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For those and other reasons I strongly urge that the report be modified and that the approval of not just the other place but your Lordships' House should be

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taken into account. I am tempted to go a little further. If one has a bare majority in favour of the initiation of armed hostilities, it is sometimes asked what kind of messages that sends out. Are we prepared to commit our troops and risk their lives on the basis of 51 per cent of Members voting for this or that action in either of the two Houses? In that situation, half the Members of both Houses would be against initiating hostilities, which would send out different messages. I do not want to push my point further, but I have argued it in my academic writings and perhaps I should do so in political platforms such as this. It might not be a bad idea to explore the possibility, as some countries are doing, of insisting that a declaration of war and armed hostilities should command at least a two-thirds majority of the legislature of the country concerned. To commit and endanger people’s lives without that is extremely dangerous.

The report goes through the various reasons why people might raise objections to its recommendation for a constitutional convention. It successfully answers almost all those objections, including those raised by the noble and gallant Lord, Lord Craig of Radley. Responding to an emergency in self-defence is easily covered. People say that if parliamentary authorisation is required there is a danger of media pressure. However, media pressure takes place everywhere all the time, and in many cases is to be welcomed rather than resented or resisted. We are told that parliamentary authorisation opens up the possibility of judicial review. The evidence of the noble Lord, Lord Lester of Herne Hill, was very striking in that regard; namely, that judicial review comes into play only when a Prime Minister is stupid enough to declare war while disregarding the Act. In such situations judicial review has much to be said for it.

It was said just now that parliamentary authorisation was likely to politicise the Armed Forces. On the contrary, I should have thought that it would put the issue beyond party politics because it was likely to enjoy cross-party support. As for operational security, I think it is already recognised that we are talking about approving a decision to go to war, not micro-management of how the war should be conducted.

I shall discuss briefly the final question that is raised—whether parliamentary authorisation should be a matter of statute or convention. I can see arguments for both but I have a mild preference for statute. If you have a convention, you risk two or three dangers arising. Conventions are not necessarily binding and can be circumvented by all manner of means. There is also the danger that a convention would not necessarily reassure the country. In the aftermath of what has happened in Iraq and elsewhere, one of the most important political questions in a democracy is to find ways of reassuring the country at large that when armed hostilities are engaged in they are carefully thought through. I do not think we fully appreciate how much the legitimacy of our democracy is undermined by this ill-conceived act of war. It is therefore important that rather

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than simply thinking in terms of a constitutional convention we should rather think in terms of a binding statute.

I urge the Government to bear in mind that there is already a momentum for a great historical change. For all kinds of reasons different political parties and currents of thought in our country are beginning to converge on broadly what the Constitution Committee recommended. I very much hope that the Government, whose record in these matters has been excellent so far, will seize the opportunity and accept the recommendations of the Constitution Committee with some of the qualifications that I introduced.

6.07 pm

Lord Garden: My Lords, I congratulate my noble friend Lord Holme of Cheltenham and the members of the Constitution Committee on their report. It is a pleasure to read an analysis of such clarity which distils the weighty, comprehensive and complex evidence in such an easily understood manner. However, as some other noble Lords have said, when I got to the end I was somewhat disappointed that we ended up with a convention rather than a statutory basis.

I was one of the committee’s many witnesses giving my thoughts from the perspective of a former military officer and from having spent the past 11 years as a defence academic. Having read the report and other witnesses’ evidence, and in the light of subsequent events during the past 18 months in Iraq and Afghanistan, my view has not changed. I shall not go through all the evidence that I gave to the committee as it is in the report. However, my views can be summarised as a belief that the use of military force is a unique kind of authority. The state authorises some of its citizens, members of the Armed Forces, to use lethal force. It also expects these soldiers, sailors and airmen to be prepared to be killed in the service of the state. Before such authority is given, it seems to me self-evident that there must be democratic legitimacy and accountability and that Parliament must be the source of that democratic approval. I say as an aside to the noble Lord, Lord Parekh, that until your Lordships' House is an elected Chamber, our appropriate role is to inform the other place, which makes the decision. However, that will change when we are an elected Chamber.

