Joint Committee on the Draft Constitutional Renewal Bill

Joint Committee on the Draft Constitutional Renewal Bill First Report

CHAPTER 7: WAR POWERS

306._Under royal prerogative powers, the Government can deploy armed forces into armed conflict abroad without the consent of Parliament. There has been considerable debate about the use of this power in recent years, in particular since the start of the Iraq conflict in 2003. In 2004, the House of Commons Public Administration Select Committee (PASC) recommended that the Government should introduce a statutory provision requiring Parliamentary approval for any decision to engage in armed conflict.[158] Over subsequent sessions, a series of Private Members' Bills were introduced in both the Commons and Lords which sought unsuccessfully to introduce such a provision.[159] In July 2006, the House of Lords Constitution Committee concluded that a statutory provision presented difficulties, and therefore recommended that a Parliamentary convention should be established to set out Parliament's role in deployments.[160] Whilst we were undertaking our inquiry, PASC published a follow-up report on the Government's proposals, the conclusions of which we refer to below.[161]

307._The Government's response to both the first PASC report and the Constitution Committee report showed little enthusiasm for any reform.[162] However, in The Governance of Britain Green Paper, published in July 2007, the Government conceded for the first time that there was a case for reform.[163] In October 2007, the Government published a consultation paper War powers and treaties: Limiting Executive powers,[164] with four options for reform: i) a detailed Commons resolution; ii) full legislative provision; iii) a "general" Commons resolution; iv) a "hybrid" option. The consultation closed in January 2008.

The Government's proposals

308._The Government's proposals were set out in the Constitutional Renewal White Paper, as follows:[165]

Resolution: A detailed House of Commons resolution, setting out the processes Parliament should follow in order to approve any commitment of armed forces into armed conflict. The Government published a draft resolution as Annex A to the White Paper;
Definitions: Statutory definitions of "conflict decision" and "UK forces";
Executive Discretion: The Government propose that the Prime Minister should retain powers of discretion over the timing of a vote, information supplied to Parliament, including in any report, and whether exceptional circumstances apply. The Government propose that the Attorney General's advice on the legality of a deployment should not be published as a matter of course, and that retrospective approval should not be required when exceptional circumstances apply;
Parliamentary Oversight: The Government propose no specific arrangements for the recall of Parliament aside from those currently proposed. The House of Commons would have a vote on a deployment (save in exceptional circumstances) whilst the House of Lords would hold a debate but not a vote. The Government have rejected arguments for a regular re-approval process, and a new Parliamentary committee.
Exceptions: An exceptional circumstances procedure will apply "if the emergency condition or the security condition is met". Approval will not be required for conflict decisions involving the special forces.

309._Evidence received on the Government's proposals has fallen into three broad camps:

(iv) Broad support for the Government's proposals;

(v) Those who argued the proposals do not go far enough, and in particular that they would not provide effective Parliamentary accountability;

(vi) Those who argued that the proposals go too far.

In the rest of this Chapter we give an overview of each of the Government's proposals and the evidence received, and then give our conclusions on each point.

A RESOLUTION, LEGISLATION OR THE STATUS QUO?

The status quo

310._Some witnesses argued that the current arrangements should be retained, or be subject only to limited reform. Lord Falconer of Thoroton told us that reform would add "a layer of legality which is unnecessary and problematic", and was seeking to solve a non-existent problem, since "you could not use force now without the consent of Parliament". (Q 211) Professor Vernon Bogdanor, Professor of Politics and Government, Brasenose College, University of Oxford, was concerned that the Government were seeking to meet a substantive worry about the Iraq war through a constitutional reform. (Q 5) Lord Boyce, former Chief of the Defence Staff, saw no operational value in what was being proposed, since other countries with such a process were "operationally ineffectual." (Q 35) Lord Craig of Radley, another former Chief of the Defence Staff, thought it was inappropriate for the legislature to make executive decisions on deployments. (Q 41) However, the majority of witnesses were clear that some reform had to take place. For them, the point at issue was what form it should take.

