Memorandum by Dr Andrew Blick,
Professor Paul Hunt, Professor Stuart Weir, Democratic Audit,
Human Rights Centre, University of Essex
Summary
Prerogative powers in general should
be placed on a statutory basis, but as a matter of priority the
United Kingdom requires an Act making Parliament the source of
authority for the deployment of the armed forces and for their
hostile engagement abroad. The UK is exceptional in that it has
no formal procedures for involving the legislature in war-making
and the argument that a convention could remedy the position is
ill-conceived.
The international model most often cited
for consideration is the US 1973 War Powers Resolution. A UK equivalent
should take into account the weaknesses we cite in the US version.
Other nations, such as Sweden, offer alternative arrangements.
We advocate a two-tier system for
parliamentary approval of troop deployments allowing for non-combat
and "potential or actual" combat situations. The latter
would require statutory arrangements for formal approval, detailed
reporting and regular renewal of the parliamentary mandate. We
take into account the need for possible emergency action by the
executive.
8 February 2006
Parliamentary involvement in war-making is compatible
with the North Atlantic Treaty, which allows for the "constitutional
processes" of member states. The government must be obliged
to satisfy Parliament that troops placed under the operational
control of another state will respect domestic and international
law.
The Attorney General's legal advice on any potential
conflict should be published in full. Parliament should be able
to supplement that advice, either through establishing its own
legal officer, or having the power to commission an opinion.
The courts would naturally have the power to
ensure that a government conforms to future war powers legislation
and international law. An Act of Parliament would regulate the
courts' use of such power and bring making war within the democratic
process in a way that is not possible while it remains a matter
of executive discretion under the Royal Prerogative.
Democratic Audit has just participated in a
joint study of the relationship between the executive and Parliament
in making UK foreign policy. We found that the extensive use of
the Royal Prerogative over a wide range of external policies,
including the deployment of armed forces abroad, makes for negligible
and spasmodic parliamentary scrutiny of the executive's foreign
policy-making and in effect also rules out judicial scrutiny.
1[1]
The broad, and necessarily retrospective, doctrine of ministerial
responsibility to Parliament is too vulnerable to executive power
to be an effective check on executive use of the prerogative.
1. What alternatives are there
to the use of royal prerogative powers in the deployment of armed
forces?
It is said that the processes by which the UK
joined in the invasion and occupation of Iraq have established
a convention that the executive must now seek parliamentary approval
before engaging in hostile action abroad. For various reasons,
we believe that this view is mistaken. What seems to be certain,
anyway, is that the executive does not accept that such a convention
would require a vote on a substantive motion approving military
action abroad (see the Prime Minister's comments to the Commons
Liaison Committee, February 2005). Conventions are also notoriously
elastic and the rules on going to war in a democratic state require
clarity. We recommend that prerogative powers in general should
be placed on a statutory basis, and agree with the Public Administration
Select Committee that those relating to making war and treaties
require urgent attention. [2]The
legislature should be the source of authority for the deployment
of the armed forces and for their hostile engagement abroad. This
is not only a democratic issue. Good policy-making depends on
effective parliamentary scrutiny and wide public debate.
2. Can models, drawn from the
practice of other democratic States, provide useful comparisons?
The UK is once again "exceptional"
among democratic states in that it has no formal procedures for
involving the legislature in war-making. In our view, Sweden provides
the most useful European model. Its "Instrument of Government"
applies to all foreign troop deployments—not just declarations
of war or involvement in battle. Military deployments and engagements
in action are subject to various requirements including consent
from the Riksdag (Parliament) and compliance with domestic
statute and international agreements. There is provision for emergencies
and self-defence. [3]
The model which is most often cited for consideration
is the US 1973 War Powers Resolution (commonly, but incorrectly,
known as the "War Powers Act").[4]
Under the US Constitution, Congress is responsible for declarations
of war while the President is Commander in Chief of the Armed
Forces. Presidents however have been able to participate in de
facto warfare stopping short of a full declaration of war.
