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 decisionwhich 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 specificand unpredictablecircumstances."
(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
166
See also Waging war: Parliament's role and responsibility,
op cit., para 104 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
170
Public Administration Committee, 10th report (2007-08), Q 51 Back
171
ibid., Q 51 Back
172
ibid., para 74 Back
173
The Governance of Britain-Constitutional Renewal, op cit.,
para 223 Back
174
Constitutional Renewal: Draft Bill and White Paper, op
cit., para 74 Back
175
The Governance of Britain-Constitutional Renewal, op cit.,
para 218 Back
176
See also Waging war: Parliament's role and responsibility,
op cit., para 110 Back
177
Constitutional Renewal: Draft Bill and White Paper, op
cit., paras 75, 76 Back
178
he Governance of Britain-Constitutional Renewal, op cit.,
ara 220 Back
179
The Governance of Britain, op cit., paras 37-39 Back
180
The Governance of Britain-Constitutional Renewal, op cit.,
para 219 Back
181
ibid., para 225 Back
182
ibid., para 224 Back