Parliament's role in conflict decisions - Political and Constitutional Reform Committee Contents


Report: Parliament's role in conflict decisions


Earlier work

1. Since the decision to commit British forces to Iraq in 2003, the role of Parliament in conflict decisions has been the subject of much scrutiny, notably in

  • Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, a Report of 2004 from the Public Administration Select Committee,[1] and
  • Waging war: Parliament's role and responsibility, a Report of 2006 from the House of Lords Constitution Committee.[2]

2. The previous Government proposed a draft detailed parliamentary resolution on war powers in a Green Paper in 2007 and a White Paper in 2008,[3] but the House did not have an opportunity to consider such a motion before the general election in May 2010. The Green and White Papers were scrutinised by the two Committees mentioned above, as well as by the specially convened Joint Committee on the draft Constitutional Renewal Bill.[4]

The current Government's position

3. Following the general election of May 2010 and our creation as a new Committee, we asked the new coalition Government for their position on this issue. The Cabinet Secretary, Sir Gus O Donnell, wrote to us early in March 2011, stating that

the Government believes that it is apparent that since the events leading up to the deployment of troops in Iraq, a convention exists that Parliament will be given the opportunity to debate the decision to commit troops to armed conflict and, except in emergency situations, that debate would take place before they are committed.[5]

In our Report on the constitutional implications of the Cabinet Manual, we commented on the "surprising" omission from the draft Manual of the convention referred to by the Cabinet Secretary, and announced our intention to "inquire separately into whether the Government's understanding of the existing convention is correct and complete—and whether it goes far enough to ensure appropriate parliamentary involvement in any future decisions to go to war".[6] We recommend that the Cabinet Manual should include a clear reference to Parliament's current role in decisions to commit forces to armed conflict abroad.

4. The issue soon became topical once again in the context of military action in Libya under the aegis of United Nations Security Council Resolution 1973. During the debate in the House on this issue, which took place shortly after forces had been committed, the Foreign Secretary, Rt Hon William Hague MP, stated that "we will enshrine in law for the future the necessity of consulting Parliament on military action".[7]

Our view

5. It was in this context that we heard on 31st March 2011 from three academic legal experts, Dr David Jenkins, Associate Professor at the University of Copenhagen School of Law, Sebastian Payne, Lecturer in Constitutional and Administrative Law at the University of Kent, and Nigel White, Professor of Public International Law at the University of Nottingham. While we await with interest the Government's response to our recommendation that the current convention on parliamentary involvement in conflict decisions "as the Executive understands it" should be included in the revised Cabinet Manual,[8] our witnesses did not share the Cabinet Secretary's view that a convention on parliamentary involvement in conflict decisions could be said to exist.[9]

6. There is an urgent need for greater clarity on Parliament's role in decisions to commit British forces to armed conflict abroad. We therefore recommend that the Government should as a first step bring forward a draft detailed parliamentary resolution, for consultation with us among others, and for debate and decision by the end of 2011. Much work in this direction has already been completed, and the process for decision should be relatively swift.

7. We also welcome the Foreign Secretary's commitment to enshrine Parliament's role in law. This is, however, likely to be a longer-term project, to be considered in depth after a parliamentary resolution has been agreed, or if this route fails to bear fruit. We note that concerns have been raised about the feasibility of a statutory solution, not least by the Lords Constitution Committee and by the previous Government, which found that a purely statutory option had "considerable risks and difficulties inherent in it",[10] "while not ruling out legislation in the future".[11] Others, including two of our three witnesses, favour a statutory solution,[12] and in countries in which a such a solution is in place, including the United States, these risks and difficulties do not seem to have been realised in practice. We will monitor progress in this area closely, and await the Government's proposals with interest.


1   Select Committee on Public Administration, Fourth Report of Session 2003-04, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, HC 422  Back

2   House of Lords Constitution Committee, Fifteenth Report of Session 2005-06, Waging war: Parliament's role and responsibility, HL 236  Back

3   The governance of Britain: war powers and treaties: limiting executive powers, October 2007, Cm 7239; The Governance of Britain-Constitutional Renewal, March 2008, Cm 7342-I  Back

4   Select Committee on Public Administration, Tenth Report of Session 2007-08, Constitutional Renewal: Draft Bill and White Paper, HC 499, paras 71-80; Report of the Joint Committee on the Draft Constitutional Renewal Bill, Session 2007-08, HC 551-I, Chapter 7; Memorandum to the Joint Committee from the House of Lords Constitution Committee, HC 551-II (2007-08), Ev 71, paras 18-20  Back

5   Written evidence to the Committee's inquiry into the role and powers of the Prime Minister, Session 2010-12, not yet printed, online at http://www.publications.parliament.uk/pa/cm201011/cmselect/cmpolcon/writev/842/m11.htm  Back

6   Political and Constitutional Reform Committee, Sixth Report of Session 2010-12, Constitutional implications of the Cabinet Manual, HC 734, para 61  Back

7   HC Deb, 21 March 2011, col 799 Back

8   HC 734 (2010-12), para 61 Back

9   Q38  Back

10   Cm 7239, para 108 Back

11   Cm 7342-I, para 215 Back

12   Q 38 Back


 
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Prepared 17 May 2011