Select Committee on Constitution Minutes of Evidence


Examination of Witnesses (Questions 1-19)

CLARE SHORT MP, MR NEIL GERRARD MP, RT HON TONY BENN AND LORD LESTER OF HERNE HILL

23 NOVEMBER 2005

  Q1Chairman: May I say welcome to our distinguished witnesses on behalf of the Committee. Thank you very much for coming. I just have to ask formally for your indulgence for a moment on whether any Member of the Committee has an interest to declare, although it would be quite difficult to imagine what it might be in respect of this inquiry. Does any Member of the Committee have such an interest? Thank you very much. Could I say that these proceedings are being televised and I think will be shown on Saturday. I am very glad you could all come and I wonder if, for the sake of the record, starting with Lord Lester, you would be kind enough to identify yourselves?

  Lord Lester of Herne Hill: I am Anthony Lester, alias Lord Lester of Herne Hill.

  Clare Short: I am Clare Short, the MP for Birmingham, Ladywood.

  Mr Benn: Tony Benn, former Member.

  Mr Gerrard: Neil Gerrard, MP for Walthamstow.

  Q2  Chairman: Thank you very much. I would like to start with a general question, giving you each a chance to tell us why you think this issue is important both in general and why it should be addressed by Parliament. Perhaps we could start with you, Mr Gerrard.

  Mr Gerrard: I started to think about this a great deal about a year ago when I was drawn in the private Members' ballot of the House of Commons and I was looking at what issue I might bring in, in a private Member's bill. It was then that I read the report which had been done by the Public Administration Committee, which was about the royal prerogative in general, not specifically about war powers, but the more I thought about it the more it seemed to me that we had the vote on Iraq but that in itself did not create any precedents at all for the future. The Prime Minister had said that he could not envisage a situation where there would not be a vote again in the future, but it seemed to me that that left the position open for a future Prime Minister to take a different view. In the aftermath of Iraq we had that vote, but it seemed to me a great many people were dissatisfied with the process which had happened and the way in which decisions had been taken, and the fact that there was no guarantee that Parliament would in the future have any say on perhaps the most important decision which could possibly be taken of committing British troops to military action.

  Mr Benn: I have a double interest in it. First of all, on the question of the royal prerogative, the last time I appeared before a Lords Committee was 50 years ago, on 18 February, 1955, when the Lords decided that because my father had been made a peer when he died it was inevitable that I would be ineligible to sit in the House of Commons. I was later thrown out of the House of Commons on the grounds that the royal prerogative took precedence over the votes of my constituents. It took eight years for that royal prerogative to be changed by the Peerage Act. My other interest is about war itself. I served during the war in the RAF and thought a lot about it, and it seems to me that this at heart is a moral question. If you tell young men in the Services that they have got to go under orders and kill, and may be killed, you are taking about the most important decision literally in their lives and that should not be taken other than by a democratic vote in the House of Commons, in Parliament. I had a letter during the Suez Crisis from a young pilot in Cyprus, who wrote to me and said, "I believe this war is wrong and I intend to disobey orders. What shall I do?" I wrote back and said, "You must decide in your own conscience." So for me it is a moral and democratic issue, and I introduced a Crown Prerogative (Parliamentary Control) Bill, which dealt with all the prerogatives so that they should all be transferred to the House of Commons or to Parliament, but that never came up. One of them was the war powers, and I think the war powers one is important because war, as Neil has said, is the most important decision a government can take. It affects the lives not only of those in conflict but at home and it may affect the future of the country, and for that to be taken on the notion that it is a Crown decision when actually it is a power of the Prime Minister of the day seems to me to be wrong.

