Select Committee on Constitution Minutes of Evidence


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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