Declaration of War: Parliamentary Approval (Hansard, 19 February 2003)

§ The Attorney-General (Lord Goldsmith)
My Lords, it is well established that the conduct of foreign affairs and defence policy are matters that fall within the Royal prerogative. It would, therefore, be lawful and constitutional for the Government, in exercising the Royal prerogative, to make a declaration of war or to engage United Kingdom forces in military action without the prior approval of Parliament.
However, as my right honourable friend the Prime Minister has made clear—notably when he appeared before the Liaison Committee on 21st January of this year—in the event that military action is taken, Parliament will be consulted. He made clear that Parliament should be given the opportunity to express its view and that in any event there will be a vote in the House of Commons.
My right honourable friend was not able, for reasons which are entirely understandable, to undertake to guarantee that in all sets of circumstances the vote would take place before action is taken. None the less, I hope that the House will find, as I do, much comfort in what he said. He will be making a Statement on Iraq in another place on 24th February and a further debate on Iraq is scheduled in this House for 26th February.

§ Lord Hooson
My Lords, I thank the noble and learned Lord for that reply, which was rather a relief to hear. Does he agree that Royal prerogatives are archaic? They belong to an era when there was an absolute monarchy and depended on the doctrine of the divine right of kings. In the modern age, is it not absolutely essential—in the unhappy event of a declaration of war being required—that the democratic legitimacy for that declaration can come only from a decision of the Prime Minister in Parliament, which is approved by Parliament? Does he give an undertaking on behalf of the Government that if that situation arises not only will the Prime Minister consult Parliament but also that he will be bound by its approval?

§ Lord Goldsmith
My Lords, the Statements of my right honourable friend the Prime Minister, to which I have already referred, make clear that in the event of the United Kingdom taking military action there will be a vote in the House of Commons. He has also underlined the importance of government having the support of Parliament in going to war. I repeat the caveat that he cannot promise that in all sets of circumstances that can necessarily be done before action is taken. So having the support of Parliament is a matter of political practice. There has already, noble 1139 Lords will agree, been a great deal of consultation with Parliament in the debates, Statements and Questions which have taken place in this House and in another place.
The legal position is also clear. The decision to use military force is, and remains, a decision within the Royal prerogative and as such does not, as a matter of law or constitutionality, require the prior approval of Parliament.

§ The Earl of Onslow
My Lords, is it not a fact that without the approval of the House of Commons to grant supply, the Royal prerogative cannot apply? Does the noble and learned Lord foresee the possibility of the totally joyous outcome of a large chunk of Labour Members of Parliament voting against the Prime Minister and his being supported in his office by the votes of the Tory Party opposite? That would be Parliament functioning at its absolute best and most appropriate in making sure that the Royal prerogative, when used, has the supply it requires.

§ Lord Goldsmith
My Lords, I start by making plain that I disagree absolutely with the noble Earl about such an outcome being a joyous event. I cannot for the life of me imagine why anyone would think that it would be a joyous event.
My right honourable friend the Prime Minister—I hope all Members of the House agree—has worked extremely hard in order to solve a very important international situation. So far as concerns the question of Estimates, of course it is right that all departmental expenditure needs the approval of Parliament in accordance with approved parliamentary estimates. In the event of any expenditure incurred by the Ministry of Defence exceeding its Estimates, obviously parliamentary approval would be needed. That is not the situation we are in at the moment at all.

§ Lord Craig of Radley
My Lords, is not a declaration of war a very significant event? In fact it has not occurred for many years. Perhaps the noble and learned Lord could remind the House when war was last declared by any government in this country.

§ Lord Goldsmith
My Lords, the noble and gallant Lord is absolutely right. The last time there was a declaration of war was in 1939. It is not necessary to make a declaration of war these days. Since then, we have been involved in a number of armed conflicts. The existence or not of a legal state of war is nowadays irrelevant for most purposes of international law. The application of what used to be called "the law of war" and the status of prisoners of war depends upon the existence of an armed conflict, which is a factual situation and not a question of a declaration of a state of war. Whether there is a state of war might still be relevant for certain purposes of domestic law; for example, as regards the application of certain private contracts referring to war. Apart from that, the noble and gallant Lord is right: a formal declaration of war is not necessary.

§ The Lord Bishop of Chelmsford
My Lords, does the Minister agree that, in the words of the Pope: War … is always a defeat for humanity"?

§ Lord Goldsmith
My Lords, the position has been discussed in this House and in another place on many occasions. As the EU extraordinary meeting on Monday concluded, war is a last resort. But, inspections cannot continue indefinitely. Iraq has a final opportunity to resolve the crisis peacefully and in the words of those conclusions: The Iraqi regime alone will be responsible for the consequences if it continues to flout the will of the international community and does not take this last chance", which, by unanimous resolution of the Security Council, it was given in November last year.

§ Lord Wallace of Saltaire
My Lords, does the Minister accept that the extensive use of the Royal prerogative, which continues across a range of government provisions, makes the case for continuing a programme of constitutional reform rather than abandoning the programme to which the Labour Government were committed in 1997, which they now appear to have exhausted?

§ Lord Goldsmith
My Lords, the noble Lord raises a much wider question than that which I have conic to answer. So far as concerns the specific application of the Royal prerogative, to which the Question of the noble Lord, Lord Hooson, related, I hope that the Answer I have given is both clear and, by referring to the unequivocal Statements of the Prime Minister, gives much comfort to Members of this House and to others as to the importance attached to Parliament.