Select Committee on The Constitution
INQUIRY INTO THE CONSTITUTIONAL ARRANGEMENTS FOR THE USE OF ARMED FORCE
Oral evidence
Contents Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17) ...... 2 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) ...... 18 Jack Straw MP – Oral Evidence (QQ34-43) ...... 35 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) ...... 45 Nigel Inkster and Michael Clarke – Oral Evidence (QQ 1-17) ...... 60 General Sir Mike Jackson, Field Marshal the Lord Guthrie of Craigiebank and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) ...... 61 Rt Hon Andrew Robathan MP, Alistair Burt MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) ...... 62 Air Chief Marshal the Lord Stirrup, Field Marshal the Lord Guthrie of Craigiebank and General Sir Mike Jackson – Oral Evidence (QQ 18-33) ...... 63 Rt Hon Lord Wallace of Saltaire, Alistair Burt MP and Rt Hon Andrew Robathan MP – Oral Evidence (QQ 44-58) ...... 64
Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17)
Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17)
Evidence Session No.1 Heard in Public Questions 1 - 17
WEDNESDAY 22 MAY 2013
Members present
Baroness Jay of Paddington (Chairman) Lord Crickhowell Lord Hart of Chilton Lord Irvine of Lairg Lord Lang of Monkton Lord Lexden Lord Powell of Bayswater Baroness Wheatcroft ______
Witnesses
Professor Michael Clarke, Director-General, Royal United Services Institute, and Nigel Inkster, Director of Transnational Threats and Political Risk, International Institute for Strategic Studies.
Q1 The Chairman: Good morning, and thank you both very much for attending. We are delighted to see you. We have about an hour for this session, but that is reasonably flexible. This is the first evidence session of this new inquiry. We are following a significant and wide- ranging inquiry that the Constitution Committee in 2006–07 undertook, which was called “Waging War: Parliament’s Role and Responsibility”. What we are hoping to do in the course of a shorter inquiry—but we hope well focused and sufficiently interesting to be worth doing—is to update and revise some of the points which were made in that report, and in the discussion which has gone on since. There is slightly a new focus, and we hope this morning that you will be able to clear some of the ground for us, and provide some guide-posts to our subsequent evidence sessions. We have identified three broad areas that we think are useful to update and reflect on since the previous report. The first is Parliament’s role; you will be aware that this continues to be a matter of discussion and debate in Parliament and, we understand, within the Government. There have been indications recently, both from William Hague in answering questions in the Commons and from the Deputy Prime Minister, Mr Clegg, in the evidence session we had with him just after Christmas, that this remains a live issue within the Government— that there is continuing debate about what form Parliament’s role in any declaration of
2 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17) hostilities should be, and what the nature of that would be in terms of potential military and operational concerns. The second area which we would like to look at is the question of executive powers. We are particularly interested in the establishment of the National Security Council, a new phenomenon since the last report. We have not been able to identify a great deal of written material to inform us about it, so we are looking to you to give us some indication of how it is operating and what you see as its potential role. The third area is the question of the different types of intervention which have occurred in the last few years: the Libyan no-fly zone, et cetera. Those of us who are not experts in this field—and I certainly would put myself in that category—can understand the concept of having to look for different sorts of authorisation for boots on the ground, but what about planes in the air? We also have the new techniques involved in cyberintervention, drones and so forth. Indeed, I have been fascinated by the change of language, so that some of the briefing now talks about military assets, which seems to be a considerably broader concept than the earlier ones used in this debate. We have heard an even further refinement of that in discussion of Syria, with the question of non-lethal military assets. These are areas that we would like to explore with you, if we may, and I know that you have had a chance to look at some of the previous briefing that we have done. Could I start with an extremely broad question? What factors do you think the Government are taking into account in framing any proposals that they may have for Parliament to be involved in any authorisation of military intervention? Do either of the two informal suggestions that have been made in the last few years indicate that it would be necessary to have legislation, and how would that create difficulties, both in relation to the judicial system and operational matters? They are very general questions, but I think it is a good start for us. Professor Clarke, would you like to begin? Michael Clarke: I am Professor Michael Clarke. I am the director-general of the Royal United Services Institute, which is a military and security think tank in Whitehall. The Ministry of Defence and the executive arm of the Government are aware that legitimacy is a more complex problem for military operations now—not in the sense that it was in 1991 or in 2003, but because of the things that you mentioned in your introduction and because of the nature of remotely piloted vehicles and what they can do, the problems of cyberwarfare, and the degree to which military technologies reach back into civilian technologies and into the domestic economy. There is an awareness that legitimacy cannot be taken for granted in future military operations because of the nature of the military. There is an anxiety in the Ministry of Defence that the evolving nature of international law, and possibly domestic law, is starting to impinge on the operational scope that the military can involve itself in. It is regarded as potentially detrimental to morale, of both troops and commanders, if they feel that they are going to be held to very strict legal definitions of what they can and cannot do in the heat of operational circumstances. I suspect that is overdrawn as an anxiety, but it is an anxiety that I detect throughout the MoD and the armed forces.
Q2 The Chairman: Does that reduce the political enthusiasm which we have had indications still exists within government to formalise this process in parliamentary terms? Michael Clarke: I suspect it makes the politicians very cautious, because the military, when it thinks about it, is very worried by those trends. It acknowledges that there is an issue to be addressed but it resiles from the idea that there is a legislative solution to it.
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Nigel Inkster: I am Nigel Inkster, the director of transnational threats and political risk at the International Institute for Strategic Studies, which is another London-based defence and security think tank. I do not disagree with anything Professor Clarke has just said. The key concerns for armies and militaries fighting modern warfare are these issues of legality, legitimacy and, I would add, popular consent. The issue of popular consent is coming under some questioning, as a result of what I would characterise as progressive disenchantment on the part of large sections of the British public with some of the interventions that British armed forces have been engaged in in recent years.
The Chairman: Does that, in a sense, override the necessity to, for example, conform with changes in international law? Where does the balance lie? Nigel Inkster: It is very difficult, because international law is still relatively young in terms of its evolution. In some key areas, it has gone beyond codification of behaviours that states were going to engage in anyway, in particular with the inauguration of the International Criminal Court and the convention on torture. These things condition and affect the conduct of military operations overseas to an unprecedented degree. It is complicated. I think this is one of these areas where what is decided here in the United Kingdom by a sovereign Parliament is not the end of the story, because of these developments in international law and the way that that is being progressively reinterpreted, setting the barriers ever higher.
The Chairman: So if I were to ask both of you, slightly unfairly, to say whether or not you thought there would be any open move towards formalising parliamentary involvement, by this Government or the next, what would your assessment be? Yes or no? Michael Clarke: My assessment is that it is very unlikely. If there is some sort of statutory provision or, as was recommended by the Select Committee on the Constitution in 2006, a parliamentary convention, that will not be for this Parliament, certainly, and maybe not for the next one or two. It is an issue that is on the agenda but it is not top of the agenda.
The Chairman: Mr Inkster, would you agree with that? Nigel Inkster: I think I would, yes.
Q3 Lord Powell of Bayswater: Since this is the first meeting of this inquiry, I should draw attention to my interests in the Register of Lords’ Interests, particularly my interests in the defence sector. Thank you for those very interesting first answers. I think what you are saying is that politicians have rather raced ahead in promising legislation, or a greater role for Parliament in giving prior approval, and are now sucking their teeth and wondering whether that was quite so wise after all and whether, perhaps, they had better go a bit more slowly. We have had promises of proposals and draft proposals for two, three or more years now and nothing has materialised. Is that your assessment? Is there a need now to reflect on the issues we are going to look at in this inquiry? Michael Clarke: That is my assessment, yes. Lord Powell of Bayswater: It seems to me that one of the problems, which is not just related to the new weapons systems and elements such as cyberwarfare that the chairman mentioned, is how, these days, you define hostilities and the situations in which soldiers and weapons are deployed. We hear of the doctrine of “liberal interventionism” and the “responsibility to protect”. There is quite an interesting piece in one of the newspapers this morning, saying that the Defence Secretary suggested yesterday that, “British troops will be
4 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17) deployed pre-emptively and in far smaller numbers to protect countries on the verge of collapse”. That is not a declaration of war, exactly, since there is obviously no war—you are going there to try to pre-empt it. Is there any way you could possibly devise a rule which would apply to the huge variety of situations which now exist? Michael Clarke: The Defence Secretary was talking about upstream and defence engagement. The notion is that after the drawdown in Afghanistan we would use our forces more proactively for upstream engagement in conflict resolution and conflict prevention. It is a neat trick if you can do it, so good luck with that. It is a worthwhile attempt but it emphasises the point, as I think you said, that having parliamentary approval over the deployment of UK forces is extremely problematic, given that forces have been deployed more than 60 times since 1990 and they are at 30 different locations—more than 30, usually—around the globe at any given moment. It is extremely difficult. However, when we think about definitions, the difference between warfare of the old style and, say, cyberwarfare is that one crosses a certain threshold of death and destruction. The creation of destruction and the idea that troops are, ultimately, trained to break things and kill people—that is their ultimate rationale, and they do it legitimately—represents a threshold which it may be possible to grasp, even if deployment is very difficult.
Lord Powell of Bayswater: Would you really then leave it to the common sense of ministers to define the particular situations where it would be appropriate to get prior approval of Parliament, and those in which maybe just keeping Parliament informed of deployments is quite adequate, so you avoid a rule? Michael Clarke: Personally, I would. It is not only the common sense of ministers; it is also the common sense of Parliament that if British forces are involved in death and destruction around the world, even in trying to prevent it directly happening, then it would be odd if Parliament was not extremely interested in that and very foolish of ministers not to take notice of that.
Q4 Baroness Wheatcroft: How would you divide up the different sorts of deployment that we now see our troops involved in? There is peacekeeping, there is now pre-emptive action. How would you define the various categories? Nigel Inkster: It can be quite difficult. Let us not forget, for example, that in Operation Herrick the deployment of a battle group into Helmand was supposed to happen without a shot being fired; look where that got us. It is also important to bear in mind that, increasingly, we are seeing British armed forces deployed overseas in multi-agency modalities, together with quite a lot of civilian agencies and with forward deployment of the intelligence community, GCHQ and SIS. We are increasingly seeing these deployments taking place in circumstances which are, let us say, less clear cut, reflecting the reality that concepts of national defence have gone well beyond purely being limited to a military dimension. So it becomes more difficult. If one was looking to establish a rough working threshold, it might be where troops were going to be deployed overseas with the clear intention of engaging in conventional military combat operations. That might be a rough and ready break point that could be utilised. British forces deployed overseas can be anything from a battle group to a single special forces non-commissioned officer engaging in various forms of training and capacity building.
Baroness Wheatcroft: What starts out as a mission of one sort may well develop into something else, as you pointed out.
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Michael Clarke: Your question encourages me to think of a fourfold distinction, though one drifts into another. At the top of the range, let us call it “diplomatic”—the use of the armed forces for broadly diplomatic purposes—as Nigel says, employed with all of the different arms of the Government. That drifts into peace support operations, which again should involve all arms of government. Peace support operations may become muscular, as we used to say in the 1990s, as they did in Bosnia. But there is a qualitative difference between a peace support operation and deploying troops explicitly into an armed conflict. That would cover what was involved in Libya, say, and what could be involved in Syria if we go further down that road. Then there is a difference with war, where we say, as in the Falklands, “We are going to war”—well, we did not use the term “war”, but that was effectively what we were doing—“we are actually deploying troops to take on full spectrum operations to the best of our abilities”. All of those four levels drift into each other, but there is something distinctive about each of them which may help in trying to determine definitions.
Q5 Lord Crickhowell: I was struck, Professor Clarke, by your statement that “legitimacy cannot be taken for granted”. You went on to talk about developing international law and so on, but I suspect you were thinking rather beyond simple developments in international law when you made that comment. Would you like to elaborate a little further on “legitimacy cannot be taken for granted”? Michael Clarke: The armed forces have always had a number of virtues. One is an ability to create a top-down commander’s intent and to have a bottom-up way of achieving it. The commander tells the boys and girls what they want and the local commanders, right down to NCOs, deliver what they understand the commander wants. That is a real virtue but it is based on, essentially, a no-blame culture—if soldiers, NCOs and local commanders, with the best will in the world, try to implement the commander’s intent, they will not be blamed for taking honest decisions which may turn out to be wrong. That no-blame culture, the military feel, is now under severe threat, because coroners in the UK will say that somebody was to blame for the death of these young boys—for the death of a son or husband—or that the body armour was not in the right place. We have coroners making tactical judgments about the case on the battlefield. The MoD and the armed forces find that very difficult and worry that this no-blame culture—that they will support their soldiers who are performing, to the best of their ability, within the framework of UK domestic law, the job that they have to do—will nevertheless be exposed to, as it were, judicial inquiry later on.
Lord Hart of Chilton: So what is the answer to that? Michael Clarke: I do not know that there is one. It is in the nature of our society that the public have been more sceptical over the past decade and a half about the use of our forces and are less convinced by commanders saying, “We did all we could”. I guess it also relates to the degree of media oversight. When we look at British operations in Kenya or in Malaya, which were militarily successful, we all know that things were done in those operations that could never possibly be done these days.
Lord Hart of Chilton: Where does that eventually lead to? The refusal to go? Michael Clarke: It is very difficult for soldiers to refuse on any constitutional grounds to be deployed. If they are told that they are being deployed legitimately, they do not have a right in domestic law, or even in European human rights law, to say, “My human rights are being violated by being forced to deploy”. If they are being deployed legitimately—and they must always be deployed legitimately—they cannot argue that. The danger is not so much in a legal challenge as in soldiers refusing to do their best in the circumstances. If they are
6 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17) worrying about whether they should take a decision, and are having to try to second-guess what the decision will look like in a year’s time at a coroner’s court in Oxford, then they may be less effective. That is what bothers them.
Lord Powell of Bayswater: Are you saying, in effect, that soldiers would be a lot more confident and happier if there was firm, prior approval by Parliament of virtually any military operation? Michael Clarke: It could certainly work that way. The jury is out within the MoD as to whether it would be a good or bad thing in terms of legitimacy. You can argue it either way. If there was a parliamentary debate which was very controversial, soldiers could feel less supported; but equally, a parliamentary debate, as in 2003, could produce a majority that gave the soldiers a sense that what they were doing was fully backed, or sufficiently backed, by Parliament. It could work either way. Lord Powell of Bayswater: Would that outweigh the operational difficulties which could arise in some situations through having a prior debate and having to reveal intelligence or intentions in a way that would be damaging to the armed forces? Michael Clarke: I think what the armed forces really worry about is not so much the overall legal case, because they rely on the chiefs of staff and government officers to provide that, but about second-guessing of their actions in the heat of an operation.
Q6 Lord Lang of Monkton: We are struggling to find definitional stability in a morass on a very slippery cliff face, if that is not a horrible mix of metaphors. I wonder whether you could think of any way in which the sliding range of problems that can lead to military commitment can be defined into distinctive packages, to which different reactions, politically or governmentally, would be appropriate. Professor Clarke mentioned diplomacy and talked about peace support operations slipping into armed conflict. Is security another base on which something could be founded? Is there a specific definition of defence on which something could be founded? I think the underlying question that I am asking is about whether we should go back to first principles: when is a war not a war? Nigel Inkster: I am sure it will not come as a surprise to anybody to learn that declarations of war have rather gone out of fashion. Indeed, inter-state warfare has rather gone out of fashion, although it may be about to make a comeback in certain parts of the world, primarily east Asia. Rupert Smith’s observation that war no longer exists is not a bad characterisation of where we are at the moment, in the sense that what we see are lots of different levels of conflict and contestation going on. Even civil wars have slightly gone out of fashion latterly. However, we are seeing a lot of internal, intra-state disputes and also, as characterised by UNDP a couple of years ago, countries that exist in a state that is neither war nor peace, where it is very difficult to ascribe clear motivations to particular actors. This is the kind of world, increasingly, into which British armed forces find themselves being deployed with a wide and growing range of remits and responsibilities. Michael Clarke: There may be an alternative approach, which is saying that we are not so interested in when the armed forces are deployed as in when there is some sort of international resolution under which our forces do something. That would rule out the use of diplomacy and all the normal deployments that our forces go through for perfectly sensible reasons. There is one exception, which I will come to, but almost all of our deployments into armed conflict or peace support operations are governed under some sort of international resolution. Those can flow from the United Nations, as they have, or from NATO or the EU, or from the African Union or the Arab League, which have all created
7 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17) resolutions under which armed forces have been deployed. Sometimes it is a combination of those things. One alternative way of approaching it would be that, whenever British forces are deployed as part of an international resolution, that resolution has somehow to be debated and understood by Parliament. These resolutions are never arrived at overnight, although the Libya resolution in the UN in March 2011 was agreed between a Tuesday and a Friday, which was very quick. Usually these things are some time in gestation, so there would be some time for Parliament to consider the implications of those resolutions.
Q7 Lord Lang of Monkton: You mentioned Libya. The Libya situation was clear cut to the extent that we were not putting any troops on the ground. It was about creating a no-fly zone, which gave it clarity, presumably, from the military’s point of view, which was highly desirable. Should it then have been put to Parliament in some formal way? Michael Clarke: My point is that Britain and France produced strongly worded resolutions on Libya, which they put to the UN Security Council on I think 11 or 12 March, with the Americans being ambiguous and the Arab League not having declared itself. Then, suddenly, the Americans and the Arab League were behind it and Britain and France somewhat felt the discomfort of leading. They suddenly had a strongly worded resolution, which they did not really expect to get through. But there it was, on the Friday or Saturday, and the French started bombing Gaddafi’s forces outside Benghazi before they told anyone else. We found ourselves, as it were, rushing into an operation. That was as quick as I can imagine these things would be. The Bosnia resolutions were a long time in gestation. Lord Lang of Monkton: Do you think that international process precluded the need for parliamentary approval in the United Kingdom? Michael Clarke: I would not say that it necessarily precludes it. It would be a framework under which Parliament could consider those resolutions and consider their implications.
Lord Lang of Monkton: With Syria, we are slipping into a much more incoherent and hard-to-define situation. At what stage do you think Parliament should be involved? Michael Clarke: If British forces were to be deployed in Syria in the next few months, it would be foolish of the Government not to have strong parliamentary backing for that. I think it is very unlikely, but if that were the case, I think it would be very foolish. But we would only deploy in Syria if there were some fairly significant international resolution to do so, which would have to come from the UN or some combination of NATO, the EU and the Arab League.
Lord Lang of Monkton: So you think no parliamentary approval is needed until there are boots on the ground with a United Nations resolution? Michael Clarke: Personally, I would say that if parliamentary approval is regarded as required, that should not only be for boots on the ground. Deployment of naval and air forces is potentially as significant a military move as boots on the ground.
