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Brown and Cabinet talking through their hats

Posted by Helen Monday, May 02, 2005

The big news after the non-event of revealing the legal non-advice on the Iraqi war (exactly what makes a war legal and who decides that on the basis of which legal structure?) is Gordon Brown’s statement that in future British soldiers should be sent to war only with the approval of Parliament.

Mr Brown was actually a little woolly in what he said, as he is still trying to play each side against each other on whatever issue happens to be to hand.

“Now that there has been a vote on these issues so clearly and in such controversial circumstances, I think it is unlikely that except in the most exceptional circumstances a government would choose not to have a vote in Parliament.

I think Tony Blair would join me in saying that, having put this decision to Parliament, people would expect these kinds of decisions to go before Parliament.”
John Reid, formerly Defence and now Health Secretary, supposedly a close ally of Tony Blair’s (possibly because the man is the Prime Minister) rushed in to support Gordy:
“This is already our policy, of the whole Cabinet, since we did it. The Prime Minister decided that some time ago.

That's why we had three debates on substantive motions before going into Iraq.

This is and has been for some time the policy of the whole Cabinet led by the Prime Minister.”
This is supposed to reassure wavering Labour supporters who might be worried enough about the Iraqi war to vote Lib-Dem.

The chances are that anyone who is going to vote in this election over Iraq or, to be precise, the WMD and dossier fiasco, since events in Iraq itself have moved on, will have made the decision already.

Still, we should look a little more closely at those comments. In the first place, it is clear that when people like Brown and Reid say Parliament, they mean the House of Commons, it being the part that can be controlled by the government, the whips, various lobbying and pressure groups.

Before long we shall be told that the House of Lords should have no right to make decisions that concern the lives of British servicemen and women (the ones who have been deprived of the vote thanks to either chicanery or inefficiency in the MoD).

Secondly, it would appear that the Cabinet, if, indeed, they do agree with Mr Brown and Dr Reid, assume that the make-up of the House of Commons will always be the same. NuLab or OldLab, they all seem to share the opinion that, contrary to historical evidence, they have some sort of a natural right always to govern us (or at least sit there pretending to do so).

Thirdly, and very importantly, this is another sneaky change to the British constitutional structure. Going to war has always been a Royal Prerogative, exercised by Her Majesty’s Government. This may or may not be a good idea. But if a big change like that is introduced and one of the few areas in which there is a separation of powers is destroyed, it ought to be done clearly and openly not through statements to the media.

Fourthly, there is the question of how we define war. Will Parliament have to debate and decide each time British soldiers are sent somewhere under whatever auspices, or only when it is done to help our allies, the United States and Australia?

Which brings me to the fifth and, possibly, most important point. If Mr Brown and Dr Reid, not to mention the rest of the Cabinet, really do think what they say they think, then they had better vote against the forthcoming European Union Bill.

As we have written before, the Bill in its original form consisted of a great deal more than just the usual amendment to the European Communities Act and the provision for a referendum on the Constitution. It included Articles that gave enormous powers to the Foreign Secretary.

The Bill fell in the scramble before Parliament was dissolved but will have to be brought back, though if it is a Labour Government on May 6, Prime Minister Blair may well decide to wait till the news of the various referendums on the Continent comes through.

Let me remind our readers what else is in the European Union Bill if it is brought back in an unchanged form:
“Section 5 is entitled Implementation of common foreign and security policy and tells us that

(1) The Secretary of State may by regulations make provision for one or more of the following purposes –

a) Implementing an obligation of the United Kingdom created and arising by or under the common foreign policy provisions or a related agreement, or enabling such an obligation to be implemented;
b) Enabling the exercise of rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of those provisions or such an agreement;
c) Dealing with matters arising out of, or related to, such an obligation or such rights.

(2) The powers conferred by this section include power to amend enactments or subordinate legislation.

The section goes on to deal with the creation of summary new offences and the methods whereby the Secretary of State may make regulations. These are our old friends the Orders in Councils, otherwise known as Negative Statutory Instruments.

Negative SIs are published by order of the relevant Secretary of State and placed before each House, where they lie for 40 days unless somebody manages to initiate a debate and win it to reverse the Order.

This process is virtually impossible in the House of Commons, where even if such a motion is passed the Instrument goes to the relevant Standing Committee, where it is dealt summarily, committees being filled in proportion to the number of MPs each party has in the House.

In the Lords there is a possibility of praying against and Order and debates do happen. They rarely lead to anything. There have even been occasions when the government lied quite blatantly, saying that one House annulling an Order was inadequate and,therefore, the vote was ignored.

In certain cases, as the relevant section of the European Union Bill, the Secretary of State can avoid the distinctly non-onerous procedure altogether, if he can insert a “declaration … that the urgency of the matter makes it necessary for the regulation to be made without [Parliamentary] approval”.”
In other words, if the Bill becomes an Act the Secretary of State will acquire enormous powers to by-pass Parliament completely, should a particular policy, even if it involves sending troops in, be part of the common foreign and security policy.

This will not change, even if there is a referendum and a no vote on the Constitution. The referendum, let me emphasise, will not be on the Bill. How can it be?

For the purposes of the Bill, the common foreign and security policy (though not the treaties) is defined as that in the proposed Constitution. Please, do not relax too soon. Changing definitions to do with European Treaties is a matter of very little import.

There have been many Statutory Instruments, barely noticed in Parliament, that did just that: changed various definitions, extending executive power by stealth.

I wonder if Mr Brown or Dr Reid or the other members of the Cabinet actually realize any of this.