Extract from House of Commons Hansard    Debates for 21st October 2005

Armed Forces (Participation in Military Conflict) Bill

Mr. Neil Gerrard (Walthamstow):

I am pleased to take part in the debate and to support my right hon. Friend the Member for Birmingham, Ladywood (Clare Short). As she said, I introduced an almost identical Bill during the previous Session. Unfortunately, I was not drawn anywhere near as high in the ballot as my right hon. Friend. Then, of course, the general election intervened. As a result, there was no real debate of my Bill. I recall that when I introduced my Bill in January it was assumed by many Members who spoke to me and by many outside the House that the only reason for it was opposition to the war in Iraq, and that no one could possibly support the Bill who had not been in opposition to that war.

That is completely untrue. There was no reason why someone who thought that the war in Iraq was justified should not support the Bill. Its origins were not purely that war. My hon. Friend the Member for Pendle (Mr. Prentice), who was a member of the Public Administration Committee, conducted an inquiry into the royal prerogative. It was not an inquiry into the use of the royal prerogative in war, but went much wider than that. However, the use of the royal prerogative in that respect was one example that happened to coincide with others that some of us were concerned about and which we wished to take up.

I make no secret of the fact that my opposition to the war was one of the reasons for my interest in taking forward the Bill, but it was not the only one by a long stretch of the imagination. I think that it was in March—I would have to check the date—that I raised questions arising from the Bill in Prime Minister's Question Time. In responding to me, my right hon. Friend the Prime Minister said that he could not foresee any future situation where a Prime Minister would go to war without a substantive vote in the House. He cited the vote on Iraq as an example.

I have two comments about that. The fact that the Prime Minister said what he did does not give any guarantees for the future. There will be other Prime Ministers, and maybe Prime Ministers of parties other than Labour. The fact that the current Prime Minister has said that, in his view, it would not be possible to enter into a conflict such as Iraq in future without a substantive vote does not amount to a guarantee.

My hon. Friend the Member for Pendle put his finger on the critical issue about the decision to go to war and the mechanisms used. If the Prime Minister believes that there should be a substantive vote in the future, it is worth noting that I have heard virtually no Members arguing that there should not be such a vote, whether before or after the event.

Mr. Gray: I spoke against substantive votes on going to war.

Mr. Gerrard: I think that the hon. Gentleman would acknowledge that the majority of Members who have taken part in the debate so far, and the majority of Members generally, judging by the numbers who have signed early-day motions about the Bill, would agree that there should be substantive votes.

If there are to be such substantive votes, what matters is the mechanism. My hon. Friend the Member for Pendle raised some important issues about the mechanisms by which the decisions were taken on Iraq, and if we are to have substantive votes on decisions about armed conflict, it makes all sorts of sense that the mechanism for those substantive votes are laid down in the way that the Bill does, and are not left to be decided by convention or precedent, which can change, which some future Government or Minister could decide they do not like and so adopt a different method. That is the really important function of the Bill. It sets down the mechanism by which those substantive votes have to be taken.

Some of the opposition that I have heard seems to ignore the facts of what has happened in recent years on armed conflicts. Iraq is the only conflict that I can think of that we have been involved in where it could be said that it was intelligence driven. That certainly has not been true of other conflicts in the past 20 years. Kosovo certainly was not—and may I say in response to a point made earlier that there was some opposition on action in Kosovo, although there was never a vote on a substantive motion; the debates on Kosovo all took place on motions on the Adjournment of the House, and, by certain recourse, some hon. Members obtained Divisions on such motions artificially to express their opposition to what was happening in Kosovo. I think that there were five debates on the Falklands, all on a motion on the Adjournment of the House. But there have been other cases, going back to 1950 and Korea, and then the first Gulf war, where there were votes on substantive motions within a few days of the action commencing. Iraq was unusual in that there was a substantive motion before the action started.

We all talk about going war, but in reality declaration of war does not happen, or certainly seems very unlikely to happen again. There has not been a formal declaration of war for a long, long time by this country or by many other countries. It is important that it is still covered within the Bill, because it could happen, but that is not the reality of the way in which military action generally happens now.

I certainly do not buy arguments that say that that would take away elements of surprise. I am sure that Saddam Hussein was really surprised when military action started, or that it was a surprise when our forces went into Kosovo or Afghanistan.

David Wright: My hon. Friend will recall that I joined him in the Lobby against the war in Iraq, but I am concerned about the geographical context for a conflict. He will remember that in the first Gulf war we did not invade just Kuwait in order to liberate Kuwait. Troops were put into southern Iraq at that time in order to liberate Kuwait. If we are to give a geographical area for parliamentary approval, is not that very dangerous? Would he envisage us giving perhaps a regional perspective in terms of conflict? I just want to clarify the situation.

Mr. Gerrard: I understand my hon. Friend's point, and it is perfectly valid because it is mentioned in the Bill. This is a point that could be explored in Committee if it was felt that the measure was drawn to widely, but I would not expect the report to Parliament that clause 2 demands to be so narrowly drawn as to prevent any flexibility in action. We are all realistic enough to know that we cannot be prescriptive about future military action. The point is valid, and perhaps we can explore it in Committee.

