Examination of Witnesses (Questions 740-759)
Mr Jack Straw and Mr Michael Wills
1 JULY 2008
Q740 Lord Armstrong of Ilminster:
On a Saturday morning.
Mr Straw: Indeed, on a Saturday morning but
since we were all there, there was no reason why it could not
go into Saturday afternoon. There was also no reason why the House
could not have had a note from the Attorney saying whether it
was lawful—it plainly was and there was not any doubt about
that—and there have been a resolution about it, which would
have been passed. The outcome would have been the same, for sure,
but I think the process would have been better. Although now in
retrospect people say the Falklands was fine, you will recall
even more acutely than me, because you were right in the middle
of it in a way that Opposition backbenchers were not, that it
was by no means certain that we were going to win. There was quite
a lot of controversy about aspects of it right up to the military
victory and I think a clear resolution would have been a good
idea.
Q741 Mr Chope: How does what the
Lord Chancellor has just said fit in with what is happening in
Afghanistan where originally when we went in we were told that
it was possible that there would not be any British fatalities
at all and now we have well over 100 and we are engaged in what
most people regard as a war? Is that something of which the Lord
Chancellor thinks Parliament should have been involved in expressly
approving?
Mr Straw: First of all, as I have said, Mr Chope,
the decision to become engaged in Afghanistan arose and continues
to arise from specific United Nations Security Council Chapter
VII resolutions, so it is slightly different. Although of course
I accept the resolution whilst it allows us to take part, it does
not require us to take part. Had, say, this resolution approach
been already agreed and still more of a statutory basis had been
determined, then, yes, there would have had to have been a debate
on a substantive motion in respect of Afghanistan, as there was
in respect of Iraq—full stop. The process would have been
different.
Chairman: We probably do need to go on to the more
specific questions.
Q742 Lord Williamson of Horton: As
you know, Lord Chancellor, this joint committee has been subject
to a bit of competition from the Public Administration Select
Committee?
Mr Straw: I am sorry, I genuinely was not aware
of that.
Q743 Lord Williamson of Horton: They
have published their report now. In that they concluded that unintended
consequence of placing prerogative powers on the statute book.
They said it would become subject to scrutiny, and I quote "not
by Parliament or the people but by the courts". Would you
like to comment on that?
Mr Straw: Yes. I think they are wrong about
that, with the usual respect to such an august select committee
and good friends on both sides who sit on it, because what is
behind that is an implication that the courts only judicially
review executive acts if they are based on statute rather than
the prerogative, and that to my certain knowledge is not the case.
Decisions by, for example the Lord Chancellor, or in this case
the Secretary of State for Justice—same person—under
the Royal Prerogative of Mercy, which is literally a Royal Prerogative,
are and have been judicially reviewable. What the courts look
at is not the source of the power, but the fact of the power.
In some ways, if you have precision in statute, as opposed to
imprecision in prerogative, the courts are less likely to try
to second-guess what the executive is doing, provided the decisions
have been made fairly.
Chairman: We are going to move on to war powers.
Part of it has been dealt with, but Lord Armstrong will carry
on with this.
Q744 Lord Armstrong of Ilminster:
You say part of this has been dealt with but I do not think we
have touched this afternoon on a point that was made to us in
evidence that changes here could increase the potential legal
risk to individual soldiers and make them more liable to be subject
to legal sanctions or criticism or legal prosecution. I wonder
what is your assessment of the risk that individual soldiers could
face, whether it is under a statutory route or under a resolution
as the Government proposes.
Mr Straw: I do not think there is any basis
for that concern, I really do not. It can be dealt with. If the
approach adopted is one by resolution, then there is no change
in the substantive law; there will be a change obviously of parliamentary
procedure. Were it to be included in statute, then all the drafts
have made it absolutely clear that nothing in the statute suggests
or implies that there would be any liability falling on individual
service personnel. I understand the anxiety but I think that it
is not one that could or would arise in practice.
Q745 Chairman: Would it specifically
provide an exemption from liability if it was determined in that
way?
Mr Straw: If you went down the route of statute
but, as you know, currently the Government's preferred route is
to go down the path of a resolution which is, by definition, procedural
within Parliament and non-statutory.