Lord Lang of Monkton: So back to your death and destruction definition? Michael Clarke: Yes. Nigel Inkster: At the moment, it is pretty clear that what is happening is the provision of what the chairman referred to as non-lethal assistance to various actors in the Syrian imbroglio—body armour and various forms of armoured vehicles. It seems to me that
8 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17) something like that would not meet any kind of worthwhile threshold in terms of what we are talking about.
Q8 The Chairman: May we turn to the question of executive authority within the UK government and the changes there?
Lord Powell of Bayswater: It would be interesting to have your views on what the situation is within government as regards responsibility for taking these decisions. As far as we can make out, responsibility technically lies with the Defence Council, a body which is probably not widely known outside RUSI and a few other people. It has the legal authority, while one supposes the Prime Minister has the political authority. Now we have a National Security Council—is that going to assume, perhaps, the role of the Defence Council in decisions to deploy force? Nigel Inkster: I think the former Permanent Under Secretary of the Ministry of Defence, Sir Frank Cooper, described the whole business of the defence of the realm as a shotgun marriage between the royal prerogative and parliamentary control through legislation. We have a situation which is not perhaps that clear cut. I defer to Professor Clarke’s probably superior knowledge on this, but it does not seem to me that the Defence Council per se has a role in determining whether the nation deploys its armed forces overseas or goes to war. The Defence Council is a necessary mechanism, which has managerial and quasi-legal roles. It is probably best thought of as the board of the nation’s defence capabilities. It is there to look at things like capabilities and processes. It is, to all intents and purposes, a court of appeal in areas of dispute. I do not think it has a role in terms of deciding whether the nation gets involved in military operations or conflict. It seems to me that that is ultimately determined by the Prime Minister, under the royal prerogative, unless I have got that horribly wrong. The National Security Council is a new body, which, in many ways, discharges the functions that used to be those of the Overseas and Defence Policy Cabinet Committee. It has assumed some quite significant characteristics and roles in determining issues of national security. It brings together and enables a cross-departmental approach to security and defence issues. It has some other useful characteristics: it establishes a clear liturgical process, if you like, whereby people meet every week, decisions are made, responsibilities are allocated and, critically, decisions are made about where funding will come from, which is not something that in the past has always been made terribly clear in these situations. It also means that, for example, ministers have to read intelligence reports, which is something they also did not always do, because their failure to do so would expose them. I suppose the National Security Council has become the primary forum in which these major decisions are discussed and debated and collective decisions can be arrived at. In that sense, it adds a significant element of process and clarity to debates which, in the past, often lacked both these attributes.
Q9 Lord Powell of Bayswater: That sounds perfectly reasonable, but as far as I know none of this is written down anywhere and there is no real definition of who has the responsibility within government for taking these decisions and how it is divided between the Prime Minister, the Defence Council and National Security Council. Do you think that at the very least the Cabinet Manual ought to be updated with a clear description of responsibilities? It seems a bit curious that we do not have greater clarity as regards some of the most important decisions that a government have to take.
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Michael Clarke: Yes. The National Security Council has begun something of an innovation in the structure; it has not gone very far yet, but then it is a relatively new organisation. It does not make any difference to the constitutional basis. The Defence Council, through the Chief of Defence Staff, has the responsibility to give military advice to ministers. Ministers do not have to take it, as they have not in one or two recent cases. The Chief of the Defence Staff has to ensure, and be assured, that military action is legal. He must have a constitutional responsibility for the legality of what he is asking the armed forces to do. Then the decision is taken by the Prime Minister, using the royal prerogative. The National Security Council is a bureaucratic animal. It is there to create better co- ordination, and it has done so within the different branches of Government. It has also increased the representation of the intelligence agencies at national level because they sit there as independent agencies. If anything, the NSC has decreased the influence of the military a little in broader security policy-making. That is a very interesting evolution, and probably a good one. The NSC is there to give the Prime Minister the best inputs that he can have when he makes his decisions. That is the way it works. There is no other constitutional role for the NSC. It is not a policy-making body as such; it is a body that helps the Prime Minister make his policy. However, the way in which it does that, which is evolving interestingly—the committee of officials that now meets parallel to it is a very interesting body—should be recognised more explicitly. Then we could see where it has gone in the past three years and where we might like to take it in the next five.
Lord Powell of Bayswater: But in crisis situations previous prime ministers have tended to assemble ad hoc war cabinets. Would that automatically trump the National Security Council in any future situation, or would it act as a war cabinet itself? Michael Clarke: I think it does act as a war cabinet. It met many times on the issue of Libya. One of the problems is that the NSC is overtaken by the issue of the day, so it apparently spends five minutes or so on some of the big issues and the rest of the time on Syria or Libya, because it is so immediate. If there were a more severe crisis of the 1982 variety, I have no doubt that a Prime Minister would use the NSC and then draw from it in a cabinet—which after all, in those more extreme situations, is probably the only sensible way to make decisions.
Q10 Lord Crickhowell: I have been comforted by learning that the Defence Council gives military advice, and the National Security Council is a policy-debating forum and so on. But until those final sentences I was slightly puzzled by this view that the Prime Minister then has a sole role, under the royal prerogative, or even that the whole matter—whether we actually get into a conflict—is going to be decided by the war cabinet. That is the sort of second stage. I am old enough to have been a member of the Cabinet at the time of the Falklands. What happened was that the Prime Minister, having received advice from her military advisers, took the issue to the full Cabinet and asked every member of the Cabinet. Only then was a war cabinet created.
I was worried, up to the last remark, that the Cabinet seemed to be disappearing entirely from the government system. I hold the view that Cabinet government is still rather important in this country. I hope that, at the end of this process of advice and consultation and so on, the Prime Minister takes a decision on a really major involvement like the Falklands—certainly if we were to go in with armed forces, God forbid, into Syria—by taking the matter to Cabinet. Have I summed the thing up right now?
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Michael Clarke: I apologise if I skipped that part of the process. A Prime Minister with a war cabinet must have that, as it were, acceptable to the Cabinet as a whole. It would be a very foolish Prime Minister who kept those sort of decisions away from the full Cabinet, even though, on a day-to-day basis, a war cabinet generally meets in almost continuous session.
Lord Powell of Bayswater: But it surely applies only to major situations. Supposing the present Government, to take an example, decided to try to infiltrate a platoon of SAS into Syria, that would certainly not go to a full Cabinet, on security grounds if no other.
Lord Lexden: Do you think we have now got, as far as governmental process is concerned, the institutional arrangements that we need? Do you see a case for anything further following the National Security Council? Is any further change required to make the internal processes as effective as possible, or have we got them now? Michael Clarke: I am not sure about the parliamentary side of it but, at the executive level, my view is that all of the machinery exists. I cannot think of any other machinery you would create. The questions are “Does the machinery work properly?” and “In what way will it evolve?”, but yes, I do not think there is a lack of a piece of machinery. The issue is between the executive and the legislature.
Q11 Baroness Wheatcroft: I wonder whether you could elaborate a little bit. You talked about the war cabinet. Can you say something about the legal advice that should be available to those who take the decisions to go to war? Michael Clarke: I defer to Nigel Inkster on this, but there has to be clear legal advice, and the Government have to be able to assure the Chief of Defence Staff that involvement in any operation is legal. Without that, soldiers will be operating without the cover of UK domestic law, and that would mean that they would be in a very vulnerable position legally, but also they would be subject to international law and even to the International Criminal Court. In theory, the ICC cannot bring an individual in front of it unless there is some dereliction in domestic law. Were troops to be deployed without a clear and unambiguous assurance from the Government that what is proposed is legal, troops might find themselves in that position.
Baroness Wheatcroft: And that advice would have to come from the Government, so law officers? Michael Clarke: Yes. Independent advice may well be sought, but my understanding—there are others here who would know better than me—is that the Attorney-General must give advice to the Government that the Government then interprets.
Q12 Lord Lang of Monkton: You referred earlier to the need for popular consent as a growing problem. Do you think, therefore, that legal advice should, exceptionally, on matters of war, be made public? Michael Clarke: I think there is a case for that. I think it will vary from case to case because certain operations may involve intelligence material that is known to the Attorney General and to the law officers which could not be produced. You could think of many examples where the legal advice would be very sensitive. In most cases, there would be an advantage in, if not publishing the advice, at least making clear on what basis the advice was given. I think it would be difficult to say that all legal advice to the Government should be published, because that is a difficult principle—
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Lord Lang of Monkton: I am not suggesting that. Michael Clarke: But the basis upon which the legal opinion was arrived at should be made public. That, in most cases, would be beneficial to public debate.
Lord Lang of Monkton: Would you agree that there should be a presumption in favour of publication subject to redactions on security grounds? Michael Clarke: I would favour that, yes.
The Chairman: If we could go back to this famous word “transparency”, which is what Lord Lexden and Lord Powell were pursuing earlier, can I establish whether you think it would be useful, given that you agreed with Lord Lexden that the institutional framework is in place now, if there was greater clarity and transparency about, for example, the National Security Council? I think it was mentioned earlier that its responsibilities could be specified in the Cabinet Manual. It seems to be somewhat obscure. Michael Clarke: I think there is a difference between clarity and transparency. There is a need for clarity within Whitehall as to how it will work, because it has been evolving. Transparency, I suspect, will be a different issue because one can only go so far before you run up against—
The Chairman: I am not suggesting that they publish their minutes, for example, but that its existence, membership and regularity of meeting, et cetera, should be freely available. Michael Clarke: Yes. Those facts are not unknown. They are in the public domain. We know it meets once a week. The Prime Minister almost always chairs it. I cannot quite find out who chairs it when he is not there; I keep asking and nobody will tell me whether it is the Deputy Prime Minister. It is powerful, and we know who is on it. We do not know as much about what the officials do in their sub-meeting, and that is as it should be. Most of the material relating to it is in the public domain, but it certainly could be published more freely so that the public understands that there is this mechanism which is not the Prime Minister sitting in Downing Street thinking his or her own thoughts.
The Chairman: We can agree on publishing more freely, I think. Nigel Inkster: About 18 months ago Sir Peter Ricketts, who was the first secretary of the National Security Council and the first National Security Adviser, came to my institute and gave an on-the-record talk about the work of the National Security Council. That is available and I can happily direct your clerk to it. It will not answer all your questions, but it might help with some of them.
The Chairman: That would be very helpful, because at the moment all we have is the on- the-record contribution that Sir Peter made at a Chatham House seminar in 2010, when he had been appointed some months before. Thank you. May we turn now to our third area to update the previous report, which is the question of the techniques of warfare or military intervention, or non-lethal intervention or whatever broad spectrum we are covering.
Q13 Lord Lexden: It would be useful to have your assessment of the changing techniques of warfare, with particular reference to two matters that loom so large: the use of unmanned craft—drones—and an area of rapidly growing importance, cyberstrategy.
12 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17)
Nigel Inkster: One of the areas of armed conflict that has changed most in recent years is what is referred to technically as ISTAR: intelligence, surveillance, target acquisition and reconnaissance. If we look back to, say, the Falklands war, ISTAR amounted to any aerial photography the RAF could take, tactical radio intercepts and what field commanders could see through their binoculars. That was ISTAR, and what we have now is a much more technical and information-enabled battlespace than we have previously seen. So much information is around that that it is, in itself, starting to cause significant logistical and organisational difficulties. I think we need to bear in mind that drones only work in certain circumstances. First, they only work in circumstances of air supremacy. These things cannot defend themselves or take evasive action in the event of hostile engagement. Secondly, they are critically dependent on a huge range of inputs, including presence on the ground. Without that presence on the ground their utility is quite limited. Conceptually, I do not think there is any difference between a UAV and a tethered artillery observation balloon. They perform essentially the same function; the drones just do it better, for longer and with more versatility. The big controversy with the use of drones has been about the US use of drones for targeted killings in places like the tribal areas of Pakistan and Yemen. The legal justification for doing that is very contentious in international legal circles—how they justify this kind of activity. It is not something that, as far as I am aware, the British Government have engaged in. The only place I am aware of where drones are being used extensively is in Afghanistan, which is formally recognised as an area of conflict subject to the laws of armed conflict, and so on. Obviously drone technology is spreading rapidly. I think there are now 11 countries that have significant drone capabilities. But it remains the case that what we are seeing in the United States is in a class of its own. No other country has got anything like the technical and communications capabilities that enable the US drone fleet. They have millions of gigabits of bandwidth. They have global satellite networks. They have huge numbers of analysts working through all these data that are being produced. This is not an activity for the B-team.
Lord Lexden: Would you expect the United Kingdom’s activity to increase in this area? Nigel Inkster: Yes.
Lord Lexden: Significantly? Nigel Inkster: Over time I think inevitably, yes, it will. This is one of the directions that conflict is moving in. It makes perfect sense: battlefield intelligence is now critical—it is not an optional extra—and drone operations are one of the best ways of acquiring it, together with other techniques. It also gives you a very precisely-targeted, over-the-horizon strike capability with minimal risk. But one should not overdo that, and we are a long way away from warfare being reduced to a kind of game of Pac-Man.
Q14 The Chairman: Would your expectation about greater UK involvement mean greater strike capability, or simply greater acquisition of information and intelligence? Nigel Inkster: At the moment, the focus is on the latter, but there is intrinsically no reason why strike capability should not be a part of the portfolio. In principle, I think they already are. The capability exists; the question is: how big is the capability and in what circumstances it can be used?
13 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17)
The Chairman: Even given the concerns you raised earlier about the status of international law on this? Nigel Inkster: That is particular to the situation in the tribal areas of Pakistan, and it relates to the concept that the United States are engaged in a global war with a globally deployed actor, and have the right pre-emptively to strike against that actor wherever it may manifest itself and present threats. That is an interpretation that is contested and seen as controversial in many quarters. Michael Clarke: Britain operates two squadrons of remotely piloted vehicles; the second one, 13 Squadron, began operations at Waddington a month ago. They operate drones that are both for surveillance and attack. The Ministry of Defence is anxious to point out, and I believe it, that all our use of Hellfire missiles from those drones has been in Afghanistan in support of our forces there. They have not been used for any other purpose so far. I think that that crystallises the real issue about drones, which comes down to two things. First, it is not the nature of the technology that matters but what you use it for. Secondly, drones represent the tip of a real revolution. They will not be large in future but will be very small; it will be possible to put 10,000 drones over a territory, all of them the size of a bird and sending back the same information so it will not matter how many are shot down. This is a revolution and we have not begun to think through what the military or the ethical issues of that may be. So far the ethical issues have not been any different from the ethical issues of any other form of battle, but I suspect that that will change in the next 20 years.
Lord Lexden: What role should Parliament have in scrutinising and authorising the increased use of drones? Michael Clarke: If drones are capable of being used in different ways, then that may represent a real change in the nature of warfare, not least because drones rely on a whole suite of essentially civilian technologies to make them as good as they are. In that case, I do not think that Parliament would ever be in a situation of being able to authorise the use of drones, but it would certainly take an interest in the ways in which we are using our facilities to create death and destruction, legitimately, where we think we have a right to do so.
Lord Powell of Bayswater: I thought what Mr Inkster said was very important: you cannot envisage a war being fought just by drones, and there have to be units on the ground to make them useful. The concept that you would need parliamentary approval to deploy drones is therefore not really relevant because that would be done only in the context of a wider situation. Nigel Inkster: No.
Q15 Baroness Wheatcroft: Would it be possible, and not in the realms of science fiction, to envisage drones depositing chemical weapons? Michael Clarke: Yes, that is not within the realms of science fiction. In principle, drones can do everything that an aircraft can do. Air-delivered chemical weapons from drones are entirely plausible.
Baroness Wheatcroft: Would you then need people on the ground? Michael Clarke: As with any other bomb, if you want to deliver an aerial weapon with any form of precision, and chemical weapons are not terribly precise, you would want either intelligence or people on the ground to locate a particular target. As compared to a joint demolition munition, which is very precise, or a Brimstone weapon, which can literally
14 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17) destroy a very small thing like one end of a car but not the other, chemical weapons by definition are a weapon of mass destruction.
Lord Lang of Monkton: I would like to follow up part of Lord Lexden’s question on cyberwarfare. You have not risen to that fly, and I wonder if that is because you think that cyberactivity comes not under warfare but rather under security, surveillance or some other industrial category. Michael Clarke: I personally take that view. The prospects of cyberwar are, so far, overstated. Clearly cyber is a new dimension—the Americans regard it as one of the six domains of warfare—but the idea of a cyberwar in a science-fiction sense, where one society attacks another, is rather hard to imagine. There is a fundamental difference, again, around the threshold of death and destruction. If things are destroyed by cyber, they can be reconstituted; societies can close themselves down. If facilities are destroyed and people are killed, though, that cannot be reconstituted very easily.
Lord Lang of Monkton: If a cyberattack corrupts the engines of a drone and tells it to go and drop its bombs in the wrong place, we are into science fiction, are we not? Michael Clarke: No, and that would fall under Article 6 of the Washington treaty that governs NATO, which says that an armed attack is an attack on the territory of an ally, or on the armed forces of an ally, in pursuit of an objective. A cyberattack on our armed forces would be an armed attack, in the same way that shooting down an aircraft would be. But in my view it would be hard to regard a cyberattack on our country that inconvenienced us or disabled our facilities as an act of war in the same way that bombing a facility would be.
Q16 The Chairman: Did you want to come back, Lord Lexden?
Lord Lexden: What role, if any, would Parliament properly have, in your view, in the event of a cyberattack? Michael Clarke: I am struggling with that. I am not sure. Cyberattacks are very difficult to ascribe. The source is always a matter of contention, even if the intelligence services know exactly where a cyberattack is coming from.
Lord Lexden: In authorising our use— Michael Clarke: That is even more difficult, because we know that western powers and the Americans have offensive cybercapabilities. We now admit that we have them. One of the reasons for admitting that is that we are entering into a deterrent relationship with those who would attack us, to say, “We are not just defending ourselves and giving you free shots all the time. If you attack us in a significant way, we have the capacity to do the same to you”. That is a very difficult weapon in our armoury for Parliament to take a view on.
The Chairman: Mutually assured cyberattack. Michael Clarke: Mutually assured inconvenience.
Lord Powell of Bayswater: Is it not quite hard to argue that a cyberattack on, for instance, Iranian nuclear equipment is not an act of war? Or that a cyberattack to disable our national infrastructure would not be an act of war? It could have no purpose other than to, as it were, defeat us, disarm us and disable us.
