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The one point on which I differ from the Select Committee—and which is open to further argument—is that I would prefer as much of this as possible to be put on a statutory basis, whereas the Committee came down on the side of parliamentary
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convention. There are enormous difficulties involved in the drafting of a suitable statute. We do not want too rigid an arrangement to cover an infinite variety of circumstances, which may on occasion require some common sense and flexibility. I regret to say, however, that I have declining confidence in the power of convention in the British constitution. I used to be a great supporter of the place of convention in the constitution, because I prefer political sanctions to legal sanctions and intervention wherever possible, but I regret to say that in modern times I have seen more parliamentary conventions laid on one side when expediency determines than I have seen statutes defied or revised. Other countries have found it possible to put similar processes on a statutory foundation, and I do not think it should be beyond proper consultation, and the wit of parliamentary draftsmen, to find an appropriate basis for this process, as long as suitable discretion is allowed not only for emergencies but for all the other myriad circumstances to which Members have already referred today.

Sir Malcolm Rifkind: My right hon. and learned Friend is correct in saying that other countries have found it possible to adopt a statutory approach, but may I suggest that that may not be a proper comparison? The United Kingdom is one of the very few countries that use their armed forces for a wide range of activities and operations in many parts of the world, including not just conflict but peace enforcement and peacekeeping. What would concern me enormously about a statutory approach is that the problem would be dealt with in a very rigid way that could seriously impede the ability of our armed forces to perform properly the task they had been given. As we have all agreed, circumstances will constantly change, and if it were necessary to refer constantly to some Act of Parliament rather than using the greater flexibility allowed by a convention, we might do a great disservice that we certainly do not intend.

Mr. Clarke: I agree that that danger must be avoided in the drafting of a statute. A hugely complex, detailed and prescriptive statute would be a mistake. However, I do not think that it is beyond our abilities to produce a statute setting out firmly the framework of the process that should be followed, leaving adequate discretion to both Government and Parliament to use it as common sense and politics dictate in particular circumstances. That is, of course, something that can be considered during the consultation that the Leader of the House has proposed.

Why do I say that it is not good enough merely to adopt the precedent of the vote that we had? I am grateful for the fact that we had a vote—it was a triumph that we managed to secure one—but why did that vote not constitute an adequate basis on which to proceed? The first and most obvious point is that it was not a timely vote.

I will not repeat what the right hon. Member for Oldham, West and Royton has just said, but there was resistance to a vote when it became increasingly obvious that an invasion was being planned. I share the right hon. Gentleman’s suspicion that the Prime Minister used the royal prerogative to commit the country to taking part in an invasion early in 2002,
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long before that information was shared with many people in the country. We did not arrive at the vote that counted until the very eve of war, and when we did vote, it was obvious to anyone who had followed the debate that the invasion would take place within a matter of days. Half the British Army was already in place in the desert, and no doubt the Americans were telephoning the Prime Minister to tell him that he must speed up the process because everyone was going to go.

I know that in recent days the right hon. Member for Oldham, West and Royton has been embarrassed by the fact—quite amazing to those who know him—that he has a record of having voted in favour of the invasion, but he is not alone on either side of the House. I well remember from discussions that took place at the time of the debate that many Members on my side of the House—not just the 20 or so who voted against the war at various times—felt that they could not possibly vote against it when the troops were already in the field, and could not understand how on earth Parliament could now be expected to pull them all out and bring them home. It was not a vote in which Parliament was being invited to take part in a timely fashion, and it was not a vote which most Members of Parliament could really believe would have the slightest credible effect on the outcome.

We had had various statements. We had known what was going on. We had had one or two votes. We had had the vote in November 2002 on resolution 1441. I voted in favour of the motion tabled that day; it was skilfully worded. A very high proportion of those who voted in favour of that motion believed that they were voting for the last chance of avoiding war, not in favour of participation and an invasion. Many of us became indignant when it was later claimed that the November vote gave parliamentary authority for what happened. Many people in this country and abroad thought that a second United Nations resolution would be required before it could be turned into a basis for war.