  Clare Short: I am persuaded that this is outdated, undemocratic and should be updated, but that would not have moved me to take action if I did not remain stunned and worried by the way in which we saw our constitutional arrangements malfunction on the route to war in Iraq and a trail of deceit, which I think helps to explain the failure to prepare for afterwards and the dreadful situation and the terrible loss of life. So this is not, for me, a political point-scoring thing. We must learn the lessons of how such terrible errors were made and I think now that if the Prime Minister was briefed beforehand that this was a personal prerogative power, you can see why and how he would feel entitled to make his own judgment of what was in Britain's interests, that it is in Britain's overwhelming interest to stick close to America and not need to have any collective Cabinet discussion, and then that very, very personalised and slightly hidden method of decision-making, which means the Defence and Overseas Policy Committee never met, so all the options were not properly scrutinised and the legal authorisation was concocted in a very disreputable way, which is now a matter of record. You can see how it would happen that any one of us, told that we personally had the duty and the right to make this decision, might do it in an extremely personalised way and in a way which I think leads to very bad decisions and which has created a very dangerous quagmire. So I think we have a duty to scrutinise our constitutional arrangements and to set in place safer arrangements so that decisions as big as this are better made. I find the argument that there was a vote in the Commons on this occasion and there has not been on other occasions completely unpersuasive given that the troops were on the ground, it was last-minute, the Prime Minister was threatening to some people to resign if half his own party did not vote for it, and people had been deceived. So I think the argument that we are only trying to secure what happened last time is not good enough. If any Prime Minister knew that he had to bring before the House of Commons—and maybe both Houses, we are coming on to that—a full statement of why and the analysis, I think that means the whole issue would have to be better scrutinised, better thought through, better prepared and the decision would be better made.

  Q3  Chairman: Could I just ask you a supplementary because, of course, you were a Member of the Cabinet in the run-up to the Iraq war. Would your feelings and your analysis be different if there were, in your opinion, more fully fledged conventional Cabinet government and less of what I think is called "sofa government"? Are your views affected, because you have talked a lot about the personal issue of the Prime Minister?

  Clare Short: I have a two-part answer to that. I think all decisions would be better made if a number of independent-minded people had access to information and scrutinised and discussed the idea. I think that improves the quality of decision-making in any family, local authority, the health board, government, whatever. So part of the problem was that there was not proper Cabinet government and there is not proper Cabinet government in this country. When you look at the royal prerogative, it is not the prerogative of the Cabinet, it is a prerogative of the Prime Minister, so that helps to encourage a lack of accountability to the Cabinet. I think even worse, the Cabinet Committee, Defence and Overseas Policy, to which come the heads of all the intelligence agencies, the heads of the Armed Forces, the Permanent Secretaries and Secretaries of State of all the departments which have any foreign policy intervention, normally would meet and scrutinise all the diplomatic, political and military options in a crisis situation like this. It did not meet. So my worry is that terrible errors were made and they flow from this concentrated personalised power, and we have a duty to our country's constitutional arrangements and the avoidance of error in the future to correct this.

  Lord Lester of Herne Hill: Thank you very much for asking me to come. It had not occurred to me until I heard Tony Benn that I should bring my own military experience into play, but I would like very briefly to mention that and then talk very briefly about the constitutional framework, which is wider than war powers. So far as my military experience is concerned, I was an officer serving during the Suez invasion. We never got to Suez, but I was attached to the First Brigade Guards as a gunner officer and I spent some of my time making sure we deceived the readers of The Guardian as to what we were up to in the run-up to the invasion. Looking back on it, it might have been better if what we were up to had been scrutinised by both Houses of Parliament. But coming from war, which I regard simply as a subset of the problems about the prerogative, since you are a Constitution Committee could I briefly say how I see the position, because it would be a mistake to see this solely in terms of war powers. We were all brought up, were we not, to believe that there are two fundamental principles protected by our unwritten Constitution? One was Parliamentary supremacy, the idea that the Executive is accountable to Parliament rather than to the Sovereign. Secondly, the principle of the rule of law, that public powers should be exercised according to the law of the land. The difficulty with our elastic and flexible unwritten Constitution, with all its benefits, is to make sure that those two principles are applied in practice. The question really which this Committee is asking itself when it looks at war powers is, should it be Parliament that is Sovereign, to whom the Executive is constitutionally accountable, or should it be the monarch? The view upon which my Bill was based—as you probably know I had an Executive Powers and Civil Service Bill in the wake of the House of Commons Public Administration Committee's excellent report—was that in a modern democratic society it should be Parliament, whilst preserving intact the personal prerogatives and immunities of the Sovereign like any other constitutional head of state. I believe that prerogative powers are necessary but that it is anomalous that the Crown is able, on the basis of mediaeval notions of kingship, through the Queen's Ministers, to exercise public powers without Parliamentary authority, and I think it is time (as, I think, do Tony Benn and Clare Short, indeed all the witnesses) that we should place the prerogative under Parliamentary authority. Later I can explain simple ways of doing it with regard to the war powers, but I think that is the broad constitutional question within which this inquiry comes.

