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I am glad that we had a vote on the war in Iraq, even though it was held at the very last minute, when many Members felt almost as if a gun were being held to their head. I am also satisfied with the Government’s
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amendment to the motion, which represents a welcome move forward in the thinking on the issue.

In the 21st century—an era of 24-hour news and media punditry; an activity in which I have some part-time interest myself—talking about parliamentary processes and procedures often seems wearisome and old-fashioned. People ask why such things matter. They do not get the point of being exercised about Parliament, its role and procedures. But the truth is that, despite 24-hour news and the increasingly presidential nature of our system, the rights and the powers of Parliament remain the last and best defence of the citizen. On the issue of how and why we go to war as a country, the Government’s amendment represents a significant advance. I am glad that we are having this debate and to be able to support the Government’s position on the issue.

6.8 pm

Sir Malcolm Rifkind (Kensington and Chelsea) (Con): On the face of it, the debate is about parliamentary approval for this country to go to war, but it is almost as much about the erosion of trust in Government and the Prime Minister that has led to the demand for change. I am perhaps the first to contribute to the debate who is profoundly unenthusiastic about the change. I will support it, for reasons I will come to in a moment, but I take no particular pleasure in doing so. I have in mind not only the continuing controversies over the Iraq war—and the feeling shared by many people that they were let down by the Government in the projection of the case for war to both Parliament and the country—but the Kosovo conflict.

Whatever one’s views about the Kosovo conflict, the truth is that we effectively declared war on another country that had not attacked us. We proceeded to bomb that country for six months, but at no time was a vote taken in this House of Commons to give approval to that decision. Three debates took place on the Adjournment, but on no occasion was there an opportunity for a vote on something that was manifestly a war, even though no war had been declared.

The conflict in Kosovo, in combination with the Iraq situation, has led increasingly to a profound mistrust of our arrangements, and to a demand to formalise them. Why do I say that I am unenthusiastic about that change? The answer is that, when one looks at how the royal prerogative has developed over centuries, one sees that what we have now is very different from what existed originally. In the past, the royal prerogative meant that a monarch—or any Prime Minister or chief minister appointed by that monarch—could take decisions regardless of the views of Parliament. Even in those days, however, the need to vote supply meant that Parliament could influence indirectly the monarch’s ability to go to war.

In contrast, the circumstances of the 20th century and today are profoundly different. When hon. Members of all parties talk about the need for democratic accountability, they speak as though we did not have an elected Government. Yet the Government are as elected as this House is, and they are the
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Government only because the Prime Minister and his or her colleagues command a majority in this House. Therefore, there is not the fundamental lack of legitimacy that existed when the royal prerogative was developed and used at an earlier time in our history.

Moreover, the question goes beyond the fact that a Government—any Government—are elected. The comparisons with the US made by my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) are not entirely appropriate, for the following reason. The US President does not depend for his continuation in office on the support of Congress. If the American legislation did not require a vote in Congress before the US could go to war, a President could take that decision on his own initiative. Short of impeachment—which is incredibly difficult, for all the reasons that we are familiar with—there would be no way in which Congress or the American public could either reverse the decision, or stop it.

A President is elected for a full term of office. He does not need to have a majority in Congress—very often, as at present, he does not have such a majority. It would therefore be intolerable, of course, that an issue as fundamental as peace or war could be determined by the President without anyone being able to do anything about it, short of invoking the ultimate nuclear weapon of impeachment.

In the case of the UK, we all know what the political reality is: a Government who decline to ask for an endorsement by the House of Commons in these matters will not survive unless they command, if not the enthusiasm of the House, then at least its acquiescence. The Government take great pride in the fact that they asked for the House’s support when the war in Iraq was determined. That is, of course, historically correct, but I do not think that I will be contradicted when I say that many Labour Members voted for the Government only with enormous reluctance. They did so because they feared that the Government would fall if they failed to carry the day. Similarly, a Government who went to war without a vote would know that the consequence of acting against the wishes of the House and of their own party would be the same.

In an ideal world, therefore, I would prefer that we were not going in the direction in which we are moving. Once constraints such as we are discussing today are introduced by statute—and also, to some degree, by convention—there is a danger that demands for repeated votes during the course of a war could create extraordinary uncertainty and incoherence for our armed forces in the field.