We had a lot of statements, followed only by questions, but no substantive motion. Whenever problems arose we had inquiries, but the inquiries were deliberately set up with very narrow terms of reference. The Hutton report inquired into the death of Dr. Kelly. The Butler report inquired into the use of intelligence; it was very critical, but not sufficiently so to shake the Government. In my opinion, those inquiries were set up to minimise parliamentary debate on those issues and to shift it outside, not to give Parliament a further opportunity to take part in the process.

We had no vote at any relevant time when the debate and vote might have influenced the outcome, so we now have to draft a process. The starting point must be when a significant deployment of troops takes place; that is the time when the law, or strong convention, should require that parliamentary approval for a Government decision be given before it can be acted on. We need a process that lays down rules to establish that.

Wider issues could also arise. The time has come when—as the Modernisation Committee seems to be contemplating—Parliament should have more control than it currently has over its own timetable and agenda, and the subject matter for debate. I welcome what the Modernisation Committee appears to be contemplating if that gives the opportunity for Parliament itself to
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force motions and substantive debates on substantive questions about the progress of a war and the next steps that should be taken.

I do not believe that once we have gone to war, that should always rule out parliamentary scrutiny on the grounds that any discussion would undermine the troops in the field and be bad for morale. Of course certain types of debates would be very damaging to morale and extremely unpatriotic, but I think that the House can be relied on to treat Members who engage in such debates very roughly indeed. However, on many occasions the troops must be amazed that so little parliamentary attention appears to be paid to what they are engaged in, and they would like to be reassured that somebody back home is debating what is going on, and what is the likely outcome. In a modern democracy it should be impossible to cut out parliamentary scrutiny, and the need for the Government to seek a reaffirmation of their authority. I believe that they did so on a considerable scale in the Crimean war; the case for that in the 21st century is much stronger. We should be allowed to have such scrutiny nowadays.

Mr. Ellwood: My right hon. and learned Friend is making a powerful case, and I fully support what he says. I was not in favour of the war, but I am not in favour of the management of the peace initiative either. Does he agree that it would also be right to scrutinise what we do in the aftermath of war fighting—in the peacekeeping? Had we managed that better, the position would not be as it is now—close to civil war.

Mr. Clarke: I wholly agree. In terms of both Iraq and Afghanistan, we are currently unclear about what the Government believe will happen. We have not had adequate parliamentary scrutiny. I supported the operation in Afghanistan, and I was against that in Iraq. There is no argument against Parliament’s considering a serious substantive motion about the future conduct of operations in both places. It would not be remotely unpatriotic for this House to address that. The circumstances in both countries are plainly wholly different from those that we thought we would face when we first intervened.

The second thing wrong with the process was the way in which, at every stage, the Government controlled all the information on which Parliament acted. Of course the Government have to be the principal source of information, but there are certain types of information that our conventions and statutes should require them to lay before the House as a matter of duty, not just of choice. The legal basis for the war should obviously be placed in a clear statement before the House. As it happens, I am not one of those who believe that the Attorney-General’s full opinion should ever be made public and placed before the House, because that would get in the way of fearless advice. Moreover, if the whole thing had to be drafted for public consumption, that would alter every nuance of it. Rather, the conclusion should be set out as such, and as a declared statement of the legal basis on which the Government are proceeding. That was done during the Iraq war, but again, not willingly or in a straightforward fashion. It was pretty messy, and arguments continued about the whether the Attorney-General had wavered. It would have been much better
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to have had straightaway a requirement that the Attorney-General draft the legal basis for proceeding to war and place it before Parliament.

Mr. Straw: I know that the right hon. and learned Gentleman took a different view on the merits of the Iraq war, but on reflection I do not think that his comments about presenting to this House and the other place legal justification for military action are justified. My right hon. and noble Friend the Attorney-General did come forward at the appropriate time—it needs to be borne in mind that, contrary to what the right hon. and learned Gentleman said, a decision to go to war had not been taken until the last few days before it was put before this House—and did present a legal justification for military action, which is exactly what he said he thought ought to happen when he gave evidence to their lordships’ Committee.

Mr. Clarke: I do not agree with that analysis of events at all. The whole point about the invasion of Iraq is that it was not a sudden or quick process. It was a very long process, planned back in 2002, involving a remorseless build-up to an invasion that became ever more inevitable the more that preparations were made. One can see that from Bob Woodward’s descriptions of what was going on in the United States. As is usual, we have had far more revelations about what happened day to day in the United States in the run-up to the war than we in this country will get for 30 years.

