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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