  Q4  Chairman: Thank you. All those statements are extremely helpful to the Committee. We have got representatives of two tendencies here, those who start with the broad gauge of the royal prerogative (and of course it is the history of the British Constitution that that has incrementally been shrunk by Parliament eroding it, confining it and limiting it), those who see the approach as a transfer of the prerogative powers to a democratic parliament and those who have isolated this particular issue of war-making powers. It is a problem which is going to vex this Committee to ask the question: do you, in considering war-making powers, have to address yourself to the larger question of the prerogative? Is it possible, as Ms Short's and Mr Gerrard's Bill did, to address war-making powers in isolation or do you have to take the more synoptic view, which Lord Lester and Mr Benn have taken, of addressing the prerogative powers as a whole? Can one do the narrow gauge issue without addressing the larger issue of prerogative powers? I would be interested in any views.

  Clare Short: I think you can, and there is a legislative framework which proposes so doing, and I think the war-making powers are the most urgent, but then I would support going on to look at it more broadly. I think doing something about war-making powers is absolutely urgent and we owe it to the young people whom we are willing to contemplate sending to war and to the taking of other people's lives to improve our arrangements.

  Lord Lester of Herne Hill: I agree with that. You could do it either way. You could have a War Powers Act or you could have a Prerogative Powers Act. I would say that war-making powers rarely, happily, come up. I think treaty scrutiny powers are of more day to day practical importance and I would be sorry if one were to look at it only in terms of war. But you could, as Clare Short has said, have a statute dealing only with war powers.

  Mr Benn: I think the war one is the most important immediately. I think the general one needs to be discussed, and it would be discussed, but if you look at the history of how changes have occurred in Britain it has always been done incrementally. You could not have a more vivid example than your Lordships' Committee. Fifty years ago every one of you would have been here by the royal prerogative; now every one of you is here by statute. Even the elected hereditaries were created by the 1999 Act, which created this marvellous innovation, the hereditary elector. It never existed before in our Constitution. So I think it would be perfectly in order to say that this is the key question, but if it were done it would raise other questions. The establishment of the Church of England is a very good example, though funnily enough that is a prerogative given to the Crown by Parliament. I looked it up. It was the Act of Supremacy of 1534 which gave the King the right to control the Church; taking it away from the Pope. So this erosion of prerogative powers has occurred progressively, but this is a very important one. I think if in your conclusion you said that maybe the case for this would point to a further examination of other prerogatives, that would be sensible. One last point, which people do not always understand, is that Parliament cannot discuss a bill touching on the prerogatives without the Royal Assent being given, because I have introduced many bills which did and I got a letter from Buckingham Palace always saying the Queen put her prerogatives at the disposal of the House for the purpose of discussing the bill. So that is one safeguard of the prerogative. Secondly, even though the Royal Assent is never refused, the Royal Assent would have to be given to my law which altered the prerogative powers. So however you look at it, whether you look at it constitutionally or whether you look at it historically, it seems to me it would be perfectly easy to do this. The simplest way to do it, although it would not meet all my requirements, would be for Parliament to pass a law saying that all the prerogative powers of war-making are transferred to the Prime Minister. That would leave the position exactly as it is, but the authority would come from Parliament, not from the Crown. I would not favour that, obviously, but I think you could say that if that were done all the practical problems of how it would work could be sorted out by Parliament amending its own legislation, if it wished so to do.

  Clare Short: I do not think that would solve the problem.

  Mr Benn: Parliament would decide it, that is the point.

  Q5  Chairman: Did you want to add anything?