There came a stage in that process when so many troops had been deployed and so much preparation has taken place for what might lead to an invasion—I would say that it was 90 per cent. likely to lead to warfare—that the time had come for Parliament to be asked to approve that deployment. At that stage, Parliament should have had plainly before it not just a bald statement that the Attorney-General believed the deployment to be lawful, but an adequate, decent legal statement on the legal basis, saying why, on the authority of international law and precedent, the Attorney-General had come to that conclusion. There should, of course, also have been a plain statement of the purpose of the war, and why the British Government thought that there was a British interest that it might prove necessary to defend through the use of military force. That was the key thing in the Iraq war.

When we have the promised inquiry—now promised by a Government who were reluctant to have an inquiry, and who refused one the last time we debated this issue on, I think, a nationalist motion—we will discover whether the reasons given for going to war when we had the final votes were those agreed on by the President of the United States and the Prime Minister many months before. To judge by my many discussions with neo-conservative friends of mine who debated vigorously with me my opposition to their determination to see regime change in Iraq, I very much doubt whether at any stage there was a plain and defensible statement of the real political and diplomatic motives for going to war. Something of that kind must be the starting point, so that we can clarify it in consultation. We need to put it into some firm
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process that cannot be wriggled out of, so that with future military conflicts, we will not get into that situation again.

Dr. Palmer rose—

Mr. Clarke: I apologise, but I must conclude.

My main concern is of course to improve parliamentary control, and to deal with the problems that the right hon. Member for Oldham, West and Royton addressed, such as the ever-growing power of the Executive and the ever-weakening role of Parliament in holding the Executive to account on the public’s behalf. However, we must also ask questions about the legitimacy of warfare. We all want to debate what is a just war and what is not. What are those extreme situations where British interests are so threatened that the use of military power is justified? There are few pacifists in this House, and we all accept that such situations do occur. However, they have occurred 60 times—some to a minor extent—in the last 10 years. We need to be satisfied, and our troops, too, need to be satisfied, that they are embarked on a legitimate process that has been authorised by the Parliament of their country, which is upholding the best interests and the best values of their country.

The point was brought home to me most clearly in one of those arguments that I have described with one of my neo-conservative friends—a leading architect of the war. I was debating with him United Nations resolutions and the legality in international law of what was being proposed. I knew very well that he did not take the United Nations or international law very seriously; on the whole, such matters were indulged in by neo-conservatives to assist their European friends in getting their own countries involved, as well. They were not high on the list of priorities so far as leading neo-cons were concerned. However, my neo-con friend was able to answer my question about the legitimacy of his argument: he said, “We have all the legitimacy, as an American Government, that we require. We have large majorities in favour in both Houses of Congress.” He thought that far more important than UN resolutions, or some fiction—in his opinion—called international law. I reflected that I could not counter that by saying that such legitimacy would necessarily be required under the curious constitution of the United Kingdom.

What we are advocating, and the change that we are embarked on, will not in my opinion weaken this country as a power able to exercise influence in foreign affairs or defence. My right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind), a former Foreign Secretary, is concerned that we might put in place systems that hamper our ability to punch above our weight—to use the Foreign Office phrase of which he is very fond—and to have an influence for good in the world. I would not wish to see that, but nine times out of 10, the process that we are discussing would strengthen a British Government’s power to handle a diplomatic incident and to insist that British influence prevail.

There will be cases like Suez, when Ministers lied to Parliament quite substantially—which I have no basis for saying that Ministers in the present Government did in the case of Iraq. There will also be cases like
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Iraq, in which there was controversy, and eventually it was proved that the whole thing was wrong. But in other cases, if a British Government facing our enemies, or other problems, can say, “We can demonstrate that we have won the support of Parliament”—it would usually be on a cross-party basis—“by explaining the cause and the legal basis and by being frank about the deployment,” that Government will be more feared and respected. There will then be less doubt about their ability to take part in military action if our interests are not respected.