As I say, I take no great pleasure from the direction in which we are moving, but I believe that the Kosovo conflict was hugely important. I make no comment about its merits, but no vote was held in respect of that conflict, and not because the Government believed that not holding a vote would somehow assist our armed forces. No vote was held because the Government were, I suspect, embarrassed by the lack of a mandate from the UN Security Council, and by the fact that we were attacking a country that had not attacked us. The Kosovo mission had broad support on both sides of the House, but the Government found it convenient—for political rather than military reasons—to avoid the House being requested to give its formal approval.

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That is now history, and it is important that we go forward. If we are to require in future that the House must give its explicit endorsement when military operations are contemplated or about to take place, it is very important that we are conscious of what the necessary safeguards should be.

The Government and my right hon. Friend the Member for Richmond, Yorks (Mr. Hague) have both suggested that there would be occasions when it would not be possible for the Government to ask the House for approval in advance of a military operation, and that therefore provision should be made for retrospective endorsement. It is true that there might be such occasions, but any such retrospective endorsement would have to be considered very carefully. In an intervention earlier, I made the point that it is hugely important that a failure to grant retrospective endorsement should not render illegitimate a war already begun, as that would place our armed forces in a very difficult and incoherent situation.

Dr. Palmer: Does the right hon. and learned Gentleman agree that that is also an argument against requiring legislation in these circumstances, as that would subject whatever we might decide to judicial review? As a result, a court might decide that our troops were engaging in an illegal activity because of a drafting error in the Act authorising the war.

Sir Malcolm Rifkind: I broadly agree. It is hugely important that we do not get so involved in our debates in this Chamber that we forget the potential implications for the people doing the actual fighting and risking their lives on the country’s behalf.

There is a second aspect to the question of retrospective approval. It is very important that, if that retrospective approval were to be refused, the Government have maximum flexibility in respect of how our troops would be withdrawn. It cannot be demanded that, because the House of Commons has declined to give its support, our troops must be brought home in days or week, regardless of wider implications. I repeat that we must trust the Government to handle such matters in a sensible and flexible fashion. We must not tie their hands too much.

I shall make only two additional points, as I do not want to detain the House much longer. The first is that the motion asking the House to approve the Iraq war was incredibly complex. I have it here: debated on 18 March 2003, the motion was 32 lines long—a massive attempt to justify what the Government had in mind. A danger arises when it turns out that some part of a justification such as that turns out to be invalid. I shall read out part of the motion, although I stress that I do so not for partisan reasons but to illustrate my point. The motion seeking approval for the Iraq war began by requesting that this House

That was accepted in good faith, but we now know that no weapons of mass destruction existed. If the basis on which the House is asked for approval turns out to be totally invalid, what does that do to the legitimacy of a conflict? What message does it send to the armed forces in the field?

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If a similar resolution is required in the future, I propose that, far from having 32 lines, it should have only one and a half. Of course, any Government arguing their case from the Dispatch Box will have to explain their views, and of course such matters will be debated on both sides of the House, but I believe that the motion itself—the formal, legal endorsement for going to war or entering into armed conflict—should be kept to the minimum possible length in order to avoid the risk to which I have referred.

Mr. Ellwood: My right hon. and learned Friend is making a powerful argument. The vote on the 18 March motion was not about going to war—I was going to intervene on the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) on this point—although I acknowledge that both of us were not here at that point. There was a vote on resolution 1441, which related to the failure of the inspection programme, and a vote on resolution 678, which was tucked away in the motion and had actually been written 12 years before. If we are to introduce new arrangements, we must have a clear-cut indication that this House will decide whether we go to war, rather than the ambiguity of the motion debated on 18 March 2003.

Sir Malcolm Rifkind: My hon. Friend is correct; the motion was meant as political justification for the war. It even refers to the need for peace between Israel and Palestine, as if that was part of the justification for going to war in Iraq.

