If you doubt that Britain needs a written constitution, listen to the strangely unbalanced discussion broadcast by the BBC on Friday. The Today programme asked Lord Guthrie, formerly chief of the defence staff, and Sir Kevin Tebbit, until recently the senior civil servant at the Ministry of Defence, if parliament should decide whether or not this country goes to war. The discussion was a terrifying exposure of the privileges of unaccountable power. It explained as well as anything I have heard how Britain became party to a crime that might have killed a million people.
Lord Guthrie argued that parliamentary approval would mean that intelligence had to be shared with MPs; that the other side could not be taken by surprise (”do you want to warn the enemy you are going to do it?”), and that commanders should have “a choice about when to attack and when not to attack”. Sir Kevin maintained that “no prime minister would be able to deploy forces without being able to command a parliamentary majority. In that sense the executive is already accountable to parliament.” Once the prime minister has his majority, in other words, MPs become redundant.
Let me dwell for a moment on what Lord Guthrie said, for he appears to be advocating that we retain the right to commit war crimes. States in dispute with each other, the UN Charter says, must first seek to solve their differences by “peaceful means”(article 33)(1). If these fail, they should refer the matter to the Security Council (#37), which decides what measures should be taken (#39). Taking the enemy by surprise is a useful tactic in battle, and encounters can be won only if commanders are able to make decisions quickly. But either Lord Guthrie does not understand the difference between a battle and a war - which is unlikely in view of his 44 years of service(2) - or he does not understand the most basic point in international law. Launching a surprise war is forbidden by the charter.
It has become fashionable to scoff at these rules and to dismiss those who support them as pedants and prigs, but they are all that stand between us and the greatest crimes in history. The International Military Tribunal at Nuremberg ruled that “to initiate a war of aggression … is not only an international crime; it is the supreme international crime”(3). the tribunal’s charter placed “planning, preparation, initiation or waging of a war of aggression”(4) at the top of the list of war crimes.
If Britain’s most prominent retired general does not understand this, it can only be because he has never been forced to understand it. In September 2002, he argued in the House of Lords that “the time is approaching when we may have to join the United States in operations against Iraq. …Strike soon, and the threat will be less and easier to handle. If the United Nations route fails, I support the second option.”(5) No one in the chamber warned him that he was proposing the supreme international crime. In another debate in the Lords, Guthrie argued that it was “unthinkable for British service men and women to be sent to the International Criminal Court”, regardless of what they might have done(6). He demanded a guarantee from the government that this would not be allowed to happen, and proposed that the British armed forces should be allowed to opt out of the European Convention on Human Rights. The grey heads murmured their agreement.
Perhaps it is unfair to single out the noble and gallant lord. The exceptionalism of the British establishment is almost universal. According to the government, both the Commons public administration committee and the Lords constitution committee recognise that decision-making should “provide sufficient flexibility for deployments which need to be made without prior parliamentary approval for reasons of urgency or necessary operational secrecy.”(7) You cannot keep an operation secret from parliament unless you are also keeping it secret from the UN.
Sir Kevin appears to have a general aversion to disclosure. In 2003 the Guardian obtained letters showing that he had prevented the fraud squad at the ministry of defence from investigating allegations of corruption against the arms manufacturer BAE, that he tipped off the chairman of BAE about the contents of a confidential letter the Serious Fraud Office had sent him and that he failed to tell his minister about the fraud office’s warnings(8). In October 2003, under intense cross-examination during the Hutton inquiry into the death of the government scientist David Kelly, he revealed that the decision to name Dr Kelly was made in a “meeting chaired by the Prime Minister.”(9) That could have been the end of Blair, but a week later Sir Kevin quietly sent Lord Hutton a written retraction of his evidence(10). No one bothered to tell parliament or the press; the retraction was made public only when the Hutton report was published, three months later(11). Blair knew all along, and the secret gave him a crushing advantage(12).
The discussion also reveals that Guthrie and Tebbit appear to have learnt nothing from the disaster in Iraq. They are not alone. Soon before he stepped down last year, Tony Blair wrote an article for the Economist called What I’ve Learned(13). He had discovered, he claimed, that his critics were both wrong and dangerous and that his decisions, based on “freedom, democracy, responsibility to others, but also justice and fairness” were difficult but invariably right. He called his article “a very short synopsis of what I have learned”. I could think of an even shorter one.
We have yet to hear one word of regret or remorse from any of the major architects - Blair, Brown, Straw, Hoon, Campbell and their principal advisers - of Britain’s participation in the supreme international crime. The press and parliament appear to have heeded Blair’s plea that we all “move on” from Iraq. The British establishment has a unique capacity to move on, and then to repeat its mistakes. What other former empire knows so little of its own atrocities?
When people call our unwritten constitution a “gentleman’s agreement”, they reveal more than they intend. It allows the unelected gentlemen who advise the prime minister to act without reference to the proles. Britain went to war in Iraq because the public and parliament were not allowed to know when the decision was made, what the intelligence reports really said, and what the attorney-general wrote about the legality of an invasion. Had the truth not been suppressed, our armed forces could never have attacked Iraq.
Real constitutional reform requires much more than the timid proposals in the green paper on the governance of Britain, which are likely to appear in a new bill in a few weeks’ time. Yes, parliament should be allowed to vote on whether to go to war, yes the Royal Prerogative should be rolled back. But the prime minister, his diplomats, civil servants and generals would still decide which wars parliament needs to know about, which crimes could be secretly committed in our name. Real constitutional reform means not only handing power to parliament; it also means confronting the power of the cold, unaccountable people who act as if it is their birthright.
1. UN Charter
2. Lord Guthrie, 24th March 2004. House of Lords debates, Column 731.
3. Marjorie Cohn, professor at Thomas Jefferson School of Law, 9th November 2004.
Aggressive War: Supreme International
4. The Avalon Project at Yale Law School. Nuremberg Trial Proceedings. Vol. 1: Charter of the International Military Tribunal.
5. Lord Guthrie, 24th September 2002. House of Lords debate, Column
6. Lord Guthrie, 14th July 2005. House of Lords debate, Column 1234.
7. Home Office, July 2007. The Governance of Britain. Green paper. Para 28, p19.
8. David Leigh and Rob Evans, 13th October 2003. MoD chief in fraud cover-up row. The Guardian.
9. Sir Kevin Tebbit, 13th October 2003. Hearing Transcript, The Hutton Enquiry, para 57.
10. Richard Norton-Taylor and Owen Bowcott, 2nd February 2004. Tebbit’s late change put Blair in clear. The Guardian.
12. John Kampfner, 2004. Blair’s Wars. pp350 and 364. Free Press, London.
13. Tony Blair, 31st May 2007. What I’ve learned. The Economist.