Select Committee on Constitution Fifteenth Report

CHAPTER 4: Options for enhancing Parliamentary INVOLVEMENT

60.  In this chapter we summarise the evidence we have received on different options for greater parliamentary participation in deployment decisions, in order to improve accountability and legitimacy. Some general points which apply to the majority of the options put forward are outlined in paragraph 61 below. The means by which Parliament might obtain a greater role in deployment decisions can be broadly summarised on a sliding scale of involvement:

  • The Prime Minister's power to deploy troops should derive from Parliament, rather than the Crown;
  • Government should be required to provide to Parliament a formal justification of their decision;
  • Parliament should be empowered to undertake scrutiny of the Government's proposal/decision on the basis of a range of evidence and information provided by Government;
  • Subject to specified exceptions, prior parliamentary approval would be required to authorise deployment; in exceptional cases subsequent ratification should be required; this could be provided for through legislation or parliamentary convention.

General points

61.  We have noted earlier (paragraphs 40-43) that Parliament's scrutiny of a government's deployment decision can currently include initiating parliamentary debate, calling for statements, written and oral questions and select committee scrutiny. We also heard evidence that these mechanisms can be hindered or undermined by government's control of the parliamentary timetable, parliamentary majorities, use of the Whips and a monopoly over certain classes of information. Nevertheless, any proposal to increase parliamentary involvement in deployment decisions, whether by providing for an element of prior authorisation from Parliament for some decisions or by strengthening existing means of accountability—for instance by requiring the provision of information to Parliament—would not be at the expense of the existing means by which Parliament may already hold the Government to account.

62.  There was significant agreement that any measure for greater parliamentary involvement should include an exemption for emergency situations where the executive must act quickly and in secrecy, or where events changed rapidly on the ground.[79] Such power might be accompanied by an obligation to bring the matter to Parliament shortly thereafter. Additionally, it is not contemplated that every overseas deployment should require some element of parliamentary participation. Lord Vincent told us that the options for the national authorisation of military operations would need to be appropriate to the nature of the operations themselves.[80] Based on the evidence received, actions such as ceremonial or training postings, routine operations such as the sending of naval ships to distant waters (however "poised" for action such vessels may be), and "policing" operations are not intended to fall within any of the schemes of accountability considered.[81]

63.  There were several witnesses who, while in favour of some Parliamentary participation in deployment decisions, were concerned that too strict a template for action should not be imposed on government. The diverse nature of military operations (see chapter 2), the different operational requirements and the amount of political controversy surrounding particular decisions could all affect the timing and intensity of the involvement of Parliament. Professor Freedman told us that it would be unwise to create a very strict framework, although he recognised that any government which did not take Parliament into its confidence as much as possible could well pay for it.[82] Lord King also argued that the political context affected what should be done, although he accepted that Parliament should be "fully involved". He gave the example of Iraq's invasion of Kuwait, which coincided with the parliamentary recess; there was no great pressure for the recall of Parliament because wide consensus existed about what the response should be.[83]

Legislation to transfer prerogative power

64.  It has been proposed that "the simplest way" to establish a "legitimate" source of authority for the deployment power would be "for Parliament to pass a law saying that all the prerogative powers of war-making are transferred to the Prime Minister".[84] Although for all practical purposes the exercise of the power would be unchanged (since the Prime Minister already possesses the authority under the royal prerogative), the act of passing legislation would make Parliament the locus of authority for it. While Tony Benn did not regard this proposal to be his favoured option, he nevertheless considered that it might provide a firm foundation for making further future changes: "if that were done, all the practical problems of how it would work could be sorted out by Parliament amending its own legislation, if it wished to do so".

65.  Taken alone, legislation of this kind would not increase Parliament's active involvement in the exercise of the deployment power. However, it would significantly change the constitutional basis upon which deployments were decided, and introduce the possibility of future change if Parliament should so decide. It might also complement additional measures outlined below and address concerns about the legitimacy of the authority for the deployment power.

Provision of information to Parliament

66.  The nature and the timing of information supplied to Parliament are integral to the question of whether Government should formally provide Parliament with the reasons for and nature of a deployment. In addition to general information justifying the decision, questions of its legitimacy and legality also need to be addressed.