Ms Abbott: In fact, I was in the House for the debate on 18 March. Whatever the words on the Order Paper, there was no doubt in the mind of anyone in the House—not least the unfortunate people dragged into the Prime Minister’s office in the hours before the debate to have their arms twisted behind their backs—that it was a vote on going to war.

Sir Malcolm Rifkind: I do not doubt for a moment what the hon. Lady says, but it is not a question simply of what Members of this place believe. The terms of the motion are the public record of the decision taken by the House, so they should be in a form that does not subsequently create more problems than they solve.

Mr. Kenneth Clarke: I have listened to my right hon. and learned Friend’s criticism of the motion, but I am not quite sure why a terse, one-line statement, leaving Ministers free to assert whatever they want from the Dispatch Box, would make it any more legitimate. Does not his criticism make the contrary point, which is that at that stage the Government were obliged to set out as many bases for the war as they could think of? I suspect they were acting on the advice of the Whips who said that the debate must be timed for the last possible moment and that the motion should include reference to this and to that because it would maximise the vote. Is not my right hon. and learned Friend’s point that a clear statement of the basis for war should be made earlier, so that it is not as subject to the vagaries of whipping, timing and pressure of imminence? Such a statement would put on the record the reasons for going to war and make it easier to hold the Government to account thereafter.

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Sir Malcolm Rifkind: I agree, but my main concern is the impact on our forces in a theatre of war. It is hugely important that they have a clear understanding that, whatever subsequent political events may demonstrate, the legitimacy of their actions on our behalf is not open to question.

Finally, there is sometimes a tendency to assume that there is a straightforward choice: we are either at war or not at war. However, anyone who has been involved in conflict—even indirectly, in my case, or directly, like some of my hon. and gallant Friends—knows that that is not the case; the spectrum of military activity is huge. I am not referring only to peacekeeping or peace enforcement. I offer an example of the difficulties that we shall have to address.

While I was Defence Secretary and then Foreign Secretary, the UN resolutions on no-fly zones in Iraq were enforced. That did not involve conflict on a day-to-day basis—we were not attacking Iraq every day of the week or every week of the year—but Britain and the United States, the two countries militarily involved, had told the Iraqis that if they breached the UN resolutions and attacked our aircraft or were seen in the air in the no-fly zone, we would take military action to stop them. On several occasions, the Iraqis breached the no-fly zone, so British and US jets took to the air and sometimes shot down Iraqi aircraft and attacked Iraqi radar installations. That was not a declaration of war in any interpretation, but it was armed conflict, which is the term used nowadays. There are rarely declarations of war; they have gone out of fashion as declarations, even if the substance is still with us.

Armed conflict took place, but we cannot seriously suggest that between the Iraqis breaching the no-fly zone and the UK taking action to enforce it we should have had to come to the House to ask for approval. That would be an absurd situation. However, such operational problems can easily arise in the real world, so I say to my hon. Friends as well as to the Government that although, sadly, it is necessary to move towards a formalisation of the role of the House and of Parliament as regards the Government’s use of what has formerly been the prerogative, it will be enormously difficult to handle unless we are prepared to sacrifice the flexibility that has until now been an asset. It is sad that erosion of trust in the Government has forced us to make such painful choices.

6.25 pm

Mr. Neil Gerrard (Walthamstow) (Lab): Normally, when I attend debates and hear agreement between Ministers and Opposition Front Benchers I am immediately suspicious. Today, I shall make an exception, because an important development is taking place along lines for which I and some other Members have been arguing for some time. As I pointed out earlier, I introduced a private Member’s Bill on the subject in January 2005. It had cross-party support and in the following year my right hon. Friend the Member for Birmingham, Ladywood (Clare Short) took the matter up again after the 2005 general election.

Over the past two or three years, there has been a change of opinion and in the degree of support for our views. In late 2004, I tabled an early-day motion that attracted 149 signatures; by 2005, a similar motion
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received 233 signatures. The shift is continuing. The right hon. Member for Richmond, Yorks (Mr. Hague) suggested that it had occurred among only Labour Members, but it has actually occurred on both sides of the House. In 2004, seven Conservative Members signed my early-day motion; by 2005, 36 of the 233 signatures were Conservative. In the opening speeches and in the interventions made on the right hon. Member for Richmond, Yorks, I still detected unease among some Conservative Back Benchers about not only the Government’s proposals but those of their Front-Bench team.

