House of Lords - Constitution - Minutes of Evidence

Select Committee on Constitution Minutes of Evidence

Memorandum by Professor John Bell, University of Cambridge

The declaration of war involves three practical issues:

1. the effect in international law on the status of actions and individuals (troops and others);

2. the deployment of armed forces; and

3. the ability of the Government to take emergency measures.

7 DECEMBER 2005

These three issues are distinct and are not triggered by the same procedures. The right to deploy armed forces may be independent of whether there is a war. Emergency measures may well be introduced, even without a war—the current situation in France is a good example. This division of principles does, of course, omit one central feature: finance. Whatever the powers to deploy troops or to wage war, there is a need for the Government to have access to flexible amounts of finance to pay for all this activity.

1. The Source of Powers

European legal systems have different approaches to the sources of powers in the areas just identified. The particular configuration of powers is largely determined in reaction to the history of a particular country, rather than by any deep legal or constitutional ideology. Very broadly, I would divide the systems into two groups.

Inherent powers

In certain countries, it is taken for granted that the state has some inherent powers to carry out its activities. Most of the powers relate to the functions of the "nightwatchman state": to provide for security and public order and to run a bureaucracy. Both the United Kingdom and France fall into this group, since they have non-statutory "common law" powers granted to the State. [7]By and large, these are a relic from a pre-democratic constitutional system and were established in the seventeenth century.

Conferred powers

In other countries with modern democratic constitutions, the notion of the Rechtsstaat (a version of the "rule of law") requires that all power is conferred by law and controlled by it. The State can only do what it has been explicitly authorised to do. As a result, there must always be a legal text that provides the legal basis for action. This principle was set out in article 18 of the Austrian Constitution of 1920 and has been adopted in most democratic constitutions in Europe since 1945. [8]

Thus, the expectation in most European constitutional systems is that the areas of national defence, the armed forces and emergency powers will each be regulated by statutes, which set out the powers of the executive and the procedures by which decisions are taken. The United Kingdom has 20th century statutes in most of these areas: Defence of the Realm, Army, Navy, Air Force, and Emergency Powers.

2. National Security and the Declaration of War

Again, historical experience makes most countries reluctant to leave the executive with the power to declare war or take other action without prior authorisation from Parliament. But two situations are envisaged.

Defensive action within the territory

Most constitutions envisage some kind of legitimate military action by way of defence of national integrity. The Spanish Constitution of 1978 (art 116 §3 and Ley organica 4/1981 of 1 June 1981) envisages a "state of exception" where there is a threat to the democratic order. The French Constitution of 1958 art 16 also sets up emergency powers. The Dutch Constitution (art 96 § 2) envisages a situation where military action already taken against the Netherlands obviates the need for a declaration of war. Similar powers exist in other Constitutions. [9]A number of constitutions reject the idea of war except for defensive purposes: Italian Constitution, art 11; German Constitution, art 26; Norwegian Constitution, art 26; Austrian Law on Neutrality, 26 October 1955.

The German Constitution's concept of a "State of Defence" (art 115a and following) is typical. Where there is a threat to national security and the integrity of the territory, then Parliament (the Bundestag) votes by a special majority to allow the government to deploy armed forces and override a number of constitutional powers, especially of the Länder. In essence, this is a constrained power to declare war, because it does not envisage that troops will be used outside the national territory. [10]

Offensive action outside the territory

In terms of offensive action, ie action outside the national territory, the general pattern of European constitutions and legislation requires prior authorisation by Parliament. [11]The typical conditions would be an action at the request of another State, or of the UN or of another international organisation. [12]

What happens if Parliament cannot act?

Most constitutions envisage the situation where either speed or the physical condition of the country make it impossible for Parliament to act before something needs to be done. (For example, where the country has been invaded). [13]In such situations, the Head of State (the Executive) may take appropriate action. Some Constitutions envisage some alternative bodies which must be consulted (the business committee of the Parliament[14] or the Speakers of the houses of Parliament.)

