Examination of Witnesses (Questions 320-338)
Mr Kenneth Clarke QC, MP
29 MARCH 2006
Q320 Chairman: Can I just ask as
a supplementary, is part of the remit of your task force to consider
the future composition of the House of Lords?
Mr Clarke: It is indeed. We would expect to
do that, although we are not thinking of going straight to it.
I am not sure we are even all agreed amongst ourselves upon it.
My current feeling is that events are going to move ahead of the
Task Force. I do not think the Democracy Task Force will play
much of a role in this. If we really are now moving on to the
next stage of House of Lords reform, at least we can argue about
it in the next few months. My views on Lord's approval of war
are more tentative conclusions than this Committee's; some questions
I have thought of, but I do not have any absolutely definite or
certain views on some of them. I think the House of Lords should
obviously debate the whole issue, given that one of the key things
surrounding the war is public opinion and the formation of public
opinion. The House of Lords does play a very valuable role in
that in dealing with the Iraq War. Indeed, because the Government
has total control over our business and has less control over
yours, you are more likely to contribute to it sometimes than
we are. One snag in the Commons is that the Government has such
complete control over most of the business, hence they can time
all of these things; they lay the motions and all the rest of
it. You cannot stop the House of Lords voting, but I would suspect
the present House of Lords would not want to and the view of the
House of Commons would have to prevail. I am in favour of a largely
elected House of Lords and—this is a perfectly legitimate
question—what happens then? That is one of the things I
have not come to a decision on. That I think is very arguable.
I put warfare in a slightly different category than most other
actions. I am not remotely a pacifist; I approve of the use of
warfare in support of legitimate foreign policy where you have
no alternative. The fact is if you are going to engage in warfare
in modern times, although the will of the House of Commons has
to prevail, I cannot imagine that many governments would charge
ahead if they had the support of the lower House of Parliament
but were being defeated in the upper House of Parliament on the
decision to go. I do not think the elected upper House of Parliament
would take too well to being ignored in such circumstances. I
have this bigger problem of how democracies handle warfare in
modern times. My judgment is that there are only three major democracies
where it is possible to get public opinion behind a war: the United
States, France and the United Kingdom. They are the only ones
who are really free to use their armed forces as and when they
determine and have a public opinion which is persuadable that
their armed force should be used in support of policies. It is
very difficult for other continental countries to get their populations
very happy about the deployment of troops. For modern democracies,
like America, Britain and France, even then the Vietnam experience
shows you need the wholehearted support of the bulk of the population
if you are going to achieve any serious success in going forward.
It becomes necessary actually to keep your public on side by satisfying
them that every possible democratic process was gone through and
that there is a broad body of support behind this to get people
to commit themselves. An unresolved political debate on military
action going on in the background fatally weakens the ability
of a country to really conduct its foreign policy and its military
activities. I think therefore that my inclination, and I put it
no further, would be to say that if you have a finally reformed
House of Lords with a constitution that is expected to be a settled
upper House for this country for the foreseeable future, I would
expect that upper House to express a view. I suppose you would
have to write something saying that the Government should be still
be legally entitled to go ahead in the teeth of a defeat in the
upper House if it had the support of the lower House, but I would
have to say I think it would be a pretty reckless Government that
did that.
Q321 Lord Carter: The fact is that
under all the proposals for reform of the House of Lords the Government
of the day will always be in the minority in the House of Lords
and that is something you have to taken into account in this calculation?
Mr Clarke: I think it is a very good thing.
The tyranny of the majority must have its limitations. I think,
for all practical purposes nowadays, engaging in warfare is one
of those circumstances where you have got to be able to demonstrate
a slightly broader majority than that which your Government Whip's
office can produce for you in the House of Commons.
Q322 Lord Rowlands: Is the Task Force
that you are proposing going to look at ways and means of lessening
a future government's control over the House of Commons?
