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1.23 pm

Lord Thomas of Swynnerton: My Lords, it is a pleasure to take part in this debate initiated by my noble and gallant friend Lord Guthrie. The document giving the agenda for the debate seems to be well written, although as a pedant of many years’ standing I cannot avoid noting that the Secretary of State for Defence and for Scotland on page 8 spells his name in two ways—once with an “e” at the end and once without. Can we assume that the “e”-less Brown is for the Scots, or the Picts perhaps? Paragraph 44 refers to the fact that this country last declared war in 1942. The noble and learned Lord, Lord Morris, and the noble Lord, Lord Goodlad, told us that the declaration was against Thailand but the Library assured me it was against Romania. That is of no great importance now, except to note that a formal declaration of war has not been made since the Second World War.

The proposal in the consultation document argues that we should put on a formal basis the discussions with Parliament which, as the excellent table on page 21 explains, have almost always happened informally and effectively. The Government also suggest that a discussion with Parliament should be limited to,

“a vote in the Commons alone”,

as mentioned on page 23, paragraph 37, so there are two important matters to be discussed.

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On the first matter of the legal requirement, like the noble and gallant Lord, Lord Guthrie, and many others, I think we would be better served by a convention. Parliament depends for its good working on convention as much as on legal requirements. No two international threats are quite the same. Iraq was different from Suez, even though both were put forward as issues for international intervention on what my noble and gallant friend Lord Bramall rightly described as false premises. I do not see that a legal requirement to consult Parliament would remove the risk of false premises but I could be convinced of the benefit of a legal requirement if it were successfully argued that the armed services desired or needed it.

The second matter is the consultation of your Lordships’ House. The Government think this is unnecessary but I think that view is mistaken. The other place is still known for its great debates but on important issues, as we in this House know only too well, it is usually easy enough for the Government of the day to secure a majority. The great change experienced in the other place in the last century has been the lamentable vast increase in the number of members of the Government who are Members of that other place—98 last week before the reshuffle. There also are about 50 Parliamentary Private Secretaries and I dare say at least another 50 Members of Parliament are hoping to catch the Whip’s eye so that they might one day become Parliamentary Private Secretaries themselves. The Government’s strength is perhaps 200. With that number it must be always easy for good Whips to secure good majorities. One subject many of us would like to see treated in the context of a future discussion on the governance of Britain would be the reform of the other place. The noble Lord, Lord Anderson, implied that that would be desirable, perhaps by cutting the number of Members, as was once suggested by a distinguished Labour Foreign Secretary, the late Mr Anthony Crosland.

It is also worth mentioning that this House has one or two important residual powers. For example, we are legally obliged to approve any plan by the other place to extend the life of a Parliament, as happened in 1939. Because the other place is not—and I hope this remark is in order—in an especially independent stage of its history, there would be a great benefit to requiring that this House be always consulted on matters of war and peace. It is generally admitted that this House is in rather good shape and always has had among its Members persons of military experience. Let us hope that whatever reforms are afoot, we will always have them. Our noble and gallant friends in this House are in a strong position in our legislature, considering that there are few Members of the other place with military experience, as was mentioned by the noble Lord, Lord Marlesford, in a fine speech in this House on 22 November.

If there is to be a legal requirement, my preference would be for the constitutional reform Bill introduced by the noble Lord, Lord Lester of Herne Hill, in January 2006, which is described on page 20 of the consultative document, whereby, unless there is overwhelming urgency, the Government would before an international armed conflict require backing from

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a resolution in both Houses of Parliament. That is, in fact, close to the present position, for there was an important debate on Iraq in this House—without a vote, it is true—on 18 March 2003, two days before the other place voted on 20 March.

1.30 pm

Lord Wakeham: My Lords, I congratulate the noble and gallant Lord on initiating this important debate. He and I have served and are serving on a number of bodies together and I have good reason from time to time to be grateful for his judgment and wisdom. However, I have some hesitation in speaking as my military experience was as a subaltern doing my national service more than 50 years ago.

This was during the Suez crisis and it has already been mentioned that there is an echo from that time in some of the issues of today. Since then I served in the war Cabinet during the first Gulf conflict, which gave me some practical experience in these matters. It is that experience as a member of a war Cabinet that emboldens me to say something. I have seen a Prime Minister and her senior colleagues faced with some of these major issues.