67.  In considering the type of information provided, the Government and other witnesses argued that the executive should use its discretion to balance its obligation to provide information to Parliament with the operational security and effectiveness of any deployment: "The provision of information to Parliament on any deployment will always be constrained by the need not to reveal sensitive information on the way the armed forces propose to act or the extent and nature of intelligence on the forces they will act against".[85] Several witnesses recognised that information should not be made public that would endanger the lives of service personnel,[86] but it was put to us that this "does not mean that only the executive can ever be involved in making these decisions".[87] Given this concern about endangering the safety of the Armed Forces, it was proposed that only information about the nature of the deployment and the reasons for it, rather than specific operational details, should be made public.[88]


68.  It was suggested to us that, while there might be cogent objections to the imposition of a requirement for parliamentary authorisation of the overseas deployment of British forces, a more persuasive case could be made for requiring the Government formally to explain the legal justification for such a deployment, and that "a framework could be provided by statute, under which the Government would outline the factual and diplomatic background, its objective in authorising force and the grounds on which it is satisfied that its actions are justified under international law. Such a document would be laid formally before Parliament and would necessarily have been approved by the Law Officers"—but would not need to contain the totality of the advice tendered by the Law Officers, which should remain confidential.[89]

69.  Governments have usually responded to parliamentary enquiries about deployment decisions, and witnesses drew attention to the powers of Parliament to keep itself informed about the progress of the operations concerned,[90] but this suggestion would take matters a step further by formalising the process. While significant, it would not represent a drastic constitutional change, since the Government already supplies under short time constraints memoranda to Parliament on European Union documents and on treaties subject to United Kingdom ratification (see paragraph 93 below). It also supplies oral and written statements involving questions of international law. Such a proposal might meet some of the concerns about the present deployment powers in terms of legitimacy, accountability and the decision-making process. It was argued that provision of a formal legal justification for any decision to authorise the use of military force abroad would offer a number of advantages, including: clarity within Government about the legal basis for the decision; consistency in the deployment of legal doctrines of international law; facilitating the process of persuading public opinion that the decision was transparent, necessary and proportionate; increase confidence, which would in turn assist the actual conduct of any operation; and would, in the longer term, be advantageous in terms of the spread of fundamental British values and the promotion of a more stable world order.[91]

70.  The Attorney-General, Lord Goldsmith, thought that there was a very strong case for Government having to provide legal justification for military action, which he believed had already been done where the issue had arisen. Whether the information was presented before action had begun should depend on the circumstances, but "I think if there is no reason not to do it, then it would seem to me appropriate to do it before". He considered that this would sometimes depend upon "an analysis of information which it is difficult, if not impossible, to share at that moment in time and that may make it difficult, or operational reasons may make it difficult to do in advance".[92]


71.  Some witnesses suggested to us that the Attorney-General's legal advice on any potential conflict should be published in full and made available to the public and Parliament.[93] In general, however, there was little enthusiasm for the idea. The role of the Attorney-General was likened by the former Attorney-General, Lord Morris of Aberavon[94], to that of a family solicitor, with the Government as his client, and "none of us would like the advice given to us by our family solicitors to be broadcast in the market place".[95] He considered that the advice should remain confidential, since the Attorney-General "might not give as perhaps elaborate advice as he might otherwise do so if he knew that every facet of it was to be in the public domain".[96] Another former Attorney-General, Lord Mayhew, thought that "the value of future opinions would be greatly diminished and diluted because it would open up the terms of the opinion to being cherry-picked by the Government's political opponents in a way which it ought not to be made to suffer, so it seems to me, and I think that the advices in future would be less comprehensive and less valuable."[97] This view was echoed by Kenneth Clarke in his evidence.[98] In response to the question of whether his advice should be published, the present Attorney-General (Lord Goldsmith) quoted the opinion of the then Chairman of the Bar, Sir Stephen Irwin, QC at the time of the debate over publication of his advice on the second Iraq War:

"Were this advice to be published, it would leave future governments of whatever hue in difficulty when it comes to obtaining legal advice on major matters of public or international law. That would be clearly against the public interest. It means the Government might not ask for advice when they should or might not reveal all the facts when they do".