15 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17)
Nigel Inkster: This is an emerging area of policy and legal discussion. It is very far from settled. The working definition that exists, certainly within the United States—and this is very much a United States perspective—is that a cyberattack can rise to be an act of war if it creates damage commensurate with a conventional kinetic attack. It is probably fair to say that nobody has ever yet died as a result of activity initiated in the cyberdomain. Some physical destruction has been occasioned by acts undertaken in the cyberdomain. Disabling of critical infrastructure, in certain circumstances, could rise to an act of war. There is a Finnish study a little while ago which concluded that closing down all internet connections within the country would result in severe food shortage within about two days. Is that an act of war? It is starting to get there. But this is still a very ill-defined territory and clear concepts and definitions are still being worked out. Michael Clarke: What is not in doubt is that a cyberattack can be part of an act of war. It is entirely plausible to cyberattack an air defence system or a facility before it is going to be attacked in a conventional way. There is no question about that—that is part of an act of war. But whether cyber in and of itself constitutes an act of war, I think, is a grey area. Personally, I hold on to the death and destruction threshold.
Q17 The Chairman: I am aware of the time. Thank you very much. It has been enormously valuable. We have come almost full circle in the questions. Lord Hart, do you want to wrap it up in terms of overall parliamentary and constitutional responsibility in the light of all the new developments that have been explained?
Lord Hart of Chilton: What we heard this morning illustrates why it is not surprising that the Government have not come forward yet with either legislation or with a clear-cut parliamentary motion for decisions to be taken. I think it would be incredibly difficult to have definitions that cover the modern techniques of warfare.
The question of troop confidence concerns me a great deal. If there is a series of morale crises about whether you can or cannot do certain things, that points to the need for clarity, yet I do not see how clarity can be provided. Even where you had a vote with a majority as big as there was for the Iraq war, that did not prevent, in the course of the war, questions being asked about what the troops were doing, what their methods of interrogation were and so on, which led to all sorts of difficulties. So I am at the moment baffled as to how you can bring about a situation of complete clarity. I am left in a bit of a fog as to how you can improve things. Michael Clarke: From a morale point of view, it is even worse than that, because in modern operational conditions the boys and girls are in direct touch with home. They see Sky TV every day; they are in touch with their families. So they get the domestic debates in the UK as they happen, as we do. It is not as if they go to an operational theatre and live that theatre until they come back on leave. They live the domestic theatre all the time.
Lord Hart of Chilton: So, even if there is a massive majority, let alone something that was keenly fought and contested with strong opposition to the proposed course of action, even that massive majority does not lead to the fact that if the warfare takes more than a year or a few months the mood of the public can change and the mood of the media changes. All of that brings uncertainty into the minds of those who carry out the most dangerous of operations in our name. Michael Clarke: Yes. It comes back ultimately to the professionalism of the armed forces. They know that they do a good job; they believe in their professionalism, and you have to, in
16 Michael Clarke and Nigel Inkster – Oral Evidence (QQ 1-17) a sense, have faith in their ability to hold on to that in the teeth of, say, domestic criticism. Generally speaking, I have great faith in them to do that, but it is getting harder for them to do it, no question.
Lord Powell of Bayswater: I wondered whether you felt, now that we have gone through all these difficulties, that perhaps the best situation is that the Government should abandon attempts to define more clearly where parliamentary requirement—particularly prior approval—is required. It is simply too difficult to be more specific in the present situation, which rests on the political judgment of ministers of where it is sensible to have prior approval and where it is not necessary. Michael Clarke: I do not think we can go much further than the 2006 report went, which recommended a parliamentary convention. That seems to be entirely sensible because it regularises what is the case anyway. If that regularisation is more reassuring, I think that is good.
The Chairman: Do you agree with that? Nigel Inkster: I do.
The Chairman: Thank you both very much. This has been an enormously valuable beginning to our inquiry. As usual, with early inquiry sessions we find ourselves asking more questions than we have answers to. But that is enormously valuable to us, and we are most grateful to both of you for your time. Thank you for coming.
17 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33)
Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33)
Evidence Session No. 2 Heard in Public Questions 18 - 33
WEDNESDAY 5 JUNE 2013
Members present
Baroness Jay of Paddington (Chairman) Lord Cullen of Whitekirk Lord Crickhowell Baroness Falkner of Margravine Lord Goldsmith Lord Hart of Chilton Lord Irvine of Lairg Lord Lang of Monkton Lord Lexden Lord Powell of Bayswater Baroness Wheatcroft ______
Witnesses
Field Marshal the Lord Guthrie of Craigiebank, Chief of the Defence Staff 1997–2001, Air Chief Marshal the Lord Stirrup, Chief of the Defence Staff 2006–10, and General Sir Mike Jackson, Chief of the General Staff 2003–06
Q18 The Chairman: Good morning and welcome. Thank you very much for coming this morning. Perhaps I may explain a little background to this inquiry. I am sure you are familiar with the fact that our predecessor committee in 2006–07 conducted an extensive inquiry which produced a formidable report called Waging War: Parliament’s Role and Responsibility. We decided that it was worth revisiting some of the questions and issues raised in that but in a focused way. Perhaps I could briefly outline that because it impinges on the questions which we are anxious to get your authoritative views on.
Our inquiry has the working title “Constitutional arrangements for the use of armed force”, is in a more narrowly focused title to start with. We do not wish to repeat the work that was done six or seven years ago. We have broadly divided our areas of interest in the continuing discussion and, to some extent, controversy about the potential role of Parliament in any use of military force overseas. First, from evidence which was given to us most recently by the Deputy Prime Minister, but has also been conveyed in the Commons by Mr Hague, we are aware that the coalition is continuing to look at the possibilities of
18 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) formalising the role of Parliament in this. I know that some of you have expressed firm views about this recently, so we would be interested to hear them.
The second issue is the changing nature of executive decision-making in this area, particularly with the formation of the National Security Council and its relationship to the Defence Council, and to the application of the prerogative.
The third, which I suppose is the one that creates the most contemporary interest, is the different circumstances and the different nature of deployments of military force abroad. Indeed, some of it, to a lay person like me, almost comes down to the use of language, so that when you talk about, for example, non-lethal military support, does this involve the same responsibility for decision-making as a more conventional “boots on the ground” operation? When we look at interventions which have happened since the report of our predecessor committee—for example, to enforce the Libya no-fly zone—they do not in a sense fall into the category of conventional use of armed force, which perhaps some of the previous discussions about the democratic role in decision-making embraced.
Those are the three areas that we are focusing on: the continuing discussion about the parliamentary role; the different responsibilities of the executive institutions; and the changing nature of intervention and the difference in the technology of conducting military action which has happened in the past few years.
I think the most sensible thing is to begin with a very broad question, which is about how you sense the debate within Government of parliamentary involvement in the use of force is developing. What do you think is the likely outcome and how will it impact on the role of your successors? What approaches you would prefer to see in terms of Parliament’s role? Perhaps I could begin on that with Lord Stirrup. Lord Stirrup: Thank you very much indeed and thank you for the opportunity. As you say, this has been the subject of debate for some years, most recently about 2007. I was involved in that debate. A number of basic points need to be borne in mind throughout this process. The first is that any commander will want to be sure that the employment of forces under his or her command is legal. That is very clear. That is a requirement on all commanders. The legality of the operations that they undertake and the actions that they are forced to undertake within those operations is always at the forefront of their minds. The second point is that, in a democracy like ours, public support for operations is important. Therefore, not just pure legal cover but the perceived legitimacy of the operation is important. But there are also operational imperatives. There are the imperatives of time and secrecy, which do not apply in equal measure to all operations but do apply in some measure to all. Any process that hindered either of those two requirements to such an extent as to put the operational objectives at risk or to increase the risk to personnel would be a concern. That was very much part of the debate in 2007. Those would be the key factors. The mechanism by which Parliament has its say in all this is a question for Parliament and for Government and not a question for military commanders. Certainly, as far as I was concerned, provided those key requirements were met, the mechanism was not an issue for us. There are quite a few issues of detail which we might want to get into later but that is what I would say for starters.
19 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) Q19 The Chairman: Lord Guthrie, you were quoted in one of the newspapers as saying that it would be crazy to try to codify this. I think that was a recent comment of yours. Lord Guthrie of Craigiebank: I cannot remember saying that, but I agree. I was Chief of the Defence Staff for four years and Chief of the General Staff. The campaigns or wars I was involved in were East Timor, Bosnia, Kosovo and Sierra Leone, and they were all very different. The wars we have fought recently, if you can call them wars, have all been very different—the Korean War, Suez, the Falklands, the Balkans, Kosovo, Sierra Leone—and it is extremely difficult to have exactly the same approach to every campaign you get involved in. That is why, when I led the debate which you probably remember in 2008, we really thought that the prerogative was the way forward. But there were huge advantages if Parliament could be involved. When you visit people in the field on operations—for instance, when I went to Iraq—the questions you were asked were, “Is the country behind us? Is Parliament, the Government, behind us? Is it legal?” We were asked all those things. Different governments have different ways. I am a veteran of the sofa government and I quite like that because I was on the sofa. For a lot of people it was uncomfortable but I know why the sofa government existed. The great mistake was that it did not keep enough minutes about what went on. But sofa government was created by the then Prime Minister, I think, because he wanted around him people he could trust and people who believed in what he was trying to do. Certain members of the Cabinet were not very keen on what he was trying to do. I thought that point ought to have been made much more strongly in the inquiry than it actually was. It hardly got any mention whatever. Sir Mike Jackson: Can I pick up the theme that is already emerging of legality and its bedfellow, legitimacy? In an ideal world, these two would be synonymous but they are not always. I was a ground commander under Lord Guthrie’s national command in Kosovo in 1999. It is very interesting when you compare the debate which took place over taking military action against Milosevic and that of taking military action against Saddam Hussein. There was no United Nations Security Council resolution regarding Kosovo. It was never put to the Security Council so far as I remember because it was assumed that there would almost certainly be vetoes from Russia and China. Nonetheless, Kosovo was deemed generally to be a legitimate use of force—but a purist would argue that it was illegal in international law because it did not have that basis. You compare that to the atmosphere surrounding the deployment to Iraq and you get a somewhat different combination. As regards doubt about legitimacy, I had no personal doubt regarding legality. There was much talk here, was there not, of the second resolution? It was only the second in British political terms. It would have been, I think, the 18th, starting with 678, which resulted from Saddam Hussein’s invasion of Kuwait. Soldiers, airmen and sailors, when deployed and when the prospect of taking life or indeed of giving their own is on the horizon, want to feel that the nation is with them. They want to feel that they are on the nation’s business. But in a democracy there will always be a debate. As we know, the run-up to Iraq was a very dramatic debate. So you are not always going to get complete consensus. Soldiers will be concerned that they are doing something which is not illegal—let us use a double-negative—and that the nation is behind them. It seems to me that if demonstrably Parliament has taken the decision to support an executive decision to use force in this or that circumstance, that gives considerable succour to the service man or woman on the ground.
20 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) Q20 Lord Powell of Bayswater: Accepting completely what Lord Stirrup says, that it is not for the military to prescribe a parliamentary process, does the existing rather pragmatic process actually cause anyone any difficulty? Sometimes there is a debate beforehand; sometimes there is a statement; sometimes there are questions. It seems to work pretty well. Is it not perhaps rather unnecessary to interfere with the present situation? You would not be pressing for any change, any of you, would you? Lord Guthrie of Craigiebank: I do not think I would press for it at this stage. I see advantage of having parliamentary approval and having that as soon as possible. When I say as soon as possible, it is very difficult to get the timing right because you slide into a lot of these wars or operations. They start in a very small way and may have unforeseen consequences. Before you know where you are, you are up to your neck in it. I think that Parliament must have the right to approve but it may not approve too early, if that makes sense. I think that the military have to keep some things secret. They have to move very quickly if they are going to put out the embers before they become flames. It is difficult if you are having debates and that sort of thing going on at the same time as you are trying to prepare. I remember one campaign that we had to delay preparing for because people did not want to get the temperature up too soon—but for the military that is very difficult. You want to prepare as early as possible so that when you are told to go, you can go really quickly. Lord Stirrup: I agree entirely. The point I would make about process and timing is that politically your moment of maximum choice is before you intervene. It is the decision on whether or not to intervene. Once you have made that decision, very often these are not situations where halfway through you can easily pick up the ball and say, “I’m bored of this game now, I want to go home”. When you intervene, you have to think through not just the best outcome but all the eventualities, such as the turns for the worse that these things might take, and be sure that you are ready and willing to do whatever is necessary to see it through to the end. Once you have intervened in these situations, to a large extent, you are stuck with it. I am not saying that it is impossible to drop everything and leave but it is extremely damaging in all sorts of ways. I think that, while it is important to have the debate, the debate needs to take place in that sort of context, in the understanding that there are no guarantees and that no one can be quite how this will work out. I think that that is crucial. Lord Powell of Bayswater: But if you have a formal rule, you have to know in which situations it would apply. We hardly ever go to war these days in a formal way. If you have a single rule, as military men you may find yourselves rather unnecessarily constrained when you just want to do something rather minor. The other day there was a report that the Government were looking at the pre-emptive use of force as the way forward. By definition, pre-emptive use of force is to stop a war. Therefore, you are not engaging in one. I see a problem in having an absolute formal rule that says that there has to be a parliamentary debate, before the use of armed force, if you try to apply it to all situations. Sir Mike Jackson: If the executive has decided on military action and Parliament was to take a different view, you then have quite a difficult situation. If the deployment goes ahead, the armed services will know that Parliament had not approved, albeit that the executive have given that order. As a coda to the timing issue, I have very clear memories of late 2002—the run-up to Gulf 2, as it is known in the military. For understandable political reasons, the Government did not
21 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) wish to give signals which showed an irrevocable decision to use force, but that was inhibiting on military preparation. As a result, there was a concertina of time from around Christmas until around mid-March. Lord Guthrie of Craigiebank: I would quite like to see something to stop us having another campaign like Suez, which was bounced on an unwilling nation. The Chairman: But I think that, as you have all said, the problem is that you cannot identify in advance the different circumstances.
Q21 Lord Crickhowell: I am a veteran not of sofa government but of Cabinet Government at the time of the Falklands. We have heard of the need for assurance on legality and the advantages of Parliament being involved. Perhaps I may take you to the narrower point, partially raised by Professor Clarke when he said that legitimacy cannot be taken for granted. When we pursued him on this last week he said that the military feel the no-blame culture is now under severe threat. He referred to the fact that coroners sitting in Oxford might later criticise actions that soldiers on the ground assumed were perfectly reasonable and legitimate in the circumstances in which they found themselves. Would you like to explore that topic? Does the fact that Parliament has expressed a view have an impact on it? Are there other aspects of this worrying situation of a developing threat to the no- blame culture? Lord Guthrie of Craigiebank: Certainly, there was considerable concern about coroners’ courts. I know somebody in my old regiment who was heavily criticised by the coroner because he had to make a split-second decision without a complete intelligence picture, which you have to make in war, and someone was killed. The inquest on this boy who was killed blamed the company commander. That seemed to me absolutely wrong because if you are so worried about having a lawyer, or an international lawyer, following you around the battlefield, you will not do anything. It is a very important point. Lord Crickhowell: How do we deal with it? Lord Guthrie of Craigiebank: I always thought it was a great mistake that when people were killed, people had to come back and go through the coroners’ procedures, although they are very appropriate for traffic accidents. What happens if 300 people get killed in a day in some future war? I am not saying that the Battle of Somme is going to happen again, but you would not be able to cope. It makes it far worse, I think, for the relatives. It drags it out. Lord Stirrup: Even in Afghanistan we got a backlog of coroners’ cases, which was tremendously unhelpful. I also think that it goes beyond coroners’ courts. In the last stages of my tenure in post, we were very concerned about the implications of judgments on right to life, particularly in operational situations, and extending that beyond the barracks as it were. It is not clear how you apply the principle of right to life to people you are sending into combat, some of whom you know almost certainly will die. Applying what seem to be common-sense principles in ordinary life to extraordinary situations can be extremely dangerous. There is no doubt that people in all three environments in the military are becoming more and more concerned about their personal legal position in operations. One of the potential consequences of this is not that you have fewer casualties; it is actually that you have more.
Q22 Lord Cullen of Whitekirk: I appreciate what you say about coroners appearing to second-guess what the commander is doing in the field. But do you see any connection
22 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) between that—which is concerned with whether an individual life could have been saved— and parliamentary debates or approval as to whether a course of action should be employed? Is there any connection between the two? Lord Guthrie of Craigiebank: I think there is great faith in the military, if someone is killed, for finding out why they were killed. But I think that going to a coroners’ court, with a coroner who has probably had no military experience and has not experienced what you might call the friction of war, is not the best way to do it. Lord Cullen of Whitekirk: I entirely understand the point you are making but I simply want to know whether there is any connection between that and the principal question for us, which is parliamentary approval. Sir Mike Jackson: It would be hard to draw a direct connection but there is a sense of context, a sense of almost atmosphere, that in the 21st century we can deploy military force without risk to life or limb. We are almost at that point, which is nonsensical. It is an absurdity. There perhaps is an assumption that the battlefield is just a form of industrial site removed by several thousand miles where, if someone is killed or injured, someone must be to blame: well, you could start with the enemy probably being to blame. As Lord Guthrie said, to take a company commander, who in good faith made his judgment in probably a very short period of time, and then in the cold light of a coroners’ court to say, “Well, you got that one wrong, didn’t you?”, is pretty outrageous. Lord Stirrup: There is obviously no direct connection between parliamentary approval for an operation and subsequent legal judgments on individual cases but it is Parliament which makes the laws of the land, subject to European law. Therefore, Parliament has an important role to play.
Q23 Lord Lang of Monkton: We are conscious that wars are now waged in a way that the forces on the ground know what people at home are hearing, reading, seeing on television and so on. This makes the issue of morale much more significant. Last week, Professor Clarke indicated that international resolutions could be an issue that might affect morale favourably or otherwise. Do you think that is a factor that would influence your view on whether or not a parliamentary debate and approval of a resolution was important? Lord Stirrup: What sort of international resolutions did you have in mind? Lord Lang of Monkton: United Nations resolutions. Sir Mike Jackson: Security Council. Lord Lang of Monkton: Yes. Sir Mike Jackson: A Security Council resolution has always been seen—I know that Lord Goldsmith is marking my words probably, and giving not very many marks out of 10—in terms of international law as pretty conclusive. If you have that resolution, that certainly satisfies, as I understand it, the requirements of the charter for the use of force under UN authority. But, as we know, we do not always get that. I referred to Kosovo earlier. There are a number of sources for the sense of legitimacy which we would all wish the soldier, the sailor and the airman to have when deployed. The United Nations position is one, the position of Parliament clearly another, and, in a more general sense, the question of whether the nation is with us. But there are ingredients to the outcome of that subjective process.
