Joint Committee on the Draft Constitutional Renewal Bill Minutes of Evidence

Examination of Witnesses (Questions 19-30)

Ms Elizabeth Wilmshurst, Professor Steven Haines and Professor Adam Tomkins

13 MAY 2008

  Chairman: Good afternoon, thank you and welcome to the committee. We are grateful to you for having made your time available and, Professor Tomkins, thank you for the paper that you presented in advance. We are conscious of the time restraint and we do apologise that we are a little late in kicking off but we will try and go as expeditiously as possible. Can I call on Lord Williamson to ask the first questions?

  Q19  Lord Williamson of Horton: Can, first of all, I ask whether all of you share the view which I think is expressed by Professor Tomkins in his note, which I have read with great interest, that this is more of a tidying up exercise in which they have selected a number of things and a lot of other things are not covered? That is my first general question. As we are having to put a lot of questions together, I will put one general one and then one specific one. That is my general point. Is that what most people think? The second one relates to the ratification of treaties, which is a quite specific point. Do you think that the change which has been made is a really significant one because, of course, it does make it possible for Parliament to stop the ratification of a treaty, although you could represent it for another 21 days, which is a separate point? Do you think that is really significant, and, if so, do you think the conditions surrounding it are damaging? That is to say that, though there is that power, the exceptions and other limitations are important? I am sorry to put so many things in one question, but that is what we have been told to do by the Chairman, and I am doing it.

  Ms Wilmshurst: I do not want to talk about the proposals other than treaties and war powers. On treaties, I do not think that what has been done is significant, I do not think it really attacks the main problem, and on war powers I think it is a big first step but the devil is in the detail and, as was pointed out by previous witnesses, most of the exceptions and qualifications take away from the big statement that is being made. On treaties specifically, the proposal is largely presentational, apart from the fact that the Commons can, indeed, stop the Government ratifying a treaty, which is a power unlikely to be used very much. The proposals simply legislate for what is already done under the Ponsonby Rule. I see a real problem about treaties which is that Parliament does not actually scrutinise them, and the provisions in the Bill do not do anything about that. I think it would need a change in the committees, but I know proposals have been looked at in the past to allow more committees to scrutinise treaties and Parliament has not really wanted to do that. So I see the problem as getting Parliament interested in significant treaties and the Bill does not do that.

  Professor Haines: I would prefer to keep off the issue of treaties. My particular expertise is in the war powers area. My only comment about the treaty proposals is that, of course, Parliament does review a lot of what goes into treaties in the process of making sure that the legislation is acceptable prior to government ratifying. If it did not do that, we would not be able to meet our international obligations. I have not concentrated very much on the treaty side of this, but for some members of the general public certainly, and I would not suggest members of the committee, the idea is that Parliament currently does not review anything to do with treaties, which I think is quite wrong. I remember some years ago, when I was looking closely at the law of the sea convention, for example, in order for that to be ratified there was a whole raft of legislative action that needed to be taken before government could ratify, and so I am not entirely convinced that everything is all so bad in terms of Parliamentary scrutiny of treaty ratification. On the subject of war powers, which is what I really came here to talk about and feel I have got some expertise in, the proposal in the resolution, in effect, it seems to me, is largely what we already have because, of course, the reference to Parliament formally in accordance with the resolution is de facto already happening and, on that basis, I am reasonably content with it because the issue of the detail, what principally concerned me when the proposal was first put forward some of months ago, was that we did not get into a position where Parliament was actively involved in decision-making during operations. It very much concerned me that we were going to get into that sort of situation at one point. As the debate progressed it became clear that this was not the general feeling, certainly in those sessions of conferences, and so on, that I attended, that this was the way we were going, and I think the draft resolution contained in the White Paper is not too far wrong, frankly.

  Q20  Chairman: We are going to come back on that a little more. Thank you for your paper as well. I did not say that at the beginning. We are most grateful. Professor Tomkins.