72.  In common with other witnesses, Lord Goldsmith considered that this could lead to a risk that Government would not be told all the risks, dangers or questions that they ought to know before taking their decision.[99] For his part, Lord Mayhew drew a distinction between the "character" of the advice given by the Attorney-General and the actual terms of the opinion. He considered that the Attorney-General was obliged to answer to Parliament if he was asked for the character of the advice which the Government was acting upon. However, the actual terms of the opinion should remain confidential to the Government as the Attorney-General's client: "a privilege which it is entitled to retain, and in my view for good practical reasons should retain it".[100]


73.  We heard proposals that Parliament should be able to supplement the Attorney-General's advice by establishing its own legal officer or by commissioning an independent legal opinion.[101] Witnesses generally agreed that this was a matter for Parliament to decide itself: "There is no reason why it should not seek its legal advice elsewhere or supplement its advice elsewhere, in my view. That is entirely a matter for Parliament, and then it would have to choose".[102] Lord Goldsmith recognised that each House had the right to do as it wished, but cautioned, first, that legal counsel to Parliament would be unlikely to have access to all the sensitive information available to the Government's legal advisers or the Attorney-General and, secondly, that if the advisers to the executive and Parliament put forward conflicting opinions this might be detrimental to those carrying out the operations—the Armed Forces and Civil Service—who need clear and definitive legal advice.[103]

74.  Parliament might well take the view that the less comprehensive the Government's description of the "character" of the Attorney-General's advice, the more likely it would be for Parliament to seek counsel for itself, with all the consequent disadvantages identified by Lord Goldsmith.

Parliamentary Joint Select Committee on Armed Forces

75.  Some witnesses have proposed the introduction of a new parliamentary joint committee, to assume strategic oversight of the United Kingdom's international and defence interests and policies. Its remit might include considering policies on the resolution of "hot" defence issues and to maintain a watch over British military activity abroad. The Committee could also conduct inquiries into long-term issues such as international security, geo-political change and intervention in failed states.[104]

76.  The promoters of this idea suggested that such a Committee could follow the model of Parliament's existing Joint Committee on Human Rights, which has an analogous strategic role. Its status as a joint committee would allow it to make use of the "dispassionate expertise that the House of Lords can contribute".[105] Another suggestion is that the Committee be similar to the German Standing Committee of Defence, a departmental select committee which scrutinises bills and defence-related matters and has the power to act as an investigative committee and consider any defence matter of its choosing. The German Defence Committee works in co-operation with the Foreign Affairs Committee and has access to relevant security information.[106]

77.  One issue to consider is whether the establishment of such a joint committee would duplicate the work of existing House of Commons Select Committees, such as those for Foreign Affairs and Defence. Both are "departmental" committees, but also consider policy issues.[107] In evidence, the Democratic Audit suggested that the joint committee should supplement, not supplant, existing committees and that questions of demarcation could be amicably resolved. They consider a new joint committee to be more suited to a wide-ranging strategic role, rather than the already busy departmental select committees.[108] The New Politics Network has suggested key differences between the Commons' Defence Committee and a new joint committee to be that the latter should include members from both Houses; its chairman should sit on the Intelligence and Security Committee; it should have the power to require the presence of people and papers; its specific role should include monitoring the armed forces and any plans for deployment; it should act as a guardian for the rights of service personnel; it should have permanent legal advice; and it should be able to meet in camera if deemed necessary for national security purposes.[109]

78.  The proposal of a joint committee was generally well received by witnesses in oral evidence. Tony Benn regarded a joint committee to be "a perfectly sensible thing to do and it could be done without infringing in any way on the prerogative", but said that "it would be purely advisory".[110] Lord Lester and Clare Short regarded a joint committee as a useful complement to legislation requiring prior parliamentary approval. Clare Short also considered that getting the two Houses working together on such an issue would be a desirable thing.[111] Professor Loveland considered that "there is great deal to be said for a statutory regime which imposes ex post facto or continuing scrutiny".[112] Kenneth Clarke considered "very attractive" the proposal that a joint committee could receive privileged and secret information on a scale not available to the rest of the House, because much information was kept secret unnecessarily and "the reason most of it is kept secret is because it is embarrassing and not helpful for the government trying to make its case".[113] He did not agree with the idea that a select committee should recommend the initiation of military action. In evidence the Lord Chancellor told us that he considered the issue to be a matter for Parliament.[114]

Statutory provision

79.  We heard a great deal of evidence about the proposal to introduce legislation to give Parliament the right of prior approval of deployments of armed forces overseas. Many witnesses were in favour, on the basis that it would allow Parliament a more direct and ongoing role in the decision over whether to commit armed forces to action.[115] Those who supported the proposal recognised that the task of drafting legislation would not be without complexity but considered that the benefits would outweigh such problems. However, even the most enthusiastic supporters for scrapping the entire class of royal prerogative powers also recognised that the power to deploy armed forces is necessarily a "power of high discretion" and that an exemption was necessary for certain high-risk situations.[116] Those against the proposal pointed to inherent difficulties in determining the limits and application of a parliamentary power to authorise deployments and regarded a statute as, at best, unnecessary and, at worst, detrimental to national security.