With that in mind, I have read all the statutory options set out in the Government’s consultation paper and my feeling is that each of them has difficulties. I would not want procedural matters to get in the way of effective decision-making in this difficult area. My view is that the Government of the day are the Executive with all the information and intelligence, and the Government have to make the decisions with, at times, awesome consequences. I would accept a convention, but in reality that is practically what we have now. No Government worth their salt would attempt a war without seeking to take Parliament along with them in whatever way seemed most effective.

I very much agreed with the evidence that the noble and learned Lord, Lord Falconer, gave to your Lordships’ Constitution Committee some time ago, when he emphasised that Governments decide and Parliament approves, but that the arrangements were best settled on a case-by-case basis. I am not sure that those are the views of the current Government, but in my view no Government could stay in office if they sought to prosecute a war without the support of Parliament. I cannot conceive of a Minister or a Government staying in office for a single day without the support of the House of Commons. My long experience of the usual channels has shown me to what lengths a Government will go both publicly and privately to maintain understanding and support for their policies in this area. Obviously I shall not reveal examples of my experience of where that was a very important part of the way that the Government pursued their interests—making sure that they had the maximum support that they could get, because that is key for a successful operation. So the heart of my argument in this respect is: the House of Commons has either to back the Government or sack them. No other option is worthwhile in the end.

Turning to the other half of the consultation paper, the role of Parliament in relation to treaties should be more significant. Of course any treaty that affects our

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domestic law cannot be brought into effect without legislation, but treaties themselves do not need to be approved by Parliament. Successive Governments have invited consideration under the Ponsonby rule. As a number of noble Lords have said, those arrangements are not sufficient. I am not convinced that the 21-day period provided is long enough and the Royal Commission of which I had the honour to be chairman suggested that a Select Committee of your Lordships’ House would be an ideal way for Parliament to scrutinise treaties and to draw its attention to matters of concern and importance, so that if necessary debates and votes could take place before ratification. The committee has not been set up and, as the noble Baroness, Lady Williams, indicated, a number of your Lordships know that the Liaison Committee has on more than one occasion turned such a proposal down. This is not the moment, nor am I the person, to question that, but such a committee should have a significant place in a reformed House of Lords.

I would not expect the Select Committee to have special powers, but the sort of expertise that this House can command would make it of great value to Parliament as a whole. I see no great advantage in setting up the committee in a bureaucratic way and thus would favour a convention as the best way forward. If for any reason the Government of the day failed to honour that convention or ignored any vote in the House of Commons, Parliament has the remedy—it should sack the Government. That applies to both the issues we are considering. Parliament cannot have its cake and eat it. Governments need the support of Parliament to stay in office. What they do not need are lap dogs barking at their ankles but refusing to bite.

1.37 pm

Lord Vincent of Coleshill: My Lords, I, too, am grateful to my noble and gallant friend Lord Guthrie for initiating this debate because, not least as a result of the Select Committee report and the response that it has received from the Government, a number of important issues that have been discussed clearly remain unresolved.

In today’s changing world, with its complex and far less predictable security environment, these matters need to be considered further. I am mindful that when I received my national service commission in 1951 we were required to study a—then—War Office publication entitled, The Conduct of War. Not surprisingly, after two world wars in the previous 37 years, that document tended to focus on armed conflict between nations and such things as the Geneva conventions, the United Nations charter and Article 5 of the Washington treaty which established NATO. All of those determined our legal approach to the initiation and conduct of war.

Today our security has to be achieved in a far less predictable environment, particularly with the growing risks that have arisen from state-sponsored and other sources of international terrorism. Under these circumstances, it is becoming less straightforward to define “war” and “armed conflict”, and even the

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identification of our “enemies” can be far from certain in operational environments such as Iraq and even in some parts of Afghanistan.

These changes have been further apparent in the approval of operations by the United Nations which have ranged from humanitarian aid, through peacekeeping and peace enforcement to fully fledged armed conflict. There is always the possibility that after we have committed our Armed Forces to a particular operation, it will escalate from one category to another for which different objectives, capabilities and rules of engagement will be required. In addition—as has already been mentioned—in operations such as the rescue of hostages in Sierra Leone, absolute security and surprise are needed, together with the authority at the outset to use the force necessary in order to achieve success in the face of uncertainties and risks that cannot prudently be debated, or even revealed, before such operations are launched. The Select Committee emphasised that the Government, in seeking parliamentary approval, should define the military objectives of an operation. This is essential if it is to be effectively planned and resourced, though some objectives may have to be protected initially for security reasons.