23 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) Lord Stirrup: I think the problem is perhaps slightly different. The legality issue is a sine qua non, as we have already discussed. But in terms of continuing support from people at home, this seems to me to be linked rather less to international resolutions and rather more to their perception of how well the thing is going. If you engage in operations that are protracted, messy, costly and have no clear-cut outcomes where someone can say, “Yes, that was successful and we can see that”, you will have increasing difficulty in keeping national support both within the public and within Parliament behind those kinds of operations. I think that is rather more the issue when it comes to support than international resolutions. Lord Lang of Monkton: I was going to ask about the Afghanistan war, which has turned out to be extremely protracted. Lord Guthrie of Craigiebank: I think alliances sometimes cause problems and worries for people if they think that other members of the alliance are not really pulling their weight and are not putting in their soldiers. Lord Lang of Monkton: Would you like to name a recent one in which you think that that happened? Lord Guthrie of Craigiebank: I do not think that that would be very helpful. I think we all have certain people in mind. I retired 12 years ago, and I do not remember ever losing confidence in the law officers and the Attorney General. They were experts and we would ask them, and if they gave us an answer we believed it. I think there has been a bit of doubt—I am not blaming the law officers at all—particularly in the media saying, “Is this legal; is it not?” I do not think that until recently people worried very much about that. Sir Mike Jackson: It is getting more diffuse in the sense of the ability of the Security Council to come to the decision regarding a resolution or otherwise. It has never been great but it goes through considerable difficulties and we all know why. The permanent members in particularly are not always—in fact, quite often they are not—of the same mindset regarding whatever set of circumstances. We then, of course, get into muddier waters when you start to consider how R2P, responsibility-to-protect—the emerging doctrine that something may be going on, or be about to go on, in a country which is so abhorrent and so inhuman—can overrule the charter’s insistence on sovereignty and the integrity of national borders. Inevitably, that will be a disputed position, even though the UN seems to be moving towards—some would argue that it has moved towards—adopting responsibility-to-protect as doctrine.
Q24 Baroness Falkner of Margravine: One of the issues about international resolutions that Professor Clarke raised last week was rather broad because his definition was not just UNSCR. It was African Union, Arab League and all sorts of other regional organisations, of which we are not a member, and to whom certainly legally I can see no correlation of obligation. NATO and UNSCR, yes; but Arab League seems to me to be going too far.
Sir Mike, you mentioned R2P and the expansion of R2P. It would be very interesting to hear, although we all accept that it is not law but an emerging norm, about when you have a view within the R2P doctrine that regional organisations have a role to play. You have views held by, for example, the former UN High Commissioner for Human Rights, Louise Arbour, the Canadian jurist, that the Genocide Convention rightfully applies in the application of R2P.
24 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) Therefore, if you were to take the current situation, in her view, in Syria, if we go much further down the list of egregious deeds, we may in international law be bound irrespective of the position of R2P. I would like to know whether you think that we should subscribe: in other words, use regional organisations as cover, which is what I think Professor Clarke was suggesting in his evidence, and whether we can use R2P as grounds to intervene. Sir Mike Jackson: It seems to me that the thinking behind the responsibility-to-protect is one to be admired, because what you are saying is that international borders are inviolate as per the charter, but the charter has not kept up with changing circumstances. It may be that a situation is so awful that intervention becomes the greater of the imperatives rather than the viability of a sovereign state. It seems to me that this will always be contentious. Russia and China, in particular, we know for reasons both of history and geography are pretty neuralgic about foreign interference over international borders. On your point about regional organisations—the African Union is a good example—I think they can add to the evidence that there is legitimacy. Note also the way that the Arab League, I think, was seen to go a long way to adding to the legitimacy of intervention in Libya. Lord Stirrup: In those sorts of regional organisations it is less a matter of legality and more a matter of political support. If you are going to intervene in a country in a particular region and there is a large regional organisation within that region, clearly it is tremendously helpful if it is supportive of it as opposed to anti it. On the right to protect, there are two important questions you have to ask before any intervention. The first is whether it is legal and whether how far down the road you are towards genocide impacts on that question of legality. The other question is: is it wise? There may be a right to protect but if you are going to do it, you need to be sure that you are going to protect people and not make things worse for them. When it comes to that particular question as well, the views of regional organisations can be extremely important. We are in slight danger of muddying the waters between the two issues of legality and wisdom. Lord Goldsmith: That last proposition is one with which I wholly agree and our witnesses may well recall that. There is a lot that has been said that I have observations on, not marking General Sir Mike Jackson at all. Sir Mike Jackson: I am relieved.
Q25 Lord Goldsmith: Can I take us back to one point? I am not sure how far this is relevant to our inquiry, as Lord Cullen said. You have made observations in relation to coroners’ inquiries and the extent to which it is proper and useful to go into the circumstances in which deaths take place. I want to ask whether you would draw a distinction, however vague it might be in certain circumstances, between two situations. One situation is deaths which occur in the course of active operations: “I fired in self defence. It turned out to be wrong. It wasn’t actually an armed gunman who was aiming at me, it was something else.” That is one situation where the law recognises that what really matters is the belief that the person who shoots has rather than anything else. That is one circumstance.
The second circumstance, which may be very different, is where deaths or mistreatments take place during the course of slower operations, particularly detention or treatment of
25 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) civilians during the course of military operations. Do you see a distinction between those two circumstances? Lord Guthrie of Craigiebank: A huge distinction. Sir Mike Jackson: A huge distinction. It is one thing to use lethal force in a firefight when someone is trying to kill you and you are trying to kill them. Mistakes of identity may happen in confused situations but it is that distinction between, if I can put it crudely, hot blood and cold blood—the hot blood of the firefight. We talked of the company commander who was castigated because a soldier under his command was killed. I mean, at the low level, are we going to put a corporal in front of a coroner because one of his soldiers was killed because he said, “Let’s go left flanking” and the coroner says, “No, you should have gone right”? That is the road to absurdity. On your second premise, I feel strongly that members of the British armed forces must at all times behave in accordance with the laws of war. If they do not, due process of law must follow. Lord Stirrup: That reinforces the first point because if we are to hold that line as we must, the law of armed conflict must be sensible and applied appropriately to the situations in which people find themselves. If the law is seen to be becoming so difficult for people in the field that they are constantly concerned about their own legal position, frankly, it undermines respect for the whole institution of the legal underpinning. In terms of making sure that people adhere to the rule of law throughout—as you say in the situation of detention—it is crucial to retain its credibility that it is applied wisely in the wide variety of circumstances in which people find themselves in combat. Lord Goldsmith: If I may, to summarise, the comments that you made before, which might have been taken as suggesting that it is inappropriate to look into the circumstances or to have the law involved in the circumstances, would not apply to criminal cases. Lord Guthrie of Craigiebank: Criminal cases should be treated like criminal cases. Sir Mike Jackson: When I was Chief of the General Staff, the wretched Baha Mousa case was running. I was quite heavily criticised because a certain commanding officer was put in front of a court martial. Critics did not seem to understand that the decision to prosecute is not that of the CGS but that of an independent prosecuting authority, as you well know. That behaviour is a stain on the good name and character of the British army, and it must be dealt with. But that is quite different from the battlefield. The Chairman: If we may, we should move on to the practical arrangement of the executive’s authority. I am going to ask Lady Wheatcroft to begin.
Q26 Baroness Wheatcroft: I think the general distinction between hot-blooded and cold-blooded decisions is very relevant but I am interested in exploring the process by which our Government takes what I hope would be a cold-blooded decision to deploy. Lord Guthrie referred to sofa government and Lord Crickhowell to Cabinet Government. I would appreciate it if you could tell me and the committee the process by which the decision is, as far as you are concerned, taken. How involved is the Defence Council and the National Security Council? Lord Guthrie of Craigiebank: It is taken in different ways by different governments. There is no model which I would say should always be used. I did not come across the Defence Council very often. I do not know whether it sits and takes place more than it used to. But I
26 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) remember regular meetings and discussions in No. 10. Of course, the other thing was discussing with the Americans—which was an extraordinarily important part of Iraq and Bosnia—what they were going to do. I think that most decisions were taken by the Prime Minister with his sofa government and then talking to other people in the Cabinet. But a Cabinet is a pretty unwieldy body of people with which to do that sort of thing. I think that perhaps in the Falklands when Prime Minister Thatcher had what I recall to be a War Cabinet and minutes were taken—Lord Powell will know much more about this than I do— it seemed to me to be a very sensible way to do it. A record must be kept of who said what and when. The Chairman: Since your time, as it were, the National Security Council has been formed. I do not know whether you have any views on that. Lord Guthrie of Craigiebank: I think that it will take some time to settle down but it seems to be an extraordinarily sensible and right move because it co-ordinates the different departments. Many departments are involved in going to war. I think it is very important that the Prime Minister chairs it, turns up and does not leave it to someone else. Once you start leaving things to other people, surprising people start appearing around the table when what you want is the chiefs.
Q27 Lord Crickhowell: I was interested in Lord Guthrie’s comment about the Defence Council. We were told by Michael Clarke last week that the Defence Council, through the Chief of the Defence Staff, has the responsibility to give military advice to ministers. I think what we are saying is that in practice it is probably the Chief of the Defence Staff who gives the advice rather than the Defence Council. Could you take up that point before I come to another one? Lord Guthrie of Craigiebank: I went almost every day to see the Prime Minister and before I saw him I held a meeting with the other chiefs of staff so that we could get what we thought our line was. Obviously the Chief of Intelligence was there, as were various other people, including the Permanent Under-Secretary. I would chair the meeting, hear what had to be said and then tell the Prime Minister and the Secretary of State, who did not get left out. Lord Stirrup: The Defence Council, certainly in all of our experiences—I cannot speak for the past year or two—is an important legal construct. It is the basis for service discipline and all the rest of it. It is not a grand body that sits on a periodic basis. We used to have a Defence Council meeting perhaps once a year on a formal basis but of course the key members of the council— Lord Guthrie of Craigiebank: We had our photograph taken. Lord Stirrup: Exactly. But clearly the Secretary of State, the ministers and the Chief of the Defence Staff are all involved very closely in formulating advice for the Prime Minister. The decision, as was said earlier, is essentially taken by the Prime Minister in Cabinet and how the Prime Minister handles the Cabinet is a matter for the Prime Minister of the day. Lord Crickhowell: That is a very useful clarification. The National Security Council seems to have taken over the role previously taken by the Cabinet Overseas and Defence Policy Committee. I did not know much about it until we were told about it last week. Since our evidence last week, we have read the annual report of the Joint Committee on the National Security Strategy. It is a devastatingly critical document. I do not know whether it is fair or not, but it says that the National Security Council has been so concentrating on immediate issues that it is neglecting the major strategic examination that it ought to be doing. I will not
27 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) elaborate on the detail of the report because you have no doubt seen it but I was struck by the extraordinary critical nature. I wonder whether you will comment on the relationship therefore between the Defence Council, the National Security Council and the final decision-making process involving the Prime Minister. Lord Stirrup: I worked with the National Security Council for about eight or nine months, so I had some experience of it, although not in the past couple of years. The first thing I would say is that I agree absolutely with Lord Guthrie that it is a very useful innovation. There was a similar sort of body before, but it was not codified in the same way. The Prime Minister did not chair it the entire time, which is extremely important. Most importantly, there was not a National Security Adviser. The point about the National Security Adviser is not that he is someone who is whispering national security policy advice in the Prime Minister’s ear but that he is of weight within Whitehall and can whip in all the other permanent secretaries, can put together consolidated advice that takes account of all their views, can present a meaningful agenda to the National Security Council and then, once it has made some decisions, can go around Whitehall and see that they are, to the maximum extent possible, implemented. That mechanism has been extremely helpful, which is the most important point. With regard to horizon scanning as opposed to dealing with the fires at hand, to an extent I suppose that depends on how many fires you have got. If you do not pay attention to the fires close at hand and you spend your time gazing at the future, you will not get to the future. That is probably a question of practicalities and availability of time. The people on the National Security Council of course are also dealing with key economic questions and all the rest of it. So they are pretty busy people. Lord Guthrie of Craigiebank: There are certainly people in the Foreign and Commonwealth Office and the Ministry of Defence who are looking far ahead but they are not as important as the people at the National Security Council and the Defence Council. Sir Mike Jackson: We are not very good as a country, I think, at grand strategy.
Q28 Baroness Wheatcroft: Could I take you back to the process by which troops are deployed? The General referred to the fact that there may be a significant level of dissent within Cabinet that one does not necessarily hear very much about. In the end the royal prerogative rests with the Prime Minister. How conscious should we be of the risk that the country could be taken to war by a gung-ho Prime Minister for the wrong reasons, with a largely dissenting Cabinet? Sir Mike Jackson: My main experience here on the Whitehall side rather than out on the ground was the run-up to the invasion of Iraq. I have already commented that political decision-making—we will come to how that was in a moment—was delayed for political reasons, domestic political reasons I suspect, which led to quite a messy three months. But on how that decision was made, I am not sure I am your best witness. Clearly, the Prime Minister of the day, Prime Minister Blair, was determined that Britain would take its part. The Americans were going to go anyway; that was very clear. But he judged—when I say “he”, you had a Cabinet which sadly but obviously was less than unanimous. So exactly how that decision was made, it seems to me, was a process of politics and not one of some constitutional chain of command. Lord Cullen of Whitekirk: I was concerned with the legal basis on which the Chief of the Defence Staff proceeds. No doubt it is perfectly correct that he has to be assured that there is a legal basis before he proceeds. In practice, may questions arise in due course as to the
28 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) interpretation of that legal basis or its application? For example, if some form of escalation of the conflict is envisaged, is there a mechanism by which this is done? How is that resolved? Lord Guthrie of Craigiebank: All wars have unforeseen consequences and things which start in a small way can land you in a great deal of trouble. Afghanistan was a quite good example of that. Where special forces went and destroyed the al-Qaeda camps which were training people to kill us and were starting to kill us, that seemed a very much more sensible reason for going to Afghanistan than trying to import democracy, which we got bogged down in doing. The Chairman: That, I think, brings us to changes in the nature of deployment, moving away from the legality or the structures of the decision-making.
Q29 Lord Powell of Bayswater: As a comment on the previous discussion, if the Defence Council was really as insignificant as you have made it sound, someone had better tell the British constitution because that is not what it says. Lord Stirrup: It has an important legal role. It is a legal entity but it does not meet regularly as a grand body, as it were. The Chairman: As we understand it, the National Security Council meets once a week. Lord Stirrup: Yes. Lord Lexden: I am sorry to butt in. But from what we have heard of the Defence Council and what happens in practice, one would be better advised to think of a kind of defence committee—the senior military commanders meeting as we have heard, and then the chief giving the Prime Minister the outcome of their discussions. These are the people who matter. For a defence committee to embrace that would seem rather useful. The council is a grand body in the background. The Chairman: Exactly, but that is the use of the prerogative as Lord Powell has pointed out. It is one of the constitutional mainstays of the arrangements as we have understood them. Lord Stirrup: They are of course pretty much the same people. Lord Powell of Bayswater: I do not want to pursue that further except to say that I think perhaps the processes ought to be better spelt out in the Cabinet Manual. Sir Mike Jackson: In my experience, the Defence Council has a legal standing. It does not really have an executive role. Lord Guthrie of Craigiebank: It does not want too many layers because we want to be able to make decisions quickly. Lord Powell of Bayswater: You do not want confusion. Coming back to the decision that the chairman just mentioned, what we are doing is looking at whether the role of Parliament needs to be in some ways adjusted or formalised from the present one. There are situations where you have very different sorts of deployment. At a time when you could just send General Gordon off to Khartoum or issue ultimatums and declare wars, it was pretty clear that Parliament had to be involved. But now there is a whole range of different situations. Can you draw a line? Where do you draw the line? Boots on the ground is one quite important indicator of a serious military mission which might need parliamentary approval. Lord Guthrie of Craigiebank: How many boots?
29 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) Lord Powell of Bayswater: Exactly. Does a no-fly zone require one, as in Libya where you are not going to put any British soldiers at risk? You might put some pilots at risk of course. Does sending non-lethal military equipment constitute something where Parliament has to take a decision? Last week, or two weeks ago, Professor Clarke said that you could draw the line at the point at which the UK forces engage in death and destruction. Lord Guthrie of Craigiebank: You cannot even say that. Lord Powell of Bayswater: I just do not see how you could reduce that to a formal procedure. Lord Stirrup: Even when you send people into areas of operation where you are not expecting them to use lethal force and the rules of engagement reflect that, nevertheless they always have the right of self defence. So if something happens, you could well find British military on the ground, in the air or at sea killing and destroying—unexpectedly, but nevertheless it could happen and it is entirely legal for that to happen. Lord Powell of Bayswater: I am not so worried about the legality of it, it is whether there needs to be parliamentary approval to initiate the whole thing. We can all remember the situation in Afghanistan where a former Defence Secretary said that British forces would be deployed to Helmand and no one would be shooting bullets or anything, and that it would all be perfectly straightforward. Lord Stirrup: To be fair, that is a much misquoted misquote. He fully expected them to be shooting. What he said was, “Of course, we would be delighted if they never fired a shot” but he did not say that they would not. Sir Mike Jackson: He hoped.
Q30 The Chairman: Lord Guthrie said a few minutes ago that the intervention of the SAS in destroying al-Qaeda camps et cetera was one thing. But there is a difference when, however they are expected to behave in terms of shooting people, there is deployment of troops. I think the point that we are concerned about is at what point the as it were “ratcheting up of force” issues have to be aligned with the “ratcheting up of the decision” and transparency issues as far as the democratic process is concerned. Lord Guthrie of Craigiebank: I launched a debate in the House of Lords in 2008 about this very subject. You might like to glance at that because my views have not changed greatly. We concluded that we could not be too prescriptive about what you should do but what you should aim for is to have a debate as soon as you sensibly can. That would vary greatly. I think everyone agreed with that. It was just too difficult to say, “You must have one before you deploy”. Sir Mike Jackson: Particularly where operations may be covert. Lord Powell of Bayswater: I think that is a very sensible position, if I may say so. But the Government appear to be saying, “No, we must have a formal parliamentary procedure”. Lord Guthrie of Craigiebank: Well, they do not understand. Lord Powell of Bayswater: Well, there might be a difference of opinion between the committee and others. There is, is there not, a second aspect to it which surprisingly you have not raised; namely, the whole operational issue. Once Parliament is given a role in deciding whether there should be military activity or the use of armed force, will there then be a risk that Parliament will want to say, “Hey, we didn’t expect that. You’ve got to stop. Red card”?