  Professor Tomkins: The answer to your first question is, yes, I do agree with what I wrote a couple of days ago. I have not changed my mind in the last couple of days. I say it is a tidying up exercise not in any sense to demean it, there are some very important proposals here individually, but I rather agree with what Professor Bogdanor said in your first session this afternoon; that to call this Bill a Constitutional Renewal Bill is an exaggeration, I think, of both the terms "constitutional" and the term "renewal". What is, I think, particularly disappointing about that, if I may say so, is how big the gulf is between the rhetoric and the promise of the Green Paper last July and the delivery and the reality of the White Paper and the draft Bill itself now. The Green Paper was genuinely exciting and quite astonishing in certain respects. Some of the comments that were made by the Government in that Green Paper to the effect that it recognises that it is difficult, inappropriately difficult, for Parliament to hold the Government fully to account in the exercise of its prerogative powers and, in principle, the Government conceded in that Green Paper, expressly conceded, that it would prefer to exercise statutory power to prerogative powers. These are big statements, big grand statements, that talk about an on-going historical transfer of power from the Queen and the Crown and the ministers of the Crown to Parliament; if only there were any delivery of that in the White Paper and in the draft Bill. The only prerogative power, and it is only a small part of that particular prerogative power, that is going to be put on a statutory footing if the terms of this draft Bill are enacted into law is some of the power to manage the civil service. The war power will remain a prerogative power, albeit that its exercise will be subject to some parliamentary oversight, not much more than we already have by way of convention, apparently; and the effect, as has already been remarked, of the proposals with regard to the ratification of treaties really does not amount to very much more than legislating the existing Ponsonby Rule into statute. One can have two approaches, I suppose, when confronted with an issue such as this. One can say, in comparison with what I would prefer as an interested citizen or as a constitutional analyst, this is not what I would want, but, frankly, that is probably neither here nor there for most of us. What I think is perhaps a better way to approach it is to think: "Let us take the Government seriously in terms of what it proposed last July and let us hold the Government to account for the ideas, energetic and I think quite innovative, bold ideas, that were articulated in that Green Paper and ask the question as probingly as we can: why does the White Paper and the draft Bill that accompanies it fall so far behind the promise of the Government's own suggested reforms and analysis of the problems in last year's Green Paper?"

  Q21  Chairman: On a point of detail, do you think it is right that the Government should be able to introduce a treaty resolution if it has been rejected by the Commons and, if so, how soon or how often?

  Professor Tomkins: I do not have a problem with there being more or less endless dialogue or discourse between parliamentarians and members of the Executive with regard to what should happen to a treaty that the Crown has signed but has not yet come into force through ratification. It seems to me that the Executive is likely, if I may put it like this, to be bloody-minded about it only if the Executive has reasonable ground for behaving in this way, and likewise with Parliament, and if there is a genuine disagreement, let that disagreement be had.

  Ms Wilmshurst: The other point is that it may be a treaty which is subject to reservations, and the Government may decide to put in reservations after the Commons have said, no, or circumstances may change. Other states may become parties, or a shift in the conditions for membership. One could think of all sorts of reasons why the Government should be able to submit and resubmit.

  Q22  Chairman: Do you have a view, if the House of Lords rejects, on a vote, a treaty, how that should be treated?

  Ms Wilmshurst: I think it was a quite elegant solution in the suggested provisions, that you then do not go ahead, I think, unless the Commons come in and say, yes. It does give the House of Lords a real voice.

  Q23  Lord Maclennan of Rogart: In an earlier session, which I think some of you heard, this afternoon, Mr Peter Riddell said that he did not think (and I paraphrase what he said) that war powers should be placed on a statutory footing because it was necessary to have flexibility, and flexibility seems to be the argument that is being deployed quite generally against putting the prerogative powers on a statutory footing. Professor Tomkins, you have written about this. Do you think that argument holds up?

