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Harvard Lecture

I want to consider today the lessons that can be learnt from the decision to launch a military intervention in Iraq. I want to leave discussion of the military lessons to the battalion of commentators who seem all too read to provide us with the benefit of their advice and opinions. My remarks today will, in the context of the United Kingdom, consider the legal and political process that leads to armed forces being deployed into a conflict situation.

I know that the War Powers Resolution and its exact consequences are a matter of some debate over here, both in terms of the division of war powers between the President and Congress and secondly the consequences of Congress not agreeing to the wisdom of the action being taken by the President. There are people here today far better placed to discuss and debate the situation in the United States. I will concentrate on the position in my own country.

For those of us in the United Kingdom the decision to deploy troops in Iraq has highlighted a number of weaknesses in our democratic system. These are the lessons that will need to be learnt if we are to regain public trust and confidence which has been so adversely affected by our involvement in Iraq. And of course intervention of this kind will raise questions in the mind of the public. The cry is often heard, why are we there? what’s it got to do with us? Such questions cannot be dismissed lightly. They need to be answered.

We have a world whose defining character is its interdependence. It is of crucial importance for the United States to recognise this. The doctrine of isolation which once was embraced could all too easily become a flag of political convenience. Those attracted by this populist approach should heed the words of President Kennedy in his address on Independence Day 1962 when he said that, “America the authors of a declaration of independence, had now to make a declaration of interdependence”. These words are as relevant today as they were 45 years ago.

Yet whilst we might agree that the overriding characteristic of the modern world is interdependence we haven’t yet, either as nation states or as an international community worked through its consequences. The reality is that the rule book of international politics has been torn up. The fact that a crisis in one part of the world can grow and become a world-wide problem that needs to be tackled globally makes a mockery of the traditional views of national interest. Nations, even ones as powerful and strong as the United States, are profoundly affected by world events.

But whereas the economics of globalisation is well matured the politics of globalisation are not. We must now move quickly to remedy this.

We have to begin by setting out a common global policy based on shared values; if we fail to do this then we run the risk that extremism, conflict or injustice will undermine our economic and political stability.

This is why it is so important to have policies based on engagement and not isolation. To be prepared to be active and not simply reactive.

Our world can broadly be seen as made up of two types of nations. There are those who do both war fighting and peacekeeping and those who have decided except in the most exceptional circumstances to do peacekeeping alone.

Great Britain and the United States do both but increasingly we will need to gain the consent of the public to do so.

When action is taken as a result of a United Nations Security Council resolution then it is easier to win over and maintain the support of the public. Although it is worth noting that whilst Britain and the US invaded Iraq without a United Nations resolution our troops remain there as part of a United Nations mandate.

Events over recent years have shown a greater tendency for Permanent Members of the Security Council to use their veto – one commentator has said that it is reminiscent of the days of the Cold War. Given this situation and the need for a pre-emptive and not simply a reactive response we are likely to see an increasing number of situations when military action is taken without the authority of the United Nations. We need to consider the steps that will be necessary to secure the backing of the public for military intervention in such circumstances.

The support of the public is vital in any democracy and it will be especially important when we are increasingly faced with an enemy that will see its major advantages as time and terrorism. We are no longer facing a conventional army and this will remain the case for the foreseeable future.

They will not be defeated by traditional means. They know that when they inflict causalities amongst our soldiers it causes not just grief and heartbreak but a questioning that comes from any healthy democracy of why we are ‘there’ in a country often thousands of miles from our own shores, what has it got to do with ‘us’ and how such a conflict be worth the sacrifices being made.

In time this will have an impact on the views of our soldiers in the field. They need to know that they have the full support and backing of the “people back home” not just for their bravery and courage but also for the mission on which they are engaged.

So what steps need to be taken to both gain public support for action and then maintain it when the cover of a United Nations resolution might not be available?

The first step is to clearly explain to people the nature of our interdependent world. That no country can stand in isolation from the rest. That events thousands of miles away can have a direct impact on our own communities.