There is a wider dimension to this definition of objectives that also needs to be addressed at the outset if such operations are to come to a satisfactory conclusion. Military operations are a means to an end, not an end in themselves. It therefore behoves Governments to address at the outset the post-military phase of such operations, covering all other objectives—with the provision of adequate resources to achieve them, if necessary on a wider international basis, in order to rebuild the country or the society concerned. Several of us in this House asked that specific question about Iraq before our forces were committed in 2003. We received no adequate response and have, since then, seen all too clearly the consequences of that serious omission. Nor, in seeking to redefine our war-making powers, should we forget that in coalition operations, other nations can each have their own legal basis for organising such deployments. In terms of timescales and security, these can be difficult to reconcile with our own national procedures without undermining the effectiveness of the whole operation. As chairman of the NATO Military Committee when NATO was preparing to go into Bosnia and take over from the UN, I confirm what has already been said—that many other nations admired the straightforwardness and speed with which our decisions were taken.

None of what I have been saying is intended to be negative about the review of war-making powers. I understand how the events in 2003, resulting in the invasion of Iraq, led to relevant concerns. But in today’s less-clear-cut security environment, this can be an immensely complicated matter that needs to be considered further before, for example, we abandon completely the royal prerogative, or something equivalent to it. Nor, I believe, in this review—as again has been referred to—should we forget the effect of such war-making procedures on our Armed Forces. Having accepted the unique commitment of going whenever and wherever they are directed and, if necessary, placing themselves in harm’s way, they need to believe that these important issues have been

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adequately addressed, without undermining their security, and that, above all, the uniquely demanding tasks to which they are committed are legal and have the support and understanding of the population.

In essence, I support the need for greater clarity and accountability in the use of our war-making powers. My concern is how this can be achieved in practice, in an open and unclassified debate in the other place and possibly here, without putting at additional risk the security and even the eventual outcome of some of the intended operations.

1.44 pm

Lord Morgan: My Lords, about 50 years ago I heard, in the examination schools in Oxford, Alan Taylor give his Ford lectures on The Trouble Makers: Dissent over Foreign Policy, 1792-1939, from Fox to the Left Book Club. The underlying theme of his lectures was the belief that ultimately the dissenters were always right and their views were ultimately confirmed. So it was to prove, I believe, over Suez and also over Iraq. Now it has been endorsed admirably—and I congratulate them—by the Government of Gordon Brown. They restate in their consultative document what the Union of Democratic Control, including the good Lord Ponsonby, stated in 1914—that no treaty arrangement or undertaking should be entered into without the sanction of Parliament, and that there should be democratic control over the war power. This excellent consultation paper carries the support not only of Gordon Brown but, more indirectly, of David Cameron and Mr Nick Clegg—all providing a consensus in favour of old radicalism. Cobden, Bright, Lloyd George, Keir Hardie and Nye Bevan, you should be living at this hour.

The present situation is an undemocratic absurdity. The royal prerogative is a symbol of the fact that the people of this country are not citizens—they do not have an organic relationship with the process of supreme decision-making that, for example, the Americans or, in some respects, the French do. Since time is limited, I do not want to say anything particularly about treaty-making powers. We have heard, notably from the noble Baroness, Lady Williams, and the noble Lord, Lord Goodhart, how the royal prerogative can be effectively nullified in relation to treaties and that, for all their other merits, the rules of Lord Ponsonby are not significantly robust in this connection. But above all, there is the prerogative of the war power. This is the supreme area where citizenship should be exercised. It is extraordinary that the procedures have altered hardly at all over the centuries—nor would they ever, frankly, if some views expressed in this admirable debate were accepted. There happened to be a vote over Iraq, but that was entirely due to the fortuitous influence of the late Robin Cook, and is not a binding convention.

The Government consultative paper considers how democratic control could or should be exercised through legislation, through resolution and through a more general convention. It is a very helpful document that sets out the principles clearly. Some things seem clear. I think that Parliament should have an automatic right to pass judgment on any deployment of troops

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overseas, so that we do not get into matters of semantics—whether it is a war, whether it is “armed conflict” or whether, as we were told in 1956, the armed conflict was actually a “police action”. It should be a standard and statutory procedure. If there is armed conflict, Parliament should automatically be recalled if there is a recess—as it was not, for example, after the attack on the Lebanon in 2006. There should automatically be regular reports on military action to Parliament, in case there is what has been called mission creep. Parliament should have the same rights as the Government to call upon legal advice to consider the legal aspects of military action. After all, the Government do this—the Attorney-General is not commonly an expert in international law and he—or perhaps she—calls on legal advice, so Parliament should do so. This would also ensure that our conduct in any war observes the rules of war as well as human rights legislation, conventions and international law.