  Professor Tomkins: With respect, no, I do not think it holds up at all. There are lots of examples on the statute book of very general statutory powers which are enjoyed by the Executive—section one of the National Health Service Act is a good example: there shall be a duty on the Secretary of State to (I forget the verb) to provide for a National Health Service. There was a lot of talk in the earlier session about justiciability. That in itself is not a justiciable duty, because it is a duty which is owed by the Secretary of State to the public at large and not to a particular group of identifiable potential claimants, but it is a perfect example, it seems to me, of a statutory duty placed on the Executive which has an appropriate but a very significant amount of flexibility inherent within it. There are lots of different ways in which the resolution versus statute argument with regard to war powers cuts, but I do not think that it cuts in terms of inflexibility or rigidity. For me, there are two points of constitutional principle at stake in terms of thinking about war powers and legislating on war powers. The first is (and this is an echo of what the Government said in its Green Paper last July) that in constitutional principle it ought to be the case that the Government of the day has only those powers which the people, through their representatives in Parliament, have by legislation conferred upon it either expressly or by necessary implication. That, it seems to me, is a principle of our unwritten constitutional order and has been for some hundreds of years—since the mid-seventeenth century, I would date it—and so, if we are to take that principle seriously, it seems to me to lead to the conclusion that all prerogative powers should be abolished and replaced with statute, and that seems to be the direction in which the Government was proposing to push in its Green Paper last July, which was, given that it was a Government paper, genuinely interesting. This is my second point of principle, I suppose. Even if that approach is disfavoured for some reason, it still seems to me the case that there is a very powerful constitutional argument in favour of subjecting the exercise of non-statutory or of prerogative powers to parliamentary account, and that, it seems to me, could be done equally well by statute or by resolution, and that is what is proposed here, of course. It is not proposed to turn the war power into a statutory power; it is proposed to subject the exercise of the war power to rigorous parliamentary accountability; and there the issue is not whether you do it by statute or whether you do it by resolution, you could equally well do it by either; there the issue is what is the content of the resolution or what is the content of the statute, and that is an issue you might perhaps want to talk about in a few moments.

  Q24  Lord Maclennan of Rogart: The issue of the protection of our troops, of our service men serving people, from charges of illegality has been raised. Would they be better protected by a parliamentary convention or by statute?

  Ms Wilmshurst: In the Bill which was put forward in the consultation paper there was a specific provision ensuring that the troops themselves would have immunity from prosecution in relation to any doubt or question about whether parliamentary approval had been achieved or not; that is a perfectly possible solution. I was puzzled by Peter Riddell's insistence on that problem as a reason for not legislating. It is very easy to solve the problem.

  Professor Haines: Can I just say that I have always been very bemused by this great concern about our troops being somehow legally responsible for a decision to deploy force overseas, and, obviously, the clear example of this sort of action is the Iraq invasion of four or five years ago. It is not they that bear that responsibility, and the sort of erroneous claims that have been made and, indeed, made by some people who ought really to have known better, that somehow members of our Armed Forces are likely to face prosecution for the fact that the United Kingdom arguably waged an unlawful military operation is simply not true. They do not have that responsibility. The way I describe it, if I am trying to describe it to people, is that the responsibility of soldiers, sailors and airmen is largely a tactical responsibility. The responsibility to decide whether or not we deploy armed force is strategic responsibility, and the only people that can be held responsible for decisions at each of those levels are those people that are exercising those responsibilities. It is not any part of a soldier or sailor's responsibility to exercise his or her judgment over the decision to go to war in the first place. They are, of course, accountable to other things, like the law of armed conflict or international humanitarian law, as we often call it, the Geneva Conventions and so on and so forth, but in terms of the use of force, the decision to use force, this is not something that they are subjected to. If you are focusing in on somebody like, for example, the Chief of Defence Staff, then, clearly, the CDS, in producing his CDS's directive to mount an operation, has to consider, as does his staff, the legal side, but, as Lord Boyce did in the case of Iraq, that is a responsibility that discharges simply by asking government to confirm the legality of the action; but servicemen, generally speaking, are not responsible for those sorts of decisions.

