Supplementary memorandum by Professor
John Bell, University of Cambridge
I am responding to the questions which the Committee
did not have time to cover at the evidence session on 7 December.
RECENT SPANISH
LEGISLATION
I have made a brief translation:
7 DECEMBER 2005
Spanish Organic Law 5/2005 of 17 November 2005
on National Defence
Art. 17: 1. To order operations abroad that
are not directly connected with the defence of Spain and its national
interests, the Government must consult the House of Deputies and
receive its authorisation.
2. For missions abroad that, in accordance
with international agreements, require a rapid or immediate response
to specific situations, the requirements of prior consultation
and authorisation shall take place through urgency procedures
that permit compliance with those agreements.
3. In the circumstances envisaged in the
previous paragraph, where reasons of extreme urgency do not make
prior consultation possible, the Government shall submit the decision
it has taken to the House of Deputies as soon as possible for
its ratification.
Art. 18: The Government shall inform the House
of Deputies periodically, and at intervals of never greater than
a year on the progress of the operations of the Armed Forces abroad.
Art. 19: In order that the Armed Forces may
undertake missions abroad which are not directly connected to
the defence of Spain or its national interests, the following
conditions must be satisfied:
(a) that they take place at the express
request of the government of the state in whose territory it takes
place, or they have been authorised by resolutions of the Security
Council of the United Nations or by agreement, in an appropriate
case, by international organisations of which Spain is a member,
especially the European Union or the North Atlantic Treaty Organisation,
within the sphere of their respective competences;
(b) that they fulfil the objectives of defence,
of humanitarian aid, of establishing or maintaining peace as provided
for and ordered by the organisations already mentioned;
(c) that they are consistent with the Charter
of the United Nations and do not contradict or breach the principles
of customary international law which Spain has incorporated into
its legal order in conformity with article 96.1 of the Constitution.
Q.8 Where there is a bicameral system, do
both Houses have to approve the deployment of armed forces?
There is no uniform pattern. The French (art.
31 of the Constitution) and the Dutch (art. 96 of the Constitution
as amended in 2000) require both Houses of Parliament to approve
war, and both are informed of the deployment of troops (though
this is a requirement only of art. 100 of the Dutch Constitution).
The Spanish law of 17 November 2005 and the German legislation
require the lower House of a federal Parliament to approve the
deployment of troops. The focus is thus on the most representative
chamber of the nation as a whole. In practice, the Dutch duty
to inform Parliament does not pose problems and leads to significant
debate before deployment happens, though this does not seem to
compromise operational effectiveneness.
Q.9 Non-statutory controls
Because of the principle of the rule of law,
there are few examples of non-statutory controls. There are two
reasons for this. First, there has not been the background of
broadly consensual relations between government and opposition
such as would permit the equivalent of our transfer of information
"on privy counsellor terms". In countries such as Italy,
France and Spain, in which the Communist Party used to be a major
political force, there was a greater tension between government
and opposition. Secondly, the development of parliamentary select
committees is not as well advanced in many countries. For example,
the French National Assembly committee on national defence and
the armed forces reported on 30 January 2002 that there were many
instances where Parliament had no way of finding out how troops
were being deployed, except when budget credits were being sought
for the expenditure involved. There were even secret clauses in
treaties with former African colonies that justified the deployment
of French troops, about which Parliament knew nothing.
By contrast, the limited statutory duty under
art. 100 of the Dutch Constitution for the Government to inform
Parliament of the deployment of troops actually works well, because
the Government (Foreign and defence ministries) produces detailed
reports and risk assessments. For example, the report of 18 November
2005 on the sending of Dutch troops as observers to the UN Mission
in Sudan provides a very detailed report covering 12 pages to
justify the expenditure of €1.5 million. By contrast, the
complaint is made of the German authorisation that it is too general.
Thus the approval for participation in "Operation Enduring
Freedom" in Afghanistan included participation in NATO activity
in "the Arabian Peninsula, Middle and Central Asia, and North-East
Africa, as well as in the neighbouring sea areas". The key
issue is the level of mutual trust between Government and Parliament
and the willingness of both to engage seriously in a public debate
over the deployment of troops. In France, the Government is too
secretive and distrusts Parliament, whilst the Bundestag seems
too willing to support the deployment of troops. The Dutch seem
to have found a good balance, and this seems to be the intention
in Spain under the new law.
27 December 2005
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