War Powers and Treaties

rose to call attention to Her Majesty’s Government’s consultation paper on War Powers and Treaties (Cm 7239); and to move for Papers. The noble Lord said: My Lords, I declare an interest as the director of a United States defence company called Colt. I am grateful for being able to introduce this important debate on war powers and treaties. The excellent and helpful consultation paper produced by the Ministry of Justice states: "““The power to send and women abroad into a situation of armed conflict is one of the most important decisions a government can ever take””." In a democracy, it is surely desirable that decisions by Governments to use Armed Forces extensively and substantially be taken on the basis of thorough and accurate information made publicly available, and of candid and consistent explanation by Governments, fully involving Parliament in advice and decision. However, although it is highly desirable, can it be fully entrenched in our constitutional practice? We should be cautious in letting the experience of the Iraq war, which has undoubtedly given impetus to the debate, overinfluence our deliberations. Recent armed conflict has taken many forms. The background and run-up to the Korean War, Suez, the Falklands, the Balkans, Kosovo, Sierra Leone, Afghanistan, Iraq and Special Force operations have all been different. Often, the nature of the conflict has quickly and dramatically changed, and the rules and objectives of our forces have had to be amended. What I think is certain is that historically it has not been easy to predict armed conflicts far in advance of hostilities, and I do not think it will become easier in the future. New threats can emerge very quickly. The services want to know that the country is behind them before they are committed, that they are supported by Parliament and that what they are being asked to do is legal. Parliament’s stamp of approval is important but Parliament must not run the risk of hazarding the lives of service men and women. Secrecy, security and surprise are critical to many operations and if, for instance, one day it became necessary militarily to pre-empt an enemy attack—and that is not inconceivable—how would Parliament debate the actions in advance? Parliament is unlikely to have all the necessary intelligence to have a fully informed debate. This, of course, may not always be essential and this problem may well be solved by the existing or a new parliamentary committee or committees. Should Parliament rely on a member of the Government—the Attorney-General’s legal advice? Should there be other, more independent advice to Parliament, which may be contrary? I hope that noble and learned Lords will address this but it would be unsettling for those deploying to hear of lawyers expressing contrary views and introducing uncertainty. The prosecution of members of the Armed Forces who take action in good faith would be wrong. The deployment of a military force for armed conflict is complex and takes—as it did for Iraq or Afghanistan—considerable time. Of course, the very deployment before hostilities can be a deterrent in itself but our current arrangements allow quick decisions to be made and we have been able to act quickly, often before the situation on the ground has deteriorated. The armies of other countries, notably Germany and the Netherlands, are envious of our current procedures. We are likely to work in a coalition or alliance. When I was Chief of the Defence Staff in the Kosovo crisis in 2005, it was very noticeable how the United Kingdom forces could be assembled and deployed quickly in circumstances in which other countries’ forces could not respond because of their parliamentary procedures, which had to be observed. As a member of NATO we are committed to aid other members who are attacked, and the United Nations charter mandates countries to undertake operations should the Security Council require them. As a signatory of NATO and UN treaties we are expected to commit troops quickly when called upon to do so. We also have to recognise the difficulties that arise once a force is deployed. Circumstances change. Humanitarian and peacekeeping operations can suddenly become peace enforcement and develop into armed conflict. All four of these states can take place in a theatre at the same time. Deployments lead to unforeseen consequences and mission creep. I well remember visiting troops delivering cups of tea and medical assistance to elderly ladies at one end of a village when suddenly their comrades at the other end were attacked with great ferocity. Afghanistan is an interesting example. Many failed to predict the intensity of operations there and I suspect that some would not have been so keen on deployment if they had realised what that commitment was going to be. Formal declaration of war has been described by some as an historical anachronism and it is difficult to see occasions when it would happen. I understand why many think that the royal prerogative being the legal basis for the Government’s war powers is an outdated state of affairs in a modern democracy. Having said that, it has not served the country all that badly over the years. I do not believe that one should legislate and have a statutory solution. Deployments vary so much and are accompanied by much uncertainty. One template would rarely work for all situations. I see the best solution being a formal but non-statutory convention. It would be necessary, whenever it was possible and sensible, to seek parliamentary approval for deployment before service men and women were committed, but there is a need for some flexibility and it would not always be wise or practical to debate prior to deployment, even though government parliamentary debate and approval would be highly desirable. It would also be reassuring for the Armed Forces. I do not see it as particularly helpful for us in the House voting but it would be of immense value if we were to debate, preferably before the House of Commons had their debate, and were able to inform them and the Government of our views. There is much experience in this House which should be used. If for some reason armed conflict or substantial deployments occur without Parliament’s approval, it would be important for Parliament to meet at an early opportunity to endorse the decisions which had been made. I also see a necessity for Parliament to watch and discuss the progress of a campaign from time to time, always bearing in mind the effect such a debate would have on our troops in the field. It is almost inconceivable for the Prime Minister and Government to commit troops without thinking they had the backing of Parliament. We should be concerned that parliamentary oversight could, unless we are careful, lead to pressure to debate how operations should be conducted. Parliamentarians are not qualified to do this and they must avoid micromanaging and taking tactical decisions. These are the province of the commanders on the ground. What Parliament should debate are the objectives, the legality of what our forces are being asked to do, and in very general terms the size of a deployment and likely direction. These last two are notoriously difficult to predict, depending very greatly on the actions of the ill intentioned that are causing the problem in the first place. We are not in control of what their reaction to us will be. This is a difficult and complex but very important subject which needs debating. We must avoid an overly prescriptive solution and maintain flexibility. Slavishly following a parliamentary statutory procedure on every occasion, whatever the circumstances, could endanger the very people we are trying to help. I beg to move for Papers.