  Q25  Lord Morgan: It seems to me the thrust of what you have said is that we should have a different language, a different way of looking at the constitution, a more formal way, and a constitution that is based less on convention, which may or may not take a written form. It seems to me this underlines many of the points, and a point with which I agree actually, about war-making powers and the Armed Forces in other ways. Are you all really asking for a form of constitution of a kind that we have not had over the centuries and one which would involve active citizenship and formal ways of defining that citizenship? The other thing I would like to ask, slightly more specific, is about the provision of information. The decisions about war-making powers, whether they are taken through convention or through some kind of legislative procedure, depend on correct information being provided, including legal information perhaps from the Attorney General. How does one actually achieve that and how does one reach the situation whereby we avoid the ignoring of official information, as I gather led to the resignation of one of the panel, or whether, alternatively, as happened in the time of Suez, that information was mooted and then thrown away, and in this case the information from the Attorney General Manningham-Buller, who should have resigned but in fact became Lord Chancellor, that in fact information was taken from elsewhere. Without some kind of legislative formal sanction, how do we avoid that kind of subterfuge?

  Professor Tomkins: In terms of your first question about the form of the constitution, I do not think I am advocating a new form of the constitution. No, I think I am advocating a strengthening of a very old form of the constitution. I think the British constitution is a parliamentary constitution. We have, in a sense, two sovereign authorities in the British constitutional order, we have the Crown and we have Parliament, and the grand narrative of British constitutional history is of a tussle of power between the authorities of the Crown and the authorities of Parliament. That is what reform of the prerogative is about. It is about Parliament trying to reclaim, or perhaps to claim for the first time, ownership of these sorts of powers. It does seem to me that a resolution as opposed to a statute is a perfectly sensible way of proceeding here, and we have got a good relatively recent precedent—lawyers, of course, love precedents—in the resolutions that both Houses passed just before the 1997 General Election on ministerial responsibility and accountability to Parliament, which of course had been a matter of huge controversy during John Major's time in office, with several ministers trying deliberately to rewrite the rule book that governed them because they could, because the rule book that governed them was an internal government document then called Questions of Procedure for Ministers, now called The Ministerial Code; and after the Scott Report, the Public Service Committee of the House of Commons, as it then was, chaired by Giles Radice at that time, tried to take ownership of these questions and say: "Look, these are constitutional obligations of accountability that are owed to Parliament and we, Parliament, will take ownership of the rule book and we will say these are the terms and conditions on which ministerial responsibility will now be understood", and this was then written into the constitution in the form of the passing of these two parliamentary resolutions which are now in paragraph one of The Ministerial Code, but no longer for the Government itself to change when it suits the Government of the day because of the exigencies of any particular political scandal. The form of the constitution that I am advocating in terms of reform of the prerogative is a form that follows on from this history, it seems to me, a history of Parliament claiming for itself the constitutional responsibility, the awesome constitutional responsibility, of holding the Government to account for what it does and for what it proposes to do. So I do not see it as a new form of constitution or necessarily as having very much to do with active citizenship. I think it has at lot to do with active parliamentarians though. I suppose, if we were to pan back a little bit and to think about the vast array of constitutional reform that we have witnessed in Britain in the last ten or 11 years, it might be that we can say this about it. There are only really two great institutions that we have invented to which the exercise of government power can be held to account—there is politics and there is law—and what we have done in the last ten years in the United Kingdom is greatly to increase the ability of the law, in particular the ability of the courts, to hold government to account. That is the most significant consequence, for example, and it is just one example, of the Human Rights Act. What we have not done very much of in the constitutional reform that we have seen in the last decade is to improve the way in which the institutions of politics—and, in particular, Parliament—can hold government to account. Again, that is why I thought that last summer's Green Paper was so genuinely interesting, because it seemed to be recognising that and wanting to do something about it. On your more detailed point about information, this is not a new problem. Parliament wrestles all the time, on a daily basis, with government about access to information; it is what Parliamentary questions are all about. To go back to the Scott Report, which has been mentioned several times this afternoon, a big part of the argument about the Scott Report was all about the quality of information that ministers were prepared to give in answers to Parliamentary questions. Parliament, it seems to me, already has a whole range of offices that enable it to negotiate with the government about the provision of information: you have the Table Office, you have the Speaker's Office and now, of course, also you have the Information Commissioner. It would surprise me (and I am not a freedom of information expert) if between those institutions Parliament could not figure out a way of getting access to the information it needed in order to make a full and informed vote on whether to send troops into conflict overseas.

