War Powers and Treaties

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 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. 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””.