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Parliament, the Royal Prerogative and decisions to go to war

Last Thursday’s House of Commons vote on military intervention in Syria and the ‘No’ that was delivered, has confirmed an important change in parliamentary conventions around military action. However, despite the arguments of Parliament’s Political and Constitutional Reform Committee (PCRC), the vote may leave the Government less willing to turn that convention into law.

See our latest analysis on Parliament’s involvement in decisions to commit to military action on our blog. The power to commit troops in armed conflict is one of the remaining Royal Prerogatives – that is powers that are derived from the Crown rather than conferred on them by Parliament. There is no codified parliamentary procedure that formally requires the Government to seek approval before taking military action. The Prime Minister and Cabinet retain the constitutional right to decide when and where to authorise action. In practice governments in modern times have usually ensured parliamentary debate. In 2006, Tony Blair, following his own vote over Iraq in March 2003, acknowledged that he could not “conceive of a situation in which a Government... is going to go to war – except in circumstances where militarily for the security of the country it needs to act immediately – without a full parliamentary debate”. But having a debate, its timing and any subsequent vote are not constitutionally binding on the government’s domestic powers to act. The Iraq war vote of 10 years ago was a significant precedent that Parliament should also give its approval. Subsequent doubts about whether the right choice was made on the right evidence have reinforced views of Parliament as a check on government action. Since taking office David Cameron has, if anything, strengthened the position of Parliament. In March 2011, a parliamentary debate took place after the outbreak of military action to enforce a no-fly zone in Libya, but this itself followed a UN Security Council Resolution. Last Thursday’s division was more important as a precedent because of the result and the Government’s response to it. By calling the vote, the Government was ensuring continued adherence to the practice that Parliament should have a say. Though not actually a motion authorising action, it came to symbolise one. By saying no and the strength of the Prime Minister’s declaration that the government would abide by it, the de facto power of Parliament to authorise such action have been strengthened further. A strong political convention has therefore been set. It will be politically very difficult for governments in the foreseeable future to take significant military action without clear (and potentially prior) approval from Parliament, not just to ensure a substantive debate. But it is not inconceivable. So the question that now remains is whether such a convention should be fixed constitutionally. As the PCRC’s reissued report shows, there will now be further discussion about whether the position should be constitutionally firmed up. It is an issue that has resurfaced from time to time in the last decade. At one end of the spectrum are those who think that the prerogative power should be passed to Parliament through a legislative change. The PCRC does not go this far, but calls for a legislated requirement to ‘consult’ Parliament about the use of troops “and except in emergency situations… before they are committed”. Others, including the current membership of the Lords Constitution Committee who reported in July, think that the strengthened position of Parliament is right, but no further formalisation would be recommended. In the middle is the previous incarnation of the Lords Constitution Committee from 2006, who argued that the position should be strengthened through more formal acknowledgement of the need for parliamentary approval. The arguments for making a change to this Royal Prerogative are logical – it is considered an outdated power and is such an important one that it should not bypass democratic representation. On the other side, the difficulties of formalisation are many. One is the problem of definition. Specifying ‘military action’ is not so easy, especially when one considers intelligence support, proxy wars or cyber warfare. Another difficulty is ensuring operational flexibility, speed of deployment or excess publicity that would undermine the success of any operation. Even those in favour of legislation acknowledge that there are situations where government action could not await parliamentary approval (which at the extreme includes the Prime Minister’s finger on the nuclear button). There is also the need for Parliament to have an informed view on such decisions. Last Thursday also saw the provision of Joint Intelligence Committee evidence and the Attorney General’s legal advice, both allusions back to the Iraq experience. For some commentators (judging the immediate Twitter reaction) neither the intelligence nor legal advice was sufficient. If Parliament’s role becomes formal it will need to be ever-more informed. How much information will it be able to get and to debate in public? And finally, as the recent Lords Constitution Committee report also identified, there is the problem of "rendering deployment decisions justiciable". Parliament does not want to take on this power only to see it handed to the courts. In thinking about whether to go further, commentators look to the US. Their 1973 War Powers Resolution requires the President to consult with and report to Congress on the use of forces and ultimately gain their authorisation. But successive presidents have questioned this power, seeing it in their role as Commander in Chief. Hence Obama’s comments: "While I believe I have the authority to carry out this military action without specific congressional authorisation, I know that the country will be stronger if we take this course and our actions will be even more effective." If anything, the US example (itself quite extraordinary) could be taken as further proof that political power to force a parliamentary discussion can be stronger than the constitutional right. As the more recent Lords Constitution Committee argued, it is quite hard to frame the kind of legislation needed for Parliament to play this role, but not impossible. Indeed, all of these complexities need to be considered, whether the practice becomes formalised or remains convention. It therefore comes down to the same preference as other issues of whether to clear up the grey areas of our constitution. Critics see potential legislation as a constraining influence and point to potential judicial involvement that would confuse matters further; do you need legislation if you already have the de facto power? For those in favour, it is this very certainty, ensuring that such powers happen by right, not by chance, that is needed. The PCRC have repeated their call to enshrine in law the right of Parliament to be consulted before troops are committed and reminded the Foreign Secretary of a commitment to do so. What we wait to see is whether, having experienced a ‘No’, the Government will be so keen.

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