  Mr Gerrard: It is obviously possible to legislate on a single aspect, the private Members' bills, and some which Clare introduced do that, but I do not think I would in any way see that as the end of the road. Even in discussing the War Powers Bill which we brought in, it immediately starts to raise other questions, for instance the question of treaties. What happens in relation to these powers if there is a treaty which demands that we commit to military force, let us say, in support of another country which has been attacked? So there are immediately relationships with some of these other powers where prerogatives are used. I suspect it will be inevitable that if progress was made on this single piece of legislation, on war powers, that would lead to further discussion of other uses of the prerogative. I think it would be practically impossible for that not to happen in due course.

  Clare Short: Could I make one small point? In many countries they have in their constitutional arrangements about war that no one declares war any more and war has transformed itself, these short military actions compared with the First World War and the Second World War, prolonged war. So I just want to leave in your minds that if we use the word "war" we would not catch any of the military activity which we have been concerned about over the last five years. You have to go for military action. War is transforming itself in front of our eyes and many countries have lost their constitutional control because no one declares war any more.

  Mr Benn: At Suez that was the issue, because I remember asking the Prime Minister a question, "Are we at war and what is the legal position of British soldiers captured by the Egyptians?" There was no answer, but it was, as Clare quite properly says, armed conflict which we launched.

  Q6  Chairman: I wonder if I could address the question you have raised, which is the variety and complexity of situations in which British Armed Services might be used, varying from acting under a UN Resolution as part of a collective force to acting under the NATO alliance, under a treaty obligation, responding pre-emptively to a possible danger (as in, perhaps, Sierra Leone) to the two varieties in Mr Benn's very interesting paper of responding to an attack defensively and going to war. One begins to think that the simple model of Neville Chamberlain saying, "This country is now at war with Germany," is one which hardly meets the complexity of situations in the modern world in which British Armed Services might be required to act in some theatre, pre-emptively, in aid of a civil power. One can envisage a whole range of possibilities. I would be interested to have a legal perspective on this from Lord Lester as to how we should think about that.

  Lord Lester of Herne Hill: The way I have tackled it, in my view, is very simple, so simple that I can sum it up in a couple of sentences. What I have suggested is that before Executive powers are exercised for the purpose of committing the United Kingdom to direct participation in any war, any international armed conflict or any international peace-keeping activities, the prior approval of Parliament for such participation must be given by a resolution of each House. That is the first thing. So it covers war, international armed conflict or international peace-keeping activities for the reason you have indicated, my Lord Chairman. Secondly, I was realistic enough to provide also a let-out clause for dealing with dire emergencies, indicating that it would not apply if the Prime Minister considered that exceptional considerations required immediate action to be taken, notified each House of Parliament of that fact and as soon as reasonably practicable provided each House with a statement of the reasons for taking the emergency view. That encompasses, I think, what is really needed in terms of the outbreak of hostilities or direct participation in any of those activities. It does not deal with the ongoing situation, which is another matter, but I think in terms of the trigger for direct intervention it should cover all those situations and I cannot see why it should make a ha'p'orth of difference whether it is done under the auspices of the United Nations, NATO, or any other international organisation or by the UK alone. In each case if there is direct participation by the Armed Forces of the United Kingdom, Parliament should be informed in advance, except in a dire emergency, and should authorise the action.

  Clare Short: In my Bill, and I think in Neil's draft, we used the Geneva Convention applicability and the library briefing goes into the detail of this, which therefore excludes UN peace-keeping. I personally think there is quite a strong argument for treating UN peace-keeping operations differently. I think there is a good case for bringing them before Parliament. I think hardly anyone in this Parliament understands what we did and did not do in Sierra Leone, for example, and I think it would be a good idea if people knew more about what we actually did. So if we had the same framework, that you should seek Parliament's permission but there is a right for emergency action when necessary and you bring the explanation in later, but that we were using a different definition, which was that it was military conflict, not war, and therefore it did not apply to UN peace-keeping. I just want to make the point that you need to look at the different options. This is very much a committee stage point, I think, but it is something which needs to be raised.