I do not think that, in the 21st century, we would weaken a Government by doing that; I think that we would strengthen it. We would get rid of the absurdity whereby it remains the case that the Prime Minister of the day can take to himself the powers of an absolute monarchy. A future Prime Minister would have enhanced authority if there were a process by which he could get the authority of Parliament behind him in defending British interests overseas. The proposed constitutional change would improve, rather than weaken, our ability to conduct foreign policy, and it would be looked back on as a change that it is amazing was not made a century earlier. This system should not have been allowed to drag on until this stage. At last, we have a Government spokesman standing up and defending what future students of politics will regard as obvious common sense.

6 pm

Ms Diane Abbott (Hackney, North and Stoke Newington) (Lab): This debate is on the principle of parliamentary approval for armed conflict. It is an important debate of principle, but it takes place of course in the shadow of a very real armed conflict—the ongoing war in Iraq. I voted against that war and was never more comfortable with a vote in Parliament.

Last week, I attended a production at the Tricycle theatre entitled “Called to Account”, which was conceived and directed by Nicolas Kent, in which the Prime Minister is put on trial for war crimes. There can be few armed conflicts in the 20th and 21st centuries that provoke as much bad feeling and anger as the war in Iraq. Even though we had a vote on it, the process by which we went to war has put a focus on the issue of parliamentary approval.

The decision on whether to go to war is the single most important function of Government, and the public do not understand that on that decision a vote in Parliament is strictly optional. In fact, as the Leader of the House pointed out, the public do not understand why, when we do have a vote, it is on the issue of whether we should go home. It makes no sense to have procedures that have no meaning even for relatively well informed members of the public.

The process by which we agree to armed conflict at present reflects the use and abuse of the royal prerogative. Several hon. Members on both sides of the House have made reference to the royal prerogative and how outdated its use is now, but the first person whom I heard speak at length and fluently about the abuse of it was the former right hon. Member for Chesterfield, Tony Benn. On that, as on many other issues, he was both prescient and right. He has been proved correct by events and I am sure that he will be pleased to see that Ministers are catching up with him on the issue.

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The other important aspect of the debate, although we are dealing only with one narrow function of the royal prerogative, is that it sheds light on the slide that has taken place under successive Administrations towards a presidential model of government, without the checks and balances that one sees in the US, which has a genuine President. It is interesting that the US is having a lively, constructive and engaged debate, instigated by Congress, about the Iraq war, its progress and whether the US should withdraw. We are having no such debate on the Floor of the House. Here, we have to await the will of whoever is Prime Minister. The comparison with the US, where Congress can have a proper debate about the progress of the war and the possibilities for withdrawal, is most illustrative.

It is especially important that the House reviews the process by which the country goes to war given the rise and rise of the doctrine of liberal interventionism. I am a sceptic on that issue, especially when the intervention occurs without a proper legal framework. If we are to intervene increasingly in other countries for humanitarian or other reasons, we need to have a much firmer framework on which to do so. At the moment, international law on the subject means whatever the last lawyer to speak about it says it means.

Members on both sides of the House have said that we not only need a vote on going to war, but better intelligence and more information. They have said that we did not have enough intelligence last time and that that was the problem. As one of those who voted against the war in Iraq, I wonder whether they read either of the dossiers that were produced. Both were simply assertion piled on assertion and lacked factual information. Having read them, I was never persuaded by them. Perhaps it is my background as a career civil servant that led me actually to read the paperwork, but I was not persuaded by it.

Nor was I persuaded by the assertion in the newspapers that Saddam Hussein had missiles that could hit British territory, or even Cyprus, in 45 minutes. Hon. Members on both sides have said that they did not have enough information, but on the information that was laid before the House—and the speeches and writings of people such as Scott Ritter, one of the last UN weapons inspectors to go to Iraq—I was satisfied that there was no legal basis for the war. Members who unfortunately voted for the war should not hide behind a lack of intelligence or information.

We had a vote on war with Iraq and for that we owe some gratitude to the then Leader of the House and the then Foreign Secretary, who felt it important that if we were to go to war in that instance we should do so after a vote in the House. None the less, it was not mandatory to have a vote. I welcome this debate and what we have heard from at least one of the candidates for the leadership of the Labour party about a willingness to move the procedure on. It is wrong for Parliament, for our armed forces and for the political process that we should continue, in the 21st century, to take our country to war through a process that depends on the norms of the 16th century.

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