This need for parliamentary approval was true in the past when, once upon a time, we fought wars of necessity which concerned the protection of our people and the defence of our sovereignty. Today the need is even greater. We have entered an era that is characterised by wars of choice. There is no urgent, direct, state-based threat to the United Kingdom that motivates our decision to send troops to the Balkans, to Sierra Leone, to East Timor, to Iraq or to Afghanistan. Also, we have a responsibility to weigh up the importance of playing an appropriate and proportionate international role as a force for good, against the very real limitations on the ability of our military to conduct simultaneous operations. We say “yes” to Afghanistan but “no” to Lebanon; we say “yes” to Sierra Leone but “no” to Rwanda. These are

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wars of choice. Having made the choice, young people aged 18 and upwards are put in harm’s way and are authorised to kill other young people if necessary.

I do not argue, nor would we from these Benches, that such operations are not needed. They will continue to be needed and, as the noble and gallant Lord, Lord Bramall, said, in this chaotic and unjust world they are likely to be needed more than ever. The question is whether the decision should be taken, as now, under the royal prerogative—in effect by a single person, the Prime Minister—or whether, in a democracy, it should be taken by the elected representatives of the nation. I am delighted that the report moves us firmly towards the latter.

As I said in my evidence to the committee, that must be the default position in any democracy. From that position, one then looks at the problems and limitations that may be necessary to make it work. That is not an impossible problem. I must admit that, like the noble Lord, Lord Judd, I was worried on reading some of the evidence from those who opposed such a change. In particular, I was struck by the remarks made by my former colleague, the noble and gallant Lord, Lord Boyce, who said that he believed,

“that going through Parliament for approval for deployment will compromise military success in every circumstance”.

I fundamentally disagree with that assessment. Recent events have suggested to me that those who make the grand strategic decisions, which are what we are talking about, might make better informed ones if they were to be exposed to proper scrutiny by Parliament.

The noble and gallant Lord, Lord Craig, was right to draw us away from the Iraq 2003 event on which many have focused. He looked at the Falklands and the first Gulf War. At the time of the evidence-taking session, I used the then-prospective increase in deployments to Afghanistan as an example of where we ought to apply that principle. In the light of subsequent events over the past year, I strongly believe that a proper debate over the move into the south and the east of the country, the strategic aims, the resources—both our own and those of our allies—the expected timelines, the co-ordination between nations and the co-ordination between departments would have been very helpful. We might all have gone in with the same plans instead of different plans. It perhaps would have prevented a somewhat hesitant and uncertain start. It might have taken longer, which is one of the worries that noble Lords have talked about. The Dutch had a difficult time taking their decision, but they came to it, they are there and they are doing the operation. It is not always a question of whether it is just a “go” or “no go” decision. The process itself means that you have a better chance of ending up with a coherent strategy where everyone knows what the country is trying to achieve and how it is going to do it.

In summary, I am broadly content with the report, because it moves us forward towards democratic control. I would have preferred a stronger approach than a convention, but it is a start. I was also absolutely astonished by the cursory response from

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the Government to what is a very serious report about a very serious subject. Among the areas that still need to be addressed is the question of thresholds for further parliamentary authorisation. Parliament must not micromanage troops at the tactical level, but it must have input to significant force level changes, up or down. In the sorts of operations that we are talking about, it needs to have a regular review of sustained operations, perhaps annually, where parliamentary authority has to be renewed and progress is looked at to see whether the strategy has changed. That is particularly apposite, four years to the day after President Bush declared, “Mission accomplished” in Iraq. To pick up the point made by the noble and gallant Lord, Lord Craig, that would be the occasion to look at possible draw-downs, if they were necessary, which are as important as force increases.

However, despite those caveats, I wish the report well. I hope that it will be one of the new Prime Minister’s surprises on taking office to remove the royal prerogative. The country needs it, but so do the Armed Forces, who are sent to do the nation’s difficult and dangerous work.

6.15 pm

The Earl of Sandwich: My Lords, I was also privileged to serve on the committee and took a particular interest in this inquiry because of the effect of the prerogative on the conduct of our foreign affairs. I congratulate our chairman, the noble Lord, Lord Holme, on finally achieving this debate. We had an impressive array of witnesses and, with expert help, we produced a report of more than 300 pages which includes solid original evidence.

As our chairman said, the Government’s response was on a single sheet so thin that you could see through it, although it stated that the paper contained 75 per cent fibre content. There was no fibre in that response; it said nothing of any value. How appropriate that our chairman dismissed it as “woolly” as well as “temporising”, “tardy” and “inadequate”.