Q746 Lord Maclennan of Rogart: You
have shown yourself to be quite open-minded, if I may say so,
Lord Chancellor, about the issue of statute or resolution. Some
of the witnesses we have heard from on the subject have suggested
that a resolution is easily alterable by the government of the
day under the stress of the circumstances which give rise to its
being possibly used and employing their parliamentary majority
to do so. In those circumstances, is it not more attractive to
have a statutory basis, which is not so malleable in the light
of the circumstances?
Mr Straw: Lord Maclennan and Chairman, of course
that is one of the arguments in favour. That has to be balanced
by the arguments the other way, which is that the legislation
may be too prescriptive, too restricting of genuine military discretion
within the overall political decisions made by Prime Minister,
Cabinet and Parliament. I think, however, in practice if Parliament,
both ends, had agreed a resolution, it would be a very unwise
Prime Minister and Cabinet which chose, when it came to an issue
of deployment of British forces and putting them in harm's way,
to ride roughshod over those provisions. It would be a very foolish
thing to do. I think it is significant that over Iraq—it
was of course intensely controversial—the Government did
not have to do anything other than go down the traditional route,
which was to have a debate on the Adjournment. In any event, I
thought that it was not going to be possible to sustain the legitimacy
of the decision if we did.
Q747 Lord Maclennan of Rogart: Many
other countries do have greater power than Britain and a statutory
basis for the exercise of war powers.
Mr Straw: They do, and personally I am not scared
about this. You simply have to be very careful about what goes
into the statute. The alternative we looked at was what we described
as a hybrid, which was a light statutory framework with a resolution
inside it. It is for the military to speak and not for me, but
their anxiety, which I fully understand and indeed in this respect
support, is that if you are too prescriptive you can end up in
the position that one or two of our European allies are in, where
the detailed rules of engagement are the subject of line-by-line
debate in their parliament, which then produces almost risible
results when we are apparently fighting alongside forces from
our European allies who have to be back in barracks by nightfall
and who are constricted from when they can let their guns off.
So it is a non-trivial issue which has to be dealt with if you
were to go down the statutory route.
Q748 Ian Lucas: Following on really
from that point, some of the evidence we have heard has related
to the difficulty in defining terms like "armed conflict"
and "armed forces" and how Parliament will be able to
deal with issues with difficult definitions. How will Parliament
know when they need to make a decision, given that issues like
whether deployment is the moment that authorisation is required
or whether when armed conflict starts is the issue, when those
issues are not clear? How would we know when the decision needs
to be made?
Mr Straw: Mr Lucas, the definition of armed
forces is pretty straightforward. It happens, because I was looking
it up earlier, to be in section 374 of the Armed Forces Act 2006.
It simply defines what is an airman, what is a sailor, what is
a soldier, and so that is pretty straightforward; it is a matter
of fact. Armed conflict: there is no specific definition but there
is plenty of discussion, including in the Manual of the Law
of Armed Conflict, which I have been reading for my prep.
For example the following guidance may be given: Any difference
arising between states and leading to the intervention of members
of the Armed Forces is an armed conflict. An armed conflict exists
whenever there is a resort to armed forces between states or protracted
armed violence between governmental authorities and organised
armed groups within a state. In other words, a high state of civil
war, as opposed to the much lower level of state insurgency. I
think you do know what an armed conflict is when you see one.
I accept what Mr Chope is saying that sometimes you get a situation
where it may start off as what appears to be peace keeping in
a very benign way and then develops into peace making or something
greater, or armed conflict, and that is more complicated. Think
about the major armed conflicts in which the United Kingdom has
been involved in recent years. They have been: the Falklands,
the First Gulf War, the Balkans, Afghanistan and Iraq. I think
they all were clearly armed conflicts.
Q749 Ian Lucas: Do you see any case
for coming back to Parliament when the nature of the conflict
perhaps changes? I am thinking here specifically about Afghanistan.
