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The Attorney-General (Lord Goldsmith): My Lords, it is well established that the conduct of foreign affairs and defence policy are matters that fall within the Royal prerogative. It would, therefore, be lawful and constitutional for the Government, in exercising the Royal prerogative, to make a declaration of war or to engage United Kingdom forces in military action without the prior approval of Parliament.
However, as my right honourable friend the Prime Minister has made clearnotably when he appeared before the Liaison Committee on 21st January of this yearin the event that military action is taken, Parliament will be consulted. He made clear that Parliament should be given the opportunity to express its view and that in any event there will be a vote in the House of Commons.
My right honourable friend was not able, for reasons which are entirely understandable, to undertake to guarantee that in all sets of circumstances the vote would take place before action is taken. None the less, I hope that the House will find, as I do, much comfort in what he said. He will be making a Statement on Iraq in another place on 24th February and a further debate on Iraq is scheduled in this House for 26th February.
Lord Hooson: My Lords, I thank the noble and learned Lord for that reply, which was rather a relief to hear. Does he agree that Royal prerogatives are archaic? They belong to an era when there was an absolute monarchy and depended on the doctrine of the divine right of kings. In the modern age, is it not absolutely essentialin the unhappy event of a declaration of war being requiredthat the democratic legitimacy for that declaration can come only from a decision of the Prime Minister in Parliament, which is approved by Parliament? Does he give an undertaking on behalf of the Government that if that situation arises not only will the Prime Minister consult Parliament but also that he will be bound by its approval?
Lord Goldsmith: My Lords, the Statements of my right honourable friend the Prime Minister, to which I have already referred, make clear that in the event of the United Kingdom taking military action there will be a vote in the House of Commons. He has also underlined the importance of government having the support of Parliament in going to war. I repeat the caveat that he cannot promise that in all sets of circumstances that can necessarily be done before action is taken. So having the support of Parliament is a matter of political practice. There has already, noble
The legal position is also clear. The decision to use military force is, and remains, a decision within the Royal prerogative and as such does not, as a matter of law or constitutionality, require the prior approval of Parliament.
The Earl of Onslow: My Lords, is it not a fact that without the approval of the House of Commons to grant supply, the Royal prerogative cannot apply? Does the noble and learned Lord foresee the possibility of the totally joyous outcome of a large chunk of Labour Members of Parliament voting against the Prime Minister and his being supported in his office by the votes of the Tory Party opposite? That would be Parliament functioning at its absolute best and most appropriate in making sure that the Royal prerogative, when used, has the supply it requires.
Lord Goldsmith: My Lords, I start by making plain that I disagree absolutely with the noble Earl about such an outcome being a joyous event. I cannot for the life of me imagine why anyone would think that it would be a joyous event.
My right honourable friend the Prime MinisterI hope all Members of the House agreehas worked extremely hard in order to solve a very important international situation. So far as concerns the question of Estimates, of course it is right that all departmental expenditure needs the approval of Parliament in accordance with approved parliamentary estimates. In the event of any expenditure incurred by the Ministry of Defence exceeding its Estimates, obviously parliamentary approval would be needed. That is not the situation we are in at the moment at all.
Lord Craig of Radley: My Lords, is not a declaration of war a very significant event? In fact it has not occurred for many years. Perhaps the noble and learned Lord could remind the House when war was last declared by any government in this country.
Lord Goldsmith: My Lords, the noble and gallant Lord is absolutely right. The last time there was a declaration of war was in 1939. It is not necessary to make a declaration of war these days. Since then, we have been involved in a number of armed conflicts. The existence or not of a legal state of war is nowadays irrelevant for most purposes of international law. The application of what used to be called "the law of war" and the status of prisoners of war depends upon the existence of an armed conflict, which is a factual situation and not a question of a declaration of a state of war. Whether there is a state of war might still be relevant for certain purposes of domestic law; for example, as regards the application of certain private contracts referring to war. Apart from that, the noble and gallant Lord is right: a formal declaration of war is not necessary.
Lord Wallace of Saltaire: My Lords, does the Minister accept that the extensive use of the Royal prerogative, which continues across a range of government provisions, makes the case for continuing a programme of constitutional reform rather than abandoning the programme to which the Labour Government were committed in 1997, which they now appear to have exhausted?
Lord Goldsmith: My Lords, the noble Lord raises a much wider question than that which I have come to answer. So far as concerns the specific application of the Royal prerogative, to which the Question of the noble Lord, Lord Hooson, related, I hope that the Answer I have given is both clear and, by referring to the unequivocal Statements of the Prime Minister, gives much comfort to Members of this House and to others as to the importance attached to Parliament.
Baroness Farrington of Ribbleton: My Lords, on behalf of my noble friend Lord Whitty, I beg to introduce a Bill to amend the Water Resources Act 1991 and the Water Industry Act 1991; to make provision with respect to compensation under Section 61 of the Water Resources Act 1991; to provide for the establishment and functions of the Water Services Regulation Authority and the Consumer Council for Water, and for the abolition of the office of Director-General of Water Services; to make provision in connection with land drainage and flood defence; to amend the Reservoirs Act 1975; to make provision about contaminated land so far as it relates to the pollution of controlled waters; to confer on the Coal Authority functions in relation to the discharge of water from coal mines; to extend the functions of the Environment Agency in relation to the Rivers Esk, Sark and Tweed and their tributaries so far as they are in England; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with on Tuesday next for the purpose of taking the Income Tax (Earnings and Pensions) Bill through all its remaining stages that day.(Baroness Symons of Vernham Dean.)