A Resolution

311._A detailed House of Commons resolution is the Government's preferred option. The Lord Chancellor told us that a statutory solution might be too prescriptive and restrictive of "genuine military discretion", and that some in the military were concerned that the "detailed rules of engagement" could be subject to line-by-line debate if a statutory solution were adopted, although he himself was "not scared" by a statutory approach. (QQ 746-747) Although Sir Michael Wood, a former Foreign and Commonwealth Office Legal Adviser, had sympathies with the current arrangement, he did concede that a detailed resolution would effectively formalise Parliament's role whilst at the same time being flexible enough to allow for improvements to the mechanism to be made. (Ev18, paras 9-10, 17) Peter Riddell, Chief Political Commentator, The Times, and Chairman, Hansard Society, also thought a convention of this kind was "a reasonable compromise" between flexibility and accountability. (QQ 4-5) The Constitution Committee concluded that a 'detailed resolution' would be "an effective way of introducing a new convention similar to that which we recommended in our 2006 report." (Ev71, para 19) The Clerk of the House of Commons and the Clerk of the Parliaments suggested several benefits of a resolution rather than a statutory approach: Parliament would have more control over its own procedures under a resolution than under a statute; a resolution would deliver more flexibility; and it would avoid the risk of blurring the separation between the legislature and the courts. (Ev65, paras 6-9)

312._We received some evidence about the content of the proposed resolution. The Clerk of the House of Commons and the Clerk of the Parliaments noted that the Government's draft "contains statements of major constitutional significance alongside detailed procedural rules". They also suggested that it might be inappropriate for those elements of the resolution which relate to the House's conduct of its own proceedings to be set out in a humble address to the Queen, as currently proposed by the Government. The Clerks noted that the Commons customarily defines and regulates new procedures by means of standing orders. They therefore suggested that the new procedure might be implemented by way of a shorter resolution, including Part 1 of the current draft (general principle that approval is required) and the descriptions of the exceptions in the third and fourth parts, with the details set out in a new standing order: "standing orders are better suited to the detailed description of how the business is to be conducted and have more obviously the character of rules which are amenable both to interpretation in the light of particular circumstances and if necessary to challenge". (Ev65, paras 5-7)

A statutory solution

313._Others favoured a statutory approach. David H Smith argued that "Parliament should claim through legislation its right to be the sole source of executive authority." (Ev09, para 20) Former Foreign Office Deputy Legal Adviser, Elizabeth Wilmshurst, and Graham Allen MP valued the force and certainty that a statutory solution would provide. (Q 28, Ev17, para 10) Democratic Audit were concerned that the flexibility of a resolution would be "open to abuse to the detriment of democratic principles and practice". (Ev04, para 22) Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, argued that flexibility could just as easily be provided through a statutory route as through a resolution. (Q 23) Michael Hammer, Executive Director, One World Trust (in common with Democratic Audit and Graham Allen MP) told us that international comparisons showed that a statute-based solution did not necessarily prevent a government from taking swift action or protecting the interests of its troops. (Q 148. See also Ev04, para 22, and Ev17, para 10)

THE ISSUE OF LEGAL RISK

314._Two aspects of legal risk were raised during the inquiry: risk to individual service personnel, and risk to Government and senior military commanders. We received a large amount of evidence on the question of legal risk to individual soldiers. For Peter Riddell, this was the "fundamental issue" in ruling out a statutory solution. (Q 15) Sebastian Payne, Kent Law School, University of Kent, also believed that the risk of legal liability could not be easily dismissed. (Q 150) The Constitution Committee reiterated its view that "the possibility—however remote—of, for example, subjecting forces of the Crown to criminal prosecution for actions taken in good faith in protecting the national interest is unacceptable." (Ev71, para 19)[166]

315._On the other hand, Elizabeth Wilmshurst argued that a specific provision could be placed in the Bill to ensure the troops themselves would have immunity. (Q 24) Professor Steven Haines, Professor of Strategy and the Law of Military Operations, Royal Holloway College, University of London was "bemused" by concerns over legal liability, claiming that "erroneous claims" had been made by people "who ought really to have known better". (Q 24) The Lord Chancellor told us that he understood the anxiety over this issue, but he did not think there was "any basis" for concern, either under a statutory or a resolution route. He argued that, were a statutory route chosen, it was "absolutely clear that nothing in the statute suggests or implies that [there] would be any liability falling on individual service personnel." Like Ms Wilmshurst, he noted that a statutory option could include a specific exemption from liability. (QQ 744-745)

316._A second point of concern related to the legal liability of the Government, or of military leaders. Lord Falconer thought that the proposed reform "will lead to people … constantly going to court just to review the Prime Minister." (Q 211) Sir Michael Wood agreed that, with a statutory solution, "Ministers and military commanders would continually need to have regard to the 'judge over their shoulder.'" (Ev18, paras 11-12) PASC, which had previously advocated a statutory solution, conceded that it could "see why the Government and the military would not wish to risk having the basis for any and every future conflict decision pored over by the justice system. A Parliamentary resolution may, for the moment at least, be the pragmatic way forward".[167]