Mr Clarke: Yes. Sir George Young, one of my
colleagues, is an advocate of it; a lot of people have argued
for it. Robin Cook when Leader of the House was going to have
a go at this. We are going to look at the idea of a business committee;
we are going to have a look again at the allocation of time, at
the appointments of chairmen of select committees, the powers
of select committees to call for people and papers. Whether it
comes from our Task Force or not, I do not know, but there is
quite a big head of steam across parties in the House of Commons
to start addressing some of these things and deciding how to go
about it. We keep making changes. The urgent question procedure
was used very well earlier this week, so the House of Commons
has been given some things which do enable things to be raised
and they might have been used more often than for the Iraq War
if people had thought of it, but I think we need to go beyond
that. The total control of business by the executive, given that
the executive now timetables that business so severely, is not
going to last. I think the House of Commons is going to insist
that that procedure is reviewed and that the Government gives
up some of its power to control proceedings.
Q323 Chairman: There was something,
if I may pursue it, in your previous answer that I want to pick
up, which is the attrition of support for long wars, and that
is sometimes related to war fatigue and sometimes to mission creep.
The mission is perceived to have changed or people's attitudes
change; they start ringing their bells and they end up wringing
their hands. Do you see in your construct of parliamentary approval
any need for—how can I put it—top-up approval or renewal
of approval?
Mr Clarke: That would be very difficult surely
without causing constant uncertainty about the policy and the
military would throw their hands up with horror, I think. You
cannot stop it in certain circumstances. If Parliament takes control
of its proceedings there is nothing to stop Parliament deciding,
like during something like the American War of Independence, "Enough
is enough. We are stopping", and having a vote to say that
the troops should be withdrawn. If we had more control of proceedings
I know some groups of Members would start tabling motions demanding
that troops be withdrawn from Iraq now, though personally I think
they would be in the minority if they tried to do that. I do not
see why they should not be allowed to try, but in normal circumstances
where military action is under way and you are fighting against
the troops of another state, I do not think Parliament should
suddenly have a second go at the question. I do not think any
more than a handful of Members of Parliament could be persuaded
that they should do that. Once the vote was taken in favour of
the Iraq War, the opponents of the Iraq War shut up for quite
a long time and have not attacked the conduct of the war. Of course,
what has given rise to all of the controversy is the doubts about
whether we were given the right reasons, what is now happening
on the ground once we are there, handling the occupation and all
of this kind of thing.
Chairman: The issue is simply more about
the conduct of the peace rather than the conduct of the war.
Q324 Baroness O'Cathain: Some witnesses,
including the Democratic Auditor, suggested that there should
be a joint committee established along the German model which
would have the remit of having a watching brief over the work
of the Armed Forces and the power to trigger parliamentary debates
or to recommend military action. Do you have any views on that?
Mr Clarke: We do have a Defence Committee, and
we have a security select committee. It is possibly a good case.
On your last point, I think that the idea that a select committee
could have the power to recommend military action, no. I do not
think that the right to initiate the idea of military action should
be passed to a select committee of either House. The idea that
there might be a committee which could get privileged and secret
information on a scale not available to the rest of the House
is very attractive, because every time you want more information,
you are quite understandably told, "It would be compromising
to the national interest, forgive me". That is, of course,
overplayed like crazy because on both sides of the Atlantic you
get the information by way of leaks which you are being told is
fatal to the national interest if it is given 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. You could also have
a select committee give approval for deployments which you could
not otherwise give. We do have secret deployments of troops, I
strongly suspect. We do have Special Forces who do not always
wait for the official declaration of war to do things. Indeed,
I think quite frequently in the last 20 years if you ever found
a map on the walls with flags on showing where British Special
Forces were physically present you would see some very surprising
flags sometimes. It would be quite unknown to the British public
that say- there were 20 SAS men who are quite actively engaged
in the hills of some distant country on some perfectly legitimate
national purpose. If the law made that sort of thing a bit difficult,
then again a select committee might be a useful place to which
you could go just to keep them informed of what was happening.
There were plenty of people in Iraq before the formal invasion
went on, certainly Americans, and I strongly suspect there were
British as well.