Mr Straw: I tried to deal with that in respect
of my answer to Mr Chope. It is a fine judgement, and not for
someone in my seat but for the Defence Secretary, the Prime Minister
and the Chiefs, as to whether it would be highly disruptive but
my own rule of thumb is 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 as well.
Q750 Lord Norton of Louth: Coming
back to what we were discussing very much at the beginning, which
is Parliament's role in relation to treaties, and you were going
through what is included in the Bill in Part 4, if you look at
the current practice, we have about 30-odd treaties a year ratified,
most of them on technical matters and therefore not likely to
come before the House, so it is the exceptions that would be engaged
here. If you think about present practice in terms of the Ponsonby
Rule, it is not clear from the way that this Part is drafted how
much it will actually move us away from the existing practice,
in other words, a large part of the provisions appear to embody
existing practice. The only difference is the requirement that
the House would be able to vote and therefore trigger a certain
response from government. How far does it actually really differ
from existing practice? The other point I was going to make is,
it engages the House if the House votes in such a way, but, coming
back to Mr Wills' earlier point about the importance of embodying
processes, there is actually no clear process in the Bill that
would ensure the House has that opportunity. How does one deal
with the point about if you take 21 days, and if you are going
to have a proper parliamentary provision for scrutiny—and
one would expect that to be through Select Committees—actually
allowing time for that process and then ensuring there is actually
time on the floor of the House to consider, say, a proposal not
to ratify?
Mr Straw: Lord Norton, the fundamental, substantive
difference—and it really is fundamental- is that under the
Ponsonby Rule, as I said earlier, Parliament has a vote but it
can be of no effect as the executive can go ahead and ratify the
treaty. Under this, under clause 21(5)(b), if Parliament votes
against the measure, it cannot be ratified. That is a very big
difference. I accept, however, the burden of the second part of
what you are saying, which is that, in a sense, the arrangements
for getting a vote have been left at large, basically for the
usual channels and for people to make a noise. It may be that
your Committee, Mr Chairman, comes to a view that there ought
to be more specific provision in here. I do not think I am giving
anything away: the anxiety of business managers, and it will ever
be thus, is that if you lay too much down in a Bill in terms of
procedure, the discretion of business managers may be limited.
There are other considerations as well.
Q751 Lord Norton of Louth: I accept
your basic point. In constitutional terms, it is a major change,
giving Parliament powers it has never had before, but it could
be meaningless if you then do not have the mechanism to give effect
to that change. Then there is the allied point which I am going
to come on to: you mention not putting too much specific in the
Bill, but the Bill then has provisions for exceptional cases,
so, in a way, the Government has wiggle room for getting out of
it actually being debated. How does one, if you like, entrench
the mechanism to ensure that what the Bill seeks to achieve it
actually delivers?
Mr Straw: First of all, an awful lot in this
place is done by convention and no-one should ignore the power
of that. Having been a business manager, it is very powerful.
The fact that one has previously done something in the past, unless
you have the consent of the House, is a reason for continuing
to do so. I accept the point you are making that at the moment
the exact procedure for triggering what are substantial powers
is not specified. You could either leave it to the usual conventional
arrangements, because in practice, where you have a negative resolution
in a Statutory Instrument, if enough people complain about it,
there is always a vote on it, or you could make provision in the
Standing Orders of the House, each House, that if X number said
they wanted a debate and vote, there would have to be a debate
and vote, and you could also add if you wished that the appropriate
subject Select Committee should produce a report on it, or you
could embed it in statute. It may be—and I am thinking aloud
here—that the second suggestion is the more satisfactory
of those three.
Q752 Lord Williamson of Horton: This
is a specific point on treaties. We have been told that many treaty-like
documents, such as memoranda of understanding, exchange of letters
between governments, UN security resolutions and so on, may be
more important in their effect than most treaties but do not fall
under the Ponsonby Rule. I think, for example, the stationing
of ballistic missiles, which is pretty important, was the subject
of a memorandum of understanding between the US and the UK. What
steps would the Government foresee to ensure effective scrutiny
of such documents? It is a bit weird to settle everything on treaties
but to leave out some very important things.