80.  Several efforts have been made by Members of both Houses to bring forward legislation that would give Parliament a greater and more formal role in the exercise of royal prerogative powers. There have been five private members bills on this issue in recent years. Those sponsored by Clare Short and Neil Gerrard sought to establish a requirement for the Government to obtain Parliamentary approval for deployment of Armed Forces. Those sponsored by Lord Lester and Tony Benn focused on royal prerogative powers in general. Most recently, Lord Lester introduced his Constitutional Reform (Prerogative Powers and Civil Service etc) Bill into the House of Lords in January 2006. It proposes putting all royal prerogative powers exercised by Ministers on a statutory footing. This follows his Executive Powers and Civil Service Bill in December 2003. Clare Short introduced her Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill into the House of Commons in June 2005, where it had its second reading in October 2005 and was subsequently withdrawn. Neil Gerrard had introduced an identically titled Bill in January 2005. Tony Benn had introduced the Crown Prerogatives (Parliamentary Control) Bill in March 1999.


81.  In summary, the key benefits of legislation to provide the right of prior parliamentary authorisation have been argued to be:

  • democratic legitimacy;[117] democratic accountability;[118] and confirmation of widespread political backing, leading to greater confidence on the part of the Chiefs of Staff in the legitimacy of the deployment and higher morale of the Armed Forces;[119]
  • the creation of "safer" arrangements for decision-making and facilitation of a more cohesive Government strategy on military action;[120]
  • following an international trend towards increasing standards of democratic governance[121] and bring the United Kingdom into line with other countries' arrangements.[122]

82.  By contrast, the main disadvantages have been argued to be:

  • the decision to authorise deployments would be dictated by the immediate views and reactions of public opinion, while they should be taken by the executive;[123]
  • a curtailment of the necessary flexibility of action in order to defend national security;[124] procedures leading to delayed decision making would allow more media influence and intervention;[125] and there could be possible confusion about authorisation if events changed quickly on the ground;[126]
  • a lack of clarity in identifying those deployments to which legislation would apply;[127] the legislation could open the door to judicial review, appeal and challenge in a way that might have adverse operational consequences;[128]
  • the outcome of a parliamentary vote might lead to damaging levels of uncertainty as to the legality of the actions of the armed forces and might weaken the resolve of the Government;[129] this would be particularly acute if the two Houses failed to agree;
  • formal requirements for prior approval have often been circumvented elsewhere.[130]

83.  The evidence has demonstrated that even if the theoretical arguments favoured a statutory requirement for parliamentary approval of deployments, there are several difficulties which need to be overcome. These include:

  • the definition of problematic terms, such as "deployment" and "armed conflict" (which is not defined in the Geneva Convention 1949 or Additional Protocols 1977);[131]
  • which deployments should require prior parliamentary approval;[132] what provisions would ensure necessary flexibility in emergency situations (threshold for retrospective approval etc);[133] and what mechanisms could address the prospect of "mission creep" and whether the Government should be required to seek new mandates as circumstances change;[134]
  • what type of information should be provided to Parliament to enable it to come to an informed decision;[135] deciding whether there should be a free vote in Parliament;[136] and whether the agreement of both Houses should be required.[137]

84.  The drafting of legislation to regulate the deployment of troops undoubtedly has its difficulties, not least with the definition of key terms and its application. On the other hand, the experience of other democratic states shows that this is not insurmountable, albeit with some possible repercussions on executive discretion. While we were taking evidence, there was a notable contrast between the announcement of the decision to deploy British troops to Afghanistan by a ministerial statement on 26 January 2006 and the prolonged process of achieving parliamentary support in the Netherlands in order to allow the participation of Dutch troops in the same operations, which was only completed in February 2006 after 6 months of negotiation. It could also be the case that legislation might lead to the involvement of the courts, but this could be regarded as entirely right and proper from the point of view of securing accountability and the rule of law.

