War Powers and Treaties

My Lords, I, too, thank the noble and gallant Lord, Lord Guthrie, for raising this topic. Last May, in the debate on the Constitution Committee’s report, Waging War, the then noble and learned Lord the Lord Chancellor put up a spirited Government defence for the Prime Minister’s royal prerogative. Mine was a lone voice in support. All other speakers advocated parliamentary involvement. The consultation paper before us—signed by three senior members of the Government and echoing remarks made by the present Prime Minister last July—turns on its head the view espoused by this Government only eight months ago. Am I now also persuaded to do a somersault? The issues are complex and some key factors are barely mentioned. First, are there not two broad categories of conflict in which we might become involved? As shorthand, I class these as ““wars of necessity”” and ““wars of choice””. In the former, the country or key national interests are directly threatened or even under hostile attack. The international right of self-defence can be invoked. It would be a formality—were it to be required—to have parliamentary approval. Our forces would act to defend themselves and our interests. So I confine my remarks to wars of choice: that is, to offensive operations overseas on which the Government wish to embark. I question whether this is to be the norm, rather than the rare exception of the past few years, when this Government have so actively engaged in wars of choice. For any British Government, the use of force in a war of choice should be a last resort; not the first, nor even an early, action to be taken to achieve a strategic aim. What preparations have the Armed Forces put in hand for this war of choice? The paper pays too little attention to this and to prior parliamentary scrutiny and challenge in the pre-deployment phase and to the backdrop of diplomatic and economic treaty obligations and other relevant leverages. The paper does not deal adequately with what might be termed the deterrent use of forces or prolonged campaigns—for example, by deploying part way to the theatre, or even threatening to do so with the object of persuading the adversary that they should back off and so deterring conflict; or remaining poised over the horizon. I am not considering the nuclear deterrent, which I assume the Government are not addressing, but they should make that clear. Setting aside the very valid questions raised about the definitions of ““armed conflict”” and ““armed forces””, what is Parliament formally to approve? References are made to the, "““power to engage the country in war””;" To the need for, "““Parliament to have a substantive vote on a proposed deployment””;" to the need to, "““commit armed forces to armed conflict abroad””;" and to the need to approve, "““decisions by the executive on substantial deployments of armed forces into potential or actual armed conflict””." There is some confusion, it seems. Governments must distinguish between the principle or aim of a deployment abroad; the order to prepare to deploy abroad; the actual movement overseas and its scale, but not its employment, in an overseas operation; and the use or threat of use of force in conflict. The document merely proposes that it would be for the Prime Minister to decide at what stage of the above he must seek parliamentary approval. Is this approval to be confined to British boots on the ground abroad, or to the use of force against an overseas opponent? That force could be delivered by aircraft or UAVs operating from home or friendly bases—the RAF has been involved in operations over Iraq almost continuously since the first Gulf War in 1991—or force could come from naval vessels on the high seas. On top of this lack of clarity, the Government foresee a series of situations when pre-clearance by Parliament would not be sought—in recess or dissolution and even if Parliament were sitting, on grounds of security. In such situations, it would be for the Prime Minister to decide. Would not decisions to withdraw or reduce force levels, even to surrender, also remain with the Prime Minister? Parliament’s sovereignty could only be partial and the Prime Minister would in effect continue to use his royal prerogative. Even in the 2003 invasion of Iraq, when the Commons took a pre-combat vote, Parliament was given to understand that it was not regime change but the threat from WMDs that justified and made legal our invasion. The proposals before us, though superficially attractive, are still flawed. Parliament will be attempting to judge and formally approve a difficult and dangerous situation, possibly misled over and/or in ignorance of key facts. More critically, there are too many ways in which the Prime Minister of the day might choose to disadvantage the timing of a formal vote or even sidestep it altogether. Is there, in fact, any greater assurance of parliamentary sovereignty over the prerogative than can be exercised by the normal, well tried and tested means of votes of confidence and other methods of challenging the Executive? Noble Lords should be clear on this point: the Government propose that there could be occasions when the Prime Minister continues to use the royal prerogative and bypasses Parliament and that thereafter it will not be necessary to seek retrospective approval. That negates the argument that parliamentary approval is a necessary precursor to conferring legality. It should remain the Prime Minister’s responsibility to give clear direction to the Armed Forces; he should not look to Parliament to absolve him of that responsibility and so possibly avoid the political dangers of facing a vote of confidence. How often in future will we be embarking on offensive wars of choice? Have we not had enough of them? We are not arming ourselves to carry them out at such a rate in the future as we have done in the past decade; we are even now sending ill-prepared troops into operations in Afghanistan. Is not the whole concept rather too academic and devoid of realism? I have not somersaulted and, on reflection, nor should the Government.