Mr Straw: I think, my Lord, they would have
to be done on an ad hoc basis. It is certainly the case
that there could be a memorandum of understanding on X, which
is a much bigger issue, than a treaty on Y. What, however, we
have to deal with here is the legal status of these instruments.
Since memoranda of understanding do not have the same status in
international law as treaties, presumably that was why it was
chosen to be a memorandum of understanding rather than a treaty,
then it would not fall within this area. For the future, I could
envisage that, if such a memorandum were disclosable, albeit in
confidence, it might be examined by a Select Committee, it might
be examined by Intelligence and Security Committee, and certainly
would have been examined, I suspect, by at least the chairmen
of the relevant Congressional Intelligence and Security Committees.
Q753 Lord Maclennan of Rogart: Lord
Chancellor, the Governance of Britain White Paper and this Bill
all place great weight on Parliament, but particularly upon the
House of Commons, for scrutiny to enhance the role of Parliament.
I wonder if any consideration has been given to the possibility
of some sort of power-sharing arrangement which recognises that
one or other House might more sensibly take the lead in these
issues in view of the fact that there is a quite serious possibility
of overload for parliamentarians, particularly, I think it has
to be said, Members of the House of Commons, with new economic
scrutiny committees, subject committees, Public Accounts Committee,
treaty committees. Has any thought been given to the possibility
of sharing out these roles?
Mr Straw: Lord Maclennan, your specific suggestion
is that the load, for example, in respect of scrutinising treaties
might be ...
Q754 Lord Maclennan of Rogart: Yes,
this is an example of further overload ...
Mr Straw: It might be worth a detailed examination.
I would have to talk to colleagues about that but, in principle,
I think very strongly that the work of the Commons and the work
of the Lords should complement each other. I certainly think that
the work of the European Committees in the House of Lords has
been very significant and complementary to the more partisan scrutiny
in the House of Commons. We are open to suggestions on that.
Q755 Lord Hart of Chilton: This is
a question about judicial appointments.
Mr Straw: You had better declare an interest!
Q756 Lord Hart of Chilton: My declaration
of interest is well there. The work done in relation to the Constitutional
Reform Act 2005 was carried out comparatively recently in terms
of rebalancing the accountability of the executive and the independence
of the judiciary. Central to that was the creation of the Judicial
Appointments Commission and it has only really been under its
own steam for about 18 months. It is only for about that period
of time that its corporate plan has been in existence and there
is only one year's data of its work. The first question is, do
you think it is too soon to make changes to the judicial appointments
process?
Mr Straw: I think it would certainly be too
soon to pull the whole thing up by its roots but these changes
that I am proposing are, I think, sensible ones. I do not suggest
these ones are earth shattering. Much more significant changes
on judicial appointments, the whole relationship between the executive
and the judiciary, were made in the 2005 Act, and I am the first
to commend my good friend, the noble and learned Lord Falconer,
for what he did there. However, what I have spotted is that one
or two of the processes, frankly, were over-bureaucratic and it
is sensible to streamline them; they just are. As I was reading
through Lord Falconer's evidence, or gobbets of it, earlier today,
this may be a consequence of having a Commons Member, with much
wider responsibilities than the traditional Lord Chancellor, also
as Lord Chancellor, because it was my suggestion, and nobody else's,
that the Lord Chancellor's power, which is pretty limited actually
under section 90 of this Act, to reject or refer back appointments
of the judiciary up to and including the level of the circuit
bench should be removed. It was just adding another process and
delay without any particular benefit. Lord Falconer when he came
here suggested that, if I were to give up the power in what is
section 90, then I would not have any power left, for example,
to refuse a set of selections on the grounds that they were not
sufficiently diverse, but when I said in opening, Mr Chairman,
that Lord Falconer was wrong about that, he literally is, I think,
incorrect in his remembrance of this part of the Act. Section
90 of the Act does give a limited power to refer back a selection,
but in respect of an individual, not the whole competition, one
individual, and that has to be done on very specific grounds,
basically, that they are not qualified for the job. What I am
retaining is the power—and it would be slightly modified,
if you look at Schedule 3 to the Constitutional Reform Act—in
respect of these appointments, circuit judge and below as well
as High Court and above, a power to pull the whole process for
that particular so-called vacancy notice. So if I judged that,
for some reason or other, the Judicial Appointments Commission
had come up with a set of recommendations for appointment which
were wholly inconsistent with, say, the diversity of the pool
of applicants, then I could simply withdraw the vacancy notice.