Parliamentary convention

85.  As an alternative to legislation, it has been suggested that a convention should be developed, the central theme of which would be a requirement for Parliament to be informed by Government of deployment proposals or developments, and asked to give its approval to them. This was considered a more flexible arrangement than a statutory scheme and one which avoided the legal consequences of a statutory provision.[138]

86.  Many witnesses considered that a parliamentary convention already exists on this issue, by which Government considers itself bound to inform Parliament about deployments of the Armed Forces, although it does not go far enough in the eyes of many because the Government is at liberty to pick the timing and procedure followed for the discharge of its obligation. Other evidence noted that there had been an "apparent establishment of a constitutional convention" since the vote by Parliament prior to engaging in hostilities in the second Iraq war.[139] This view appeared to be substantiated by comments by the Prime Minister to the House of Commons Liaison Committee in January 2003, when he said "no government could engage in a conflict if Parliament was against it … That is why of course there will be ample opportunity for the House to make its view clear". He also said that he "cannot think of any circumstances in which a Government can go to war without the support of Parliament"[140]. But in February 2005 the Prime Minister said that he did not think the vote set a constitutional precedent although that it would, "for political rather than constitutional reasons … be more like the norm in the future, provided it can be done."[141] In his evidence to us, the Lord Chancellor emphasised that the Prime Minister did not recognise that there was, or should be, a new way of involving Parliament:

"You could not possibly go to war with Parliament against you because it is the embodiment of the people, but that is not the same as saying, as you are trying to say, that therefore gives rise to a convention that subject to emergencies or secrecy you have got to go to Parliament and have a vote on the substantive motion as to whether or not Parliament supports it."[142]

87.  It is however noteworthy that in April 2005 the Rt Hon Gordon Brown MP, Chancellor of the Exchequer, in a newspaper interview shortly before the General Election, said that the precedent set in allowing MPs to vote before the Iraq war should become a permanent feature of government life:

"Now that there has been a vote on these issues so clearly and in such controversial circumstances, I think it is unlikely that except in the most exceptional circumstances a government would choose not to have a vote in Parliament. I think Tony Blair would join me in saying that, having put this decision to Parliament, people would expect these kinds of decisions to go before Parliament."[143]

Gordon Brown reverted to this theme nine months later when, in a speech on 14 January 2006, he declared:

"Just as on the first day I was Chancellor I limited the power of the executive by giving up government power over interest rates to the Bank of England, I suggested during the General Election there was a case for a further restriction of executive power and a detailed consideration of the role of parliament in the declaration of peace and war."[144]

This conclusion was echoed by Kenneth Clarke, in evidence before us on 29 March this year, when he said that "there should be some constitutionally explicit role for Parliament in approving, in all possible circumstances, the deployment of troops in combat areas."[145]

88.  The views of both Gordon Brown and Kenneth Clarke recognise that the nature of contemporary politics in the United Kingdom has changed, as has the nature of contemporary armed conflict; and that the two need to be brought into a better alignment with each other. We note however that the Ministers who gave oral evidence to us chose to regard the Prime Minister's and Gordon Brown's statements as doing little more than restate the Government's current position. Dr Howells interpreted Gordon Brown to be stating "that the way the House works at the moment (if you like, convention with a small 'c') is the way it ought to proceed"[146]—an interpretation rather at odds with the words actually used by Gordon Brown—notably "these kinds of decisions" in 2004 and "a further restriction of executive power" in 2005.

89.  Some witnesses argued that a parliamentary convention was a less desirable alternative to a statute. The Democratic Audit and Professor Weir, for example, contended that conventions were notoriously elastic and the rules on going to war in a democratic state required clarity. They did not think the executive would accept that a convention should require a vote on a substantive motion approving military action abroad; and if it was all left up to a convention, the Prime Minister could prepare for deployment without any parliamentary input and put the proposal to Parliament at the best possible time to gain approval.[147] Kenneth Clarke told us that he preferred the statutory route because:

"I have an increasing feeling that many of the conventions of government, the constitution and political life in this country are now very much weakened. There is an increasing tendency on the part of the modern executive, when taking advice on constraints on its power, to say, when they discover that conventions are conventions but are not legally binding within the sanction of Parliament, that when those conventions are out of date they should be changed. We have seen quite a lot of less important conventions swept away quite inexorably in recent years, not just under the present government. I think the process is accelerating."[148]

90.  The Lord Chancellor and Ministers of State for Defence and Foreign and Commonwealth affairs told us that a convention would be as unattractive as a statute:

"To prescribe (as a proposal for statute does or the proposal for convention does) how [the Government] obtains initial support would, we believe, both blur the essential distribution of responsibility and unwisely hamper the proper prosecution of intervention and the process of accountability. The key point, we believe, is that it must be for the executive to make the decisions on deployment. How consultation or support from Parliament is sought and obtained is a matter for the executive and Parliament ... Formal constraints, either in statute or in the convention, do not work when faced with the reality of planning and deployment. They would need emergency provisions."[149]

91.  The Attorney-General took a rather different view. Although he considered that there were questions about how a convention could be created, he agreed that if there was going to be any form of change and the choice was between a statute and a convention, then he would prefer a "convention (which does not have binding legal force) [and] at least avoids some of the difficulties which I think you have rightly identified".[150]

92.  Lord Falconer told us that his opposition to the idea of convention was based on his understanding that it would be a procedure that would have to be followed, requiring "that if you use armed conflict involving United Kingdom troops you have got to come, save in exceptional circumstances, to get prior approval by a motion on the issue of should you use troops".[151] However, Lord Mayhew proposed to us a convention that would not automatically require prior parliamentary approval, but stipulated that Parliament itself would identify those important deployments where it deemed its prior approval was necessary. This formula sought to avoid objections about definitions and inflexibility, by incorporating a more flexible and Parliament-led approach:

"The drafting, of course, is going to be all-important, but you have got to avoid in whatever legislation of a domestic character (that is to say within Parliament or otherwise) the same difficulties of definition which will bedevil a statutory requirement. That is why it occurred to me that the way you might do it would be to establish a convention which would make it the duty of Government to seek the prior approval of the House of Commons in respect of any deployment of United Kingdom Armed Forces overseas which may be identified for the purposes of that convention by the House of Commons. So you would have a general rule that the House of Commons could tap into in respect of a deployment which caught their interest, for whatever reason, and that would avoid a difficulty of definition, which seems to me to be rather desirable."[152]

93.  A convention of this kind may provide a compromise between those who would like to see Parliament having a more consistent role in decisions to deploy armed forces, and those who consider that formal parliamentary involvement would hamper effective executive action and create a legal minefield. The Ponsonby Rule[153] is a relevant example of a convention that gives Parliament a formal but flexible role in the government's exercise of a royal prerogative power. Since 1924, this convention has required that all treaties subject to ratification (with limited exceptions) be laid before Parliament for 21 sitting days. The laying is done by means of a Command Paper and, since 1997, the treaties have been accompanied by an explanatory memorandum. Under the Ponsonby rule Parliament, rather than Government, decides which treaties it would like to debate; if no indication of disapproval is received, it is considered that Parliament has sanctioned a treaty's ratification. On 3 March 2006, Lord Bassam of Brighton told the House of Lords that the Government was considering putting the Ponsonby rule procedure on a statutory footing, "to increase the clarity and enforceability of the rule that government bring such matters before and to the attention of Parliament".[154]

Resolution of differences between the two Houses

94.  There was some discussion of whether both Houses of Parliament should be allowed to vote on prior approval, or whether it should just involve the House of Commons. The right of the House of Lords to have a debate on the issue and express its view was not called into question. The House contains members whose experience enables them to provide advice of value in such situations. Lord Lester told us that in principle he could not see why the Lords should not have the same power to withhold consent as it has on legislation generally.[155] Others considered that a vote of prior approval should involve just the House of Commons until the House of Lords underwent reform. Although Clare Short's Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill provided that a vote would include both Houses, the second reading debate persuaded her that it should involve just the House of Commons until the Lords was reformed and had the legitimacy of being an elected body. She noted that when this happened some thought would have to be given to how to resolve potential differences.[156]

95.  Lord Morris told us that "of course the House of Lords may voice its view", but should not have a vote on the issue.[157] Lord Mayhew considered that, "if part of your purpose is to establish democratic legitimacy so as to enhance the confidence which the public and the soldiers within the public will have, then I think limiting your requirement to the House of Commons is more likely to meet that bill".[158] He later agreed with the proposal that each House could have a debate and a vote and, if they differed, the House of Commons would prevail.[159] The Lord Chancellor agreed, and when asked whether his attitude would differ if, following reform, the House of Lords was substantially elected, said:

"It would not, no, because part of the stance of the Government, with which I completely agree, is the primacy of the House of Commons. Whatever arrangements are made, the executive is to be drawn from its support in the House of Commons. The existence of the Government depends upon its ability to command a majority in the House of Commons. The constitutional basis of what I set out at the beginning was the accountability of the executive to Parliament and the fact that its existence depends on its support in the Commons. So it would not change my view".[160]

79   Lord Garden, Volume II: Evidence, Q 110; Professor Greenwood, Volume II: Evidence, Q 95; Lord Lester, Volume II: Evidence, Q 6; Professor McEldowney, Volume II: Evidence, Page 228; New Politics Network, Volume II: Evidence, Page 92. Back

80   Lord Vincent, Volume II: Evidence, Page 60. Back

81   see Mr Blick, Volume II: Evidence, Q 190; also see Professor Rowe, Volume II: Evidence, Page 18. Back

82   Volume II: Evidence, Q 122 Back

83   Volume II: Evidence, Q 152 Back

84   Tony Benn, Volume II: Evidence, Q 4 Back

85   Lord Falconer, Volume II: Evidence, Page 120. One might add that the security of intelligence sources is another factor. Back

86   Lord Boyce, Volume II: Evidence, Q 107; Lord Goldsmith, Volume II: Evidence, Q 252; Professor Denza, Volume II: Evidence, Page 214. Back

87   New Politics Network, Volume II: Evidence, Page 92. Back

88   New Politics Network, Volume II: Evidence, Page 102.  Back

89   Professor Denza, Volume II: Evidence, Page 214. Back

90   Lord King, Volume II: Evidence, Q 163; Lord Falconer, QQ 270, 278; Adam Ingram, Volume II: Evidence, Q 276. Back

91   Professor Denza, Volume II: Evidence, Page 214. Back

92   Volume II: Evidence, Q 248 Back

93   Democratic Audit, Volume II: Evidence, Page 88. Back

94   Lord Morris was not a member of the Committee when he gave evidence to our inquiry and took no part in the preparation of this report. Back

95   Volume II: Evidence, Q 210; also see Lord Goldsmith, Volume II: Evidence, Q 238 Back

96   Volume II: Evidence, Q 210  Back

97   Volume II: Evidence, Q 208 Back

98   Volume II: Evidence, Q 327 Back

99   Volume II: Evidence, Q 242 Back

100   Lord Mayhew, Volume II: Evidence, Q 207; also see Volume II: Evidence, Q 209 Back

101   Democratic Audit, Volume II: Evidence, Page 88; see also Lord Lester, Volume II: Evidence, Q 22 Back

102   Lord Mayhew, Volume II: Evidence, Q 225 Back

103   Volume II: Evidence, Q 252 Back

104   Democratic Audit, Volume II: Evidence, Pages 88 and 104; also see Volume II: Evidence, QQ 183-204 Back

105   Democratic Audit, Volume II: Evidence, Page 104. Back

106   New Politics Network, Volume II: Evidence, Page 92; also see Dr Ziegler, Volume II: Evidence, Page 31.  Back

107   The House of Commons' Foreign Affairs Committee's remit is: "to examine the expenditure, administration and policy of the Foreign and Commonwealth Office (FCO) which includes the diplomatic service"; while the House of Commons Defence Committee's remit is to: "examine the expenditure, administration and policy of the Ministry of Defence and its associated bodies" Back

108   Democratic Audit, Volume II: Evidence, Page 104. Back

109   New Politics Network, Volume II: Evidence, Page 104. Back

110   Volume II: Evidence, Q 27 Back

111   Volume II: Evidence, Q 27 Back

112   Volume II: Evidence, Q 53 Back

113   Volume II: Evidence, Q 324 Back

114   Lord Falconer, Volume II: Evidence, Q 292 Back

115   See, for example, Tony Benn, Volume II: Evidence, Q 2; Clare Short, Volume II: Evidence, Q 2; Lord Lester, Volume II: Evidence, Q 3; Mr Payne, Volume II: Evidence, Q 50; Professor Loveland, Volume II: Evidence, Q 63; Dr Ziegler, Volume II: Evidence, Q 84; Ms Wilmshurst, Volume II: Evidence, QQ 92-93; Kenneth Clarke, Volume II: Evidence, Q 311; Democratic Audit, Volume II: Evidence, Page 88; Professor McEldowney, Volume II: Evidence, Page 228; New Politics Network, Volume II: Evidence, Page 92.  Back