Then we have to ensure that any decision to deploy troops is taken in a manner which is consistent with our democratic processes.

In the United Kingdom the present legal position is that Ministers have the executive power to deploy and sanction the use of force by our armed services. This is often referred to as a royal prerogative because it is a power exercised on behalf of the Crown by Ministers.

The power to go to war is probably the most significant of the prerogative powers. There is now a consensus in the UK that any major military action should have explicit parliamentary approval. Tony Blair provided parliament with the opportunity to debate and vote on a substantive motion before the Iraq war but there was no legal obligation on him to do so. Both Gordon Brown, who is expected to become Prime Minister at some time during the next six months or so, and the leader of the Conservative Party, David Cameron have indicated that there should be a statutory obligation on parliament to approve the deployment of armed forces.

The opportunity for a parliamentary vote on a substantive motion before deploying troops in Iraq broke new ground. No such vote took place before the military intervention in Kosovo, the first Gulf war or the Suez war.

In modern times it will have to be the case that any decision to engage in armed conflict will need to be approved by Parliament. A mere convention or leaving it to the goodwill of the Prime Minster to provide Parliament with a vote will simply be seen as inadequate. When troops are deployed people see it as action being taken in their name. They expect that their democratic institutions will determine what happens.

If Parliament is to be the body that sanctions the deployment of troops into a conflict situation then there are some practical consequences which follow. The two most significant – both in political and constitutional terms are first, who is to provide Parliament with the legal advice as to whether or not armed intervention would be legal under international law and second how is Parliament to be informed about the intelligence material supplied by the secret services which often underpins the need to deploy troops.

These two areas are particularly sensitive in the UK because people have challenged the legality of going to war against Saddam Hussein without a further United Nations resolution. The full legal advice from the Attorney General has never been disclosed and accusations have been made that political pressure was put on the Attorney General which led him to change his opinion. In relation to the intelligence the existence of weapons of mass destruction was clearly a crucial matter. In the UK there were and continue to be serious questions about the impartiality of the intelligence agencies and severe criticism of the publication of a dossier that outlined the thinking of the secret security services.

These two issues have created real and lasting political problems for Tony Blair’s government. There were people who were opposed to the military intervention in Iraq from the very beginning but to them can now be added those who question the legality of the intervention and those who feel it was sold to the British public on the basis of a false premise – the existence of weapons of mass destruction.

Giving Parliament the statutory power to declare war or commit troops to a military action would mean the adoption of a totally different approach to these two matters and could go a long way towards demonstrating to the public that lessons have been learnt.

At present in the UK there is an important debate taking place about the role and responsibility of the Attorney General.

He is appointed by the Prime Minster and whilst not an actual member of the Cabinet he can attend at the invitation of the Prime Minister. He wears a number of different hats at any one time. He is the legal advisor to the government; oversees the operations of the Crown Prosecution Service; in certain situations his consent has to be given for a prosecution to be made and he can refer unduly lenient sentences to the Court of Appeal.

It is his role as legal advisor to the government that led to questions being raised in the run up to the invasion of Iraq and its aftermath. It was the Attorney General’s responsibility to advise the Prime Minster and the Cabinet on the legality of military intervention in Iraq. At the time his legal opinion was not made public, instead a brief statement was made saying that the Attorney General’s advice was that the proposed action was lawful.

This meant that when the Prime Minister provided the House of Commons with the opportunity to vote on the issue of military intervention we did so without the benefit of a detailed legal opinion on its legality.

Now there are some who argue that in addition to being legal advisor to the government the Attorney General also has this responsibility in relation to Parliament itself. Indeed the most senior judge in the UK, Lord Bingham, has recently said that in relation to the Attorney General’s opinion on the lawfulness of war then it should be the public that is regarded as the client and not the government which would normally be the case. As he said in the Sir David Williams lecture in November, “an opinion on the lawfulness of war, the ultimate exercise of sovereign power, involving the whole people, seems to me to be quite different”.