  Mr Benn: All the complexities which you mention, and I have listed them too, are ones which must go through any Prime Minister's mind when the question arises. Have we been attacked? That would settle it immediately, if somebody bombs you. Are we under threat? That was the Prime Minister's argument in 2003, that Saddam Hussein had weapons he could use in 45 minutes. What is the legal position? What is our international obligation? What are the likely consequences? So if these thoughts of the complexity, the different obligations and risks are in the Prime Minister's mind, then they must be capable of being clarified by a bill and put into statute. So I think you are absolutely right to say this is not as simple as war or not war. That has all changed. The rules of the game have changed, if I can coin a phrase, but actually you could address these in a way which fitted into an Act of Parliament which did give the Prime Minister of the day, or the Cabinet (I agree it should be collective) the right to respond immediately if we are attacked. You could not possibly avoid that. Then you would look at the other possibilities in the light of all the factors which Parliament thought should be taken into account.

  Q7  Chairman: I think this is an issue which concerns all democrats thinking about this issue, that there may be emergencies and that the primary duty of the state is to protect its citizens and how does the state, in the shape of the Government, respond to such emergencies?

  Clare Short: That is explicitly provided for in our Bills. Obviously any government must be able to act if it sees it as an emergency and then come to Parliament thereafter and explain why it was an emergency and why it acted.

  Chairman: I think that is well-heard.

  Q8  Lord Rowlands: How do the procedures in your Bill, Ms Short, handle this issue of "mission creep" where you could start out on a peace-keeping operation, Somali-style, and it turns horribly wrong and the whole situation changes and develops? How would the procedures which you are outlining in this Bill do that, given presumably that Parliament has authorised the initial deployment of Forces in that type of situation, but in fact the situation then changes dramatically on the ground?

  Clare Short: Could I just say that we have not had problems with "mission creep" in recent military actions. If you go back to Vietnam, then we most certainly did.

  Q9  Lord Rowlands: Somalia was "mission creep", was it?

  Clare Short: I do not think it was. It was meant to be a humanitarian action and we now know that Bin Laden was organising there. There was the shooting down of a helicopter, the dragging of the soldier around the streets, and they pulled out.

  Q10  Lord Rowlands: All right, there was a dramatic change in the context of the deployment.

  Clare Short: This led to Bin Laden was claiming that America was defeatable, by the way. I think the short answer is that when the Government brings to Parliament, either after an emergency deployment or beforehand, the outline of the reasons for the action and such details as it thinks appropriate of the geographical location, and so on, that is the framework and there would be the debate, and if you get into an enlarged war and go into other neighbouring countries or it becomes much more prolonged then you would have to come back to Parliament because the terms on which the approval had been given are being transformed by facts on the ground.

  Lord Lester of Herne Hill: It is the same point really, but it would all depend upon whether Parliament gave a blank cheque or wrote something in the cheque. If Parliament authorised the invasion of Iraq but not the invasion of Iran and it was decided to creep into Iran, to conduct a mission, that would be outside the authority given by Parliament. If Parliament was mad enough to say, "Do whatever you like in the Middle East," then it would be a more difficult problem, but I think the real answer is that having given the mandate it is up to Parliament then to monitor the mandate to make sure that it is not exceeded, and if it is to call Ministers to account because we are still a Parliamentary democracy.

  Q11  Lord Rowlands: While I can understand the principle you are enunciating, when I look at the practicalities of the Bill and in particular look at the nature of the report you are expecting to be delivered by the Prime Minister to Parliament, that he or she has to explain the geographic extent of the participation, the expected duration of that participation, the particular bodies of Her Majesty's Armed Forces participating or expected to participate, I think it is over-prescriptive and almost impossible at times for Prime Ministers to say at any one moment in time.

  Clare Short: I think if you read it—I am sorry, I have not got a copy of the Bill with me—it says "and such details as he sees fit on these questions."

  Q12  Lord Rowlands: Yes, but you specify?

  Clare Short: Yes, and then on those questions. So you read them out as though it did not have that qualification, "such details as he sees fit". Therefore, if the Prime Minister put before Parliament a requirement that we were going to go to war in the Middle East and Parliament was willing to approve that, then the prospects for "mission creep" would be enormous. But you know as well as I do, that if Parliament was concerned about a war it would be unlikely. The Government would be more specific in order to get the support of Parliament and then if it started to go beyond the specifics of some of the undertakings it had given in statements (because we always have lots of statements in the course of military action) then you would have to come back to Parliament for a new approval.

