War Powers and Treaties

My Lords, I too thank the noble and gallant Lord, Lord Guthrie, for initiating what has been a quite splendid and high calibre debate. I am up against the clock, and if he is to respond I must finish absolutely in 20 minutes. I shall try to deal with a number of the most important matters that have been raised in your Lordships’ debate. First, I join other noble Lords in thanking the noble Lord, Lord Janvrin, for his exceptional maiden speech. We all look forward to hearing from him in the future. He made some most interesting remarks about changes to the constitution, and I encourage him to join us in our ever enjoyable debates on the future of your Lordships’ House, which I think he will very much enjoy. The noble Lord, Lord Hameed, spoke most eloquently of the extraordinary risks that we face from religious intolerance. I commend him for his brave and robust stand against extremism. The noble Baroness, Lady Williams, said that this was a most significant moment in the constitutional evolution in this country. I share that view. The key element of the paper that we are debating that runs through all of it is the need to limit the powers of the Executive and to subject them to greater scrutiny and control. That stems from a conviction that, in our democracy, the freedom of the Executive should be more formally constrained in order to respect their obligations to Parliament. This is especially true when the Executive derive their powers from the ancient prerogatives under the Crown, rather than those explicitly granted to them by Parliament—the context of which my noble friend Lord Rowlands put so well. The noble and gallant Lord, Lord Guthrie, emphasised that the power to send the Armed Forces into conflict and to commit the country to international obligations through the conclusion of treaties are two of the most important powers that a Government can wield. It is axiomatic for a democracy rooted in the sovereignty of Parliament, as we are, that it should be Parliament that has the final say in such grave matters. I very much endorse the remarks of the noble and gallant Lord, Lord Bramall, when he talked of troops in the field needing the support of country and Parliament, as well as understanding that what they are doing is legal. I also entirely endorse the view that it is unthinkable that action could be taken without parliamentary approval. We are in a very different world. The existing arrangements need to change, and the consultation paper, as noble Lords know, sets out a number of matters that will need to be fully discussed and worked through to effect those changes. The consultation closed on 17 January, but I assure noble Lords that today’s debate will be taken fully into account. It is clear that there is widespread support in your Lordships’ House for the direction of travel. Equally, it is also very clear, as a number of noble Lords have said—the noble Lord, Lord Wakeham, was particularly forceful about this—that the Government must have a degree of latitude in considering whether the Armed Forces should be deployed or engaged, and if and when they are, how to prosecute any conflict. We need to strike a balance here to guarantee the flexibility and members of the Armed Forces, and we are very much attuned to the need for reform to take into account the impact on the Armed Forces in the field. I hope that the consultation paper makes that clear, and certainly paragraphs 38 and 39 make the point that the impact on the morale of members of the Armed Forces themselves is critical, and that by providing a mechanism for explicit parliamentary approval of relevant deployment decisions, the intention is to show the Armed Forces that Parliament, and through it the nation, is fully behind them. I understand the concerns of the noble and gallant Lord, Lord Craig of Radley, but there is no intention in any of our proposals discussed in the document to interfere in any way with the operational decisions of commanders in the field. These proposals are intended to ensure that Parliament is consulted. I know that the noble and gallant Lord raised some very detailed questions, but perhaps I may refer him to the remarks of the noble Lord, Lord Armstrong of Ilminster, who made the case for generality rather than getting too detailed and inflexible. The options set out in the paper have been referred to. Again, they seek to strike a balance between approval by Parliament and flexibility. The paper sets out four options and we have yet to take a firm view on them. On the one hand, it makes clear the advantages of putting in place a structure around parliamentary resolutions so that they can be created with less formality and are more easily amended, but that failure to comply is not automatically unlawful and its interpretation is a matter for Parliament rather than the courts. On the other hand, however, there are disadvantages. It might appear to provide a weaker assurance of compliance by the Government and it does not formally constrain the prerogative. As the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Goodlad, pointed out, the Constitution Committee came out firmly against the idea of the legislative route, and that view seems to be supported by many noble Lords. We recognise the various concerns that have been cited and we will look carefully at these matters. I also accept, as my noble friend Lord Morgan suggested, that conventions evolve and are not made. I turn to the definition of a conflict. The noble and gallant Lord, Lord Vincent, described some of the challenges here with changes in the nature of conflict. He will know that the consultation paper proposes that the meaning of ““armed conflict”” is that used in international humanitarian law and sets out an example in draft as Option B of Annex A. It is worth remarking that this is linked to the issue of how the Government would continue to fulfil their international obligations and their ability to participate in any multinational obligations that would form part of those very obligations. The Government will have to continue to work with coalition partners and any procedure would need to reflect those continuing obligations. Similarly, the consultation paper sets out where there should be an exemption for exceptional circumstances, when in order to maintain operational security and effectiveness it may be necessary to allow deployments without parliamentary approval. I thank the noble Earl, Lord Attlee, for his kind remarks. He discussed Cabinet government and its loss. I do not agree, but I would say to him that parliamentary scrutiny is the best answer to his issues and concerns. Of course the information supplied to Parliament is critical, and the noble Lord, Lord Kingsland, was right to say that there will be limits to the information that can be provided. There is and has to be a question of trust, but I am confident that the current arrangements which have been put in place will respond to the question he raises. I would also say to my noble friend Lord Morgan that the advice given by the Attorney-General is a matter that is being considered as part of the current consultation process being undertaken by the Attorney-General. The information may be imperfect, as the noble Lord, Lord Kingsland, suggested, because any information supplied should not put the Armed Forces in jeopardy or compromise the effectiveness of operations. One of the suggestions put forward in the consultation paper to allow Parliament greater access to some information would be for Parliament and the Government to agree the way in which sensitive information could be presented. There might, for instance, be a Joint Committee of both Houses, and the views of noble