317._Other witnesses saw positive benefit in making the process justiciable. Michael Hammer emphasised that a statutory solution could protect the Government from legal action, if they had followed due process. (Q 150) Professor Stuart Weir, Director of Democratic Audit, Human Rights Centre, University of Essex, told the Committee that "the point about putting this on a statutory basis is that you do make it justiciable and you do therefore have some kind of control over process which we do not have at the moment … there should be clarity in what is possible and what is not possible, how government should behave". (Q 5, see also Ev17, para 10) However, the Lord Chancellor told us that the "implication that the courts only judicially review executive acts if they are based on statute rather than the prerogative … to my certain knowledge is not the case." He thought that the precision of statute could in fact make the courts less likely to "second-guess what the executive is doing." (Q 743)

318._We agree that there is a case for strengthening Parliamentary involvement in armed conflict decisions. We also agree with the House of Lords Constitution Committee that the Government's detailed resolution approach is a well balanced and effective way of proceeding.

DEFINITION OF "A CONFLICT DECISION"

319._Paragraph 1(2) of the draft detailed resolution defines "a conflict decision" as "a decision of Her Majesty's Government to authorise the use of force by UK forces if the use of force:- (a) would be outside the United Kingdom, and (b) would be regulated by the law of armed conflict." The Lord Chancellor argued that "you do know what an armed conflict is when you see one", although he did concede that situations where a deployment escalates can be "more complicated." (Q 748) Witnesses such as Professor Haines were content with the definition as drafted. (Q 27)

320._However, a number of others expressed concern. Sir Michael Wood conceded that "[w]hatever definition is used there are bound to be difficult borderline cases". (Ev18, para 17) The former Chief of the Defence Staff, Lord Bramall, agreed that defining conflict was complicated. (Q 33) Lord Craig argued that it would often only be possible with hindsight to know whether a deployment had escalated into an armed conflict. (Q 34) Lord Boyce was concerned that "the lack of any sort of definition" would "make it extremely difficult for commanders to understand how to carry out their business properly". (QQ 35, 43, 50) Sebastian Payne suggested that the Government had created its own problem by "suggest[ing] something that nobody can define". (QQ 151, 153) Michael Hammer suggested that the best approach would be "define the exclusions … use a very limited list, and … define them as narrowly as possible". (Q 152)

321._We share the widespread concern amongst witnesses about the difficulty of effectively defining 'a conflict decision'. We therefore recommend that the Government, in consultation with key stakeholders, take more time to come up with an effective definition of 'a conflict decision' before bringing any proposals forward. In particular, we suggest that the Government investigate the possibility of identifying those deployments that should be excluded from the definitions.

Areas of executive discretion

INTRODUCTION

322._The draft resolution makes reference to four areas where the Government (through the Prime Minister) retains a power of discretion over the approval mechanism:

The provision of information to Parliament. Paragraph 2(3) states that the Prime Minister will lay a report before the Commons setting out "the information about objectives, locations and legal matters that the Prime Minister thinks appropriate in the circumstances." The Prime Minister has similar discretion over the information contained in reports after the exceptional circumstances procedure has been used (Paragraph 3(9)), and in relation to a deployment made while the House is dissolved (Paragraph 5(2)).

Timing of a Parliamentary vote. Paragraph 2(2) states that "[i]t is for the Prime Minister to start the process in relation to a proposed approval."

Exceptional circumstances. Paragraph 3 sets out a mechanism of exceptions to the requirement for Parliamentary approval, on account of an emergency condition (where "the conflict decision is necessary for dealing with an emergency", and there is not sufficient time for approval) or a security condition (where "the public disclosure of information about the conflict decision could prejudice the effectiveness of a deployment or the security and safety or armed forces and others") being met. Paragraph 3(5) states that "It is for the Prime Minister to determine if the emergency condition or security condition is met."

Parliamentary reports. In a case involving the security condition, a report does not have to be laid before Parliament if the Prime Minister is satisfied that the security condition still exists or that the laying of a report could prejudice national security or the UK's international relations (Paragraph 3(11)).