Although he does go on to acknowledge that this is not the accepted view of the legal position at present.

But this discussion is taking place when Parliament has no formal role in the approval or otherwise of military action. A decision to give a statutory power to Parliament would mean that a decision would need to be taken about how Parliament would be provided with legal advice.

It could be argued that the Attorney should formally be given the duty to advise both the government and Parliament. I am not sure that this would be a satisfactory outcome. The Attorney General is appointed by the Prime Minister. Rightly or wrongly his advice would be perceived as being influenced by this relationship.

If Parliament is to be given the statutory responsibility for approving the deployment of troops then it naturally follows that Parliament should have its own legal advice and that this should be totally independent of government.

I would suggest that after each General Election a joint committee of the Lords and Commons be established and given just one task – to recommend to both Houses of Parliament the person who should act as legal adviser on the legality of any proposed military action which involves the overseas deployment of troops.

Once appointed the individual would provide legal advice and this would be public. The Attorney General would continue to advise the Government.

Such a clear separation of powers and responsibilities would clarify the position as far as the public is concerned; it would secure independent advice to Parliament and would go a long way towards winning over public opinion.

I mentioned earlier the wider debate taking place in the UK about the role of the Attorney General. This has come about because of the delicate and difficult decisions the Attorney has to take in relation to what is in the public interest and whether or not to allow an investigation or prosecution to proceed. This task becomes particularly sensitive when an investigation or possible prosecution has political overtones.

Because of this there are some who now argue that a way needs to be found to take the position of Attorney General out of the political sphere and make it somehow independent.

This follows a trend in the UK. It is becoming fashionable to argue that more and more decisions should be taken away from politicians and passed on to experts. However, this Pontius Pilate approach to politics – washing your hands of the responsibility for taking difficult decisions – will reduce accountability and ultimately undermine the strength of our democracy.

Elected politicians have to recognise that they need to take responsibility for their decisions and actions; it is the strength of any democracy that politicians can be held accountable and thrown out of office. This is obviously not the case for unelected experts or administrators.

The way forward must be to make the Attorney more accountable and not less. I know that the present Attorney General, Lord Goldsmith, has some ideas on how this might be achieved.

The second issue to be addressed is the basis on which action is to be taken. If we accept that it is vital to be pro-active and not merely reactive then this will mean that action will often need to be taken on the basis of intelligence obtained by the security services.

In the months leading up to the invasion of Iraq the UK government produced documents which highlighted the threat posed by Saddam. These documents were based on intelligence reports. The actual intelligence reports were not published. To do so would compromise and put at risk the actual source of the information. But this meant that the documents to be published had to be edited leading to the allegation that the final publications exaggerated the threat posed by Saddam and were simply wrong on the question of the existence of weapons of mass destruction.

This has led to the allegation that the UK went to war on the basis of a false premise.

A new system will need to be put in place in order to fully inform Parliament before it has to vote on the deployment of troops.

Having seen intelligence reports, I know that they contain some very detailed information, that I do not believe can be made public. It therefore follows that the reports cannot be made available to all Members of Parliament. However, the House of Commons does have the Intelligence and Security Committee. If this could have greater independence from the Prime Minister then this is the body that could see the intelligence, discuss it with security chiefs and then make a report to Parliament.

Conclusion
The world situation we face today is fundamentally different from that which we have faced in the past.

The enemies faced by western democracies have realised two things: the power of terrorism to cause chaos and fear which leads to the blocking of political progress; secondly the fragile nature of public opinion and the way it responds to long campaigns and the accounts of action it receives from modern media, often driven by the impact of pictures.

Faced with this situation democracy has to be our strength and not a weakness. This means firstly convincing the public that ours is a just cause and that military action is essential. Secondly the public need to be kept fully informed of developments and the conduct of all the armed forces must be in accordance with our international obligations.

Achieving a united front is vital if we are to succeed. I hope that some of the ideas I have shared with you today will help us achieve that unity.