  Chairman: Could I say, I do apologise to witnesses but I know that the Committee has to stop at about 3.30 because there is a Statement in the Commons. So what we would like to do in the last ten minutes is to look specifically at some of the issues relating to the war powers. I know we have strayed into them already, but I have Lord Maclennan, Lord Norton, Lord Campbell and Lord Armstrong. I wonder if they could be as brief as possible.

  Q26  Lord Norton of Louth: It really follows up on what Professor Tomkins has said; he has indicated that it does not matter whether it is statute or resolution in terms of stipulating the right relationship between Parliament and government when it comes to the Armed Forces. In terms of the resolution, the appendix to the Government's paper provides us with a template (in the light of what Professor Tomkins has said I address this as well to Professor Haines), if you had to write the resolution, how much different would it be from what is actually in Annex A? I think Professor Haines said it would relate particularly to definitions within that. Is there anything that should not be there or, perhaps, more importantly, that is not there?

  Professor Tomkins: I took up a lot of time with my last answer. Maybe I can refer you, Lord Norton, to my written evidence, because I actually address that question in paragraphs 13 to 16. I would prefer that the constitutional principles, I think, should inform this debate rather than in the way that it is currently drafted, with those points (a) to (f) that are listed.

  Q27  Lord Norton of Louth: It actually fundamentally changes it. So, in fact, you want something that is very different, if you pursue what you identify there.

  Professor Tomkins: It is different in the detail. The headline remains the same. The headline is that it remains a prerogative power, exercisable by Her Majesty's Ministers but they are accountable for the exercise of it to Parliament. I suppose what I am trying to do is to beef up what the accountability amounts to. So, yes, there should be retrospective approval if there is not prior approval; yes, there should be regular Parliamentary re-approval; yes, there should be a recall of Parliament if necessary—it should not be for the Prime Minister uniquely to determine what information is given to Parliament. I agree with the points that have been made earlier about legal advice from the Attorney General being disclosed in these sorts of questions, and the questions of the timing, again, should not be uniquely for the Prime Minister.