To be fair to the noble and learned Lord the Lord Chancellor, the responsible Minister, he did apologise in October for the “extended delay”, but it was especially disappointing on such an important subject. As one of the key witnesses, he had already given the Government’s position, which may be summarised in two sentences. The prerogative is vested in the Executive, who must have the power to deploy troops in difficult and fast-moving circumstances; and they do. The Executive are fully accountable to Parliament, and the Government cannot go to war without the support of Parliament. This is where this debate comes in. This Government genuinely believe that they are already consulting Parliament through debates, Statements and Questions, and that they are adequately held to account through Select Committees. Most of us accept that there has been a degree of consultation and scrutiny, but from Parliament’s point of view that process is too informal and is at the whim of the Government. It is not statutory, and it lacks structure.

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In particular cases it may have proved satisfactory, but in practice it is constitutionally inadequate.

Parliament’s ability to challenge the Executive must be strengthened, especially in regard to deployment. The Armed Forces need not ultimately worry about this too much because under the royal prerogative no Government would ever give up emergency powers. We therefore suggest there must be some limited form of convention to ensure that future Governments and Parliaments are mutually aware of and bound by some quasi-legal procedure. That was well stated in paragraphs 85 to 93 and in our conclusion in paragraph 108. We were fortunate to have the advice of two former Attorneys-General who were sympathetic to the idea of a flexible convention, while recognising, as we all did, and as evidence from the Armed Forces had plainly shown, that there must ultimately be no restraint on the power to deploy. The noble Baroness, Lady O’Cathain, has already quoted the noble and learned Lord, Lord Mayhew, on this, and I fully agree with her points on accountability.

Gordon Brown’s position, so far as I have understood it, may be a fraction closer to ours in that he has accepted an evolutionary role for Parliament, which implies a desire to stand back and review the constitutional position without the need for legislation. It was unfortunate that we were not able to hear Mr Brown’s evidence directly.

We have not gone down the path of recommending a special Select Committee as some of our witnesses were urging us to do. The Select Committee procedure is in itself a pillar of the constitution, and we do not want more committees. I still wonder, however, whether the present Select Committees, while they do an excellent job of scrutiny on particular themes, might not in a crisis be strengthened by seconding members to an ad hoc committee with access to intelligence, similar to the quadripartite Select Committee. My only criticism of our report is that it did not spell out how Parliament could be better consulted. This may be because of the evidence of Professor Sir Lawrence Freedman, who was an adviser to the Defence Committee during the Falklands war. At question 127, page 72, he said:

“What the Committee was able to do was provide first a platform for people to grumble and complain but then, as time went on, it was able to bring a degree of realism from both sides to the discussion, by which time, of course, the conflict was well over”.

More seriously, I take the important points made by the noble Lord, Lord Norton, on the lack of information and the difficulty of fully involving any Select Committee in the process.

To some extent, things have moved on with the publication of this report, which the Government should regard as a landmark in itself, because of the careful interpretation of policy that lies in the evidence as well as in the conclusions. However, none of us is convinced by the Government’s attitude so far, judging from last year’s response and occasional Answers to Questions in the House. I hope that the Minister can be more forthcoming this afternoon.

I found helpful, as did the noble Lord, Lord Garden, the evidence we heard on the Dutch

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Parliament regarding the war in Afghanistan. The war gradually grew in importance while we were taking evidence because of our deployment of additional forces there. Article 96 of the Netherlands constitution states that its Parliament must give prior approval unless consultation proves impossible. Article 100 states that the Government must inform the States-General of any deployment, including the provision of humanitarian aid. As a result, Dutch MPs were able to challenge the proposal to deploy Dutch troops to NATO-ISAF in December 2005, which was approved only in February 2006. That was two months’ delay, to which some objected as operationally disadvantageous; but in my opinion military critics would disapprove of any such delay. These were ISAF troops and there was no compelling reason for their deployment, since they did not form part of Operation Enduring Freedom, and that was precisely why the MPs were interested. They wanted to know exactly what their troops were undertaking.

In Britain, by contrast, a significant new deployment of more than 1,300 troops was announced and we had Statements and Questions, but there was no contract with Parliament such as we ultimately had before the Iraq war. It was a blatant use of the prerogative and parliamentarians were not properly consulted. It showed a lack of respect for our constitutional arrangements, which to my mind can be met only with a more formal convention. I must emphasise that this would not be a straitjacket, but a statement of the role of Parliament.

The British public have not been consulted adequately on Afghanistan. As my noble and gallant friend Lord Bramall said, there were different aims in Iraq and the same is true of Afghanistan. The public still think that we are fighting a war for reconstruction and development, and there is some ambiguity about the role of NATO, which is engaged in Operation Silicon in the mountains of Helmand, in contrast to the peacekeeping work of ISAF further north. That is precisely what Parliament should be debating before these major decisions are taken.

