Examination of Witnesses (Questions 305-319)
Mr Kenneth Clarke QC, MP
29 MARCH 2006
Q305
Chairman: Could I welcome you to the Committee and
thank you very much for coming. Could I remind you this is on
television. In that sense, it would be very helpful if you would,
just for the purpose of the cameras, be kind enough to identify
yourself.
Mr Clarke: I am Kenneth Clarke, Member of Parliament
for Rushcliffe in Nottinghamshire.
Q306 Chairman: Getting straight to
our business, you are now also the leader of the Democracy Task
Force established by your party. I think it would help the Committee
a great deal—because I know you have taken the subject on
which we are engaged on board as one of your priorities—if
you could give us a little bit of background on the Task Force.
Mr Clarke: I am not a spokesman for the Conservative
Party, perhaps I could make that clear before I start. I have
been asked by David Cameron to chair what we call a "Democracy
Task Force", which is a group he has asked me to put together
to give advice on the process of government to the Conservative
Party, on the basis of which he will be forming policy in the
round for the next election. We have today announced the membership
of the Task Force which includes people who are not members of
the Conservative Party, two certainly: Lord Butler and Sir Christopher
Foster; two Conservative MPs, Andrew Tyrie and Sir George Young.
There is also Ferdinand Mount, and Laura Sandys who is a well
known leader of think tanks in this area. Our remit is to cover
quite a wide range of ground concerning the process of government.
It has been given the title "Democracy Task Force" because
it is thought to be an important part of restoring confidence
in the democratic system and the openness and accountability of
government. David has asked us to look, first of all, at the use
of the royal prerogative, which I know he has considerable concerns
about, and he wants to us to advise whether the royal prerogative,
on matters such as war-making powers and treaty-making powers,
should be put on a different, more modern footing.
Q307 Chairman: Of course, war-making
powers are particularly conspicuous and, because of the Iraq War,
a very topical instance of the prerogative powers. We have, in
a sense, taken the opposite perspective to you: we thought we
would take war-making powers and out of that possibly draw some
conclusions about the prerogative in modern times. Thinking of
David Cameron's speech on 6 February, I think his words were,
"giving Parliament a greater role in the exercise of [royal
prerogative] powers would be an important and tangible way of
making government more accountable". I think it would be
very helpful to the Committee if you could spell out this issue
of Parliament's role in so far as your thinking has developed,
because, of course, that could mean a number of things. It could
mean information, consultation, approval or involvement in a variety
of ways and we have found that they are certainly quite complex
issues on this Committee. I wondered what you thought your leader
meant and how you are taking that on board as part of your remit?
Mr Clarke: I have read your proceedings, which
confirm it is indeed a complex issue. I think the only reason
David has asked me to chair this Task Force is so we can get down
to the work of addressing these complex subjects as well. I know
that will be very much guided by the report of this Committee,
amongst other things, when you produce your report. I think the
reason David has asked for this to be set up is he has not had
the time to think through exactly how it could be done. I think
the view, which he and I both share, is that particularly in war-making—let
us take that as at first example we are looking at—Parliament's
role does need to be made clearer and there should be some constitutionally
explicit role for Parliament in approving, in all possible circumstances,
the deployment of troops in combat areas, which probably means
setting down a process by which that should be done. We know the
constitutional theory at the moment is that this is a royal prerogative
exercised effectively by the Prime Minister and ministers and
she exercises the prerogative on their advice. We also know that
in practice when prime ministers commit themselves to combat they
can only continue to do so if they get parliamentary support for
it. The process is dealt with just as an ordinary matter of policy.
Particularly given the events surrounding the Iraq War, I think
what we are looking for is a more explicit and clear statement
of Parliament's responsibilities, including the extent to which
Parliament should be properly informed, have a proper opportunity
for debating the issues, factual, political and legal, and should
have a clear opportunity, perhaps rather more of Parliament's
own choosing, as far as time and circumstances are concerned,
where Parliament can give its approval before our troops are committed.
Q308 Chairman: Thank you very much
for that. I thought for a moment you were going to say that you
would wait till you had seen the conclusions of this Committee
before you formed your own views of it, which would imply a circular
relationship.
Mr Clarke: If my six colleagues and I all read
your report and say we agree with that, we will move rapidly on
to other matters. There is quite a list of other things that we
have been asked to look at.