30 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) Lord Guthrie of Craigiebank: Absolutely. Lord Powell of Bayswater: It starts to interfere with your operational flexibility. Lord Guthrie of Craigiebank: That is a very important point. The commanders must be given freedom to command the battlefield in the way they think best. There will be certain red cards. I have noticed that tremendously with other nations. For instance, I think that the Germans are overcontrolled by Berlin. They cannot cross that road even though there is a fight going on on the other side of the road in which they could make a tremendous difference. You have got to trust the commanders to get it right. There will be occasions when you want to interfere, but for goodness’ sake do not do it too often. Lord Stirrup: That is why I said earlier that your point of maximum choice is when you make the decision on whether or not to intervene. Once you have made the decision, you lose control to quite a large extent of the course of events. Sir Mike Jackson: The other aspect is the clarity of the political objectives for which force has been deployed. Those political objectives are not always as clear as we would wish. The Chairman: It is interesting that you say that the moment you decide to intervene, you do not put any caveat, as I thought that Lord Guthrie was doing a few minutes ago, around the nature of that intervention. What we are trying to get at is, if you are changing the nature of the intervention, does that require a different process? Lord Guthrie of Craigiebank: They all have unforeseen consequences. There is a real danger of mission creep on these things: “Let us do something else because we have done something quite well.” Before you know where you are you are taking on too much. I believe that in Afghanistan we were absolutely right to go in and destroy al-Qaeda, which we did very successfully and probably saved a large number of lives as a result. But then to stay with all these other objectives seemed to me to be rather strange.
Q31 Lord Lang of Monkton: I think the problem with Afghanistan is that it has gone on for so long. Whether there has been mission creep or not, there certainly has been a change in the public perception of it and morale has undoubtedly suffered. If there had been—there was not—a parliamentary resolution in support of going in, although there had been lots of debates, discussion and statements, do you think that that kind of approval would be degradable? Do you think that it should be reviewed and renewed from time to time in order to maintain the sense of commitment that the nation has through Parliament to what you are doing on the ground? Lord Guthrie of Craigiebank: You could do that, but you have to be extraordinarily careful about what effect it will have on people on the ground. If you have had a lot of people killed and suddenly they say, “Well, pack up and come home, there is no point in being here”, that is going to have a devastating effect on people who are there. Lord Stirrup: It also has a very debilitating effect on your allies, because we have been on the other end of that particular problem. We have had allies deployed alongside us and on whom we have relied but who require an annual renewal of parliamentary approval to stay. Every year that raises huge uncertainties about how the operation will proceed. Frankly, I think that that would be a dangerous route to go down. On significant changes, for example, when the decision was taken to expand the ISAF machine in Afghanistan to the whole of Afghanistan as opposed to just the north and the east, you could argue that was not an unreasonable point at which to have a debate about it.
31 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) Lord Lang of Monkton: That was more what I had in mind. I certainly would not have contemplated annual renewal of that kind. Sir Mike Jackson: I think what it probably boils down to is if there is a significant material change— Lord Guthrie of Craigiebank: A new phase. Sir Mike Jackson: —a new phase and differing circumstances, I can see an argument for going back to Parliament. But the danger is that, as Lord Guthrie said, in some countries you get almost command by a parliamentary long screwdriver, which is not where we would want to be.
Q32 Lord Lexden: Could I raise the case of intervention short of deployment of soldiers; for example, the no-fly zone over Libya? That was a significant intervention. Would in your view parliamentary approval be desirable, or necessary, for that? Lord Guthrie of Craigiebank: I think the danger is that if you have parliamentary approval before you start bombing someone, the bombing will not be effective. So you have got to be very careful about that. I think the story of Libya is not over yet. There will be unforeseen consequences. There already are unforeseen consequences. Baroness Falkner of Margravine: It is very interesting that nobody has defined what intervention constitutes, particularly in a rapidly changing scenario with technology and everything else. Can I put a quick hypothetical to you to try to flesh out what you mean by intervention and the right to self defence? If we have a couple of minesweepers in the Strait of Hormuz that are needed to clear up after a certain country has mined the straits. If those minesweepers are attacked by civilian boats, but nevertheless attacked—I think that we all understand that scenario—and then we attack back to take up the sites from where these attacks on us were coming, would that constitute intervention? That is one question. How in that kind of scenario—you talked about mission creep—would you expect legitimacy rather than legality to be obtained from Parliament or otherwise? Lord Guthrie of Craigiebank: Your example I would always put under self defence. Baroness Falkner of Margravine: So you would not expect Parliament to be involved? Lord Guthrie of Craigiebank: I do not think Parliament would. I mean, these people, sailors, are fighting for their lives. Sir Mike Jackson: And the trouble with “intervention” is that it is such a blanket word. If you take the original operations in Afghanistan, as Lord Guthrie says, they were to destroy al-Qaeda terrorists and their bases, which in one sense is a very clear military mission. But then—there is not time for a post-mortem now—we went into a much more ill-defined, grandiose metamorphic set of objectives, which were to turn Afghanistan into a mature, western democracy complete with all forms of human rights to western standards. I have never seen it written down like that but it is pretty close to it. That is my point about: what are the political objectives? Lord Guthrie of Craigiebank: I think Sierra Leone is a very interesting case because intervention is rather a dirty word now but that made a huge difference. Baroness Falkner of Margravine: Parliament was not consulted. Lord Guthrie of Craigiebank: The UN was.
32 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) Baroness Falkner of Margravine: But Parliament was not consulted. Lord Guthrie of Craigiebank: The reason we went in was really because the UN was not doing anything and we had to do it. The Chairman: I am aware of the time. Have you a few more minutes because I think that the committee has a few more areas that it would like to pursue? They are not particularly broad ones but more specific questions. Lady Falkner, had you finished with that point or shall I move on to Lord Powell? Baroness Falkner of Margravine: A final point in terms of advancement—drones, cyber and lots of other improvements—whereby it is not so much boots on the ground but nevertheless hostilities take place. What effect does that have on the role of Parliament? Lord Stirrup: If you are looking for a sort of dividing line for when Parliament should be consulted and when it should not, I would perhaps go along with Michael Clarke to the extent—and subject to the caveats I mentioned earlier about speed and secrecy of some operations—that if you are deploying forces out of country in the clear expectation that they will blow things up and kill people to achieve their objectives, I would have thought that it would not be unreasonable for Parliament to take a view on that. You can identify a clear class of cases where that would be reasonable but inevitably there would be grey areas where it will be extremely difficult and a matter of political judgment. Lord Hart of Chilton: That is probably why the Government have not done anything. It is all in terms of definitions and getting down to the practicality, apart from the legality which of course is essential. It is very understandable. When you get down to the nitty-gritty of definitions, you find yourself hamstrung and trying to find the right terminology and the right description to put into print. I am not surprised that they find it difficult to do anything. I am rather with them.
Q33 The Chairman: Although all of you several times have mentioned the need for clarity of political objectives, you have also clearly illustrated in your descriptions of the various campaigns in which you have been involved that there is such a multifarious number of different objectives militarily and, as you have said, intervention has become a very broad and not necessarily precise military word—even less so politically—that the whole area is very difficult.
Do you have any concluding thoughts which would lend clarity if you were advising the Government now? Lord Stirrup: I echo the point about the political objectives. If you are a Clausewitzian like me, all wars begin and end in politics. So you need to be clear about what it is that you are trying to achieve politically so that any military campaign can be directed to supporting the achievement of those political ends. That is the area where we have been poor because those political ends have to be something a bit more precise than the vague, “Well, wouldn’t it be great if we had a nicer world?” Lord Guthrie of Craigiebank: The political aims may change too. The Chairman: You mean the political aims may change as you have described in Afghanistan. Lord Guthrie of Craigiebank: Because of unforeseen consequences you go off and do something else.
33 Field Marshal the Lord Guthrie of Craigiebank, General Sir Mike Jackson and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) Lord Powell of Bayswater: Surely the political objectives of a Government and what they want to achieve when they go to war are fine, but our inquiry is not into that. It is more about Parliament. Surely the only sensible answer is that the degree and the way in which Parliament is consulted depends on the sensible political judgment of ministers in every single case and that laying down formal rules simply will not work. Would you agree with that? Lord Stirrup: Yes. Lord Guthrie of Craigiebank: I would agree. I think any Government which took the country to war and did not have Parliament and the people behind it would be mad. The Chairman: But you cannot offer a way in which that can be achieved any more than the Government appear to be able to? Lord Stirrup: I do not think we can offer a formula that will work in all circumstances. I agree with Lord Powell that each case has to be addressed on its merits but the general principle that Lord Guthrie has just outlined is clearly right. The Chairman: We have covered a vast range of subjects; are there any points that any members want to pursue that have arisen and that have not been covered? Lord Lang of Monkton: I think we have come full circle. The Chairman: I think that we have come full circle and that Lord Lang is right. We have gone full circle in a fascinating way, so we are most grateful to you all for your interesting observations and your reflections on individual campaigns and so forth. You have vividly illustrated some of the difficulties we are trying to unravel. Thank you all very much. Lord Guthrie of Craigiebank: Thank you very much and can we wish you the best of luck?
34 Jack Straw MP – Oral Evidence (QQ34-43)
Jack Straw MP – Oral Evidence (QQ34-43)
Evidence Session No. 3 Heard in Public Questions 34 - 43
WEDNESDAY 12 JUNE 2013
Members present
Baroness Jay of Paddington (Chairman) Lord Crickhowell Lord Cullen of Whitekirk Baroness Falkner of Margravine Lord Goldsmith Lord Hart of Chilton Lord Lexden Baroness Wheatcroft ______
Witness
Rt Hon. Jack Straw MP, Foreign Secretary 2001–06 and Lord Chancellor 2007–10
Q34 The Chairman: Good morning. Mr Straw has to be in the chamber in the Commons shortly after 11.20 am, so if we can be our usual brisk selves—and I am sure he will be his usual brisk self in response—we can pursue this with vigour. This is being webcast.
Perhaps we can start by going back to 2007–08 and the constitutional renewal programme. You, in that Government, were planning to introduce a detailed parliamentary resolution on overseas military intervention, which then did not happen. Can you give us some background and your thinking about whether it is just one of those things that always falls into the “too difficult” box? Jack Straw MP: I have been thinking about this since I got notice of coming here. Obviously, we had Cabinet agreement for what went into the Green Paper and the draft resolution, but two sets of forces—I was about to use the word “conspired” but there was no conspiracy— arose which meant that it got kicked into touch. One was that other ministers were not so keen. The Ministry of Defence was not so keen on this. There was a debate where various folk expressed their lack of keenness, no doubt encouraged by their erstwhile colleagues in the Ministry of Defence. So there was an interdepartmental argument going on, fanned at this end, about: “Is this really necessary? Can we not do it in the British way?” and so on. The other factor was the financial crisis, which consumed a huge amount of senior ministerial time; self-evidently, the Prime Minister and the Chancellor but lots of other people as well. This could have been resolved only if the Prime Minister had a lot of time to chair meetings and bang heads together—that luxury was not available, especially then. That, I think, is the best explanation. The Government and the party remain formally committed to it, and so am I.
35 Jack Straw MP – Oral Evidence (QQ34-43)
The Chairman: It is interesting. We have listened to what Mr Hague and others have said in the Commons, and this committee heard evidence from Nick Clegg about how this is a live issue in the coalition, but again nothing seems to appear. Do you think that it is the same dynamic of internal forces in the Government preventing that? Jack Straw MP: I am less clear about that, for the obvious reasons that I am not privy to their discussions. There is a body of people who are simply opposed to any idea of formalising Parliament’s role in relation to military decisions so they come up with every argument that they can think of. It is reminiscent of FM Cornford’s famous skit on academic politics, where he said there was one reason for doing anything; everything else is a reason for not doing it. He then goes through the principle of dangerous precedent, the principle of unripe time and so on. You have got all these arguments. There is an element of exhaustion. One of the things I did not know and wish I had known—it always helps an argument to call up antiquity—is that when I was reading a very good biography of Castlereagh by John Bew, who is the son of one of your members, it turned out that during the Napoleonic Wars the House of Commons quite routinely debated resolutions about the next military campaign in those wars and no one would have dreamt of going to war without a resolution. I might get the reference and the Library could do some more work on this. If it is suggested that all we are doing is reviving ancient practices, it makes the argument a lot easier.
Q35 Lord Cullen of Whitekirk: In the draft resolution, there was use of the expression “conflict decision”, which excited a certain amount of criticism. Can you develop that point further as to how it might be expressed? Jack Straw MP: I have got the draft here, and I saw that there was some reference to this in the evidence you took from the former Chiefs of the Defence Staff. These kinds of drafts are always open to improvement. You could define a conflict decision by saying that ultimately a conflict decision is where British troops are placed in harm’s way. I think everybody, roughly speaking, knows what a conflict decision is. The crucial thing about this draft is that the triggers are entirely in the hands of the Prime Minister. The Prime Minister decides whether there is a conflict decision. If it is something rather trivial, he may decide that there is no conflict decision to be made, in which case he calls it something else and this resolution does not operate. In any event, the special forces are not touched by the resolution. Then there are the emergency condition and the security condition, which enable the Prime Minister to defer a decision until after the event.
Lord Cullen of Whitekirk: So the exceptions begin to eat into the principle of the thing. Jack Straw MP: Yes, but I think everybody accepts there are bound to be exceptions, as with the special forces. A lot of the conflicts we have had in the past couple of decades have been classic in this sense, in that you have had to assemble a force and move it, and there has been no secrecy about that. But sometimes you need an element of surprise, and everybody understands that. No one is suggesting that the House of Commons should become a kind of operational unit of the Ministry of Defence. People are very realistic about this; I am clear about that. I am also strongly committed to the House of Commons having the power to make decisions. I do not believe, if this was implicit in your question, that a Prime Minister would knowingly try to evade the power of the resolution by avoiding going to Parliament for approval, when everybody knew that that decision was in hand and there was no element of surprise involved.
36 Jack Straw MP – Oral Evidence (QQ34-43)
Q36 Baroness Falkner of Margravine: Given the constraints and the exceptions in that draft resolution, were it in existence now, where would lifting the EU arms embargo on Syria lie in that spectrum? Jack Straw MP: It is a plainly conflict decision, in my view. The emergency condition is not met because everybody knows about this and it is hard to argue that the security condition is met because this is a very public decision. So I think it would be triggered. As you may know, Lady Falkner, a wise administration would ensure that this issue is put before the House of Commons before a decision is made or in order to make a decision.
The Chairman: But there does not seem to be any common ground about some of the language. For example, we had good evidence from Professor Clarke of RUSI, who said that it was commonly agreed that the engagement of UK forces in “death and destruction” should be the dividing line, which is rather different from the threshold that you are suggesting. Jack Straw MP: I saw that from Professor Clarke. If we supplied arms to the rebel forces in Syria we would be going in for death and destruction by proxy; we would subcontract the death and destruction. Who knows where it would lead? There might be an element of training; after all, if you provide kit to people, it is a good idea that they know how to use it. You also have to make sure that the kit does not get into the wrong hands. So it would be idle to pretend that there would be no British military personnel around the kit. The more sophisticated the kit, the more personnel would be around it, I think.
Lord Lexden: Is it your view that the present stage of the Syrian crisis vindicates absolutely the case for having the kind of resolution under which Parliament would know its position? Jack Straw MP: Yes, I think so, my Lord. I had not thought of it in that way. What is interesting is that the sentiment in the House of Commons has changed significantly in the past 20 years. Even in the absence of a resolution like this—we do not have one at the moment—there is an expectation in the House of Commons that if it is a decision of some seriousness, the House of Commons has to make that decision; it cannot just be made by ministers.
Q37 Lord Hart of Chilton: There is a great deal of consensus. There is a consensus that the Ministry of Defence wants to know, before it engages in action, that the action is lawful and that Parliament is behind it. However, the MoD accepts that circumstances can change quickly from peacetime to sudden emergency action and it is dangerous to get retrospective approval if the show is on the road. When you get to the position where any Prime Minister who is not mad knows that he needs parliamentary backing, the problem of definition always arises. You can see that in the debates that have taken place and the responses to your consultation paper—it always comes down to the definition issue. It seems very difficult to find a resolution to this, which is why it has taken so long for the present coalition Government to propose anything meaningful; it seems as if the issues are the same as they were in your time. Jack Straw MP: I think the issues are. I do not think there is a problem about definition. If there was a will to do this—to pass this resolution or something similar—the waters would close over and everybody would know that it is a perfectly sensible resolution, to be applied with common sense. The Prime Minister is the ultimate arbiter of whether to trigger the resolution, and he will be getting plenty of advice from the Cabinet Office and the Ministry of Defence.
37 Jack Straw MP – Oral Evidence (QQ34-43)
With respect, the arguments about definition are arguments from those who do not want to formalise the position. They are thinking of arguments from the side to try to undermine it. They have been remarkably successful in doing this for the past five years. People have been going round the houses saying, “Should the wording be like this or that?” If this resolution was in primary legislation that gave the Prime Minister no discretion, and you had a long definition of what a conflict decision was, I would share the concerns about the wording. To restate the point: since it is a resolution of the House of Commons and the person who first decides whether it is a conflict decision is the Prime Minister, the argument that it is all down to definition falls away. The English language is replete with words; if this wording does not work, we can find some other words to capture it. If it transpires that this draft, if passed by the House of Commons, does not quite reflect the reality of the kinds of decisions that are made, you change it—dead easy.
Lord Hart of Chilton: In your time, you could not get it through for various reasons, which are probably the same reasons why nobody has got it through now. How is it possible to turn that problem into a solution in a way you would like to see without suggesting that things should be left as they are? Jack Straw MP: I look forward to your committee’s report, so that may help, with a bit of luck. I will keep my fingers crossed. How is it possible? It is about priorities in government. It may be possible, once your committee has reported, to get a backbench debate on this and try to get a vote on it, and push it forward in that way. Certainly, if the current Government were to refuse to put forward a resolution in their name in respect of the supply of arms to Syrian rebels—assuming that they make that decision—you would see a huge head of steam behind this and things would move rapidly. As long as they are implementing the spirit of this, in the absence of it being written down, it is a lower priority for government.
Lord Hart of Chilton: It would be madness to not do so, would it not? Jack Straw MP: Yes.
Lord Hart of Chilton: No sane Prime Minister is going to decide that he is not going to bother with Parliament. Jack Straw MP: Not these days, no, but I still think that it ought to be formalised.
Q38 The Chairman: Perhaps the point is—and I hope this does not suggest that I have been susceptible to the “do nothing” arguments—that if you look at the constitutional implications, there is a difficulty with the political reality of a Prime Minister being crazy if he did not put a resolution of some form before the Commons, but what difference does that make if ultimately it is still the Prime Minister’s decision? It is not about parliamentary sovereignty. This is about the political necessity of having a debate in the Commons, even if there is no formal requirement for it. Jack Straw MP: I think there is a very big difference, with respect, because the Prime Minister is effectively the commander-in-chief of our armed forces. So it is he or she who determines whether to recommend their deployment. This is a use of the prerogative power. Classically the prerogative power is not subject to invigilation, certainly prospectively, by the House of Commons or the House of Lords. What already has been established as something of a convention, and I certainly would wish to see established more formally by a resolution or legislation, is that the power of the Prime Minister to initiate the deployment of our armed forces is subject to approval by the House of Commons. Where possible, that is in advance; where it is not possible, it is retrospective.