  Q13  Lord Rowlands: I think it is trying to create an inflexibility when you know that in many cases situations develop. You could be doing it in concert with other coalition partners, etc. I would have thought that endeavouring to put a Bill through with this type of over-prescriptive solution, as opposed to some of the substantive motions—and there have been substantive motions on war issues, Korea and indeed Iraq—

  Clare Short: After the event.

  Q14Lord Rowlands: Yes, okay, but if it was before, I would have thought a simpler motion would be to bring it to the House. "This is the reason why we want to deploy the Forces and for this particular purpose and in this authority," is a simpler version and easier to understand than this, I think, inflexible and very complicated way.

  Clare Short: I strongly disagree with you. It outlines what any decent government ought to say to any decent parliament about the kinds of reasons it is finding for military action but it leaves the discretion with the Prime Minister about how much detail to provide but, I think, considering giving detail on those questions.

  Mr Benn: Could I make a special point? I think the point you make is already dealt with, because what we are really talking about is the initiation of conflict, but as you know very well from your time as a Minister in the Foreign Office and on the Defence Select Committee, the House at any time can intervene once a war has begun. After all, the Suez war came to an end, did it not, as a result of Parliamentary and Cabinet action, and so on? The House can always refuse to vote the money, because that power still resides in the budget, and so on. So I am not so worried about that. I would not want, I agree with you, to prescribe it in such detail in the Act, but the House has responsibilities which it can exercise in many ways to control the Executive and at that stage the Prime Minister cannot shield behind the prerogative because he has to get his legislation and his budget through the House. So I think you are on a very, very good point, but it does not worry me because subsequent actions do not depend upon the prerogative, they depend upon a Parliamentary majority. Even a vote of confidence could bring the Government down if the war was so unpopular. In a way I know that is the ultimate weapon, but it is available to the House if it wishes to use it.

  Lord Lester of Herne Hill: I agree with Lord Rowlands that what matters is the principle of authorisation, but one should not be over-prescriptive about the detail. That is not a necessary part at all. Of course, Members of the Houses of Parliament can raise issues of that kind when authority is being sought, that is a different matter, but I think that the principle is the principle you find in other democracies with written constitutions dealing with war powers where they are not over-prescriptive, they simply state the principle that the legislature authorises serious military action in advance because of the need for accountability. That proposition, I do not think, is a wild left-wing, republican, Cromwellian or other proposition, it is just taking Parliamentary democracy seriously.

  Chairman: Thank you for that. I want to move on, but the issue which Lord Lester has just raised of what is the practice in other democracies is one which is of great interest to this Committee and we shall be taking evidence on it because clearly other countries do it differently, as you have just said.

  Q15  Viscount Bledisloe: Mr Benn drew a distinction between two extreme situations, one where we were being attacked and bombs were actually falling and the other where there is said to be a threat from a foreign power, as in the Iraq situation, which if it existed clearly was not imminent and going to happen tomorrow and indeed had been talked about for the last month, if not year. I think there is a very large interim gap where an attack is thought to be imminent, where in old-fashioned historical terms the enemy boats were collecting in the ports of France and it was thought desirable to have a pre-emptive strike rather than waiting for those boats to hit the coast of Dover before one did anything about them. I am thinking, for example, of Drake's action in Cadiz in "singeing" the King of Spain's beard. That action almost inevitably has got to be taken without discussion in Parliament because the King of Spain is hardly going to leave his beard hanging out when he has been warned by Parliament that people are coming to attack him. What do you do about that very large group of cases? If, as Lord Lester says, you take them to Parliament after you have your pre-emptive strike, the question for Parliament surely then is totally different, not "Was that attack justified," but, "Do we go on fighting now we have put our foot into the hornets' nest and stirred it up and probably the Spanish are, to put it rather mildly, rather cross and contemplating attacking us?" So is there not really an enormous gap which would allow any unscrupulous Prime Minister to take the pre-emptive action knowing that once he had taken it Parliament could not stop the fighting because it would not be purely a decision for our country?