Q309 Chairman: If you have been following
our proceedings you may have noted that, although the Chancellor
of the Exchequer, Gordon Brown, has made rather similar speeches
to those of David Cameron, the position of the Government, as
enunciated to us in evidence last week by the Lord Chancellor,
was really an argument that the status quo is perfectly satisfactory
since all ministers are accountable to Parliament and therefore
no formal modalities of accountability or approval need to be
ascertained. But, going into your own inquiry, do you think—and
it is perhaps easier to think when you are in opposition than
when you are in government—that there is a gap between the
theory of governments being held to account in the ordinary parliamentary
way, qualified in this case by the prerogative, and the reality
that needs to be institutionally bridged in some form or other?
Mr Clarke: I think that there is and that the
Iraq War really exemplified why the present process needs to be
re-addressed. It is true the Prime Minister did eventually hold
a parliamentary vote and get authority for the war and he did
have a majority in the House of Commons in support of that proposal,
but that vote was finally brought to the House at the very last
moment when a very large proportion of the British Army was already
deployed on the ground in circumstances in which a vote against
would have had catastrophic consequences for the diplomatic standing
of the Government and where many Members of Parliament felt they
were under very great pressure to support the troops on the ground.
I do not think that was an accident. Let us be clear, I am not
being partisan because, going back to the Falklands War, I do
not recall there was ever a substantive vote on that war; I supported
it. One reason was that I think both parties supported the invasion
at the time it took place; the controversy broke out afterwards
when people changed their position. The Kosovo War, which I certainly
supported, the legality of which probably had more doubts surrounding
it than any other, was handled in a similar manner. I think on
both occasions the Government, when it had parliamentary debates,
put down motions on the adjournment precisely to make sure that
there was no substantive vote taking place at any stage. The whole
thing was used more as a process of explanation and persuasion
than it was of giving Parliament a real way to challenge the decision
and to be accountable fully, which I think means throwing down
before Parliament the opportunity to reject this policy if it
wants to before any military action takes place. In the case of
the second Iraq War, the recent one, again it was complicated
by the fact that the leadership of both the main political parties
were strongly in support of the policy behind the invasion. There
was, however, very strong opposition on a cross-party basis and
the core background was very controversial. The Government handled
it in the way they would handle any other difficult political
subject, an education bill or whatever, by keeping entirely in
their own hands the timing of any debate, the wording of any motion,
desperately trying to work to make sure that they could have the
best chance possible of a majority on a policy on which they were
already well set. In the case of warfare that is going to give
rise to loss of life and casualties, I think a more ordered and
clear process is required and I think other western European parliaments
have tried to get much better systems in place.
Q310 Viscount Bledisloe: You have
talked about approval and pointed out that seeking approval when
the troops are already there is pretty meaningless. When the Government
talks about accountability, I think they are talking about the
ability of Parliament to criticise people after the event for
the decision. Am I right in thinking that there is a vast difference
between those two because if Parliament participates in the real
decision, the argument in favour of that is said to be, "Well,
we should not ask people go and get killed without Parliament
having decided that we need to", whereas once you get to
accountability, the troops are already there. It may be very jolly
to kick the minister about and maybe even get him sacked, but
if you vote after the troops have gone there, if you do not approve
of the war, it is going to be very difficult in most circumstances
to bring them back, is it not, when they are in the middle of
an engagement?
Mr Clarke: It certainly is. I do not think Parliament
is an executive body. I would not wish to see Parliament playing
an executive role; I think it would be rather bad at it. I do
think Parliament's duty is to hold ministers to account, but I
think we need a process whereby ministers in the Government are
held to account at an appropriate stage where the policy can be
challenged. Accountability means you throw out the policy at a
time when there is a sensible opportunity for Parliament to indicate—I
hope there are occasions in our system—that it flatly disapproves
of the policy or ministers are held to account when it is still
going to have an effect on events. What happens once warfare has
started, amongst other things, is that there is a strong convention—it
is not a constitutional one; it is a political convention—that
one does restrict criticisms of the Government and military action
whilst troops are on the ground, and that was followed on this
occasion. Charles Kennedy, for some reason I remember, was criticised
by his political rivals for changing his tone once it had started,
but the same view was taken by Robin Cook, by me, by all the opponents
of the war: once warfare was under way no one sought an opportunity
to then have a vote deploring it. There is a change of tone that
has to take place, because it would be positively damaging to
morale and national interest if Parliament suddenly decided that
it was going to start checking the process at every stage, so
it is particularly unsuitable in the case of warfare. In the case
of warfare it is more important than in most other subjects that
you have the genuine consent of Parliament, I would have to say
primarily and particularly the House of Commons but Parliament
as a whole, on the policy, the legality and everything else that
the country needs to know before it sees its military forces committing
to an action on this scale.