DISCRETIONARY POWERS: GENERAL ARGUMENTS

323._The Government have argued that such discretion is necessary because the Prime Minister is in the best position to make such judgments.[168] Sir Michael Wood agreed that "[c]ertain matters must inevitably be left to Government, and the draft properly reflects that." (Ev18, para 15) Lord Craig agreed that "much would have to remain with the Prime Minister". (Q 34)

324._However, Sebastian Payne argued that the Prime Minister retains "so much discretion it is far from obvious that [the resolution] changes the current position greatly". (QQ 141, 154) Professor Weir, Peter Riddell and Peter Facey, Director of Unlock Democracy, all said that the Government retained too much "wriggle room" under the draft resolution, (QQ 2, 5, 14 and 149) whilst Professor Tomkins asserted that such discretionary powers had "the potential significantly to reduce—perhaps even to undermine—the headline move." (Ev01, para 12) Elizabeth Wilmshurst agreed. (Q 19) Democratic Audit argued that "[t]he degree of flexibility the government seeks to retain is precisely the flexibility that has discredited politics in this country in recent years". (Ev04, para 11) PASC was also concerned that "the terms of the resolution as drafted leave too much discretion in the hands of the Prime Minister."[169]

THE PROVISION OF INFORMATION TO PARLIAMENT

325._Some witnesses defended the discretionary power given to the Prime Minister in relation to the provision of information to Parliament. Lord Boyce pointed out that some information would be secret, which would present practical difficulties in terms of how it was handled. He also argued that Parliament had been kept well informed in the past. (QQ 41, 57) Lord Craig argued that it was important to ensure that troops "did not feel that their security was being jeopardised by release of information which could be of value to the enemy". (QQ 57, 59) Lord Falconer told the Committee that "the Executive make the decision about whether we go to war because they have the information". (Q 211) The Lord Chancellor told us that "with the benefit of hindsight … we could and should have provided much more information to the Commons" about the conflict in Iraq. He suggested that the resolution would remedy this kind of problem. (Q 737)

326._Others disagreed. Professor Peter Hennessy, Attlee Professor of Contemporary British History, Queen Mary University of London, described it as the "fault line" beneath the proposals.[170] Sebastian Payne (Q 156), Peter Riddell (Q 5) and the Constitution Unit (Ev07, para 6.2) all argued that it was the key issue, and Professor Hennessy,[171] Professor Tomkins, Elizabeth Wilmshurst and Graham Allen MP all expressed their concern that the provision of information should not remain entirely in the hands of the Prime Minister. (Ev01, para 12, Q 27, Ev17, para 10) Professor Weir argued that there was a danger of "replicating in fact the process that led to the approval of the Iraq War, because the Prime Minister will control the information that is made available to Parliament". (Q 5) Professor Bogdanor, Professor Haines, Peter Facey and Sebastian Payne agreed that the resolution would not have made any difference in the case of Iraq. (QQ 16, 27, 155, 156) PASC called for "independent endorsement of information provided by the Prime Minister on a conflict … [o]ne option might be for this endorsement to come from the cross-party Intelligence and Security Committee."[172]

THE ATTORNEY GENERAL'S LEGAL ADVICE

327._In relation to the provision of information, a number of witnesses drew attention to the issues surrounding the publication of the Attorney General's legal advice on the legality of any deployment. We have addressed this question in detail in Chapter 3, paragraphs 85 to 88 above.

TIMING OF A PARLIAMENTARY VOTE

328._We received less evidence on the issue of the timing of a vote than on provision of information. What evidence there was reflected a similar division of opinion. Whilst the Government asserted that "it is for the Prime Minister to determine the most appropriate timing",[173] witnesses such as Professor Weir thought that the Prime Minister's control over timing was "very dangerous", because, once again, this was one of the defects in the process in the build-up to the Iraq conflict. (QQ 5, 12) Elizabeth Wilmshurst, Professor Tomkins and Graham Allen MP also argued that the Prime Minister should not have full control over the timing of a vote. (Q 27, Ev01, para 12, Ev17, para 10) Professor Tomkins suggested that the Speaker or the Chairman of the Liaison Committee could determine the timing of a vote. (Ev01, para 15)