  Mr Benn: You will know much better than myself, but I felt the question of pre-emptive action had been somewhat changed by our adherence to the Charter of the UN. My understanding of the Charter is that if a country is attacked it can defend itself. The only other circumstance under which it can take action is if the Security Council, including the five permanent members, conclude there is a threat to peace. We have slipped into the habit now of legitimising pre-emptive action because what the Prime Minister did in 2003 was pre-emptive, and indeed if you take the recent statement by President Bush he said he did not rule out military action against Iran because of the non-proliferation treaty. Once you slip into that, then you must ask yourself other questions in the light of what President Bush said about Iran. Would the President of Iran be entitled to say, "There is a potential threat from the United States. I am entitled to take pre-emptive action"? Then you go back to the law of the jungle. I know it is a very complex question, because clearly if intelligence told us that there were foreign ships in the Thames, as happened when the Dutch got in the Medway, clearly you would have to take action and the House would understand it, and the House would then have an opportunity very, very quickly of resolving on the matter. But to legitimise pre-emptive action and say, "This is so urgent it must be left in the hands of one person based on Crown powers," I think is unsatisfactory. If you want to give the Prime Minister the powers you suggest, you should put it in an Act of Parliament, and you could do.

  Clare Short: Could I add that we provided in the Bill that where the Prime Minister considered urgent action was necessary—and of course international law would apply, he is bound by that anyway—then he could act, and then he has to bring the account and explanation to Parliament. I agree with you that once the facts are on the ground, the troops are deployed, what Parliament is approving has changed, but nonetheless if it is outrageous Parliament would have the ability to say, "You will have to arrange a withdrawal. This is completely out of order." But in the nature of events, once the troops are on the ground the situation has changed and Parliament is considering a different proposition, you are right.

  Mr Gerrard: Yes. I think it would be an extremely dangerous position for a Prime Minister to put himself in, to take that sort of action if he had no real hope of getting support in Parliament for it. I think Prime Ministers would think twice about putting themselves in that position.

  Q16  Chairman: How can we deal with the problem of nuclear deterrents? Mostly with the end of the Cold War this is not the only or indeed the prime factor of British defence theory, but there still is the reality of a nuclear system based on a response in minutes, and indeed the whole theory depends on that. How do we deal with that?

  Clare Short: Our weapons now are not targeted and we would never use them unless America authorised it, but it would be an act of war. So international law would apply, as with any initial act of war, as to whether you were entitled to take that action. If you remember Cuba, the American military were advising President Kennedy to use military force. So you can have an emergency in nuclear action or you could have one with a big build-up. It is a very dramatic example of the same question.

  Lord Lester of Herne Hill: Could I say in answer to Viscount Bledisloe, no sensible person would think that the kind of machinery I have suggested is going to fetter the exercise of war-making powers, or should do, or prerogative powers in a way which would undermine the ability of this country to defend itself, obviously not. All that we are really doing, and I think it is extremely modest when you think about it, is to say that if it is not an emergency pre-emptive situation of the kind which Viscount Bledisloe was indicating then Parliament should give the authority, and if it is then not possible at least there should be a report back to Parliament speedily to explain why Parliamentary authority was not sought and that will trigger debates in both Houses. That is all it will do, but the fact that it is resisted so passionately by the Government shows how much they care about keeping the essentially prerogative powers of their own, monarchical powers clothed in presidential or prime ministerial powers, without proper Parliamentary scrutiny. May I just give one example of what I find completely unsatisfactory, which is again a subset of this? I have been trying for about four years to get the answer to a simple question as a parliamentarian: what was the first date upon which the Government sought legal advice about the legality of invading Iraq? I have been to the Parliamentary Commissioner for administration, who upheld my complaint. The Government refused to comply. I have gone to the Information Commissioner, or rather I am still trying to get there, but you have to go through extraordinary procedures, and four years later I still do not know the answer to that question. I am not asking what was the advice but simply what was the first date? Why do I ask the question? Because it is important to know when the Government first thought of the idea that they might have to invade Iraq. That seems to me to be the question; not the content of the legal advice necessarily, but the question about when it happened, which in a Parliamentary democracy we should be able to ascertain, but we cannot, or at least we cannot unless the Information Commissioner and the Information Tribunal eventually (and if I live long enough) uphold my complaint. It is ludicrous.