Q311 Lord Rowlands: You referred
to a constitutionally explicit role. Would you take that constitutional
role to the point that if you wanted the House of Lords to have
a part in the decision to deploy troops it should take a statutory
form, that there should be a statute which eventually re-establishes
Parliament's role?
Mr Clarke: The Democracy Task Force has not
started its work, so I start with the basis that in contemporary
circumstances it is going to have to be statutory if at all possible.
I was a sponsor and supporter of Clare Short's bill which tried
to address this argument. I would not defend the drafting of the
bill; it was a noble effort to try to get the principle established
and deal with some of the obvious problems, like you have to take
instant action in an emergency. I think it would have to be statutory
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.
Q312 Lord Rowlands: You said you
had read the evidence we have had to date, that it would be swamped
by military practical problems. We have been told that it is very
difficult and it would create inflexibility, it would jeopardise
the possibility of quick action, et cetera, if it was a statutory
basis. You do not find that convincing, as a sponsor of Clare
Short's bill?
Mr Clarke: I do not. If anybody was so foolish
as to table a motion that was talking about the tactics of military
deployment, the strategy, the timing or anything of that kind,
I would regard that as ridiculous and I do not think there is
much chance the House of Commons would pass any such thing. At
some stage clear approval of the policy, giving rise to the Government
asking for consent to use military action, together with an informed
judgment on the facts that led up the warfare and the legality
of that warfare, I do not think would cause undue complications.
There is a certain tendency to want to stay with the status quo
and to avoid the difficulties, and they are going to be difficult.
This war was a classic example whereby the policy was controversial
and became more controversial the longer things went on. The legality
was raised in doubt and the invasion took place and, as is often
the case, it is quite plain that public opinion has changed and
political opinion has changed. This gives rise to great difficulties
and we do not want any of this to give rise to a position where
the United Kingdom cannot deploy its Armed Forces in defence of
a vital national interest where there is no alternative readily
available. However, you do have to have pretty wholehearted political
and public consent and, when people are acting, to know that they
are acting with that consent. Far from resolving these issues,
I think the way in which it was handled made the whole thing more
uncertain and has added to quite a lot of the bitterness that
is now surrounding the decision to go to war, and our troops are
still deployed out there against this background.
Q313 Lord Peston: It may be just
a matter of language but I do not think anybody would disagree
with the view that Parliament is not an executive body. For our
sensitivities, we always like to remind our witnesses that Parliament
includes our House as well as yours.
Mr Clarke: Sure, but I regret to say that I
do not think either House should try to play an executive role.
Q314 Lord Peston: That does not seem
to be a problem. What requires clarification is a sort of distinction
between involvement and then it going beyond involvement to, if
you like, underwriting the policy or something like that. I am
not entirely clear how far you feel, if we think of it as the
norm or the convention, one should go, starting from you are involved
to the underwriting.
Mr Clarke: Iraq was debated quite a bit, not
in a terribly organised way. I think the Government tried to minimise
debate rather than encourage it until a fairly late stage, but
in practice in the end Parliament did succeed in debating it quite
a bit. I think the Government should be required to get explicit
approval and consent before committing itself irrevocably to the
action. How you draft that is a very big problem, but I do think
that is what is called for. I think the Government must propose,
the Government must give a clear statement of its intentions and
policy which leads it to a conclusion, to Parliament. The whole
question of whether the Government's own legal advice is adequate
is a matter which I know you have considered, which is interesting
as well, but then it should be a requirement that there should
be the approval of Parliament before steps are taken which are
inevitably going to lead to the deployment of troops in combat
in circumstances where it is a considered course of action, where
there has been an obvious build-up to it and it is not an emergency
situation, not a response to some sudden outrage or hostage-taking
or anything of that kind, but in the sort of case where this is
major, sheer political policy, where there is a very considered
judgment that Britain has to use armed force to participate with
allies. That should require the explicit approval of Parliament
in my opinion with enough information before Parliament so that
Parliament can take an informed view. Then afterwards people can
change their minds but no-one can possibly think that the Armed
Forces have been deployed inappropriately.