Q325 Baroness O'Cathain: Reverting
to the democracy point, I actually asked you about a joint committee
of both Houses.
Mr Clarke: I would not mind it being a joint
committee. A joint committee might be a good idea precisely because,
whether it were formed or not, the nature of the upper House means
you do have Members who, although they would never conceivably
go through the electoral process of getting to a body like the
Commons, have considerable expertise. You have military men and
diplomats in this place who have first hand familiarity with the
practicalities of what we are talking about.
Q326 Chairman: Do you think they
will still be here when the Conservative Task Force—
Mr Clarke: I am one of those who would settle
for a hybrid House. If you have an independent appointment of
about 30 per cent of the Members, they are the kind of people
I think who would be appointed, I would have thought, not exclusively
generals but people of that sort.
Q327 Lord Elton: You started by referring
to the fact that the conventions have been eroded steadily and
that these were conventions which protected the parliamentary
process. One of the conventions which has perhaps the opposite
effect is the convention that the advice of the Attorney General
is kept secret. Do you think that convention should now be eroded?
Mr Clarke: No. I think the Attorney General's
advice should be kept confidential to the Government. I think
the Government, like any other person or body seeking legal advice,
needs to have a lawyer who is perfectly free to give candid, frank
advice and it would inhibit the relationship if all the advice
you got from the Attorney General was going to go into the public
domain. I take the same view of official advice but even more
so with legal advice. If every time you have a meeting where all
your officials know that a select committee is going to go over
the transcript of what they have said the atmosphere of the meetings
would be impossible and you would settle half the things in the
bar afterwards to make sure you could avoid that. But going back,
and to stop being flippant, I think the Government needs independent,
confidential, privileged legal advice like any other body, but
at the moment the only competing legal advice comes from those
lawyers who decide to volunteer put their view into the public
domain. I am not quite sure how Parliament would get its own legal
advice but I think there is a case for saying that it should.
Incidentally, one thing I have passed over is that I do think
the Attorney's advice should be available at least to the members
of the Cabinet who are being asked to take a decision. One of
the things the Democracy Task Force will look at is the collective
nature of government. My recollection is that the Attorney attended
Cabinet in the old days when something of this kind was being
considered. I do not recall ever getting a written opinion as
a member of the Cabinet from the Attorney about what we were doing,
but I do remember the Attorney being there so that anybody could
question the Attorney and press him on the legal advice. I do
not think it is good enough to say that key figures have the legal
advice and the Cabinet have to be content with being told that
the Attorney is satisfied, not least because, even in international
law, the trouble with legal advice of all kinds is that it is
never black and white. I am probably not the only person here
who has ever practised the law in more simple ways. I have only
ever done international law as a postgraduate student, but the
number of times where you could tell a client that you were absolutely
certain of the legality of what they were doing is not that numerous.
The best form of advice people would use was words to the effect,
"There is a reasonable prospect of success in our view in
this case", or, "The best opinion is likely to be that".
I think every member of the Cabinet should be in a position to
be at least aware of that before they go ahead and be satisfied
that the argument is persuasive and a good enough basis for action.
Q328 Lord Elton: Does the erosion
of the convention of the confidentiality or secrecy of Cabinet
proceedings cause you to reflect on that at all?
Mr Clarke: No. John Major's Cabinet was made
unworkable by the fact that everything leaked out of it in all
directions. No, we all think leaks are now a marvellous device
and a great strength of our democratic institutions. I think quite
the reverse. The only effect was that nobody would take their
business to Cabinet. I used to be asked as Chancellor if I could
think of anything I wanted to raise at Cabinet. I never thought
of anything that I thought might give rise to any serious controversy
because it would all be in the newspapers in a garbled account
the following morning, but that is a question of the position
of the Government. You have really got to control these events
in warfare and, to be fair, I do not recall in modern times a
government that has leaked particularly over warfare. The Cabinet
in the Iraq War had two members who were fiercely opposed to the
whole idea from beginning to end and they did not leak as far
as I can recall.
