Parliament’s role in conflict decisions

Written evidence submitted by Sebastian Payne, University of Kent

Preliminary Points

• Has a convention now been established requiring the approval of the House of Commons?

Bearing in mind the consensus across the political spectrum that Parliament should have a greater role with regard to war powers there is clearly a change of expectations on the part of this Government and indeed the last Government as to what is appropriate.

What appears to be emerging is the expectation that the House of Commons will be consulted and that there will be a division but not necessarily prior to the deployment decision.

This could be seen as a three stage process:

1. Government makes an informal assessment of the mood of the House.

2. On the basis that there is believed to be substantial support the Government makes a statement as to what it is planning to do or indeed has decided to do.

3. A debate and division is held.

This new approach implies that it would be difficult to sustain operations without a fairly early formal approval of the House.

In the case of Libya, the Government took the decision to act and then made a statement on the 18th of March 2011, deployed the armed forces on the 19th of March and held a full debate and division on the 21st of March 2011.

Both Parliament and the Government have to confront a paradox:

Parliament’s influence is maximised by an early debate and division on the plans to deploy troops but there may be sound reasons why the Government in some scenarios needs to act prior to approval from the House.

Early consultation allows the House to extract clarification from the Government as to the purpose of the operation, troop numbers, allies to be involved, duration of operation and international mandate. But at an early stage it may be impossible for the Government to give answers to all those questions as is evident from the Libyan scenario with the Government having to engage in persuasion and coalition building with international allies.

A vote after the deployment has occurred weakens the influence of the House as those who vote against an existing deployment can be accused of undermining the morale of the armed forces. Nonetheless Governments may need to act prior to a vote.

• What are the circumstances in which forces could reasonably be committed before a debate and vote in the House of Commons, as happened recently in the case of Libya?

The Libyan deployment presents an example of an occasion which justifies acting prior to a vote. The justification is to avert an imminent humanitarian disaster.

Other examples would be where immediate action is needed to defend the United Kingdom or its overseas territories.

Conceptually, one needs to separate the debate question from the ‘debate and vote’. There may be circumstances that allow for an early debate to inform the House and for the House to influence the Government. A vote may not be appropriate at the early stage because the Government is still developing its policy and engaged in negotiation with its allies and trying to pressure the enemy. Indeed strong support from the House may act as a warning to the enemy and influence the shape of events.

• Is a detailed parliamentary resolution needed to clarify Parliament’s role, as proposed by the last Government, or should the role of Parliament in conflict decisions be enshrined in law, as the current Foreign Secretary has suggested?

A detailed resolution is highly desirable. The last Government produced a detailed draft resolution that covered many of the issues of concern. That resolution needs refining to enhance the role of Parliament.

A convention embodied in a resolution will allow the House and the Government the opportunity to develop an appropriate modus operandi. There is still much that needs to be changed to allow Parliament to effectively influence the policy cycle. There needs to be a re-thinking of the boundaries between the executive and the legislature part of which should include the Government seeking input from the House at an earlier stage of policy formation. Parliament is extending its authority and influence through Select Committees. Indeed the demand for more influence over war powers is testimony to the growth of Parliamentary influence on the executive. It is too early to crystallise these arrangements in legislation which will bring with it the risk of judicial review of government action.

Sebastian Payne

28th March 2011