The parallel is with powers of internal emergency. Here, all countries envisage that the Executive can act immediately, but then needs to obtain approval from Parliament within a short period of days (typically 15 days). [15]

The formal declaration of war

I know of no Constitution in Europe that leaves the declaration of war in the hands of the Executive, except in the formal sense that the Head of State declares war once this has been approved by Parliament. [16]In France, it was considered of sufficient seriousness to have been transferred from the Crown to Parliament in 1792. [17]

3. Deployment of Armed Forces

Because of well-known historical experiences, the national statute on the army not only deals with its organisation and the use of military discipline, but also sets out the values that the armed forces must serve. The idea of unfettered executive power to deploy the military conjures up fears of dictatorship in countries such as Germany, Greece, Italy, Spain and Portugal.

There is usually a detailed law on the organisation of the armed forces, similar to the UK Army Act 1955, etc. The credits available to support a particular programme of deployment are contained in the annexes to the annual Finance Act, but the broad policy will not normally be the subject of legislation. It may be the subject of a specific vote in Parliament, typically where troops are deployed abroad. [18]

The deployment of the armed forces as an operational matter is usually in the hands of the executive, and decisions cannot be challenged in the courts. [19]National public law will usually set out the organisational framework within which decisions are taken. This will usually take the form of a defence council linked to the ministry of defence. Clearly policy issues can be challenged in Parliament, but it is not necessary that the detailed policy deployment be approved.

4. Emergency Powers

All systems envisage that the Executive can take action to deal with emergencies. Some constitutional systems envisage a variety of emergencies: a state of siege (internal insurrection or external threat), a state of disorder (where the normal functioning of society is imperilled) and a state civil disaster (catastrophe or health threat). [20]In these cases, Parliament is consulted in a relatively short time, but a number of ordinary legislative rights and powers may be suspended during the period.

Conclusion

The UK is out of line with its European neighbours because it does not have clear legislation governing the declaration of war. Such legislation could be expected first to stress the essentially defensive use of armed forces, and secondly, the need for prior parliamentary approval.

December 2005

7 In the UK, we would talk of "the Crown", rather than "the State", but in a European context, it seems better to use the more generally applicable term, even if it does not exactly mean the same as "the Crown". See J Bell, French Constitutional Law (1992), pp 82-4, 287-91. Back

8 For a short survey of the European positions, see E Garcia de Enterria and T-R Ferdandez, Curso de derecho aministrativo (Madrid 1997), pp 426-431. See, for example, Belgian Constitution (1994), arts 35 and 105; German Constitution (1949), art 20; Spanish Constitution (1978), arts 9 1 and 103 1. Back

9 Swedish Constitution (1975), chapter 10 art 9 (1) and (3). Back

10 Norwegian Constitution art 25. Back

11 See Dutch Constitution art 96 1; Swedish Constitution, chap 10 art 9(2); Norwegian Constitution (1814), art 25; French Constitution art 35; Portuguese Constitution, art 138(c); Italian Constitution, art 78. Back

12 See art 19 of the Ley Organica 5/2005 of 17 November 2005, BOE 18 November 2005, no 276, 18933. Back

13 For example, Chap 10, art 9(1) of the Swedish Constitution; art 115a(4) and art 87a of the German Constitution; art 19(2) of the Portuguese Constitution. Back

14 Portuguese Constitution, art 138 (c). Back

15 See the British Emergency Powers Act 1964; the French law of 1955 on state of emergency; Spanish Constitution art 116 and Leyes Organica of 1 June 1981 and 21 February 1992; Portuguese Constitution, art 137(d). The British period before Parliament has to approve is longer. Back

16 See the provisions mentioned in footnote 7. See also Italian Constitution, art 87(9); Spanish Constitution art 63(3). Back

17 See F Luchaire and G Conac, La Constitution de la Re«publique Franc"aise (2nd edn Paris 1987), 775-7. Back