The general mood and general opinion have shifted. The right hon. and learned Member for Rushcliffe (Mr. Clarke) said that only the converts are in the Chamber, but there has been a significant change and the general view on both sides of the House is that Parliament should be involved in what is probably the most important decision that we can make—sending troops to military conflict.

The differences between the Opposition motion and the Government amendment seem to be of the order of angels dancing on pin heads. Whichever of them is accepted, we shall have reached agreement on an important point of principle—things need to change—although we shall still need discussion and consultation about the detail of how the changes are to happen and whether it is to be through legislation or convention.

There has been much mention of Iraq, but the war in Iraq was not the stimulus for my private Member’s Bill, or for the inquiry carried out by the Public Administration Committee, which looked much more broadly at the use of the royal prerogative. The question we are debating was just a part of that. There were three votes on Iraq and I never had any doubt that each of them was about legitimising a forthcoming war. I cannot understand how people in the House at the time could see any of those three votes as anything else.

The first debate was in November 2002, some months before the war, and some Labour Members were not really sure whether they should vote. During the debate, I told them that it might be their only chance to vote before the war and that they should not assume that there would be another chance, although in fact there were subsequent votes. But a precedent was set. The Prime Minister said shortly afterwards that he thought that it was inconceivable now that any Government could try to go to war without a vote—but the fact that the Prime Minister said that is no guarantee for the future. We have to look at the mechanisms involved.

Mr. Gray: The hon. Gentleman used an interesting word. He correctly said that the three votes “legitimised” a war that would otherwise not have been legitimate. Does he therefore agree that if a procedure such as the one that we are discussing were put in place, there would be a risk that, in future, Prime Ministers would seek to use a vote in this place to legitimise something that, if it were done under the royal prerogative, would not be legitimate?

Mr. Gerrard: I think that we are getting into a slightly arcane legal point. Obviously I accept that if it were laid down in legislation what votes should be
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taken, how they should be taken and in what circumstances, that would open up the possibility of legal challenges—in a way that might not arise if we had a convention. But I was not using the term “legitimising” in its strictly legal sense; I was thinking about the Government’s seeking justification for the action that they intended to take.

If we start to look at the detail, we can see that the argument between having legislation and relying on convention is quite difficult. My gut feeling and preference would be for legislation, having introduced a private Member’s Bill on the subject a few years ago, but I recognise from that experience the difficulties of drafting and of getting the legislation exactly right. Safeguards are necessary to allow for urgent action and for troops to be able to defend themselves without any fear that that action will create difficulties for them. How do we distinguish between military action and peacekeeping? Is there really a distinction in some cases?

I recall the debate on the Bill introduced by my right hon. Friend the Member for Birmingham, Ladywood and that some of the difficulties that were suggested at that time were somewhat exaggerated. The most important difficulty is one that the right hon. and learned Member for Rushcliffe spoke about in his contribution: the timing of the vote. If Parliament is asked to vote when troops have already been deployed—as it was in the final vote on Iraq—certainly for some people it becomes much more difficult to oppose the war.

Ms Abbott: Does my hon. Friend agree that timing is vital for two reasons? When the House is asked to vote on military action and the troops are massed at the border, two issues come into play in Members’ minds. First, there is the fact that they will be letting down their troops, who have been heavily deployed. Secondly, there is the humiliation that the Prime Minister of the day will suffer if his own MPs do not vote for military action. Timing is key to having a proper and reasoned vote on the subject.

Mr. Gerrard: I accept both those arguments. The difficulty is how to get the timing right. If the timing of the vote is left entirely in the control of the Prime Minister, frankly it would be a pretty stupid Prime Minister who could not select when he would have a much better chance of getting the desired outcome. There is no question but that the timing of the vote can affect the outcome. Whether we go down the legislative route or the convention route, we should be looking for some mechanism that gives Parliament more control over the timing and more choice about when votes are called, as was suggested. If all the choices about timing are left to the Executive, it is almost certain that the vote will take place when it is most likely that the Executive will get the result that they are looking for.

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