Q329 Baroness Hayman: I think you
have answered the question about independent legal advice for
Parliament although I am not quite sure, given your description
of legal advice, how much certainty would be brought to the process,
so can I ask you another question? As I recall the Short Bill
there was a provision for emergency action where there would not
be prior approval but the Government would be expected to come
to Parliament as soon as possible. Listening to you this afternoon
in your responses to Lord Holme and also in what you said earlier,
I got from you a sense that ex post facto approval
was not a reality, was not a real option in Parliament when troops
were on the ground, for all the reasons that you have described.
Is it therefore really sensible to include that in any statute
or do you need ex post facto approval to normal parliamentary
accountability, assuming that the action was genuinely an emergency?
Mr Clarke: Yes. I find it difficult to conceive
of a situation where Parliament would condemn action that had
already been taken in an emergency, although it does not stop
them doing that now if what the Government has decided to do in
an emergency is regarded as completely unacceptable by a majority
of the House.
Q330 Baroness Hayman: So they could
simplify their view that they could not make it unlawful?
Mr Clarke: No. Whether you should make something
unlawful retrospectively is a serious problem. I had not thought
of that. I had just assumed that there are circumstances where
obviously you cannot get prior approval; therefore, the Short
Bill's response that you get approval as soon as is reasonably
practicable thereafter was the way of getting round it. I had
not, I must admit, previously thought of the problem that are
you therefore saying you are going to make action which was taken
by troops unlawful, which was thought to be lawful when they did
it, which would be a problem. You could still require that Parliament
should approve it but you would probably have to spell out the
fact that the action was lawful because the Government was complying
with the conditions of the law in the first place. There was a
genuine emergency, there was no sensible opportunity to warn Parliament
and their judgment was that action had to be taken immediately
in the national interest, and then that would only be unlawful
if anybody could claim that it was not the Government's genuine
judgment.
Q331 Baroness Hayman: My question
was not really so much about that but about whether it was realistic,
given all the descriptions that you have made, that ex
post facto approval would be anything other than always given
and therefore you were talking about a policy debate rather than
parliamentary approval.
Mr Clarke: In reality I suspect you are right.
It is almost inconceivable; it would be an amazing political crisis
if a government deployed troops in military action and then had
Parliament condemning the use of those troops a month later. What
would happen would be the fall of the Government.
Q332 Chairman: Excuse me, I did promise
Kenneth Clarke we would wrap up soon after five. Can you give
us another five minutes?
Mr Clarke: Sure.
Q333 Lord Carter: Just a brief question
of clarification. When you refer to a statute, you are referring
only to the use of prerogative for the deployment of troops or
war-making powers, not all the other uses of the royal prerogative?
Mr Clarke: We are going to look at all the other
uses. The most key one is treaty-making, which is equally fraught
and gives rise to other considerations. You have the practical
problems. I have seen on a lesser scale in European Councils of
Ministers Danish ministers operating, where they had been authorised
before a Council of Ministers started only to enter into particular
obligations; very democratic. I did not always think it was an
advantage to the state of Denmark because the unfortunate Danish
minister was left there in the hopeless position where the negotiations
appeared to be nil and many numbers of times an agreement was
reached which went beyond the Danish minister's authority and
they had to reserve the position and go racing back to Parliament
to try to persuade them to give in. It would have been much better
if the Danish ministers had had the same flexibility as other
ministers and then went back to face the music in the same way
that all the other ministers did who entered into something that
was difficult to sell back home. There is a lot of sensitivity
in the political world about treaty-making powers, particularly
amongst some sections of my party. I think the executive has to
have the power to make treaties but, although I am not as upset
about some of the treaties as some of my colleagues, I think Parliament
has to have the right to express approval of those treaties. We
have got to be clearer about the ratification process than we
are under the Ponsonby Rules and so on at the moment.
Q334 Lord Rowlands: Some of our witnesses
have suggested that if, in fact, we put all this on a statutory
basis it would bring the courts into the whole process. Is it
a good idea that the courts should be brought into something which
in fact are probably highly politically charged policy issues?