38 Jack Straw MP – Oral Evidence (QQ34-43)
I was present in the House of Commons on 2 April 1982 when we had the famous debate on the Falklands. I was in favour of the Falklands military action and I have never changed my view, but it was ridiculous that that debate effectively to approve military action took place over three hours on a Saturday morning on a motion for the adjournment—simply absurd. Lord Crickhowell may remember it. Lord Crickhowell: I was a member of the Cabinet at the time. Incidentally, we hear a lot of talk about the role of war cabinets but the Prime Minister took that decision to the full Cabinet before establishing a war cabinet. I was listening with interest to your comments about the way in which the opponents of reform always produce arguments. I have just read a rather good book on the Great Reform Bill. Jack Straw MP: Yes, by Antonia Fraser.
Lord Crickhowell: I thought of the same arguments as we were debating the contentious subject of gay marriage recently, so I understand the points. But would you be surprised to discover that this committee, which I do not think collectively is a model of opposition to change, has developed—to use your words—a “lack of keenness” as the whole subject has been debated? We have found as we have listened to the arguments that the problems of definition are considerable. We have listened carefully to what has been said. As has already been pointed out, no Prime Minister is going to go into a conflict situation—it would be mad of him to do so—without getting the approval of Parliament. Indeed, we have seen that when Parliament becomes concerned about something, as it is about the developing situation in Syria, Parliament itself can create a situation that demands debate. I wonder if you are right in thinking it is necessary to go down this road, when is so hard to arrive at a definition, to create a situation that is not very different from the one we are in. You may be disappointed if you think that this committee’s report is going to give you the solid instrument you need to make progress. Jack Straw MP: My Lord, if it does not, I am sure that I can find some other recommendations to back it. I suggest that the argument that you are advancing against a resolution can be easily turned on its head into an argument in favour of a resolution. To repeat the point about the English language, the English language is a very flexible instrument. We have brilliant parliamentary counsel—who drafted the resolution—who can capture a variety of potential situations and put them into language that can be understood and acted upon in future. I think this draft resolution did that. It is perfectly possible to redraft it. There is an important constitutional point here about what we say to the public, who are, as it were, the owners of our constitutional arrangements, about where power over military action should ultimately lie. In the absence of a resolution, the power will be seen, quite correctly, to lie under the old prerogative arrangements with the Prime Minister and the Cabinet. It will be a matter of grace and favour by the Prime Minister as to whether or not the House of Commons is asked for its view. Now, sometimes it may be forced to be asked, but it would be much better, much more mature, if we said, “the House of Commons is the elected, democratic body in this country. There is no more serious question in a democracy than putting your young men and women in harm’s way and that decision ought to be made by the House of Commons, in most cases prospectively; otherwise retrospectively”.
Q39 Lord Cullen of Whitekirk: If there is deployment following approval by the House of Commons, what should happen if over time there is evident change in the objective of the deployment or in the possible legal basis for the deployment? Should that be covered by the resolution?
39 Jack Straw MP – Oral Evidence (QQ34-43)
Jack Straw MP: I certainly think it ought to. The best example is the change in the level of deployment in Afghanistan in 2006. There were a number of debates—I cannot remember if they were resolutions but I think there were—on the Afghanistan conflict in that frenzied period immediately after 9/11. We also had very clear Security Council resolutions authorising conflict and inviting nations to contribute to what was at that stage ISAF. The subsequent extension of that deployment, which led to a huge increase in not only the number of forces but their risk and casualties, which was developed inside the British Government in 2005–06 and announced in early 2006, represented a major departure in respect of British military involvement. My reflection is that that ought to have come to Parliament. It did not and if you asked me whether I advanced that view at the time, the answer would be: as far as I remember, no, I did not. So this is very much a reflection, but it should have done. Interestingly, had that been an obligation on the Government, the level of interest that was taken in government and the intensity of discussion about whether to mobilise all these forces for the south of Afghanistan and what the rules of engagement would have been, that all would have been at a much higher level. It is a matter of regret to me but it was very much led by the Ministry of Defence. John Reid was in the driving seat. A lot of the discussions in which the Foreign Office was involved were at the level of Minister of State. Kim Howells represented me in those. He was very good and he was concerned about the potential consequences, but it should have been at a much higher level.
Q40 Baroness Wheatcroft: When we heard evidence from retired senior military officers, one of their major concerns was that action may be legal but might not be perceived to be legitimate. They saw a growing problem with a perceived lack of public support. Do you think that the sort of resolution that is now being proposed would make the public view action as legitimate or would it not affect their thinking? Jack Straw MP: I think it would certainly contribute to the legitimacy of any decision. Of course, it is a necessary prior condition that it ought to be lawful. If it is not lawful, everything else falls away. Assuming it is lawful, one of the many advantages of having conflict decisions made by the House of Commons is that it is a way of securing their legitimacy. I dread to think what the situation would have been in the country and in the armed forces if we had not put the decision to go to war in Iraq to the House of Commons with a very explicit resolution. It was controversial enough, but without that I think it would have been catastrophic.
Baroness Wheatcroft: If public opinion changes during the course of action—as it has over Afghanistan; there is a strong anti feeling among the public—at what point would there have to be another resolution or at least the issue be put to the Commons? Jack Straw MP: For example, we made a formal decision in 2006 to go into the south with much more active rules of engagement. The Commons and the country have to accept that you have to live with the consequences of that decision. You cannot suddenly come back to the House of Commons and say, “By the way, we have lost quite a large number of personnel so we need to pull back”. I do not think any military commander would be willing to command troops in such circumstances. The country has to be mature about this and accept that, once you have made the decision, it is handed over, quite correctly, to the war cabinet and the military commanders on the ground. The stage at which it comes back to the House of Commons is then a matter for the Prime Minister. It cannot be for a left-field resolution. Perceptions differ. On Afghanistan, there is a kind of war weariness. My constituency has a lot of military connections. The Duke of Lancaster’s Regiment has lost quite a lot of
40 Jack Straw MP – Oral Evidence (QQ34-43) personnel, but there is no fury about our engagement in Afghanistan. People would prefer the troops to come home but they think they have done a very good job.
Baroness Wheatcroft: Another concern the military officers raised was that in the heat of battle they now felt that they had the full force of civilian law looking over their shoulders and that actions conducted at the front could see people in the coroner’s court. They felt deeply uncomfortable about that. Do you see a distinction between what is legitimate on the battlefield and what should be subject to the rule of law back home? Jack Straw MP: I am uncomfortable about that. It has happened quite separately from whether or not you have this resolution. My view is that we need to reform that area of the law, as well as the extent to which the European Convention on Human Rights can apply to conflict situations outside the jurisdiction. It is very disruptive of military action and military decision-making.
Lord Hart of Chilton: Once you have deployed—and let us assume that parliamentary approval has been given; most of the MoD see it as a huge advantage to have parliamentary backing—it seems quite wrong to be able to pull back and so cause morale to collapse. They are all in touch with television and their own families are communicating with them. It would be a tragedy if, for a constitutional reason, Parliament was given the right to pull back from something that it had authorised. Jack Straw MP: No, you cannot possibly have that. I do not think there is any suggestion in Parliament that you could have that. It can happen in the course of any extended military campaign, including the two world wars, that something goes badly wrong and there is, quite correctly, a debate in the House of Commons—and in the House of Lords—about why it has gone badly wrong and a demand for changes in the military strategy and tactics. That seems entirely legitimate, but it is very different from having another resolution and suddenly issuing an instruction to the operational commanders to withdraw.
Q41 The Chairman: Returning to the area of decision-making within the Government, you made some interesting comments about ministerial levels in relation to Afghanistan. We want to look also at the current arrangements. Lord Crickhowell, you had a question about the nature of the contemporary decision-making.
Lord Crickhowell: It has changed, has it not? As I understand it, the structure and the way that these things are managed in government has altered, with the creation of the National Security Council. We had a conflict of evidence about the Defence Council. First, we were told that it was extremely important, but then we were told that actually it meets formally only once a year and that the way things operate is that the heads of the armed forces meet the Prime Minister as is necessary to give him the advice he needs, but that the body that really was of growing importance was the NSC. That is important because the Prime Minister chairs it and all the relevant government departments are represented on it, it meets weekly, and so on. It has been strongly criticised by the Joint Committee on the National Security Strategy for the way it has so far operated, which the joint committee said has been very short-term, looking at immediate crises, and it has not got the collective government view much better than previously. Do you have any views about the operation of the NSC and its relevance to the issues that we have been discussing? Jack Straw MP: I welcome the establishment of the National Security Council. I was uncomfortable, as others around this table were, about the informality of decision-making that took place when Tony Blair was Prime Minister. I have spelt this out in endless evidence
41 Jack Straw MP – Oral Evidence (QQ34-43) to the Iraq Inquiry and—I am not advertising but it is relevant—in the final chapter of my book, and indeed other chapters. I absolutely stand by the decisions we made on Iraq but, on this issue of legitimacy, they would have been regarded—then and today—as far more legitimate if there had been a much more formal process within the Government over making them as well as the formal process in Parliament. Self-evidently I am not a member of the National Security Council because we are not in government, but all the reports I receive are that this represents a significant advance in our constitutional arrangements and that it is, quite appropriately, a mixed committee with senior politicians and senior people from the military and the intelligence agencies and so on who are there and, I gather, contribute without distinction to the debates. I cannot comment on the particular criticism of the joint committee about this. There is always a criticism that you are spending too much time on the short term and not enough time on the long term, and we all know why.
Lord Crickhowell: Is not the existence of a parliamentary committee that looks at its performance very relevant to the issue that we have been discussing? Jack Straw MP: Yes, it is.
Lord Crickhowell: When there was a cabinet committee, there was no particular parliamentary supervision, but here you have the NSC taking decisions about whether we get into a conflict situation—of a very varied kind, incidentally—and it is coming under detailed examination by a joint committee of Parliament, to which it has to explain its actions and defend itself. Is that not in itself a very considerable step forward in parliamentary supervision and control of these constitutional issues? Jack Straw MP: My Lord, are you referring to the Intelligence and Security Committee or something like the Foreign Affairs or Defence Committee?
Lord Crickhowell: I cannot remember at the moment what the committee is called.
The Chairman: The Joint Committee on the National Security Strategy.
Lord Crickhowell: Thank you. Jack Straw MP: All these arrangements slot together and, in a sense, reinforce each other. They are illustrations of a demand for greater accountability of government and the armed forces, which is unsurprising given the arguments about the way in which the decisions over Iraq were taken.
Lord Crickhowell: Would it be helpful if there was greater clarity in the Cabinet Manual as to the role of these various bodies? Jack Straw MP: I think it would. A greater degree of formality and prescription about how these bodies should operate and the frequency with which they should meet would be helpful, especially for a Prime Minister in a hurry.
Q42 Baroness Falkner of Margravine: There was a debate in the Lords in 2008 in which Lord Hannay of Chiswick, who has a very high regard for international obligations, made the point that, when you are a permanent member of the UN Security Council and you have a collective security obligation under NATO, occasionally you have to sign up to things without having the time to come back to Parliament. This was also brought up by the think tanks and the military officers, who said that countries which require parliamentary
42 Jack Straw MP – Oral Evidence (QQ34-43) approval which are NATO members—the Netherlands is one; Germany has a particularly difficult and different problem—are seen to be far slower, far less agile, in being able to help when needed. What would you say about that perspective? I notice it is covered in the resolution in the emergency condition.
I would also like to take you back to Syria, Mr Straw. Where in that resolution would the lifting of an arms embargo—that small step only—be covered? I am slightly surprised that you think that it would. I am disaggregating what is wise to do, because that is very subjective. Jack Straw MP: On Lord Hannay’s point, of course we have obligations as a permanent member of the UN Security Council and under various international instruments. Having been Foreign Secretary for five years, I am well aware that you may suddenly get a fast- moving situation in the Security Council where you need to go snap on a resolution. But you know what the subject matter is in advance. It is very rare—I cannot think of a single example; I must reread Lord Hannay’s speech—for a request to sign up to military involvement to come out of the blue.
Baroness Falkner of Margravine: Sierra Leone, perhaps? That was quite sudden. Jack Straw MP: If you take Sierra Leone, there would be a decision about whether it was a emergency situation. The House of Commons is perfectly sensible and would accept, if necessary, that there had to be a report about this after the decision was taken rather than before. The arrangements of other countries vary—as I recall from discussions in NATO— and some of the parliamentary arrangements in some countries are pretty constipated. But that is a reflection of the public mood in those countries and their recent history. I have no reason to think that, in this country, just because we passed a resolution requiring there to be approval, that our arrangements would become constipated or would disrupt the military. On arming the rebels in Syria, the exam question is: “Does that amount to a conflict decision?” If the general view of the lawyers was that it did not amount to a conflict decision, we would probably need to change the wording a bit, but that is easy enough.
The Chairman: Lord Goldsmith. Lord Goldsmith: I am not going to answer that question. The Chairman: I am not asking you to answer that question.
Lord Goldsmith: I have held back but I wanted to ask you this question, if I may. You made a powerful point about the merit of a resolution being that it provides democratic legitimacy for very important decisions. One might also say that if we are saying, “Only a mad Prime Minister would not do that in any event”, why not encapsulate that sanity in a procedure that has to be applied? The resolution proposal depended to some extent, perhaps to a large extent, on a continuing discretion for the Prime Minister in relation to timing, the provision of information and the existence of exceptional circumstances. Do you think that today those exceptions—that continuing discretion for a Prime Minister—would be accepted, particularly by the House of Commons, or would it say, “No, we are not going to allow that degree of discretion to remain”? Jack Straw MP: I think they would and that they would continue to be accepted by the House of Commons, as long as no Prime Minister abused those exceptions. It would be an unwise Prime Minister who did, in my view. On the issue of sanity, since you raise it, sanity
43 Jack Straw MP – Oral Evidence (QQ34-43) has never been a qualification requirement of people seeking the highest office—or that holders of the highest office remain sane, which is an even greater problem.
Q43 The Chairman: We are coming to the end of the time that you have kindly given us, Mr Straw. Does any member of the committee have any final points? Lord Lexden.
Lord Lexden: Mr Straw, perhaps I could take you back to the Government’s internal decision-making processes. You have commented very interestingly on the way these have operated and you have suggested some changes to the Cabinet Manual and greater clarity so that they are more fully understood. Would they need anything beyond that to improve them? Perhaps we should not let you go without asking you about the circumstances in which a war cabinet ought to exist, in your judgment, given that there was one in 2001 for Afghanistan and there was not one in 2003. Jack Straw MP: My view, which again I set out in these reflections at the end of my book— apologies for mentioning it again—is that we ought to legislate for cabinet governments. I am currently working on more detail about how you would do that. The resolution could come into that framework. Although, down the track, I would prefer to see the requirement for approval of military action by the House of Commons contained in legislation rather than a resolution, I was perfectly happy to opt for a resolution because it almost has the force of law in any case; the Prime Minister is not going to ignore it. With Iraq, we did have a war cabinet, but only after war had been declared. What we did not have was proper formal structures before that in the decision-making process that began in April 2002 and ran through to March 2003. I was never excluded from the decisions and it was true, as the Iraq Inquiry was reminded, that there were 23 occasions when the Cabinet discussed Iraq. What we did not have was a discussion on paper; typically you had me or the Prime Minister giving a briefing and the Prime Minister then leading the conversation. People were well aware of the issues, there was no blind-siding, but it would have been far better if the kind of detailed examination of the merits, which was taking place informally, took place in a much more formal structure. The irony is it would have been much better for Mr Blair had that happened.
The Chairman: That is a very pertinent point to finish on. We are asking members of the current Government—from both parties of the coalition, from the Ministry of Defence, the Cabinet Office and the Foreign and Commonwealth Office—to have a collective evidence session with us in a fortnight, so perhaps some of the historical points you have raised will become even more current. Thank you very much for coming. It has been enormously interesting and I hope that we have got you away on time. Jack Straw MP: You have. Thank you very much indeed.
44 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58)
Evidence Session No.4 Heard in Public Questions 44 - 58
WEDNESDAY 26 JUNE 2013
Members present
Baroness Jay of Paddington (Chairman) Lord Cullen of Whitekirk Lord Crickhowell Baroness Falkner of Margravine Lord Goldsmith Lord Hart of Chilton Lord Irvine of Lairg Lord Lester of Herne Hill Lord Lexden Lord Powell of Bayswater Baroness Wheatcroft ______
Witnesses
Alistair Burt MP, Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Rt Hon Andrew Robathan MP, Minister of State for the Armed Forces, and Rt Hon Lord Wallace of Saltaire, Government Whip for the Foreign and Commonwealth Office and Lords spokesman for the Cabinet Office.
Q44 The Chairman: Good morning. Many thanks to all three of you for attending the committee and joining this panel discussion, which I imagine will be slightly more informal than some of the evidence that you give to select committees. We are conducting a relatively brief inquiry into the constitutional arrangements for using armed force. A few years ago our predecessor committee conducted a substantial and wide-ranging inquiry on this subject, which you may be aware of. It looked at waging war, and Parliament’s role and responsibility. Obviously, we do not want to repeat that, but we think that in the intervening period there are some matters that need updating from the perspective of the military, of the people we have already spoken to, and of Parliament and the Government. The top-line issue for the inquiry is Parliament’s role in any military intervention. We have seen statements from Lord Wallace of Saltaire in our House and from ministers in the Commons, particularly Mr Hague, and the Deputy Prime Minister in evidence to us, about how this is an active issue under consideration by the Government. Of course, there have been all the recent statements in answer to questions about the specific issue of Syria.