The War Powers Resolution was Congress's response to such presidential
activity, especially in Vietnam, and it requires prior consultation
with Congress, wherever possible, where "the introduction
of United States Armed Forces into hostilities, or into situations
where imminent involvement in hostilities" is likely. We
regard this "commonsense" formula as preferable to an
attempt to create a precise legal definition. The Resolution requires
a detailed report within 48 hours of military action, with follow-up
reports at least every six months. If Congress does not authorise
the action, then troops should be withdrawn within 60 days or
may be withdrawn at any time through concurrent Congressional
resolution.
The Resolution has not in practice strengthened
Congressional control over the President's war-making powers.
Prior consultation is a vague concept, stopping well short of
prior authorisation, which we recommend for the UK. Congress has
proved reluctant to use the powers at its disposal, for instance
failing to enforce the 60-day rule after President Reagan's deployment
of troops in the Lebanon in 1982. Successive presidents have denied
the constitutionality of the Resolution since it was passed over
President Nixon's veto. If Parliament is to play a greater role
in decisions over war-making, MPs must be willing to use the powers
given to them; and a major constitutional realignment such as
this in the UK would have to win widespread acceptance.
There is also a need to legislate for specific,
clearly circumscribed mandates for military action; otherwise
the purpose of such legislation can be nullified by open-ended
authorisations. For example, in the aftermath of 11 September
2003, a joint resolution in Congress allowed the President to
"use all necessary and appropriate force against those, nations,
organizations, or persons" he deemed culpable, in order to
stop future international terrorist acts. In October 2002 the
President was given the go-ahead to act "as he determines
to be necessary" to defend national security against Iraq
and enforce relevant UN Security Council resolutions. We believe
that under UK legislation such wide executive discretion should
never be granted. Regular, affirmative renewals of authority and
clear parameters should apply in all cases.
3. Should Parliament have a
role in the decision to deploy armed forces?
Yes. Parliament's exclusion from formal involvement
in such decisions is unacceptable from a democratic standpoint
and reduces the level of scrutiny of executive activity, making
bad policy-formation more likely.
4. If Parliament should have
a role what form should this take?
(a) Should Parliamentary approval be required
for any deployment of British forces abroad, whether or not into
conflict situations?
Yes. Legislation on the deployment of troops
could introduce a two-tier system. An Act could require the executive
to present an annual report to Parliament, setting out total deployments
in both hostile and non-hostile circumstances. This report should
be separate from the present MoD annual report and could be debated
by the plenary of both Houses and formally approved by a vote
of the Commons (after scrutiny by the appropriate committees).
Parliament would also be asked to approve individually
all troop deployments falling into two categories—non-conflict
deployments involving more than a fixed number of troops; and
deployments into "potential or actual" combat situations.
In both cases the executive would be required to submit a report
specifying the purpose of an operation, its likely duration and
cost, provision for civilian and troop safety, and so on.
Special conditions should be attached to deployments
in "potential or actual" combat situations. The executive
should be required to inform Parliament as fully and precisely
as possible without prejudicing the success of an operation or
the safety of British service personnel. There should be no provision
for open-ended authorisations of the kind that have sapped Congress's
role in the United States. A statement of compatibility with international
law and human rights obligations would be required. There could
be an accompanying collective endorsement of the operation, issued
under the names of all Cabinet members who were present when the
action was agreed. Depending in part on future arrangements for
the House of Lords, such deployments could be debated by a plenary
assembly of both Houses, but would require the specific approval
of the House of Commons.
