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
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
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
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.
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