We are looking at the executive’s role and the changing nature of decision-making in Whitehall; the creation of the National Security Council, its function and its formal role; the
45 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) different circumstances and methods of military intervention over the past few years; and the fact that it is no longer about boots on the ground and old-fashioned declarations of the beginning of hostilities but about the use of cyberwarfare and the question of drones and other unmanned technical advances. This has been of particular importance in the current discussions about Syria and the provision of non-lethal assistance there. These matters have raised new questions that we think are worth looking at. The simplest thing will be to begin by asking all three of you for your current understanding of the Government’s position about the role of Parliament in the execution of military intervention. We keep getting a slight flavour from witnesses that this has been put back in the too-difficult box because of the issues of detail that have arisen. Perhaps I can start with Mr Burt. Alistair Burt MP: Thank you, Lord Chairman. I am Alistair Burt, the Minister at the Foreign and Commonwealth Office with responsibility for, among a number of other things, the Middle East—which may come into play in relation to Syria and other matters. I have also substituted for the Foreign Secretary a number of times on both COBRA and the NSC, which may be of help later. In relation to formalising Parliament’s role in this area, as we know, the convention has been subject to a lot of interest, not least from your committee, and the passage of events over recent years has heightened public and parliamentary interest in the process of how forces are deployed. The Government’s position is that they believe that they have already strengthened the role of Parliament in this area by the publication in the Cabinet Manual of information in relation to military action. However, as you are aware from other witnesses, it remains a very live debate within government as to whether things should go further. The difficulties have been well enunciated to the committee. There is a degree of complexity about the decisions, terminology and definitions. There is a difference of opinion among colleagues, to which the Deputy Prime Minister alluded when he gave evidence. The current position of the Government is that a range of options is being considered. They range from preservation of the status quo through to legislation. No decisions have been taken. When decisions have been taken, the Government will come forward. But first and foremost, the Government believe that the convention has been strengthened. Later we may come on to how that is coming into play in relation to Syria.
The Chairman: Are the Government concerned, for example, that they may be overtaken by events? You may have to make some formal position clear vis-à-vis Parliament in view of a particular situation. Obviously we are thinking about Syria. Have you got to the point where it would be possible to do that, or is this still in the very early process of formulation? Alistair Burt MP: I do not think that any decisions on the formalising of the convention are imminent. In terms of events, the Government will always retain the flexibility to handle them in any case. We may come on later to discuss the balance of trust. That has occurred to all of us as being very important. Ultimately, the Government have to carry the confidence of Parliament, however that is devised and whatever system there may be. If that breaks down, the Government are in trouble one way or another. Whatever were to happen in relation to Syria, the Prime Minister and the Foreign Secretary have already made it very clear that they would look for a view from Parliament. I can elaborate on that in due course. There is no doubt that the Government has to retain flexibility, and that circumstances, whether or not this is formalised, will always allow that situation.
Q45 Lord Irvine of Lairg: The Foreign Secretary, Mr Hague, told the House of Commons in March 2011 that the Government intended to enshrine in law the requirement to consult Parliament prior to military action. At the time I certainly thought that that
46 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) amounted to a promise to legislate on the subject. Was that the position as you understood it at the time, and is it no longer the Government’s position? Alistair Burt MP: My understanding is that the Government believe that the convention is important and that they are considering further options for formalisation, as was set out by other witnesses to the committee. As the committee has heard, no decision has been taken, for a variety of reasons.
Lord Irvine of Lairg: Could you explain how the Foreign Secretary was able to inform the House of Commons that the Government’s intention was to enshrine the requirement in law? “Enshrine in law” means legislate. Alistair Burt MP: Of course. The Foreign Secretary was quite clear about his intention, but in order for it to go through the necessary processes of government, there has to be agreement, and decisions have to be taken about exactly what the legislation will look like. The Foreign Secretary’s intention is clear. His adherence to the convention and his willingness to brief Parliament regularly on actions are also clear. But, as the committee has explored, there are genuine difficulties in framing the legislation. You have to consider issues of urgency and secrecy. We have treaty obligations. A variety of circumstances make it complex. We have read the transcripts and I understand that the committee knows this well. The Foreign Secretary’s intention can be clear, but, equally, if that intention is to be made not only manifest but fully effective, the processes must be gone through and we have to come to the right answers. Currently, in all honesty, it is proving difficult and there are different views among Cabinet colleagues.
Q46 Lord Lester of Herne Hill: I should declare a couple of interests before I ask my question. First, I was an independent adviser to Jack Straw on this issue, among others. I confirm that his evidence to this committee accurately described why the previous Government did not act in the way that he and others wished. I also declare an interest in that I was a gunner officer attached to the 1st Guards Brigade during the Suez adventure. The reason I declare that professional interest is because at the time I was engaged in a subterfuge to make sure that the press did not know that we were mobilising for war. I did not know at the time that the then Prime Minister had failed to consult the law officers about our international legal obligations. My question is this. What is the problem in terms of reassuring not just Parliament but the public with a simple, statutory rule on war powers of a kind that is in the constitutions of most other democracies that says that we must not go to war without first consulting Parliament, except in emergency situations—and that in emergency situations we will seek retrospective approval? What is the difficulty about that? Alistair Burt MP: My understanding is that there is a mixture of provisions in different jurisdictions. Many Commonwealth countries do not have such a rule, although it is more common than not in EU countries for the law to be as you stated. That mixture represents the fact that ultimately it is the bond of trust that is important, and it is represented in different ways. The difficulty of framing legislation has been brought before the House. No matter how simple it may look, what sort of situations would it cover? Michael Clarke put it to you that declarations of war are rather out of fashion these days, because that is not always the cause of conflict. Once you get into the difficulties of defining what sort of action it may be, and what the circumstances may be, and the necessary exemptions to protect—as in your case—what a Government believed they needed to do to save or protect lives, you start to realise the difficulties that you have spent time considering, and that I know Cabinet colleagues have spent time considering. That is why it is a simple proposition—but, alas, in
47 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) life, sometimes the simplest propositions, turned into legislation, end up not quite so simple after all.
Q47 Lord Hart of Chilton: Perhaps I could put a slightly different proposition to you from Lord Lester’s. If no Prime Minister except a madman would deploy troops unless parliamentary approval had been obtained, and if no troops would ever be deployed unless it was accepted and unless advice had been given that it was lawful, what is the problem in leaving things as they are? Alistair Burt MP: You make a good case, which I suspect will be the view of some.
The Chairman: A majority? Alistair Burt MP: I do not know. I am not privy to all the discussions of my Cabinet colleagues. I am aware, though, that the things being considered range from exactly that proposition—the sense that, unless there is the confidence of the House in what the Government are doing, the Government are in trouble one way or another. If they do not command a majority in the House, either they run into a no-confidence motion or they lose a motion. Of course, it is not always in the Government’s gift to bring forward the resolution in the first place; it is in Parliament’s gift. If there is a breakdown, the Government are in trouble anyway. I am sure that some voices will say that the convention, as strengthened in the Cabinet Manual, provides what the Government need to have. However, because the debate is not complete, the discussions on what we are talking about this morning are continuing.
Lord Hart of Chilton: But you cannot go on for ever like this. It leads to a great deal of uncertainty. As far as I am concerned, the morale of the troops is of the utmost importance. A long, drawn-out debate, with uncertainty about which way you are going, is not a recipe for good governance. Andrew Robathan MP: I should say at the outset that I somewhat defer to my two colleagues on this, because the Ministry of Defence’s role is more in implementation than decision-making—but obviously we are involved in decisions, for reasons that people will understand. Looking back at the past—many members of the committee have greater knowledge than me about some of the decisions made—one can see that it is always important, from an armed forces perspective, to have general support. For legal reasons, we need legal support and a legal basis. We also need the support of Parliament, because the Government cannot operate without it. Although they could perhaps go to war using the royal prerogative, they could not remain there. From the armed forces’ point of view, we also want the support of the people. This is an important point. No member of the armed forces wishes to be seen to be taking part in a war where he or she is not supported by the public in general. In many ways you know better than me—because you have discussed this in the committee—that we have a lot of complicated issues. The Government will have to take a decision as to whether this is best enshrined in a formal law, when the pragmatic solution generally seems to work well. I am sure we will come on to Syria. Certainly as a Government we do not wish to launch into a foreign war if we do not have the support of Parliament, for obvious reasons, or of the people, for equally obvious reasons.
Q48 Baroness Falkner of Margravine: Something that has emerged, here and in our previous evidence sessions, is the issue of definitions. You have moved seamlessly, Minister of State, into war. Andrew Robathan MP: That is what we do.
48 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) Baroness Falkner of Margravine: Two weeks ago I asked Jack Straw where the non- renewal of the arms embargo on Syria lay on the spectrum. His answer was that he thought we needed parliamentary approval for it. There is a wide spectrum of things that people think Parliament should have to approve. Professor Clarke described it as “death and destruction”, which I think was probably the right level. What does the Ministry of Defence think about the non-renewal of the arms embargo? Do you take Mr Straw’s position? Andrew Robathan MP: The arms embargo is more a question for my colleagues. There is indeed a huge spectrum. The British armed forces, for decades, have been much involved in training people. In the early 1970s, I believe, we were training the Shah’s air force. Certainly we were involved in training the Shah’s army. I was at staff college in 1984 with a very nice Iraqi colonel. We then went to war with Iraq in 1991. I did not see him there. We do these things. With aircraft, we often have a package. We train pilots from various countries to fly our aircraft. We have exchanges the whole time. We have officers at Sandhurst the whole time. That is one end of the spectrum. But in the final analysis, the Ministry of Defence is about the defence of the realm. You referred to death and destruction, which is the other end of the spectrum. We need always to take, as far as possible, both the British Parliament and the British people with us. Sometimes that is quite difficult. Alistair Burt MP: On the arms embargo, the FCO takes the position that, should there be any implementation of the position allowed by the European Union following the lifting of the arms embargo—that is what recent debate has been about—the Prime Minister and Foreign Secretary made it very clear that they would look for the House of Commons to take a view on the implementation of lifting the arms embargo, should the United Kingdom make a decision to supply arms following the lifting. But in terms of the decision that we would work with other colleagues in the EU to seek a lifting, we believe that was covered by existing elements of policy and did not need a vote. Implementation would, but we felt that the purpose of the lifting, which was to assist the political process to end the conflict, to which the House is committed, by providing another lever against the regime in Syria, and also by distinguishing, we believe rightly, between the actions of the regime and those who are resisting the violence being directed towards them, fell within policy and did not need a substantive vote.
Baroness Falkner of Margravine: Do you accept that taking the view of the House of Commons will set a precedent in this regard, if you decide to arm the Syrian National Coalition? Following from that, depending on what your answer is, would you wish to have done this before non-lethal equipment was given to the Syrian opposition? I am trying to understand whether you think that training, and putting people on the ground in a neighbouring country for training purposes, would constitute a situation where we would need to have a vote in the House of Commons on the distinction between lethal and non- lethal equipment. Alistair Burt MP: This gets us into areas that are very open for debate and consideration, and on which there is no clear precedent. I even wonder whether it is possible to get there. We are talking about a range of support being offered by the United Kingdom in particular circumstances that will almost always be different, no matter what the circumstances in another country might be. That is why prescribing a vote in the current circumstances and considering it a precedent would not be wise. What your committee has explored, and what successive witnesses said to you, was that the Government would clearly not take a decision to deploy troops without consulting the Commons in conflict situations. The Prime Minister and Foreign Secretary also said, in relation specifically to the Syrian situation, that they would look for the view of the House of Commons through a vote. I find it difficult to
49 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) imagine the circumstances in which a vote of the House of Commons would be disregarded by the Government. There will be circumstances such as emergencies, things unknown at the time of the vote and circumstances that change very quickly that must enable the Government to act immediately, but we do not necessarily see a vote on arming elements of the Syrian opposition as a precedent, because each circumstance will be different. Who knows what the House will want to consider in five or 10 years’ time?
Baroness Falkner of Margravine: Do you exclude special forces from this? Alistair Burt MP: We never say anything about special forces, and I suspect that nothing in the convention would change that. I am sure that the Ministry of Defence would agree.
Q49 Lord Lexden: Perhaps I could raise an obvious, self-interested point about the House of Lords. Perhaps Lord Wallace of Saltaire might like to comment. The Government have so far said nothing about the role of the House of Lords in the parliamentary process, whereas their predecessors indicated in 2008 that there would be some kind of advisory role. It would be useful to know the Government’s position on the involvement of the Lords in the parliamentary process. Lord Wallace of Saltaire: William Wallace, otherwise Lord Wallace of Saltaire. I am here as the Lords Minister for the Cabinet Office. It is perhaps worth mentioning that in this coalition Government, I am also a Liberal Democrat minister. Part of the discussion we are having ranges across and within both parties that form the Government. The draft resolution prepared in 2008, which you have seen, talked about the House of Commons taking a decision and considering how far the House of Lords should be consulted. That seems to be the appropriate balance between the two Houses. The House of Lords, as we all regularly say, is an advising and revising House. The Commons represents the sense of the nation. If we are talking about maintaining the legitimacy of operations abroad and the confidence of the broader public, the House of Commons has to be the main mechanism. I note that in some of your earlier discussions you considered the question of how one maintains the confidence and trust of Parliament and the public in extended operations, and whether Commons committees or joint committees of the two Houses would be part of the way in which the Government continued to inform and consult parliamentary opinion. That seems to be the sort of place where the Lords will come in. There are a number of joint committees that cover aspects of defence and security. That seems to be the appropriate role for the House of Lords.
Lord Lexden: You would not consider some formal advisory position for the House of Lords in any new set of arrangements? You are indicating—and one sees the force of it— that since circumstances alter cases, and we are talking about great flexibility in conventions, one can see the case for perhaps not formalising the role of the House of Lords, but for everybody to accept, as a matter of course, that it will play a part, as appropriate, decision by decision. Lord Wallace of Saltaire: We are having a debate on Syria next Monday. There will be no vote at the end of it, but the House will no doubt express a range of opinions, as Syria evolves. But we all accept the supremacy of the House of Commons. If we are talking about maintaining confidence, trust and a sense of legitimacy for operations overseas, the Commons has to come first.
50 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) The Chairman: I know members want to ask about the issue of legitimacy and legality, but you raised the issue of your being a Liberal Democrat member of the Government. Is that where the disagreement arises? Lord Wallace of Saltaire: No. We are deeply committed to extending open democracy. As the old Liberal Party discovered in 1914, it is very difficult to be a liberal when you go to war. All sorts of conflicts between the necessities of war and the principles of liberal democracy come into play. The spectrum we have in the Government ranges across the sort of operations we now find ourselves likely to be engaged in, to how one maintains the maximum amount of information that one wishes to give when necessarily the security of operations requires one to hold some information back. I take it as likely that, with the withdrawal of British troops from Afghanistan, we are unlikely to make a major deployment of ground forces in the foreseeable future. We are much more likely to do the sort of thing that we are doing off the coast of Somalia, or in Mali, where British forces may be involved in support operations, as the C17s were in Mali, or in providing intelligence and logistical support. The questions of where you draw the line, how much you tell Parliament, how you keep Parliament informed and make sure it has confidence in the Government, will be much more complex. I remember that when I was in opposition, I had to explain to some elderly former noble and gallant Lords that we had now ceased to be in a situation where people on operations were out of touch with home opinion, because now on operations, just behind the corporal taking the decision is likely to be a journalist with a satellite dish who will feed immediately back to people in Britain exactly what is being done. That is part of the new complexity. It also brings in the legality issue, because the potential for a second opinion on the decision that the corporal has just taken becomes much more visible when you can see it on your television screen.
Q50 Baroness Wheatcroft: The legitimacy of what is going on is not just a matter of the supremacy of the House of Commons but also involves the courts, which seem to take a different attitude now. When we had former members of the military here, they were deeply concerned about what was happening in coroners’ courts, for instance. That was before the judgment of the Supreme Court that was recently given. I would be interested to hear how you view the current legal position of those we send to war.
Lord Crickhowell: Perhaps I can build a little on that question, because it is pretty central. We have discussed the desirability of having parliamentary approval and have just heard, quite correctly, that behind the corporal is a reporter. We have heard grave anxiety expressed by those formerly responsible for the military, giving evidence about the growth of the blame culture, the issues of legitimacy and the intervention of coroners’ courts. We have now had the Supreme Court judgment, the critical part of which is the decision to say that it is legitimate to take the case further. This was taken by a majority of four to three in the Supreme Court. I understand that Lord Hope of Craighead set out some of the issues that might be appropriate for consideration, including the failure to supply adequate equipment. He also referred to bad planning. Lord Mance, in his dissenting opinion, pointed out incidentally that the police have immunity, which is a different situation, and that we were likely to have extensive litigation. That brings us back to the role of Parliament and the decision to go into a situation. If we have a situation where almost anything involving the planning of an operation, let alone the provision of equipment, is likely to be challenged in the courts, the role of Parliament and the position it takes in giving legitimacy, and the way in which approval is given, may be a central part of the issue. On the whole, the courts tend to be more cautious about going down a particular route if Parliament has expressed a clear view and given clear approval of something. I wonder where you stand in this rather
51 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) uncertain situation. Very strong views were expressed at Question Time in the House of Lords yesterday, not least by someone who, in the Falklands war, had his ship sunk under him and knew perfectly well that some of his equipment probably was not adequate. Can you comment on where we stand now? Andrew Robathan MP: I think you have both made points that resonate around the Government as a whole. In the Ministry of Defence, we are very concerned about the Supreme Court judgment. We are studying the implications carefully. Perhaps I can leave it at that. There are very experienced lawyers in this room who will have a better view of the legal position than me. As Minister for the Armed Forces and a former serviceman, I would say that it is a very difficult situation if every planning decision is being second-guessed at home by lawyers sitting in warm offices, when soldiers, sailors and airmen are making very difficult decisions in a split-second, often in very uncomfortable situations. We share your concerns. Parliament does have a role. I am sorry to be boring, but I will just say that we are looking at this very carefully.
Q51 Lord Crickhowell: It is not just the military decision that is beginning to worry me. It is the decision that the Prime Minister takes, after taking the advice of Parliament and under the prerogative, which may come under challenge. The decision to intervene in whatever way may be challenged, might it not, if the judgment stands? Andrew Robathan MP: That is another angle that needs to be looked at. My view as a non- lawyer is that if anyone, from the Prime Minister down to Private Snodgrass in the trenches, takes a decision in good faith, believing that they are acting legally in the defence of their country, I would have thought that they should have the support of both Parliament and the people of this country. The Government are elected to govern, and the defence of the realm is their first duty. I take it that that is what the Prime Minister, and our soldiers, sailors and airmen must do, but I am afraid I am not a lawyer and we are in rather difficult territory here. Alistair Burt MP: As a former lawyer—I was a solicitor, but not with the experience of many of those round the table—an FCO minister and a politician, my sense is that it is right that conflict is governed by rules. None of us would demur from that. It is essential. But those rules must allow those who are taking part to make decisions. No matter what a motion in the House of Commons may say, it does not remove the responsibility on those involved in a conflict to operate by the rules. A motion that the House of Commons supports that allows the deployment of troops would not give carte blanche to anything the troops did. That seems clear. The secondary issue, to which the Minister of State referred, is the certainty with which commanders can operate in the field, and matters relating to that. They are now under consideration as a result of the judgment. A common-sense position would be that the concerns that have been expressed about uncertainty seem to be absolutely real. There are general rules that commanders are aware of, and that is absolutely right as far as the FCO is concerned. But within that, operational detail must be left to those involved. They must have certainty and must know what the rules are. The worry about the judgment is that it has introduced a new level of uncertainty. As Lord Wallace said, behind the corporal is a reporter—and now behind the reporter is a lawyer. Many of us are instinctively uncomfortable with the implication of that, beyond a sense that the corporal will always have in mind their training and what they are required to do because they have a certainty about it. The introduction of uncertainty is the most worrying thing. I presume that the powers that be will seek to resolve this as quickly as possible.