I cannot believe the argument that the element of surprise would be taken away, and the Bill would not stop troops acting in self-defence.

I entered this House in 1992 and can recall debates about Bosnia and Rwanda in which hon. Members suggested that intervention should take place and the Government resisted them. Perhaps the Bill should be amended in Committee to allow Back Benchers to propose to the Government that military action should take place.

Meg Hillier (Hackney, South and Shoreditch) (Lab/Co-op): Will my hon. Friend outline his thoughts about the definition of self-defence? In an international environment, action against British troops or British civilians might lead to self-defence in another part of the world. The definition is key, and I am keen to hear his thoughts.

Mr. Gerrard: Clause 8 covers that point, and the conditions that action must be taken

"following a lawful command, or in accordance with lawful rules of engagement"

may be over-prescriptive. It is clearly intended to provide for a situation in which members of the armed forces act in self-defence, and it does not include a geographical restriction.

Mr. Khan: Is it not the case that if there were a situation in which our troops had to act illegally for operational reasons, we could retrospectively make it lawful by voting in favour of the action taken previously? In the case raised by my hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier), for example, the force involved might not qualify for legal self-defence under clause 8, in which case this House could retrospectively make the action lawful.

Mr. Gerrard: I am wary of going too far down the retrospective line. Clause 4 covers retrospection when the Executive take an urgent decision. If British forces were attacked, however, they would unquestionably have the right to self-defence under clause 8 without any worries about parliamentary approval.

Mr. Dismore: Clause 8 does not say that—it says that people may defend themselves, but only if the conditions that it sets out are satisfied. If an armed conflict is not lawful in the first place, any orders given would not be lawful commands. Alternatively, the rules of engagement might not be sufficiently broad to deal with a situation in which troops must defend themselves immediately, in which case any action taken in self-defence would not be lawful.

Mr. Gerrard: If the armed conflict itself is unlawful, I do not see that there is any way that one can give protection.

Mr. Hoon: My hon. Friend raises an interesting problem. When a situation is deteriorating, which is not uncommon when troops are deployed for peacekeeping purposes, those troops may then be attacked. I accept that the Bill appears to allow them to defend themselves, but as soon as they do so, are not they engaged in an armed conflict, and would not that involve the Government coming back to the House to seek the kind of resolution that the Bill requires? Surely that is impractical in the context of troops deployed in the field.

Mr. Gerrard: I am trying to think of an example of where that would apply.

Mr. Dismore: I will give my hon. Friend an example. The Dutch troops in Srebrenica were not prepared to defend themselves. They were worried about their rules of engagement and stood aside, allowing the massacre of thousands of people to take place, because they were petrified that under international law they would not be found to be defending themselves lawfully.

Mr. Gerrard: Is not there then all the more reason that before sending troops into the situation there is discussion in this House and support for what happens? In the case of Bosnia, the question of intervention and sending troops was frequently raised in this place.

Clare Short: The situation that the Leader of the House posits—a peacekeeping operation where things deteriorated and there was a need for soldiers to defend themselves—is covered by clause 8. If they get into a position of military conflict, that would be covered by the Bill's provisions on urgent action. The Government would give instructions and it would be properly done, and it would be brought before the House later. The situation is completely provided for in the Bill.

Mr. Gerrard: I think that we are getting into areas that should be dealt with in Committee.

Members have raised the issues of urgency and self-defence, as well as situations where the two might become conflated. We need to get it right, but I believe that that can be achieved and that there is nothing in the Bill that could not be amended if necessary. Clearly, we would not want to put troops in a position in which they feel that they are behaving illegally. The point about the Dutch troops in Srebrenica is very important. We do not want British troops to get into a position where they are standing by as people are being massacred. If there is a clause that would genuinely allow that, we need to amend it.

David Wright: My hon. Friend might like to reflect on what would have happened when we sank the Belgrano. An exclusion zone was declared around the Falklands. Would he envisage the Prime Minister coming back to the House with a further report saying that the exclusion zone had been extended arbitrarily in order to sink the Belgrano? What procedure would have taken place in those circumstances?

Mr. Gerrard: That is an interesting point. If I remember correctly, the Belgrano was steaming away from the Falklands—an issue that was repeatedly pursued in this House afterwards. If a report to the House under the Bill was couched in terms as narrow as my hon. Friend suggests—"This will be the exclusion zone"—then that would clearly restrict action that could be taken, but I would be very surprised if it was that restrictive in terms of geographical location.

Mr. Greg Hands (Hammersmith and Fulham) (Con): I should like to explore this a little further. The Bill says:

"the Prime Minister shall lay before each House of Parliament a report setting out . . . such information as he considers it appropriate to make public about"

geography, duration and deployment. In the possible, or likely, event that the Prime Minister considered it inappropriate to give any such information, he would lay himself and others open to subsequent charges such as, "You never said that world war two would take six years", or "You never said that the Scots Guards"—or whoever it was—"would be deployed in Basra", which led to the unfortunate incident this morning with the roadside bombing. Is not the onus and the expectation being placed on the Prime Minister to release information, which, surely, is of most use to our enemies?