Q315 Lord Peston: I think you have
answered my supplementary in the last answer, but that would be
the norm is what you are saying, that you could hypothesise that
there would be a possible crisis some time where you had to act
without any waiting at all? I am not saying that many of those
occasions arise but in that case it would also be acceptable in
your judgment that the Government could, and indeed in the defence
of the realm obligation should, act with no delay, but that would
be unusual?
Mr Clarke: That would be unusual but you have
to recognise that it is a practical problem. It seems to me that
the obvious one is hostage-taking. You suddenly get some British
embassy seized somewhere by some hostile government or in some
foreign state hostages are being held. The idea that you have
to go for approval and say, "Do you approve of our taking
military action to rescue these British citizens?" would
be an obvious absurdity. That is only a simple example. Where
there is an emergency unexpectedly, some vital British interest
is threatened and the use of troops is suitable, the Government
has to have the power to do that.
Q316 Baroness Hayman: I want to follow
this through because you have discussed approval and talked in
terms of parliamentary approval, but if we have statute you are
talking in fact about action being legal or illegal under British
law, not under international law, which is another issue. Am I
right in thinking that that is a logical consequence of what you
are saying? If so, you talked about Parliament having to have
enough information. Obviously, the timing of approval is important
and we have heard your description of what happened in Iraq. Are
you proposing at all in the way you are thinking that there would
be involvement then of the courts because there could be challenge
through the courts as to the legality of military action if, for
example, approval was given at what someone considered an inappropriate
time or with unsatisfactory information?
Mr Clarke: If a government sought to use troops
in action in circumstances where it should have sought approval
and had not, then, as you say, such use of troops would be unlawful
under British law. I do not conceive that any British Government
would do that. It would have an instant crisis with the chiefs
of staff who in my experience always wish to be given the clearest
assurance that what they are being asked to do is legal under
international law, and would be equally insistent that they had
to be satisfied that what they were being asked to do was lawful
under British law as well. Parliament's vote in the end, I suppose,
would satisfy arguments about whether the right moment had been
chosen, whether there was adequate information. Some people might
argue in the debate that they still needed more information but
if they were then overruled by the majority of MPs I think that
would be sufficient to give it legality so long as they had gone
through the process. You again would have to draft it in phrases
that make clear the requirement to get approval at the time when
the country was not irrevocably committed to military action,
just to make sure that some government did not try to take its
chance and call the vote at the last moment. If it was in statute
you would be laying down conditions which would be necessary to
be fulfilled before the action could be regarded as lawful. I
do not think any British Government would ever embark on warfare
in circumstances where there was going to be a plain challenge
to the legality of what it was going to do.
Q317 Earl of Sandwich: On the other
hand, we have had quite a lot of evidence from our witnesses that
legislation would be unworkable, that it would be a sledgehammer,
very difficult to write and very difficult to interpret. You may
have read the evidence of two former Attorneys General giving
their support for the convention, which I know you have just rejected.
That was about prior parliamentary approval but can I give you
an example of Afghanistan? What if a significant deployment, a
figure of 1,500 troops, for example, was actually mentioned? Would
that be an opportunity for parliamentary scrutiny, approval, a
vote in the House? Do you envisage stages at which you could govern
by convention but perhaps not by legislation?
Mr Clarke: I think if you are deliberately committing
troops to a theatre of war in circumstances where you have got
rules of engagement and they are going to take part in military
action I do not think the size of the cohort would have much relevance.
I can well imagine some incident in a Third World country where
it has been decided to intervene where 1,500 people might be quite
satisfactory for the whole process but I still think Parliament
should approve. Had we invaded Grenada rather than the Americans
it would, I think, have been desirable for the British Government
to get approval for doing that. In that case it would not have
compromised the policy because the very fact that the British
Government was known to be going through the process of getting
approval might have made the whole necessity for military intervention
unnecessary because in that case you would not have been too worried
if your potential enemy was warned that 1,000 British troops were
coming. You would rather they assume that there was not much they
could do about it and it might get them to clarify their minds
about what they were doing. There are other enemies, of course.