EXCEPTIONAL CIRCUMSTANCES AND THE CASE FOR RETROSPECTIVE APPROVAL

329._There was a broad consensus of opinion that an exceptional circumstances procedure of some form was necessary. (QQ 34, 60, Ev17, para 10, Ev04, para 23, QQ 164-165) However, there was concern amongst some witnesses at the degree of executive discretion proposed in the White Paper. Peter Facey argued that the overall definition of "exceptional circumstances" was too broad. (Q 154) Though Lord Boyce agreed with the Government that the exceptions in the resolution "will no doubt help", he added that he could "see everything coming under those let-out clauses come the time". (Q 35) PASC called for independent endorsement of a proposed use of an exceptional circumstances procedure, perhaps through the Intelligence and Security Committee.[174] However, the Lord Chancellor argued that secret operations and emergency operations were self-defined, and that "[m]ost conflicts in which we have been involved have been preceded by many days, weeks, months of argument and debate." (Q 737) The Clerk of the House of Commons and the Clerk of the Parliaments suggested that the Government should make clear that "the length of time required to obtain approval" under the procedure "would not itself be considered sufficient to justify the Prime Minister determining that the emergency condition had been met." They also argued that the security exception was expressed in very broad terms. (Ev65, paras 10-13)

330._However, a stronger theme to emerge was whether there was a need to ensure that the Government was held accountable for such powers after they had been used. In the Constitutional Renewal White Paper, the Government claimed that a retrospective approval mechanism could lead to "some very serious and undesirable consequences".[175] The Lord Chancellor told the Committee that if troops have been placed "in harm's way, to have questions raised about not only whether they are acting lawfully but whether they are acting with the backing of Parliament is really difficult. I would worry about that a great deal." (Q 738) Lord Craig agreed that retrospective approval "could cause even more trouble than any other arrangement." (Q 34)

331._Other witnesses disagreed. The Constitution Committee argued that retrospective approval should be sought within seven days, or as soon as it is feasible. (Ev71, para 20)[176] The former Chief of the Defence Staff, Lord Guthrie of Craigiebank, agreed that in such circumstances "it would be important for Parliament to meet at an early opportunity to endorse the decisions which had been made." (Ev33, p3) Professor Tomkins, Elizabeth Wilmshurst and Peter Facey made similar points. (QQ 27, 154) Michael Hammer argued that "[t]he assumption that Parliament should be left out on that area because it cannot be trusted … is extraordinary". (Q 157) Democratic Audit argued that, if a vote was lost, "the implication would be that an action had been carried out which could not secure the support of the ruling party or parties. To allow governments to act without this basic level of support would be 'serious and undesirable' indeed." (Ev04, para 25) PASC argued that the risks of a retrospective approval vote "is the price of democracy, and is a risk that Prime Ministers should have to weigh up before taking the extraordinary step of entering into a conflict without a prior mandate from the House of Commons."[177]

332._In respect of the war powers proposals, we agree that it is appropriate that the Executive should retain discretionary powers over such issues as the information provided to Parliament, the timing of a vote, and a judgment as to whether the exceptional circumstances procedure should apply. We also recognise that the Prime Minister is in the best position to make an informed decision on such factors. We also agree with the Government that a retrospective approval process for conflict decisions is not desirable.

EXCEPTIONS TO THE REQUIREMENT FOR APPROVAL: SPECIAL FORCES

333._Paragraph 4 of the draft resolution proposes that "[a]pproval is not required for a conflict decision if the decision covers one or both of the following only:- (a) members of special forces; (b) other members of UK forces for the purpose only of their assisting (directly or indirectly) activities of special forces." The resolution defines "special forces" as any forces under the responsibility or current operational command of the Director of Special Forces.

334._We received a small amount of evidence on this topic. Lord Boyce, Lord Bramall and Lord Craig all agreed that this was an appropriate power to remain in the hands of the Executive. (Q 60) Sir Michael Wood agreed that Parliamentary approval would be incompatible with the effectiveness of Special Forces operations. (Ev18, para 16) A small number of witnesses raised objections to the proposal. Graham Allen MP thought it was "regrettable", (Ev17, para 10) whilst Democratic Audit argued that the engagement of Special Forces "is often a preliminary to larger scale combat." (Ev04, para 25)

335._We agree with the Government that deployments involving members of the special forces, and other forces assisting them, should be excepted from the requirement for Parliamentary approval.