116   Mr Payne, Volume II: Evidence, Q 77 Back

117   Lord Garden, Volume II: Evidence, Q 110; Ms Wilmshurst, Volume II: Evidence, Q 81; Dr Ziegler, Volume II: Evidence, Q 84 Back

118   Ms Wilmshurst, Volume II: Evidence, Q 81; Lord Lester, Volume II: Evidence, QQ 6, 14 Back

119   Lord Garden, Volume II: Evidence, Q 110 Back

120   Mr Payne, Volume II: Evidence, Q 50; Clare Short, Volume II: Evidence, Q 2 Back

121   Dr Zielger, Volume II: Evidence, Page 31. Back

122   see Professor Bell, Volume II: Evidence, Page 52; Lord Lester, Volume II: Evidence, Q 14 Back

123   Professor Denza, Volume II: Evidence, Page 214; Lord Falconer, Volume II: Evidence, Page 120. Back

124   Christian Brethren, Volume II: Evidence, Page 211; Lord Falconer, Volume II: Evidence, Page 120; Humphry Crum Ewing, Volume II: Evidence, Page 223. Back

125   Christian Brethren, Volume II: Evidence, Page 211. Back

126   Professor Greenwood, Volume II: Evidence, QQ 95-96 Back

127   Lord Goldsmith, Volume II: Evidence, Q 254; also Professor Rowe, Volume II: Evidence, Q 48 Back

128   Lord Mayhew, Volume II: Evidence, Q 214 Back

129   Lord Falconer, Volume II: Evidence, Page 120; Mr Payne, Volume II: Evidence, Q 50; Professor Rowe, Volume II: Evidence, Q 59; Lord Goldsmith, QQ 240, 257 Back

130   Lord Falconer, Volume II: Evidence, Page 120; also see Democratic Audit, Volume II: Evidence, Pages 88 and 104; New Politics Network, Volume II: Evidence, Page 92. Back

131   Professor Rowe, QQ 48-49 & Volume II: Evidence, Page 18; Ms Wilmshurst, Volume II: Evidence, QQ 81, 93; Lord Morris, Volume II: Evidence, Q 217; Lord Mayhew, Volume II: Evidence, Q 218 Back

132   Professor Rowe, Volume II: Evidence, Q 56 Back

133   Elizabeth Wilmshurst, Volume II: Evidence, Q 81; David Berry, Volume II: Evidence, Page 209; Democratic Audit, Volume II: Evidence, Page 88. Back

134   Lord Falconer, Volume II: Evidence, Page 120.  Back

135   Democratic Audit, Volume II: Evidence, Page 88 (section 4); Lord Falconer, Volume II: Evidence, Page 120; Lord Lester, Volume II: Evidence, Q 32 Back

136   Eileen Denza, Volume II: Evidence, Page 214 Back

137   There were differing opinions about whether the House of Lords should have a role. This is summarised in paragraphs 94-95. Back

138   Lord Morris, Volume II: Evidence, Q 234; also see Lord Mayhew, Volume II: Evidence, Q 214 Back

139   Richard Ramsey, Volume II: Evidence, Page 239. Back

140   House of Commons Liaison Committee, Minutes of Evidence, Session 2002-03, HC 334-I, QQ 122, 125 Back

141   House of Commons Liaison Committee, Minutes of Evidence, Session 2004-05, HC 318-I, QQ 31, 32 Back

142   Volume II: Evidence, Q 273 Back

143   Daily Telegraph, 30 April 2005 Back

144   Fabian New Year Conference Back

145   Volume II: Evidence, Q 307 Back

146   Volume II: Evidence, Q 287 Back

147   Democratic Audit, Volume II: Evidence, Page 88; Professor Weir, Volume II: Evidence, Q 190 Back

148   Volume II: Evidence, Q 311 Back

149   Lord Falconer, Volume II: Evidence, Q 270 Back

150   Volume II: Evidence, Q 258 Back

151   Volume II: Evidence, Q 282 Back

152   Volume II: Evidence, Q 218 Back

153   For more detail, see appendix 5. Back

154   House of Lords Hansard, 3 March 2006: column 481 Back

155   Volume II: Evidence, Q 19 Back

156   Volume II: Evidence, Q 17 Back

157   Volume II: Evidence, Q 181; also see Lord Falconer, Volume II: Evidence, Q 292 Back

158   Volume II: Evidence, Q 179  Back

159   Volume II: Evidence, Q 182 Back

160   Volume II: Evidence, Q 293  Back

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