  Professor Haines: I am reasonably happy with the resolution; I think, in a sense, it is telling us what we already know and what we already do. I was slightly concerned when I saw the consultative paper from the Ministry of Justice last November about reliance on the law of armed conflict as a means of defining what sort of military operation we were going to be seeking Parliamentary approval for. I am sort of persuaded, I think, that what we have got in the resolution is okay. The difficulty for me was at the other end of the scale; in other words, what I was saying was that I did not want to see Parliamentary involvement in the decision-making around all deployments of military force. I am very happy indeed (and, indeed, it already happens, does it not, with Parliamentary debates and votes in the case of the Iraq war) over major combat deployments along the lines of the Falklands, the two Gulf Wars and Kosovo. This is already happening, and I do not have a problem with it. Of course, in those circumstances we are talking about the law of armed conflict applying. I think that is okay. The other emergency deployments—the sort of thing that I was thinking of, like a non-combative evacuation operation, for example—would be covered in the resolution by the emergency condition in paragraph whatever it is (3.2). "Approval is not required for a conflict decision if the emergency condition or the security condition is met", and the emergency condition is that a conflict decision is necessary for dealing with an emergency. A non-combative evacuation operation, for example, would be precisely that. So that resolves that. Can I just say something, though, since I am speaking, about this business of accountability? The point that I made to the consultative process back in January (and I copied that to the Committee in lieu of my proper submission later on) is that I believe in some ways we have got it wrong. If we are trying to restrain government in any way I think the answer is post-deployment scrutiny of the information. The information that is going to be provided by the Prime Minister, Government and so on in providing the backdrop to any decision is not going to be—this resolution would not have had any impact, for example, on the decision over Iraq five years ago; this resolution, if it had been in place then, would not have had an impact on that Parliamentary vote. The problem that I have, of course, with that vote was that I felt that the decision to go to war was wrong, and it was wrong for a variety of reasons, strategic as well as legal, but the legal one, in particular, I think is very important. I think it is important that Parliament has the ability to scrutinise very rigorously the legal basis for an operation. If that operation is determined to be unlawful then there should be steps beyond simply Parliamentary scrutiny, which I have mentioned in my submission. That is the end that I would like to see tightening up—the scrutiny process once the decision has been made and the deployment has been completed.

  Ms Wilmshurst: If I can just add: on the question of timing—when should the Prime Minister go to Parliament to ask for approval after taking the decision—there is nothing about that in the resolution. There is the question of information—it is left entirely to the Prime Minister without any benchmarks. There is the question of re-approval if the mandate had been changed—it is left entirely, all of this, to the Prime Minister. The only way that I could see to solve these real difficulties would be to strengthen Committees' abilities to discuss and question the Prime Minister. I do not actually agree that the Freedom of Information Act is going to help us here; I think it really has to be Parliament, and, it is necessary to put into the resolution some benchmarks as to what the Prime Minister should consider in giving this information. As to the legal advice, a previous witness stated that the Attorney General ought to give his advice and it ought to be available to Parliament. What sort of advice would an Attorney General write if he knew it was going to be available to Parliament? What sort of advice would he have written on Iraq? He would have written only the positive parts; he would not have written: "No, Prime Minister, these are my qualifications ..."; he would have given that orally to the Prime Minister. I think it has to be for Parliament to say: "We will call in the Attorney General and question him, and call in the Prime Minister, or whoever, and say: `This information—we are not sure it is right'", and do that in a Committee structure, and it may be necessary to have information before that Committee not available to the rest of the House.

  Professor Tomkins: There is just one tiny point: would there be anything to stop Parliament from seeking its own legal advice?

  Q28  Lord Maclennan of Rogart: Is there not a difficulty with a resolution approach that that is something which can be altered in the light of the circumstances of the day, whereas a statute has got the force that it is there and it is the backdrop against which the executive has to take its decision.

  Ms Wilmshurst: It is for that reason that I would have a preference for a statute, yes.

  Q29  Lord Maclennan of Rogart: Professor Tomkins has six points he has made in paragraph 12 of his paper, all of which ought to be in the resolution, if there is a resolution. They would equally be capable of being translated into a statute position.

  Professor Tomkins: They would. As for questions of content it does not matter whether it is a resolution or a statute; you can have the same language in either a resolution or in a statute.

Chairman: I wonder if Lord Armstrong and Lord Campbell will forgive me, because you were to come in, but I am conscious of my MP colleagues. Are they able to stay for five minutes? With some reluctance, I can see!

Mr Chope: It is only that, as you know, Chairman, if you are not in for the beginning of the Statement you rule out the opportunity of asking any questions.

  Q30  Chairman: I think, probably, we ought to call a halt. I do apologise to the witnesses because this happens in Parliament. Can we thank you very much for coming, and can we add that if there is anything we wish to ask you—and you have been already very kind—you will be able to respond to the questions we did not get round to?

  Professor Haines: Certainly, yes.

Chairman: Thank you very much indeed.

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