the Attorney-General’s opinion. The hon. Member for Broxtowe (Dr. Palmer) mentioned troop morale. A major factor in troop morale is knowing that the actions that they take are lawful in international and domestic law. In that regard, will there be a change of emphasis from the Government? In other words, will there be a presumption in favour of disclosure where possible, rather than a presumption against?

Mr. Straw: For very good reasons, neither I nor my noble Friend the Attorney-General favours having the advice offered to the Prime Minister and the Cabinet by Attorneys-General and Law Officers disclosed publicly, whether to this place or in any other way. In evidence to the Lords, my noble Friend drew a distinction between disclosing the advice and disclosing what amount to his conclusions in respect of that advice—whether, in other words, the conflict was lawful.

That was the practice that the Attorney-General adopted in respect of the Iraq war. He answered a parliamentary question in the other place, which I repeated here, and published a briefing document setting out why he believed—and it was his decision, not the Cabinet’s—that the war was lawful. Of course Parliament should be informed about matters such as that, but the arguments against making the legal advice available, as opposed to the conclusions stemming from it, are overwhelming. I hope that the question is not pushed further.

There are two models for making Parliament’s role more explicit: one is by statute, the other by resolution of this House, including Standing Orders and convention. When the right hon. Member for Richmond, Yorks gave evidence to the Public Affairs Committee—and in his speech he slightly slid over this as, unlike some of us, I think he has changed his mind—he said that a more explicit role for Parliament could be laid down in an Act of Parliament or in the Standing Orders of the House. However, the report states that he went on to call

As we proceed with the consultation, we will look at the various ways to achieve the objective that I believe the whole House shares. As it happens, the Constitution Committee came down firmly against the statutory route, and raised a number of objections to it. The Committee said that a statutory requirement could create confusion about the legal status of our armed forces, and added that any challenges to the legality of a deployment could have a negative impact on the morale of the forces involved. Furthermore, it said that the possibility that troops could face prosecution was wholly unacceptable.

Aside from creating legal problems and potentially drawing the courts into the decision-making process, a legislative framework would have to ensure explicitly that it did not have a negative impact on an ability to
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react to emergencies. Examples of such emergencies might be the hostage rescue mission in Sierra Leone or, more recently, the UK evacuation of civilians from the Lebanon, where secrecy and speed, respectively, were essential.

The deployment of our forces in the modern world will almost always be part of a coalition. Timetables are not necessarily under our control, and flexibility is needed. Our military involvement could be less timely, and therefore less effective, if an inflexible statutory process and legal challenges to a deployment further delayed commitment. However, I make it clear that we will look at and consider both sets of suggestions that have been put before the House.

The alternatives to statute could be a resolution of both Houses, Standing Orders or conventions. As my hon. Friend the Member for Rhondda (Chris Bryant) noted, that inevitably raises the question of differences between the two Houses and their respective roles. Of course, both Houses have an absolute right to discuss decisions relating to military action, and to be consulted and kept informed by Government. However, in the final analysis, the primacy of the Commons must be upheld—and I believe that that must apply even after the other place has been reformed. I rely on the words of the noble Lord Norton of Louth—

Mr. Keith Simpson (Mid-Norfolk) (Con): It is pronounced “Lowth”, not “Looth”.

Mr. Straw: I apologise. I remember that for a short while there was a Conservative MP who used to be called “the mouth from Louth”.

Lord Louth has noted that

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