I firmly believe that the legal justification by the Attorney-General should be given in full to Parliament. It was not in the case of the Iraq war—it was like getting blood out of a stone, and that was one of the many regrettable features of the situation. Even worse was the situation in 1956, when the then Attorney-General, Manningham-Buller, advised that the action was unlawful, but his view was superseded and the slapdash view of Lord Kilmuir, the then Lord Chancellor, was taken instead. Manningham-Buller might have resigned, but did not, and indeed in due course became Lord Chancellor. It is important that there should be a full legal statement and if this is not observed, Parliament should simply refuse to authorise supplies.

The Constitution Committee argued against a statutory basis and called for a parliamentary convention. During a previous debate in May—unfortunately, I was abroad at the time—an extraordinarily wise and sensible observation was made by the noble Lord, Lord Norton of Louth, who said that a convention is not created but evolves over a long period. I do not think that a convention can be created. It can easily be too permissive and too vague and can easily be evaded by the Executive. Not that legislation is necessarily perfect either: we should always remember the 1973 war powers treaty in the United States, which was legislation. It has also been commonly evaded and has given undue authority to the president.

However, to be effective and meaningful, there has to be a legislative and statutory context for these matters. I should have thought that we could have a compromise between specific resolutions on particular emergencies and a broad context of legislative sanction to ensure that processes are followed and not evaded, as they have been century after century. Without Parliament’s statutory approval of war-making powers, we will not be a democracy. We should have the information and it should be in the public domain. In the era of a technological revolution, frankly Parliament should have the same rights as those held by the press—the information and media authorities. Secrecy has been the curse of our constitution and we saw it here long before the era of sofa government.

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Finally, I agree that approval and sanction by Parliament would strengthen the military. It would assure them that they had the nation and the legislature behind them; it would increase trust in our legislative and political institutions; and it would ensure that never again would hundreds of thousands of British citizens, including myself, go marching in the streets of London, as they did in 2003, saying that this action is “not in our name”.

1.52 pm

Lord Hameed: My Lords, it is indeed a privilege to be here, although I must confess to a degree of unease and trepidation in addressing this august House. I am as conscious of noble Lords’ scholarship and learning as I am of my own shortcomings.

Ever since my appointment, I have experienced a great deal of warmth and kindness from everyone, including many of your Lordships and the wonderful officers and staff of this noble House, for which I am truly grateful. I am especially grateful to my noble friends Lord Williamson and Lady D’Souza for their wisdom, advice and support, which has been most helpful and very happily received.

The discussion at present in the House is of wars and treaties, but wars, both in ancient and present times, have often been the result of a clash of faiths and beliefs. Perhaps I may suggest that a major component of the risk to our civilised lives is our intolerance of each other’s beliefs and methods of worshipping God. As we know, religion can be a force for peace or war, it can heal or hurt, and it can create or destroy on a scale unimaginable to previous generations. History has recorded enough bloodshed in the name of religion. Moses, who led his people from slavery to the brink of the promised land, gave them a choice:

“See, I have set before you Life and Death, the Blessing and the Curse. Therefore, choose Life so that you and your children may live”.

We have also seen how the absence of religion has led to wars and killing. While people have been killed in the name of God, others have killed believing that they were gods. The greatest crimes of the last century—in Stalinist Russia, Nazi Germany, Cambodia and Rwanda—are examples of great crimes committed by secular regimes.

We live and work in the United Kingdom. I must therefore, first, voice my gratitude to this country. Like many of your Lordships, I am grateful to this great country for the opportunities that we have received to fulfil our objectives and goals.

Of late, however, a shadow has been cast on our community relations. The events of 9/11 in New York in 2001 and 7 July 2005 in London, and the more recent shocking attempt at terrorism in Glasgow, brought that shadow into sharp focus. On these occasions, the killing and attempted murder of innocent people created a great conflict for Islam; a religion which sees itself as a religion of peace was associated with murder and mayhem.

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