Legislation should be drafted to "catch"
all significant military action and deployment and not simply
major engagements. For example, the process of going to war against
Iraq in 2003 was subject to public and parliamentary debate and
approval. But hostile action against Iraq began earlier with the
"spikes" of US and UK air raids under cover of enforcing
the established protection zones over Iraq. These strikes and
their purpose were concealed from Parliament. Further the plans
and deployment of UK forces for hostile action against Iraq began
long before the final parliamentary vote. If Parliament is in
recess at the time of potential or actual combat, the executive
should be required by statute to recall Parliament. (Non-combat
deployments would not require the same urgent attention.) The
government should be required to report regularly to Parliament
and renew its mandate for action on the basis of this periodic
report (say, every 60 days). If Parliament refused renewal, troops
would have to be withdrawn immediately, subject to their safety
and that of non-combatants in the area. If the government wished
to alter its mandate, it would require specific parliamentary
approval, either within or separately from the periodic renewal.
There might also be provision for a resolution of the Commons
or both Houses forcing the withdrawal of troops at any time.
Given the executive's reluctance to recall Parliament
on previous occasions, it would be wise also to give Parliament
its own power of recall, as recommended by the Hansard Society
Commission on Parliamentary Scrutiny[5]
and the joint Democratic Audit/Federal Trust/One World Trust report.
[6]It
would also be important to give Parliament its own legal counsel
to complement the advice that the executive receives through the
Attorney-General; and also to strengthen Parliament's ability
to scrutinise the government's foreign policies, possibly through
a new parliamentary scrutiny agency and/or new select committee
arrangements. A joint committee of both Houses could be set up
with a watching brief over foreign policy as a whole, but with
a remit to identify potentially hostile military actions and the
power to trigger parliamentary debates when it judges the government
has engaged in operations that may end in conflict. It should
be able to exercise plenary powers when emergency circumstances
make a full parliamentary gathering impossible (similar arrangements
exist in Germany). It could also take on a more positive remit,
for instance recommending military action for humanitarian purposes.
Major internal troop deployments of the past—including
into potentially hostile circumstances in Northern Ireland—have
been of great significance and controversy. Domestic operations
of the future, for instance in relation to a terrorist threat,
may be too. But directing the disposition of the armed forces
within the UK is also a prerogative power. A clear, formal
parliamentary role, mirroring that for foreign deployment, is
therefore essential.
(b) Should Parliamentary approval be required
before British forces engage in actual use of force? Is retrospective
approval ever sufficient?
Government will always plead the need for discretionary
powers to take urgent executive action over democratic accountability.
Recent history suggests that occasions on which urgent action
is necessary are very rare. But as in Sweden, it is possible to
specify the circumstances in which a government is not required
to seek prior parliamentary approval—for instance, rapid
responses to surprise attacks—or it is not prudent to do
so—say, hostage rescue missions. But the presumption should
be that government would seek approval whenever possible; and
reports would have to be presented to Parliament within a specified
period (say, within 48 hours) for retrospective judgment and approval.
MPs could then disavow or halt the operation.
5. Is there a need for different
approaches regarding deployment of UK armed forces:
(a) REQUIRED
UNDER EXISTING
INTERNATIONAL TREATIES;
(b) TAKEN
IN PURSUANCE
OF UN SECURITY
COUNCIL AUTHORISATION;
(c) AS PART
OF UN PEACE-KEEPING
ACTION;
(d) PLACED
UNDER THE
OPERATIONAL CONTROL
OF THE
UN OR A
THIRD STATE?
(a) No. The UK is party to the North Atlantic
Treaty, a mutual defence pact. It may be argued that the commitment
is incomplete if its fulfilment is subject to parliamentary approval.
But the Treaty provides for signatories to execute its provisions
"in accordance with their respective constitutional processes."
[7]Thus
a statutory duty on government to obtain parliamentary approval
for military action is compatible with NATO membership. The War
Powers Resolution has certainly not inhibited US participation
in NATO. As well as the US most NATO members have greater constraints
than the UK upon the war-making powers of the executive—including
monarchies such as Holland and Sweden. Furthermore, the UK is
unusual amongst NATO member states in having no formal role for
Parliament in treaty-making—a fact which compromises the
democratic legitimacy of UK participation in NATO still further.