52 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) The Chairman: As Mr Robathan said, this committee is blessed—I use the word advisedly—by many legal members, at least three of whom want to intervene at this point. I will start with Lord Goldsmith.
Q52 Lord Goldsmith: Thank you for your comments. I would ask that, in the consideration that the Government are plainly going to give to this judgment, care is taken not to conflate different situations. The last few moments of discussion have touched on operational decisions by commanders in the field. As I understand it, these cases concern questions about the provision of equipment and training. That is a different issue. They may overlap but they are not the same. You may have seen the answer that General Sir Mike Jackson gave in his evidence when I asked him whether he saw a distinction between the law intervening in decisions taken in cold blood—for example, in relation to the treatment of detainees—and decisions taken in hot blood, such as the decision to open fire in circumstances where it is feared that an enemy combatant is about to open fire on you or on other people. He recognised, as I do, that distinction.
We should also recognise that the majority of judges said that the facts of the claims—as I understand it from the judgment of Lord Hope of Craighead—were not yet fully understood. Therefore, taking the cases forward does not amount to saying that they will succeed. My question is, can we ensure in the public discussion that takes place that those distinctions and qualifications are made clear, otherwise people will have the idea that the Supreme Court has said that every time a soldier opens fire, it will be open to a court to intervene and say, “You shouldn’t have fired the bullet at that point”? Lord Wallace of Saltaire: I have just written down, “Judicial review of decisions taken in hot blood”. This is one of the points where one needs to push back. Of course there are problems with saying that if the equipment is not good enough, you should not do anything in a conflict situation—because, unfortunately, equipment is never as good as you want. We are of course concerned not to limit the freedom of action in the field under fire of our armed forces. That is not at all to imply that the treatment of prisoners and our behaviour with civilians are not covered by the normal laws of war that should be strictly observed. Officers are trained to understand that in full. Andrew Robathan MP: It is a very important distinction. The provision of equipment is not just from the Government but all the way down through the hierarchy of the Ministry of Defence, from the Chief of the Defence Staff, the Chief of Defence Materiel and the logistics chain.
Lord Goldsmith: Sergeant Roberts. Andrew Robathan MP: Exactly. Was that decision made in hot blood? As I recall, he made the decision to give his body armour to somebody else. On the issue of body armour and personal protection, currently we give people some excellent body armour, but the decision about whether to wear it is made by the commander on the ground. It greatly reduces the manoeuvrability and agility of a soldier on the ground, because it weighs, not quite a tonne but not far off it. Therefore, a commander could take the view that his soldiers should not wear body armour on some occasions. As I understand the judgment, the question would then be why the soldiers were not wearing body armour when it was available.
Lord Goldsmith: My understanding—I may be wrong about this, because the judgment has only just come out—is that it will be for later consideration whether those arguments are good or bad. But your point is obviously important and needs to be considered.
53 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) The Chairman: Both Lord Cullen and Lord Lester would like to come in on this. I am also aware of your valuable time and that we must come on to the NSC.
Q53 Lord Lester of Herne Hill: Can I first say how much I welcome what Mr Robathan said earlier about being concerned with the two vital elements of public confidence and the confidence of the armed forces, and not just with reassuring Parliament? This is not a new problem. Private Lee Clegg shot someone in Northern Ireland at a road block. It led to proceedings against him, he was convicted and there was enormous controversy. Another good example is the McCann v the United Kingdom case—the “Death on the Rock” case. A majority of one in the Strasbourg court decided, in my view wrongly, to second-guess the judgment of the SAS in deciding to shoot three IRA terrorists before they exploded their bomb. So this is not a new issue. The McCann case, in which the western European judges disagreed with the eastern European judges, illustrates the need for a balance between operational decisions, which must be for those on the ground, and some of the thinking beforehand—before people are killed, maimed or injured, and before the armed forces are put in an impossible position. In this case, I do not read the majority of the Supreme Court as putting that balance in jeopardy. Nor do I think it will lead to a great deal of unnecessary litigation. But we will see. Alistair Burt MP: Focusing on the narrow issue of what we are discussing in this committee, my view is that the Supreme Court judgment highlights that some options for formalising the convention we are talking about through legislation could make it more likely that government decisions to commit our armed forces to operations would be rendered justiciable. Our conversation highlights that risk.
Q54 Lord Cullen of Whitekirk: I was going to approach the matter of legal certainty from a different angle. If there is to be a deployment of our armed forces abroad, presumably there will be a need for a public statement on the political objectives of that deployment. Previous witnesses stressed the need for clarity. There should be clarity in the statement itself, so that the public, Parliament and the forces know exactly what is expected—and so that the armed forces know what they are getting into. They also stressed the need for clarity in the thinking that leads to any decision. Lord Stirrup said that when you intervene, you have to think through not just the best outcome but all eventualities. Do you agree with the thrust of that? Lord Wallace of Saltaire: It is very difficult to be sure. For example, in a situation such as that in the Sahel at the moment, you send in a very small contingent in a support role but you cannot think through all the implications. That is part of the difficulty of the world we find ourselves in. If you are committing troops against another state, it is easier. Even in Syria, where again we are talking about giving support to a non-state actor in a civil war that has already begun to spill over the boundaries of that state, the degree of complexity is enormous. The assumption that one can think through all the implications before one takes a decision, and then spell out some very clear objectives, does not fit with the realities of the sorts of conflict—one has to say “conflict”—conflict prevention and conflict management that we are likely to face now, because they are sub-war situations. Andrew Robathan MP: Afghanistan is pertinent here. After 9/11, in 2001, it was quite clear that there was a national interest, which I think everybody supported, in pushing al-Qaeda out of Afghanistan. But the aims and objectives seem to have moved quite a long way in the past 12 years.
54 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) The Chairman: We could continue on this part of the discussion for much longer, but we should turn to the mechanics and machinery of decision-making, and whether they have changed in the past few years.
Q55 Lord Powell of Bayswater: As our chairman said, we have been looking at where the real locus of decision-making lies on these issues. From reading the constitutional texts you would conclude that the Defence Council has an important role, but when we talked to former senior military officers, they barely admitted its existence, let alone had any clear view as to its real purpose. Of course, we now see the emergence of the National Security Council. Would we be right to conclude that the National Security Council is a sort of permanent war cabinet? Alistair Burt MP: I would be happy if the Minister of State said something about the Defence Council and then I will move to the NSC. That would be a neat elision, and there might then be further questions on the NSC. Andrew Robathan MP: I am a member of the Defence Council. The Secretary of State chairs it. All Defence ministers, the CDS, the Permanent Under-Secretary, the Vice-Chief of the Defence Staff, the single service chiefs, the Chief Scientific Adviser and the Chief of Defence Materiel are members. It is a legal and constitutional construct. Therefore, it has constitutional and legal authority. It is true that it does not meet very often. I think one could say in practical terms that the powers are delegated both to the Defence Board, on which very similar people sit, including myself, which was only set up in its current constitution in the past two years, and the Armed Forces Committee, where the chiefs of staff make the more operational decisions affecting the armed forces. That is the situation. Put it this way: I do not have an appointment for the Defence Council in my diary.
Lord Powell of Bayswater: So we can probably disregard it and look to the National Security Council as somewhere where decisions are taken? Andrew Robathan MP: It may be more interesting.
The Chairman: And is it a continuing war cabinet, as Lord Powell suggested? Alistair Burt MP: No, in all fairness I do not think that the NSC is the equivalent of a war cabinet. Should a conflict situation arise, it would be handled in a completely different or supplementary way, according to what was going on. The NSC’s remit is much wider. The terms of reference of the NSC are to consider matters relating to national security, foreign policy, defence, international relations and development, resilience, energy and resource security. Without going into more of the terms of reference and the technical detail, I hope it will help if I just make some observations. It seems that the strength of the NSC comprises several elements. First, its existence is public. People know about it. As a result of developments in decision-making over the past decade or so, the fact that we have an NSC that is able to process necessary decisions at the highest level that are of great importance to the United Kingdom is very important. It brings together on a regular basis those responsible for those primary areas and enables them not only to consider immediate or urgent matters but also to look longer term and stay in touch with developing situations. Technically it advises the Cabinet but does not take decisions itself. But it is an important committee, and the Cabinet is likely to take note of it, particularly as it is chaired by the Prime Minister. The discussion is straightforward. A topic is introduced and the ministers primarily responsible get the opportunity to talk to it, as well as officials. Then those around the table, who represent different departments and have an
55 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) important perspective, can also make their comments. Then the Prime Minister sums up. You therefore have a structure where committee members can debate and, in times of difficulty, decide an issue among themselves and then be in a position to advise the Cabinet. This structure has emerged and, as documented, has been a very important source of development. The FCO thinks that it gives a certainty to discussions about major issues of national importance that might have been queryable in the past.
Q56 Lord Powell of Bayswater: Would all the issues we have discussed today— questions of military training, the supply of arms and the other matters in this debate—be discussed in the National Security Council and therefore, in practice, decisions on these matters will be, at the very least, pre-cooked in the National Security Council and will require only the most formal of chops from the Cabinet? Alistair Burt MP: The noble Lord’s experience of pre-cooking may be rather greater than mine.
Lord Powell of Bayswater: I hope so. Alistair Burt MP: Clearly it is a complementary process. What Parliament may decide about these issues will depend on the information it gains through its committees, debates and opportunities to raise issues and question ministers. It will come to its opinion. Of course the National Security Council will cover all the matters we have discussed today, and will come up with a view and an opinion that will go through to Cabinet. The key point we have been talking about, one way or another, is the confidence that is elicited through that process. There is a degree of confidence that the Government could take something from the NSC process, put it to Parliament and say, “This is what we have considered up to now”. However, it is not exclusive but complementary. It will certainly guide the Government, and if the Government are to take a view and propose a motion, I would imagine that they will be guided and advised by what the NSC has considered. But that will not bind Parliament, and everything we have been discussing has been about the ability of Parliament to express its view. Part of the art of everything that we do here is that the Government have a way of sensing what Parliament may feel. They do not always find out what Parliament thinks simply by a vote. There are other mechanisms. That there is a complementary process for both the Government and Parliament is essential, and the NSC fulfils a vital part of that with the Government.
Lord Lexden: The way you described the council made it sound like a Cabinet committee. Would other Cabinet committees exist if the council had not been established and was not up and running? Alistair Burt MP: Of course there would be other Cabinet committees that would cover similar topics. The idea of bringing them all together in the National Security Council was, as the Minister of State mentioned, first, that you have a certainty of membership. It is by and large the same people, but not always. There is a bit of fluidity. That it meets regularly, has a secretariat and has a memory is an important pat of it. Because of concerns about how decisions were made in the past, it has a purpose. I also think that it is an element in the evolution of government, in which you are an expert. It was decided that, because of the circumstances and the times, we needed something like this.
Q57 Lord Crickhowell: I have two points. In view of the importance of the National Security Council, would it not be a good idea to set out is role clearly in the Cabinet Manual, because I do not think it is at present? My second point arises from Lord Powell’s comment
56 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) about the purely formal role of the Cabinet after “pre-cooking”, as he put it. I am so old that I was a member of the Cabinet at the time of the Falklands war. At that time it was inconceivable that we would have taken the decision to undertake that, or even to set up a war cabinet and give it authority, without the decision first being taken to the Cabinet. Indeed, every Cabinet member present was formally asked for their view. In the period after that, it does not seem to have happened. Decisions were taken without the full Cabinet in that way. Mr Burt, I think you implied that you see the role of the Cabinet in taking up the advice given by the National Security Council or other bodies still as extremely important before a final decision is taken. Would you agree? Alistair Burt MP: I would. In line with the Ministerial Code, formal decisions relating to commitment to military intervention are taken by the Cabinet. The NSC has no formal decision-making role in relation to the initiation of military operations. However, as the Cabinet Committee with responsibility for national security and foreign policy strategy, its views will be taken into account by the Cabinet. Constitutional convention is entirely preserved. The Cabinet must take the decision. The NSC is a committee that informs the Cabinet and therefore assists in the process. Lord Wallace of Saltaire: I would merely comment that the Cabinet Manual will be revised from time to time. The NSC is a relatively new body, and it may be that in the next revision it will be more appropriate to include it. I would add, on the Cabinet, that one of the advantages of coalition government is that one does have to have more formal procedures. That means that the Cabinet has to be consulted.
Baroness Wheatcroft: As we are trying to understand the role of the National Security Council more fully, perhaps you could tell us how much discussion of Syria there has been in the Cabinet. Alistair Burt MP: I cannot tell you that because I do not know. I am not there, alas. Andrew Robathan MP: Not yet. Alistair Burt MP: Sorry, that sounded wrong. If any of the whips are watching, I did not mean it like that. I meant that alas, I am unable to inform the committee of that because I do not have the answer. Andrew Robathan MP: I will briefly say, without giving away any secrets, that I read the Cabinet minutes, as most ministers do, and certainly Syria has been mentioned—but I cannot say how long the discussion was.
Q58 The Chairman: We are near the end of our time. Thank you for being so generous with your time, your thoughts and your comments. If you feel that there are points that we have missed in our discussion, there are a couple of minutes for you to add them. Lord Wallace of Saltaire: I stress that we are in a set of changing circumstances. The sort of circumstance that Lord Lester suggested happened in Suez is inconceivable now, given the transparency of public life and the ease of communication. That is part of what has changed. The much-reduced public deference to what Governments also requires them to be more transparent, and to take Parliament and the public into account. We are all conscious of that. We are also deeply conscious of the problems of conflict and near-conflict that we face. The National Security Council is so-called because we recognise that security is much broader than defence. In the Sahel and the Great Lakes region, organised crime, people smuggling and drug smuggling overlap with conflict situations. In Somalia, money laundering through
57 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) kidnapping is part of what one has to deal with. We are now talking about a broader spectrum than the traditional war, peace and defence of 50 years ago.
The Chairman: We are all aware of that. The language issue was raised at the beginning of our discussion. Andrew Robathan MP: I would like to say that the armed forces take the legality of what they do very seriously. There is mandatory training every year in the law of armed conflict, going right back to the Geneva conventions. There have been some well-documented cases of soldiers, in particular, behaving illegally. But they were punished. We have a system and, from the top downwards, the hierarchy and the chain of command take very seriously issues of people behaving within the law, and within the law of armed conflict. Otherwise, we would be in breach of that and would be punished.
Lord Hart of Chilton: You have been very helpful to us, but am I right in thinking that you are a million miles away from reaching a resolution on parliamentary approval? Alistair Burt MP: I would say that there is no imminent decision. As Lord Wallace set out so well, all our deliberations have been about the complexities here, and the variety of things to be taken into account before a decision can be made to formalise the convention in another way. In conclusion, I would add that our discussions are of immense importance. In one way this demonstrates the flexibility of our constitution, and our ability to take into account the wide range of new events that Lord Wallace mentioned. There is a sense that, no matter what the processes and procedures may be, we all know what we are talking about. However you set it out, whether it is a motion, a piece of legislation or anything else, if the Government do not have the confidence of Parliament, they are in trouble. I know that this Government in particular are very conscious of the role they need to play in rebuilding trust with the people on these issues of immense importance, in which the public now, quite properly, have a heightened interest. Using all the modern means of communication and information gathering, it is essential that the Government retain that sense of rebuilding trust in everything they seek to do. As the Foreign Secretary regularly informs the House with information about operations and what is being done to ensure that the information flow is promoted by government, we are very conscious of the need to make sure that the procedures we use are in line with that rebuilding of trust between government, Parliament and the people. The Chairman: We must conclude, although both Lord Lester and Lord Goldsmith are seeking to catch my eye. I am aware that the ministers probably need to go.
Lord Goldsmith: Perhaps I might quickly ask, as you talked about legality, whether you can confirm that there are still legally trained officers in the field. Andrew Robathan MP: I am glad you asked that, because I had left it out. There are legal services people who advise the commanders. The chain of command has responsibility in terms of discipline and ensuring that people behave legally.
Lord Lester of Herne Hill: If work has been done on what happens in other countries with more formalised procedures—other than Ireland, which is in a straitjacket—could we be provided with a note telling us the Government’s understanding of other countries that have more formalised procedures, and what their experience shows? Alistair Burt MP: Yes, of course. On behalf of my colleagues, I can certainly say that the Foreign and Commonwealth Office will supply what information we have.
58 Alistair Burt MP, Rt Hon Andrew Robathan MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) The Chairman: Thank you very much. We have strayed slightly over our agreed time. It has been most generous of you to do that. It has been a fascinating and extremely useful conclusion to our oral evidence sessions on this topic.
59 Nigel Inkster and Michael Clarke – Oral Evidence (QQ 1-17)
Nigel Inkster and Michael Clarke – Oral Evidence (QQ 1-17)
Transcript to be found under Michael Clarke
60 General Sir Mike Jackson, Field Marshal the Lord Guthrie of Craigiebank and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33) General Sir Mike Jackson, Field Marshal the Lord Guthrie of Craigiebank and Air Chief Marshal the Lord Stirrup – Oral Evidence (QQ 18-33)
Transcript can be found under Field Marshal the Lord Guthrie of Craigiebank
61 Rt Hon Andrew Robathan MP, Alistair Burt MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58) Rt Hon Andrew Robathan MP, Alistair Burt MP and Rt Hon Lord Wallace of Saltaire – Oral Evidence (QQ 44-58)
Transcript can be found under Alistar Burt MP
62 Air Chief Marshal the Lord Stirrup, Field Marshal the Lord Guthrie of Craigiebank and General Sir Mike Jackson – Oral Evidence (QQ 18-33)
Air Chief Marshal the Lord Stirrup, Field Marshal the Lord Guthrie of Craigiebank and General Sir Mike Jackson – Oral Evidence (QQ 18-33)
Transcript can be found under Field Marshal the Lord Guthrie of Craigiebank
63 Rt Hon Lord Wallace of Saltaire, Alistair Burt MP and Rt Hon Andrew Robathan MP – Oral Evidence (QQ 44-58) Rt Hon Lord Wallace of Saltaire, Alistair Burt MP and Rt Hon Andrew Robathan MP – Oral Evidence (QQ 44-58)
Transcript can be found under Alistair Burt MP
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