Parliamentary oversight

RECALL OF PARLIAMENT

336._The Constitutional Renewal White Paper states that the Government does not see the need for special arrangements for the recall of Parliament if a deployment is necessary when the House is either adjourned or dissolved. The Government argue that proposals for Members themselves to request a recall will provide adequate safeguards.[178] In The Governance of Britain Green Paper, the Government proposed that "where a majority of members of Parliament request a recall, the Speaker should consider the request, including in cases where the Government itself has not sought a recall." However, the Government also argued that the final decision should remain with the Speaker.[179] The House of Commons Modernisation Committee is currently undertaking an inquiry into the Government's proposals.

337._We received a limited amount of evidence on this point. Peter Facey was concerned that a recess "would be regarded as an exceptional circumstance" since "there would not be time to debate it and, therefore, effectively, you would only get Parliament being informed after the fact … There needs to be a way for Parliament to be able to recall itself." (Q 154) Democratic Audit and the One World Trust argued that the Government are setting the bar too high for recall in an emergency, and that instead a third of members from more than one party should be sufficient to secure a recall, and should have the final say. (Ev04, para 27 (1), Ev03) Graham Allen MP argued along similar lines. (Ev17, para 10) Democratic Audit and Mr Allen also suggested that a new committee could have the power to order a recall of Parliament, or exercise the powers of the plenary if reconvening was not practically possible. The Clerk of the House of Commons and the Clerk of the Parliaments noted the special situation of a deployment taking place when Parliament is dissolved, i.e. in the weeks leading up to a General Election. They argued that "it is in practice not easy to see in what circumstances other than a pressing emergency a government could decide that it would be constitutionally appropriate to deploy forces into conflict during a dissolution", and suggested that the Committee might explore whether "it is necessary to make special provision for deployment during a dissolution". (Ev65, para 14)

338._We note that in due course, the House of Commons Modernisation Committee will bring forward proposals on whether Members of the House of Commons should be able to request a recall of Parliament. However, we still think it appropriate, for the avoidance of doubt, for the Government to give an undertaking that it will always arrange for a recall of Parliament in order to allow for Parliamentary approval of a deployment.

A RE-APPROVAL PROCESS?

339._The Government argue that a regular re-approval process is not required, but that instead existing Parliamentary procedures will be used to report regularly to Parliament on the progress of a conflict.[180] Although few witnesses actively rejected a re-approval process, a number, including Professor Haines and Lord Boyce, appeared to sympathise with the Government's sentiments. (QQ 19, 41)

340._A number of witnesses argued in favour of a regular re-approval process. Sebastian Payne told the Committee that it was "essential otherwise it makes a nonsense of oversight of any sort." (Q 166) The Constitution Committee argued that "the Government should be required to seek a fresh approval if the nature of the deployment changes substantially. This is vital if 'mission creep' is to be avoided." (Ev71, para 20) Professor Tomkins, Graham Allen MP, Democratic Audit (Q 27, Ev17, para 10, Ev04, para 26) and Peter Facey (who suggested an annual re-approval requirement (Q 166)) made similar points, and Peter Riddell and Lord Guthrie pointed to Afghanistan as an example of how a conflict could escalate.(Q 13, Ev33) Indeed the Lord Chancellor argued that "if there is a moment where there is a choice before government as to whether or not they could end involvement, then that choice ought to be reflected by Parliamentary decision". (QQ 738, 749)

341._We recommend that the Government take steps to ensure that ongoing deployments are subject to effective Parliamentary scrutiny.

ROLE OF THE HOUSE OF LORDS

342._The Constitutional Renewal White Paper states that "the House of Lords should hold a debate to inform the deliberations of the House of Commons but they should not hold a vote. Whilst the Government recognises the expertise that resides in the House of Lords, the responsibility to make the final decision is for the House of Commons as the representatives of the people."[181] Paragraph 2(5) of the draft resolution states that the Commons "may send a message to the Lords asking for its opinion on whether this House should resolve to approve those terms."

343._There was widespread agreement amongst witnesses that the Lords should have a role, but that the Commons should have the decisive say. (QQ 51, 166) Lord Craig acknowledged the valuable expertise in the Lords, but both he and Lord Boyce were concerned that the resolution as drafted would breed delay and prevent a quick decision being made. (Q 52) However, the Constitution Committee argued that "any resolution should include a requirement that the Commons must (except, perhaps, in certain very carefully defined circumstances) await the opinion of this House in respect of the proposed deployment before making its final decision. Either way, it needs to be established what is meant by the 'opinion' of the House of Lords, since this implies a formal decision—which may involve a vote."(Ev71, para 20) The Clerk of the House of Commons and the Clerk of the Parliaments pointed out that new procedures will have to be developed in the Lords to enable a Lords debate to inform Commons discussions. They concluded that there "seems to be no need for any reference to be made in the draft Commons resolution to the exchange of messages or the role of the Lords. The Committee may feel that it would be more consistent with the independence of the two Houses for procedures to be developed in parallel in the House of Lords … in such a way as to allow business managers in both Houses enough flexibility to achieve the best result in very specific—and unpredictable—circumstances." (Ev65, para 21) However, Peter Facey made the point that much was dependent upon the composition of the House of Lords, and if there is any move to "a more democratic second chamber then I do not think the same structure as you would have now can apply in those circumstances." (Q 166)

