War Powers and Treaties

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 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.