Lords on that proposal would be extremely interesting. That leads to the question of when. I am grateful to the Constitution Committee for its very interesting comments on that. Sometimes, for reasons of urgency or national security, it would not be possible for Parliament to give prior approval. The Constitution Committee does not favour a requirement put forward in the consultation paper that it would be the duty of the Government merely to inform Parliament rather than to seek retrospective approval for deployment. The committee’s preferred option is that in regard to such an application, if it were not possible to seek prior approval, the Government should provide retrospective information within seven days or as soon as was feasible, at which point parliamentary approval should be sought. I should say on this that there are a number of issues on which to reflect. If Parliament did not then provide retrospective approval, there would be an expectation that forces would be withdrawn or remain in theatre as part of a coalition but under different terms. That might involve a breach of international obligations or damage international relations, and to take action quickly might put the Armed Forces at risk. The Government consider that the preferable alternative would be to introduce a procedure under which the Prime Minister would be obliged to inform Parliament when Armed Forces had been committed under exceptional circumstances with no further proceedings. Indeed, I think that that was the approach favoured by the noble Lord, Lord Lester, in his Private Member’s Bill. The noble Lord, Lord Hannay, asked a series of interesting questions about the impact of delays and constraints in making decisions by international organisations. He asked how one could ensure that parliamentary exchanges do not cut across or undermine the procedures leading to agreement among international organisations. That is a very important question that we will need to consider. Again, the question of what has been described as mission creep is also something that will need very careful consideration. The Constitution Committee made clear its concern at the Government’s proposal that Parliament’s involvement should be limited to approving the initial engagement. The committee would prefer that in addition to keeping Parliament informed of the progress of deployments, the Government should be required to seek a renewal of parliamentary approval if a deployment’s nature or objectives were to alter significantly. It went on to say that such a requirement is vital to ensure that mission creep does not become a problem. As several noble Lords have pointed out, recent experience has shown us that military operations often change in size, scope and nature as situations develop, so it is important that the mechanism is triggered at an appropriate point during a routine deployment or out of scope operation if a developing situation requires it. I noted the caution of the noble and gallant Lord, Lord Inge, on this and here operational flexibility is of vital importance. It is important that any processes or procedures do not hold up an operation or compromise operational effectiveness, so we have to ensure that we get the balance right. As to the question raised by the noble Lord, Lord Hannay, about what he described as a ““light option procedure””, I understand that the German model requires parliamentary approval for all deployments but also provides for a simplified procedure in cases of deployments of low intensity and importance. The terminology ““low intensity and importance”” applies if the number of soldiers is small and the deployment does not involve participation in a conflict. That might include reconnaissance, armed missions for the purpose of self-defence, and where individual soldiers are deployed in the framework of personnel exchanges in a UN, NATO or EU mission. The Government will give further consideration to those matters. The noble and gallant Lord, Lord Craig, asked whether the mechanism will cover the Navy and Air Force. Our intention is that any deployment of the Armed Forces—which of course would include the Army, Navy and Air Force—into armed conflict overseas would be covered by the mechanism. What should be role of the House of Lords in this? The noble Lord, Lord Thomas of Swynnerton, was supportive of the proposal that the House of Lords should have to pass a resolution, save where there are reasons of urgency. The general consensus of your Lordships’ House is that the House of Commons has to have primacy in that matter, but that the House of Lords could have an important role in providing advice to the House of Commons. There is a great deal of support for that. My understanding is that it is true that the last time the UK declared war was in 1942, and my advice is that it was Siam. No doubt we will discuss that further when we come to eventual legislation. I should say to the noble Viscount, Lord Slim, that the draft clauses proposed by the Government in all of the options contained in the paper already set out an exemption for special forces. The Government would not want in any way to compromise the nature of the use of special forces in the field. I have a little time to talk about treaties. Generally, the proposals in the paper have been welcomed by noble Lords. Like my noble friend Lord Anderson and the noble Baroness, Lady Williams, I also pay tribute to the noble Lord, Lord Lester. I have no doubt that parliamentary involvement in the scrutiny of treaties will take us further forward. A number of important points were made about which treaties should be scrutinised. We shall shortly be debating a European treaty in the House and the unique nature of the constitutional relationship between this country and the European Union means that the effect of such a treaty is of great significance. In such circumstances it is right that special provisions are made that would not be appropriate for a wide variety of the treaties that the UK enters into each year. In answer to the noble Lord, Lord Goodhart, the proposals in the consultation document do not preclude special arrangements being made for other specific treaties. It remains open to the Government to use a more stringent scrutiny for any given treaty where they consider that that would be the right course of action. I note the preference of the noble Lord, Lord Maclennan, for a binding vote, with the Government able to come back to Parliament for a further view at some stage if the vote should turn down a treaty. As to the suggestion that a parliamentary committee should scrutinise treaties, that would be a matter for Parliament to decide. It is a decision best taken in the light of the eventual conclusion of the Government in this matter. I should have thought that a committee of this House or both Houses could have a very important role to play. On pre-scrutiny, I should say to the noble Lord, Lord Kingsland, and other noble Lords that it is already common practice for Ministers to communicate with the relevant Select Committee prior to signature of a treaty. However, it is important to remember that there is often a long time between treaty negotiations commencing and treaty ratification and it would not be practical to involve Parliament in the negotiation process without risking excessive delay. That is why we have gone for the balanced approach suggested in the consultation paper. If the noble and gallant Lord, Lord Guthrie, is to have any time at all, I should now sit down. This has been a marvellous debate and the speeches have been of high quality. I can assure noble Lords that the Government will take very careful account of all the contributions that have been made.