You would want to make it clear that you had got some discretion.
Afghanistan I do not think the Government had any difficulty in
getting approval for. Although there are great drafting difficulties
and a great deal of room for academic debate and legal debate,
I actually think in practice the proposition is so clear and sensible
that any reasonable government, any reasonable parliamentary colleagues,
would not find it in practice that difficult. In fact, I think
in the last Iraq war it would not have been difficult at all.
The only reason it was not done was because the Prime Minister
seriously doubted he could get a majority for what he proposed
to do. I think it is very doubtful whether he would have got authority
for what he did if he had tried to seek it about two months earlier
and been totally candid about where we were. I realise that I
am being partisan but I was an opponent of the war. It was not
the convention that stopped us having a vote. The reality is that
we did not have a vote because they were not sure they were going
to win it. They only had a vote in circumstances where this was
the best chance they were ever going to have. If they were ever
going to get a vote they had to get it on the day they held it.
If they had held a proper vote a month earlier it would have been
much more difficult.
Q318 Lord Rowlands: But in the case
of Iraq there were three substantive motions, not one, and they
were voted upon.
Mr Clarke: I have even read the motion. I remember
voting on Resolution 1481. It was generally supported; I think
there were about three people against it, but it was not approval
for an invasion. Indeed, one of the confusions in the debate and
actually the concept surrounding it was that there were many people
voting for the resolution thinking this was a way of avoiding
war and people were voting for it thinking that they were giving
authority to war if necessary, and it was pretty well sold on
the basis that this was the last chance of avoiding war. The whole
point of that particular resolution was that it was a great opportunity
to get a very confusing vote which gave the British Government
an enormous majority. I voted for that resolution, Robin Cook
voted for that resolution. The idea that that was approval for
an invasion is nonsense although there was a saying that grave
consequences would follow. Some people did argue that the war
was authorised on that, but again the fact that that was the occasion
chosen for a vote was a perfectly clever piece of political tactics.
It was not dictated by any military or other legal considerations.
It was just a way of avoiding coming to the crunch. As I say,
I can remember no votes on the Falklands War, for the sake of
not revealing divisions, which at that time were then confined
to the left wing of the Labour Party. We had debates on the adjournment
because we did not want to have votes in which people might be
voting against it.
Q319 Earl of Sandwich: Can I just
take you back to Afghanistan again? I do not know whether you
have followed the Dutch example. Would you approve of a parliamentary
debate at this juncture about Afghanistan on the Dutch model?
Mr Clarke: I think there is a very strong case
for it because we are moving 3,000 troops into a position of considerable
danger. I think there is a good strong case for debate, not because
I am an opponent of it. I would quite like to hear as much as
one can hear sensibly in public about the military considerations
surrounding the deployment of those people: have we got enough
people to deal with the very difficult situation and so on. If
we began war I would be disposed to approve of the disposition
of more troops to southern Afghanistan, but we are in a democracy
and it is very curious that we do not have a process whereby Parliament
actually explicitly expresses an opinion on the movement of 3,000
troops into a position of very considerable danger, and these
things can get into a very messy state a few years down the road
when no-one ever actually approved of it.
Lord Carter: I wonder if you could go
into a little more detail on the parliamentary process that would
be involved if approval were to follow. Just in passing, we do
not have adjournment debates in the House of Lords. The only adjournment
debate we ever have is on the Queen's Speech, so we have to have
a substantive motion. If Parliament were to be involved, obviously
you would think both Houses would have an active role, but it
has been put to us in the present composition of the House of
Lords that if they disagreed the House of Commons should prevail.
I think the Iraq War, the most recent one, is a good example where
we had some excellent debates in the Lords. We have got five retired
chiefs of the defence staff, we have got diplomats, et cetera.
There was never any question that we wished to vote on it and
there was never any question of a substantive motion. If, of course,
there was a statutory process that would have to involve the House
of Lords, would it not? If we had a statute it would be hard to
see the House of Commons voting unless the statute and specifically
excluded the House of Lords. If you had the statute telling the
House of Lords its role, if the composition of the House of Lords
were to change to a more substantially elected membership would
you feel then that the House of Lords should still be excluded
from voting on the decision, and what would happen to the morale
of the troops if the two Houses disagreed?
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