Mr. Gerrard: The Bill makes it clear that the Prime Minister would make available

"such information as he considers . . . appropriate".

The hon. Gentleman suggests that that would cause problems. Yet whether the Bill exists or not, such questions will be asked of the Prime Minister. I am sure that they were asked at the time of the first Gulf war; they were asked during the Iraq war. Including information in a formal report to the House will not fundamentally change that.

Mr. Hoon: Let me give an example of how it would make a fundamental difference. The Bill could be subject to legal proceedings. We have all seen those who objected to military conflicts going to court and taking legal action. If the Bill were passed, the report could be subject to legal proceedings. Instead of the current straightforward position, whereby people accept that circumstances change and the Prime Minister or the Defence Secretary makes a statement on the Floor of the House to explain why they have changed, the Prime Minister would be required, at the risk of legal challenge, to change the terms of the report. Surely my hon. Friend does not advocate that.

Mr. Gerrard: Does my right hon. Friend suggest that nothing that happens in this place can be challenged in court anyway? If there is a possibility of legal challenge—

Mr. Hoon: That is what the Bill creates.

Mr. Gerrard: My right hon. Friend appears to suggest that it is currently impossible for legal proceedings to be taken and that the Bill fundamentally changes the position.

Mr. Dismore rose—

Mr. Gordon Prentice: Is not it a fundamental part of our constitution that parliamentary proceedings cannot be challenged in the courts? That means that, if a Prime Minister presents a report along the lines that the Bill sets out, it will not be open to challenge in the courts.

Mr. Gerrard: I shall give way to my hon. Friend the Member for Hendon.

Mr. Dismore: Let us suppose that the Prime Minister's report mentioned a specific geographical area or, perhaps more appropriately, a time limit for the expected duration of the conflict and that the House decided to authorise that. Let us then suppose that the conflict went on for a few days longer. That could be subject to judicial review on the ground that it was an unreasonable action by the Government. Not Parliament's decision, but the Government's interpretation of it, will be challenged. We will end up with judicial stalemate and scrutiny of our armed forces who are in the field.

Mr. Gerrard: It is ludicrous to suggest that such a report would specify a time limit and that there would be a challenge because the time limit had been exceeded by a few days. It is ludicrous to suggest that such reports would be couched in those terms. Nobody would expect a time limit to be specified.

David Lepper (Brighton, Pavilion) (Lab/Co-op): Does my hon. Friend agree that the sort of points that my right hon. Friend the Leader of the House and my hon. Friend the Member for Hendon (Mr. Dismore) should be raised in Committee? Today, we are dealing with the broad principles of the measure. The detail can be debated in full in Committee. Perhaps some amendment will be needed to take account of the sort of objections that have been raised.

Mr. Gerrard: I do not object to that and, I am sure, neither does my right hon. Friend the Member for Birmingham, Ladywood. When such Bills are drafted, they are never perfect. It is ludicrous to start picking holes in one clause of a private Member's Bill when the Government table amendment after amendment to Government Bills.

When we are debating Government Bills, we are told time and again that we are supposed to discuss the principle on Second Reading. Those of us who sometimes have objections to some details within such Bills are approached by the party Whips, who say, "Look, that's the sort of thing that can be dealt with in Committee. If it's not put right in Committee, you can think again on Report or Third Reading, but please don't vote against the Bill on Second Reading, because you will destroy the principle of it." That is precisely what I am told by Ministers and Whips every single time I raise a query about the detail of a Government Bill.

Jon Trickett : On that very point, less than 48 hours ago I was approached by a member of the Government who asked me about my intentions on Second Reading of a forthcoming Bill. I said that I cannot possibly agree with people being held in prison for 90 days without judicial scrutiny. The point made was, "That's a matter for the Committee, isn't it, not for Second Reading?" Is not that precisely the same point? Maybe I now ought to say that I must vote against Second Reading, which was not my intention.

Mr. Gerrard: That is precisely the logic of this argument and of trying to pretend that if there are problems with the detail of this Bill they cannot be put right at some point in Committee.

Mr. Dismore: My hon. Friend has a reputation in the House for independent thinking. On how many occasions when the Whips have approached him in such a way has he listened to them, and how many times has he ignored them and voted against Second Reading?

Mr. Gerrard: I must say that I have not kept a running count—

Madam Deputy Speaker: Order. Perhaps we can now get back to debating the Bill, rather than what the Whips may or may not be saying.

Mr. Gerrard: I take the point, Madam Deputy Speaker, but may I say that there have been times when I have listened?

The discussion of a Bill on Second Reading very much involves the question of the basic principles, so let us get back to the serious points made earlier by my right hon. Friend the Member for Birmingham, Ladywood and my hon. Friend the Member for Pendle, who talked about the democratic principles involved here.
 
That is the key as to what the debate is about: do we want to continue to have no guarantee whatever that this place will even be consulted about troops going into action before that important decision is made, never mind have a vote? That is where we are now. We do not even have any right to be consulted. We ought to be saying that we should have a vote. That is what the Bill is about.

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