For instance, the Dutch Constitution states that "The Kingdom
shall not be bound by treaties, nor shall such treaties be denounced
without the prior approval of the Parliament."
(b & c) No. Such actions would by their
very nature comply with international law, but it would still
be proper to seek democratic approval in the UK and to comply
with any statutory requirement to that end. Major military actions
of the past in pursuit of UNSC resolutions include the Korean
and the first Gulf wars; participation in these would ideally
have been subject to a government report and a parliamentary vote.
Moreover, as discussed above, the de facto
campaign to remove Saddam Hussein arguably began in 2002—under
the guise of ongoing action to enforce UNSC resolutions. The detailed
reporting we envisage could have exposed the use of this tactic
and required parliamentary authorisation.
The United States UN Participation Act allows
for deployments of up to 1,000 non-combatant troops without specific
Congressional authorisation. A similar provision may be included
in the relevant UK Act, but in principle such deployments should
be subject to parliamentary approval, especially as the distinction
between peacekeeping and engagement in conflict may not be clear.
(d) Any commitment to placing troops under
the operational control of another state must be subject to full
parliamentary approval. Government should be required to satisfy
Parliament that any military action under the operational control
of another state would remain within the bounds of international
legality.
6. Should the Government be
required, or expected, to explain the legal justification for
any decision to deploy UK armed forces to use force outside the
UK, including providing the evidence upon which the legal justification
is based?
Yes. Government should be required to publish
in full the Attorney-General's advice. Parliament should also
either have its own legal counsel or the power to commission its
own legal opinion.
7. Should the courts have jurisdiction
to rule upon the decision to use force and/or the legality of
the manner in which force is used. If so, should that jurisdiction
be limited by considerations of justiciability of any of the issues
involved?
Yes. Two weaknesses in the US War Powers Resolution
are that there is no effective mechanism for judicial review nor
an explicit reference to the need to comply with international
law. Placing the power to go to war on a statutory basis would
make judicial review clearly possible in a way it has not been
for the use of prerogative powers. War powers legislation should
oblige the government to comply with international law. We recognise
that this requirement would reduce a British government's flexibility
in action, and perhaps especially with regard to humanitarian
intervention. The UK government should therefore continue to support
the UN's attempts to create a legal framework for such interventions
and so develop customary international law.
As to the question of justiciability some might
argue that it is not appropriate for courts to intrude into areas
of political decision-making. We believe that it would be entirely
proper and possible for a court to decide whether a government
was acting within statutory regulation of its power, or was in
compliance with international law, without inhibiting the application
of political judgement by ministers.
22 September 2005
1 Not in Our Name, by Simon Burall, Brendan
Donnelly and Stuart Weir, is to be published by Methuen (Politico's)
in January 2006. This is a joint study by Democratic Audit, the
Federal Trust and One World Trust. Back
2
Taming the Prerogative: Strengthening Ministerial Accountability
to Parliament, Public Administration Select Committee, HC
422, 16 March 2004. Back
3
See How to Go to War: A Handbook for Democratic Leaders,
by Andrew Blick, Methuen 2005: 61-66. Back
4
War Powers Resolution of 1973, Public Law 93-148, 93rd
Congress, H J Res. 542, 7 November 1973. See also The War Powers
Resolution: After Thirty Years, by Richard F. Grimmett, Congressional
Research Service, Library of Congress, 11 March 2004; and War
Powers Resolution: Presidential Compliance, also by Grimmett,
Congressional Research Service, Library of Congress, 14 November
2004. Back
5
The Challenge for Parliament: Making Government Accountable,
Hansard Society Commission on Parliamentary Scrutiny (chairman,
Lord Newton of Braintree), Vacher Dod Publishing, 2001. Back
6
See note 1. Back
7
North Atlantic Treaty, Article 11. Back
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