Select Committee on Constitution Minutes of Evidence


Memorandum by Rt Hon Tony Benn

The present constitutional position

  The power to go to war is, under constitutional custom and practice, held to belong to the Sovereign personally and derive from the Crown Prerogative.

In practice this means that the Prerogative is exercised by the Prime Minister, who would presumably consult the Crown before taking the decision to commit the nation to an armed conflict.

  When such a Prerogative power is exercised there is no constitutional requirement for Parliament to be consulted, let alone decide the matter itself by a vote.

  In most cases Parliament is merely notified in a ministerial statement although it is open to a Prime Minister to put the matter to the House of Commons, as occurred before the attack upon Iraq in 2003, when the Commons voted in support of that attack.

  But even if had been undertaken without the consent of the Commons it would, within our constitution, have been legal and unchallengeable in the Courts.

Definitions of Democracy

  In common parlance, Britain describes itself as a "Democracy", but in the Palace of Westminster we usually speak of being a "Parliamentary Democracy", which has a very different shade of meaning since it recognises that, in Britain, the citizens do not elect the Crown or Lords.

  However when the Queen speaks about our system of government the phrase used is that Britain is a "Constitutional Monarchy", under which the She governs with the "advice and consent" of both Houses of Parliament which means just that and nothing more.

  For it is the Crown which summons Parliament, dissolves Parliament, gives assent to all Bills before they become law, and everyone in Parliament is required to swear an oath of allegiance to the Crown, an oath that is administered in a much more specific form to all Privy Councillors.

What powers should the Executive have to make war?

  The decision of a nation to go to war is one of the most serious that any government can take since war is costly in lives and money and could determine the survival and independence of the nation itself.

  Where an attack from abroad occurs it is impracticable for to hold a democratic debate and vote before any response is made.

  However where a government wishes to attack another nation, in circumstances which are less clear cut, it is reasonable for Parliament to be able to consider the arguments for such a war and to give its consent before that war is launched.

From where should the Executive war-making power derive?

  That is the only question raised and the Committee should consider the alternative to Prerogative power which would be the enactment of legislation by Parliament which laid down the circumstances in which government might and might not commit this country to war.

  Such legislation could confer all the powers now exercised by the Prerogative, or it could draft alternative provisions that restricted those powers to certain clearly defined cases when the war option would have to be specifically authorised.

  The provisions of such a Bill would need careful consideration but however drafted the authority would derive form a democratically elected body and not by the use of the Prerogative, which Parliament cannot debate without the consent, in advance of the Queen and such legislation could not itself be debated without such Royal consent.

Conclusion

  The issue to be decided is therefore a simple one: from where should the Prime Minister's power be derived and what should be the extent of that power?

  If the Committee were to accept the case for transferring those powers to Parliament it might wish to consider the means by which that could best be done and even set out some guide-lines to help with the drafting of the necessary legislation.

  My recommendation is that the power to go to war should be transferred to Parliament and that legislation be drafted to make that possible.

31 October 2005



 
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