Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill [HL]

My Lords, I offer my warm congratulations, and not just conventionally, to the noble Lord, Lord Lester, not only on presenting this Bill but on initiating this debate. I am happy to declare myself a supporter of the Bill, although I hope that that will not be taken as committing me to every word in the draft. The noble Lord has deployed the case for the Bill with his usual care and skill, and nothing would be gained by my seeking to improve on his presentation. So I hope your Lordships will forgive me if I devote the time available to anticipating some of the difficulties which may be urged and exploring some of the challenges which may await us. Indeed, one of the benefits which the noble Lord has conferred on us is the opportunity to consider some of the issues which arise. In the interests of brevity, I propose to confine my remarks to armed conflict and peacekeeping operations. Constitutional reform rarely presents itself spontaneously to the mind. I am aware that the noble Lord has been urging some of these reforms for a very long time. I think it was the tragic saga still unfolding in Iraq which has evoked so much debate inside and outside Parliament. The fourth report of the House of Commons Parliamentary Administration Committee, to which the noble Lord referred, is an example. I am particularly indebted to the directors of three NGOs—the One World Trust, the Federal Trust for Education and Research and the Democratic Audit at the University of Essex—for the thoughtful report they have published under the title Not in my Name. I should declare an interest as president of the One World Trust. Given all that, it would be a sad reflection if, while these questions were being discussed outside Parliament, there was no discussion in the Chambers of the two Houses, hence my gratitude to the noble Lord, Lord Lester. First, the pressures on our time ensure that none of us can be well informed across the whole spectrum of human knowledge. For Members of the other place, the greater part of lobbying from their constituents is related to matters nearer home; there are rarely many votes to be earned by time spent on international relations. In your Lordships’ House, our greatest contribution is normally cited as the scrutiny of texts, and international affairs do not present so many occasions for that as do domestic affairs. I hope that the Bill may help to redress that in due course if we are charged with the scrutiny of treaties. Parliament has not acquired a reputation for harassing governments about their foreign policy. I have been re-reading the series of very entertaining lectures by A J P Taylor entitled, The Trouble Makers. For me, two lessons emerged. First, for much of our history over the past 300 years, governments have considered themselves better qualified than the parliamentary Benches to conduct foreign affairs because they were the shamans and the priests who carried within their breasts the accumulated wisdom of the Foreign Office. Like shamans everywhere, they tried to ensure that that wisdom should not be widely disseminated. Of course, international diplomacy consists largely in not letting others know all that is in your mind, so there was a ready-made reason for not sharing their plans with Parliament. At best, Parliament discovered what had transpired when the process was complete. I appreciate that that is sometimes inevitable, but it does not facilitate parliamentary control nor, indeed, widespread understanding of the Government’s problems and how they propose to address them. The Government might actually benefit if we were better informed. The second lesson is that the accepted wisdom of the establishment is not always endorsed by the outcome of their policies. What the dissenters are saying now becomes the accepted wisdom of the future. If I may put it in the words of A J P Taylor:"““Today’s realism will appear tomorrow as shortsighted blundering. Today’s idealism is the realism of the future””." We sometimes need to make the best hand we can at learning as we go along. But first there must be a need to relax the culture of secrecy. Perhaps the Government’s first task is to assist parliamentarians with the information we will require for our new mandate. I hope that the good will of the Government will be in evidence. At best, it is not easy to provide up-to-date information about an ongoing and fluid situation, but that does not provide governments with an exemption from trying. The intelligence on which Ministers and diplomats act cannot always be disclosed. They must respect the need to conceal the sources. The Government are to be congratulated on the publication of the dossier of September 2002. That was the first occasion on which a government had made public a report by the Joint Intelligence Committee. I do not believe that there was a deliberate intention to mislead, though the report may not have been published had it not been thought to lend support to the Government’s case. Normally, reports of the JIC were intended to be read by people who were accustomed to reading intelligence reports. They would have appreciated that intelligence, by its very nature, is tentative and incomplete. They would have understood that weapons of mass destruction vary substantially in kind, size and effect. The Government must now have learned that what is informative for one readership may be misleading for another. We are at the beginning of what may transpire to be an extended learning curve. Furthermore, if the requirement for parliamentary authority is to bite, Parliament may need to break through the deference which it has traditionally shown to those who conduct our international relations. ““If you knew what I knew”” is an insidious syndrome. I fear that the Bill will encounter the criticism that, even had it been on the statute book at the outset of the Iraq crisis, it would not have prevented the Government pursuing the course on which they were determined. Parliamentary authority would have been forthcoming. There were debates in another place on 26 February and 18 March 2003. There were some persuasive dissidents, but, on each occasion, the Government were accorded a substantial majority for their policy. In corresponding debates in your Lordships’ House, serious concerns were expressed, but there were no Divisions. It is clear—and I speak as a dissident—that had the Government required a formal endorsement, it would have been forthcoming. Growing into a new responsibility and flexing one’s muscles on appropriate occasions is usually a gradual process. I have one further concern. The burden of all the discussion consequent on the invasion of Iraq has been the idea that the function of Parliament is to act as a brake on precipitate action. Sometimes what may be needed is not a brake but an accelerator. During the Rwandan genocide, the politicians and the diplomats considered and discussed; many delegates to the Security Council awaited instructions from their governments; national governments pondered the risks; and when the council called for the deployment of armed forces, some states waited to see what other states would do. Meanwhile, the civilian population suffered casualties at the rate of three times the number of casualties sustained in New York on 11 September 2001 and suffered them every day for 100 days. It will not be easy to draft legislation which would enable Parliament to stimulate a government into action, but there may be procedural reforms which could help avert another Rwanda. None of this is an argument against the Bill; indeed, it is an argument for proceeding to a Committee stage. The United States appears to find the equivalent provision in its own constitution a practical and valuable requirement. If the Bill is awarded a Second Reading, the Committee stage promises to be an interesting experience. I would like to read the political commentaries 10 years from now.