  Clare Short: That is not a prerogative problem.

  Lord Lester of Herne Hill: It is a prerogative problem if the prerogative power of the Crown is to say, "We won't tell you the answers to those kinds of questions at all." Anything to do with either the legal advice or the war-making power is something the answer to which is, in the words of Ring Lardner "Shut up," he explained.

  Mr Benn: Yes, but that is not a prerogative power. That is because Parliament has not passed a legislation which would entitle you to ask that question. Parliament could. It has got the Official Information Bill, and so on.

  Lord Lester of Herne Hill: It could, yes.

  Mr Benn: It could do it, so that is not a prerogative point. I agree with you 100 per cent, but it is a point which Parliament could deal with without raising the question of the prerogative.

  Chairman: I am afraid I have got one or two people trying to get in. In the course of your last answer, Lord Lester, you raised the issue of both Houses and I would like to bring Lord Carter in on that point.

  Q17  Lord Carter: We have used the term "Parliament" today and of course Members of the House of Commons do tend to say "Parliament" when they actually mean the House of Commons. If there were some form of Parliamentary approval required, would that be from both Houses? For example, I think in the Bill which Lord Lester quoted each House would have to be involved. Supposing they disagreed? Supposing one voted one way and the other voted the other way? If indeed there was a Prime Minister who was unwise enough to make it a motion of confidence, how would it then work? How would you see the role of the House of Lords in this situation?

  Clare Short: In the Bill, I think, as in Lord Lester's, we provided for both Houses. It became an issue during the debate when my Bill was before the Commons and the case was strongly made that the two Houses could disagree and that the Lords did not have any democratic legitimacy, even though it performs to a better role of holding the Executive to account than the Commons, which is a nice interesting contradiction, if I may make that aside. I was persuaded during that debate that until the Lords is reformed the case for it just being the Commons was overwhelming, but when we decide what electoral arrangements we are going to have for the Lords then it has got the legitimacy of being elected and we have to think about how you avoid the possibility of one House saying yes and the other saying no. That is my short answer.

  Q18  Lord Carter: How would you do it if in fact we were elected, or partially elected?

  Clare Short: Well, you could even sit together, could you not, just as an example? But at the moment I think it is reasonable to say it should just be the Commons.

  Mr Benn: Leaving aside the question of democratic legitimacy, which is very controversial, there is an aspect of this which to the best of our knowledge nobody has taken on board. When the Parliament Act was passed provision was made for the Lords to be overturned by the Commons, but if the Lords say no to an affirmative resolution there is no provision in statute to allow the Commons to put it right. So circumstances could arise where the Commons had a majority for the war, the Lords vetoed it and the Prime Minister with a Parliamentary majority in the Commons could not pursue that policy. That, I think, is a constitutional obstacle which for me would settle the matter, but I also obviously have views on the legitimacy of a body which is not elected and therefore, in a sense, cannot speak for the people who might be involved in the war. That is a more controversial question and, I think, a constitutional one. You would have to change the law about the efficacy of affirmative resolutions allowing the Lords to veto the Commons when the Commons had a majority.

  Q19  Chairman: Lord Lester, do you want to say something?

  Lord Lester of Herne Hill: Yes, I would like to, as I think I am the only person representing the elitist, aristocratic, unrepresentative upper House! We are in a very strange position, are we not, because we say that Acts of Parliament can only come into force when they are approved by both Houses and the Sovereign? We say that subordinate legislation requiring affirmative resolution procedure requires the affirmative vote of both Houses. We have joint committees. For example, when I served on Human Rights, it is a Joint Committee which decides and advises both Houses whether a measure is or is not compatible with our international treaty obligations on human rights. Yet when it comes to war, my colleagues from the Commons, or colleagues formerly from the Commons, are saying, "No, in that case it should be the Commons alone which should decide." But why? The other decisions we are taking, passing primary and subordinate legislation and other grave and weighty matters, require the involvement of both Houses. The real trouble is that we still have an upper House which lacks the kind of legitimacy which those in the Commons in particular would not like it to have. It is a structural problem about the Constitution, but in principle I see no reason whatever why the Lords should not have the same power to withhold consent that they have on legislation.


 
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