That power is being retained. There are one or two other minor
things, like medicals, where it is just silly that too many weeks
are elapsing given the current drafting of the Bill although the
basic structure of this Act is a sensible one. I have never put
an Act on the statute book—and I have put a lot on—which
with the benefit of hindsight could not be slightly better drafted
in one particular or another.
Q757 Lord Hart of Chilton: The weight
of the evidence that we have been hearing is that, quite right;
there are minor changes that could well be made, but it is not
absolutely necessary at this time to involve legislative change
and it would be far better to wait until you have a few more years
of seeing how the system that was adopted in 2005 beds down and
works out.
Mr Straw: I do not think we are really disagreeing,
Lord Hart. I am not proposing to pull up the basic architecture
that is in here; not at all. What I am proposing to make are some
rather limited changes to streamline the process. In practice,
no Lord Chancellor of the future is going to wish, I think, to
intervene in recommendations about some hundreds of judicial appointments
below the High Court bench for district judges and, at their level,
members of tribunals and circuit judges. Different considerations
apply in respect of the High Court because it is only for High
Court judges and above that they have quite the level of tenure,
and also that Parliament is involved in their removal, because
it is they who can be removed only by an address of both Houses
to Her Majesty. Of course, the other really significant difference
between the High Court bench and the others is that the High Court
is a court of record, so its judgments are binding on all the
other courts. It is a significant difference. I think the limited
powers there in respect of any individual, as well as the rather
more significant ones for the higher judiciary, ought to be retained.
Q758 Lord Armstrong of Ilminster:
If I may, I will turn to the Civil Service, Lord Chancellor. I
do not certainly want to question the general idea of us having
legislation catching up with Northcote and Trevelyan, as Mr Wills
said just now. There is one strange point in this, that the Government's
Bill in 2004 specifically excluded from the Ministers' general
power the power to manage, the power to recruit, appoint, discipline
or dismiss civil servants, or any other power for the day-to-day
management of civil servants, whereas in this Bill the general
power to manage the Civil Service specifically covers appointment
and dismissal and the imposition of rules on civil servants. This
appears on the face of it to be a very dramatic change—that
was the word used by the Public Administration Select Committee.
Is it as dramatic as it seems?
Mr Straw: I do not think it is as dramatic as
it seems, although I have to say, when I looked at the wording,
I could see why the Public Administration Select Committee were
concerned, and it may be sensible, Mr Chairman, if I sent to your
Committee a short memorandum about this. My understanding is that
the reason why there is a difference between the previous draft
Civil Service Bill and this one is because it was originally proposed
to retain under the prerogative powers of appointment and dismissal,
and what we are seeking to do is to have the powers of appointment,
etcetera, in a statutory framework. At the same time, there has
to be a Minister responsible for the Civil Service to Parliament
but in practice whose powers are very constrained, and that Minister
is the Prime Minister. I am certainly happy to look at the drafting
but it was put in this way for the best of reasons, not for the
worst. I will, if I may, send your Committee, as I say, Mr Chairman,
a short memorandum about this.
Q759 Lord Armstrong of Ilminster:
I think one aspect of this which concerns me is that this provision
makes the Minister at least technically accountable for appointment
and dismissal of civil servants, and that this could mean that
individual appointments and dismissals could be the subject of
parliamentary discussion in a way which they cannot be now. Is
that the intention? If it is not the intention, I think it needs
to be made clear.
Mr Straw: I agree with you. As I went in to
look at this, as I say, the intention is clear and there is obviously
no intention whatever that Ministers or Parliament should be able
to argue that X rather than Y should have been appointed, because
that would take us back to the days before the Northcote-Trevelyan
reforms, so we will obviously look very carefully at your report
and at the current drafting.
Mr Wills: We can certainly make this intention
clear in the passage of the Bill, just so it is literally clear
in the parliamentary proceedings.
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