344._We agree with the Government's proposal that the House of Lords should hold a debate to inform the deliberations of the House of Commons, but not have a vote, at least so long as the current composition of the Lords is retained. However we emphasize that the procedural arrangements of the House of Lords are a matter solely for that House. We therefore recommend that a procedure for the holding of such debates in the Lords be developed in parallel with the proposed House of Commons resolution.

HOW SHOULD PARLIAMENT UNDERTAKE SCRUTINY?

345._The Constitutional Renewal White Paper stated that the Government did not accept the case for a new committee to oversee Parliament's decision-making.[182] However, some witnesses saw value in a new Committee. In particular, it was felt that a committee could overcome some of the difficulties highlighted above. Peter Facey argued in favour of a new joint committee "which would have the ability to take evidence, to scrutinise, to meet in secret, to be able to get information and then to give its opinion to Parliament". (QQ 155, 159) Elizabeth Wilmshurst, Lord Boyce, Lord Bramall and Michael Hammer made similar suggestions. (QQ 27, 57, 157-159) Michael Hammer also suggested that a new committee could "revisit decisions that may have been taken under the exceptional circumstances … and they could be bound by rules of confidentiality and secrecy as and when necessary." (Q 157) Democratic Audit suggested that the committee could determine the timing of a Parliamentary vote, (Ev04, para 24) and they, along with Graham Allen MP, Peter Facey and the One World Trust, argued in favour of a committee that could deliver 'joined-up' scrutiny of all military activity. (Ev04, Ev17, para 10, Q 148, Ev03) Michael Hammer suggested that the joint committee proposed by the Government to oversee the implementation of the National Security Strategy would be a good starting point. (Q 157, Ev03) The One World Trust and Democratic Audit also recommended that Government should produce an annual report on its troop deployments for debate, and, if need be, vote by the House of Commons. (Ev03, Ev04, para 23) Professor Haines said that post-deployment scrutiny, "once the decision has been made and the deployment has been completed", was a much better way to restrain the executive. (Q 27)

346._We believe that the Government's proposals for Parliamentary scrutiny of deployment decisions, in tandem with our recommendations, will provide a sufficient degree of Parliamentary scrutiny, and that therefore no additional mechanisms such as a new Parliamentary committee are required.

347._We conclude that, subject to our comments above, the Government's proposal for a detailed war powers resolution is the best way to proceed.

158 Public Administration Committee, 4th Report (2003-04), Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, (HC 422) Back

159 Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill, 2004-05 session; Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill, 2005-06 session; Waging War (Parliament's Role and Responsibility) Bill, 2006-07 session; Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill [HL], 2005-06 session Back

160 Constitution Committee, 15th Report (2005-06): Waging war: Parliament's role and responsibility (HL 236-I) Back

161 Public Administration Committee, 10th report (2007-08), Constitutional Renewal: Draft Bill and White Paper (HC 499) Back

162 Government Response to the Public Administration Select Committee's Fourth Report, July 2005 (HC 1262); Constitution Committee, 3rd Report (2006-07): Waging War: Parliament's role and responsibility follow-up (HL 51) Back

163 Ministry of Justice, The Governance of Britain, July 2007, Cm 7170, para 26 Back

164 Ministry of Justice. Ministry of Defence, Foreign and Commonwealth Office, The Governance of Britain: War powers and Treaties: Limiting Executive powers, October 2007, Cm 7239 Back

165 Ministry of Justice, The Governance of Britain-Constitutional Renewal, March 2008, Cm 7342-I Back

167 Constitutional Renewal: Draft Bill and White Paper, op cit., para 79 Back

168 The Governance of Britain-Constitutional Renewal, op cit., paras 215-226 Back

169 Constitutional Renewal: Draft Bill and White Paper, op cit., para 74 Back