Mr Clarke: I do not think the courts would be
easily persuaded to go into policy areas. If a Government had
decided to deploy troops and had got a vote approving it through
the House of Commons, and somebody decided they wanted to bring
some legal point to challenge it, unless you have made had a complete
Horlicks of drafting your legislation I cannot see a challenge
of that kind getting very far. My sense is the courts would not
touch that with a bargepole. If a Government decided to act illegally,
did not seek approval, the troops were firing live rounds and
they still had not got their parliamentary vote, that would make
the action unlawful, and I think then you would have a whole kind
of different action where people would start bringing actions
against the use of troops. I think the Government would be absolutely
bound to follow a process laid down in statute. You would not
get a British Government that just refused to follow it. If the
process was followed, although in theory you could have a legal
challenge by the defeated minority, the practice in my judgment
is that the courts would absolutely refuse, as they always do,
to get involved in matters which were plainly matters of political
policy and not matters for the courts.
Q335 Lord Windlesham: I was interested
in your reference to the possibility of a joint parliamentary
committee of both Houses, and I was surprised that you even considered
such a suggestion. What should a joint parliamentary committee
do? It could have no power of decision taking, presumably, but
could it influence? Would it be of value in trying to urge the
Government to take action in a moment of crisis and to feel that
there was a degree of informed opinion, not simply sectarian opinion
in the House of Commons but in the wider sense? Could it be of
value in that way?
Mr Clarke: I am not hostile to the idea of a
joint committee, I have chaired joint committees. It is a perfectly
reasonable process. I do not think it could possibly have any
executive role in deploying troops and I do not think a joint
committee would be the right place to express approval or disapproval
just like that of the deployment of troops. I have not thought
it through, but you are working on it. It might answer some of
the questions about whether it could be given more information
if you had the right members of the joint committee than you could
give on the floor of the House of Lords or the House of Commons
in a reportable debate about what is actually going on.
Q336 Chairman: Like the Intelligence
Committee?
Mr Clarke: Exactly like the Intelligence Committee
and, exactly like the Intelligence Committee, it could produce
some guarded report which did not make any indiscreet disclosures
but which I think would be enormously influential. All the fuss
about the security services has died down enormously since we
have had the Intelligence Committee, and, perversely, at a time
when the security services have got themselves involved in more
controversy than they ever did before the Committee was set up.
The most difficult times for the security services have been surrounding
the Iraq War. One reason why nobody has really had a go at the
security services themselves through the whole process is because
people are satisfied by the Intelligence Committee's role; so
something of that kind. As I say, it could cover the secret deployment
of troops, the advance deployment of troops; they could be informed
and in circumstances where, as with the Intelligence Committee,
if they expressed deep shock and horror over what was being done
I expect the Government of the day would take note of that and
would probably start modifying what it was doing.
Q337 Lord Windlesham: Do you think
it is a practical suggestion or do you think the Government's
left wing supporters in the Commons would kill it?
Mr Clarke: I am not sure who is more likely
to kill it, the Government or the Government's left wing supporters.
I do not know how far a report is going to move the Government
from their distinct reluctance to weaken their executive power
in this area at all. On the other hand, one reason I am very glad
to give evidence is that I do not think that is going to hold.
As I have been asked to chair this committee by David Cameron,
he, I think again purely from a starting position, is not unsympathetic
to this. William Hague, when he has not been on the Front Bench,
has expressed critical views about the role of royal prerogative,
and he was another supporter of Clare Short's bill. I think it
is going to change. If the present Government thinks it is going
to change, the present Government might itself change the situation.
If it was just the genuine left wing of the Labour Party that
was objecting to these secret committees approving of military
activities and so on, they are not the power in the land that
they once were or in the House of Commons as a whole.
Q338 Chairman: I think that is a
very good note. Thank you for extremely interesting and candid
evidence; it is much appreciated. We will let you have a transcript
of what has been said and meanwhile thank you very much.
Mr Clarke: I look forward to your report.
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