That is why I wholeheartedly support our committee’s proposal, which is backed up by eminent witnesses with considerable combined experience, including military historians and representatives from our Armed Forces—not all of whom agree, as we know. My noble and gallant friend Lord Bramall will not mind if I quote his evidence from page 64. In an interesting summary, he said that,

“if Parliament supports the action, which it did in Iraq, the Armed Forces can take heart that constitutionally the country supports it”.

But I repeat what he also said—that this does not mean that parliamentary approval should ever extend to tactical decisions; the committee was unanimous on that.

I hope that the noble and learned Lord the Lord Chancellor will therefore consider this report a little more seriously today than before, and I hope that he will accept that, whatever the good intentions of the Government, the example of Afghanistan should cause them to reflect a little more deeply than they have hitherto.

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6.25 pm

Lord Goodlad: My Lords, I, too, had the privilege of serving on the committee and I join my noble friend Lady O’Cathain in paying a warm tribute to our chairman, the noble Lord, Lord Holme of Cheltenham, who led us through an extremely complicated series of shoals, dealt with an enormous number of expert witnesses and documents, and steered us to conclusions that have been warmly welcomed on almost all sides of the House.

I entered into the committee’s proceedings on this investigation complacent in the belief that, in the Government’s words,

“adequate mechanisms for intense parliamentary scrutiny of executive action are already in place”.

Throughout our history, there have always been questions, debates, Select Committees and so on during, and usually before, times of conflict. I was also concerned by the practical difficulties of seeking parliamentary sanction for action during times of emergency, when use of the strategic deterrent might have been contemplated, when reconnaissance and covert operations were considered—as in Sierra Leone—and because of the difficulties inherent in giving the enemy a potentially lethal advantage over our service people by signalling specific military intentions in advance. Such problems were described by the noble and gallant Lord, Lord Boyce, and other witnesses. Those concerns remain and any future convention agreed to by the Government and Parliament must take them into account.

The committee’s arguments for parliamentary involvement have been eloquently rehearsed, notably by the noble Lord, Lord Holme, as well as by my noble friend Lady O’Cathain, the noble and gallant Lord, Lord Bramall, my noble and learned friend Lord Mayhew and others—I shall not repeat them all. The recommendations in paragraph 110 that parliamentary approval for military action should be preceded by the laying of a resolution, including objectives, the legal basis of the action and its likely duration and scale—retrospectively, if necessary—should not be too controversial in principle. In fact, they were, in effect, endorsed by Jack Straw, the Leader of the other place.

The fourth recommendation in paragraph 110, that the Government should as a matter of course keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly, should seek a renewal of the approval, is more difficult. Arguably in Iraq, and certainly in Afghanistan, we have seen what is known as “mission creep”. In Helmand in Afghanistan, we are approaching the nature of an army of occupation, and Parliament has not reacted in the Division Lobbies. During that time, the attitudes of our allies have also changed substantially and they are, as we see in the United States and NATO, continuing to change.

So is the onus on Parliament—by which, in effect, we mean the opposition parties—to exercise scrutiny and activate such scrutiny, or should the onus be on the Government, who control the parliamentary

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timetable, to make the necessary arrangements? I believe that we must seek consensus on this and similar points.

I agree with other members of the committee that Parliament should mean both Houses of Parliament, but I strongly believe that primacy should remain with the Commons, even, or perhaps particularly, if there is an elected element in your Lordships’ House in the future. The likelihood of the two Houses voting in opposite directions is sufficiently high for it to be necessary beyond peradventure to be understood that the primacy is in the House of Commons.

There is, I believe, a growing consensus behind the proposals in the Select Committee report, as evidenced by our deliberations today. I, in common with other members of the Select Committee, saw more dangers in legislation than advantages, and I believe that a convention is more consistent with the practicalities of the way in which we run our constitution than the statutory authority recommended by the noble Lord, Lord Lester.

As has been noted, in January last year Gordon Brown said that,

“a case now exists for a further restriction of executive power and a detailed consideration of the role of Parliament in the declaration of peace and war”.

David Cameron has also stated that,

“the time has come to look at those powers exercised by Ministers”,

under the royal prerogative. He said:

“Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making Government more accountable”.

Jack Straw, the Leader of the other place, said:

“the parliamentary votes on military action against Iraq not only showed Parliament at its best, but also set a clear precedent for the future”.

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