The Role of Parliament in the UK Constitution: Authorising the Use of Military Force Contents

5Parliamentary scrutiny

Scrutiny and direct Commons authorisation

84.The understanding that Parliament and, in particular, the House of Commons should scrutinise the Government’s use of the royal prerogative in general, and in relation to authorising military force in particular, is a widely accepted convention. As set out in Chapter 3, there is also now an accepted convention that the House of Commons should be asked to give its direct consent for military action, unless there are exceptional circumstances. However, debate continues in relation to the extent to which effective scrutiny is possible; when scrutiny and votes that give direct consent should take place; and who determines these issues. These questions are particularly relevant in relation to activities falling within the exceptions to the new convention that Parliament shall be consulted in advance of armed conflict, and in relation to the emerging challenges arising out of the changing nature of conflict.

85.The Government accepts the need for and importance of parliamentary scrutiny. The Chancellor of the Duchy of Lancaster said that “[t]he principle of advance parliamentary scrutiny as well as post facto parliamentary scrutiny is right”, but emphasised that “there are good reasons why there are exceptions”.128 He identified two purposes of scrutiny from the Government perspective:

[I]t provides the advantage of confidence that when Ministers are about to embark on a decision that is likely to risk the lives of serving personnel, they have the confidence of the House of Commons in doing so and to know that there is that degree of support—ideally support across party lines—in the House of Commons …

…More generally, in terms of explaining—both to domestic public opinion and to international audiences—why the Government have acted in a particular way, it is of assistance to be able to say that we have clear political endorsement through the appropriate democratic mechanism.129

86.The Chancellor of the Duchy of Lancaster concluded that he did not think there was a “shortage of opportunities for parliamentarians to bring their voice to the debate and to influence Ministers”, noting the mechanisms of select committees, in particular the Defence Committee, parliamentary questions, and devices available in Standing Orders.130 The Minister for the Armed Forces also pointed out that he and the Secretary of State for Defence regularly appear before the Defence Committee and answer Defence Questions on the floor of the House of Commons.131 Some witnesses also highlighted the recent use of an humble Address by the House of Commons to compel the Government to publish the Attorney General’s legal advice, and speculated that the House could do this in relation to controversial proposed military action.132 However, the Chancellor of the Duchy of Lancaster said that using an humble Address would:

… take us into very difficult territory, if the purpose of the humble Address was to seek information that the Ministers responsible for that operation felt would be prejudicial either to the outcome of it or to the safety of men and women in the field.133

87.The Minister for the Armed Forces said that he thought it was important to separate where Parliament should and should not be involved. He said that there was a conflict threshold or line and that any military activity that fell below this line, and so was sub-conflict military action or deployment, would not be covered by the convention.134 He told us that he thought “most military deployments … would not engage the convention and would not be debated in Parliament”.135 In addressing the difficulty of defining when military action constitutes a conflict, he said that, while there are not clear legal definitions the Ministry of Defence was quite clear “as to what constitutes a conflict and what does not”.136

88.Several witnesses to this inquiry emphasised the nature of the relationship between the Government and Parliament in relation to decisions to deploy military force. It is the function of Government to “formulate the policy and make the decisions”, and it is “for Parliament to scrutinise, to analyse and in some cases even to reject proposals”.137 As mentioned previously, Professor Phillipson referred to the classic Westminster system of Government, where “the Government proposes, and Parliament scrutinises and then either gives its assent or does not give its assent”.138 The Government is as responsible to Parliament for the decisions it takes on military action as it is for the rest of its decisions.139

89.Jack Straw told us that parliamentary scrutiny of government policy on military action, like scrutiny of areas like the National Health Service, was appropriate because in a democracy “the most serious decisions made by Cabinet should be the subject not only of scrutiny but, where possible, of advance endorsement as well”.140 He also highlighted the success of the Intelligence and Security Committee in conducting scrutiny and holding to account institutions that have a high level of secrecy.141

90.Lord Hague was clear that he thought better decisions were made as a result of strong scrutiny of government by Parliament, and that “we should keep trying to improve and codify this process where possible”.142 He suggested that better scrutiny of the Government could be carried out if access to a higher level of information and briefing were given to committees, that could then report to the House of Commons as a whole.143 He said one of the biggest problems in the relationship between the House of Commons and the Government is that “there is a major problem of trust”. He had encountered this in 2013 over the Syria vote, where colleagues said to him, “ We do not believe anyone in Government anymore after the weapons of mass destruction experience.”144 This, for him, further strengthened the “argument for enhancing the scrutiny, knowledge, education and awareness at least of some of the committees of Parliament”.145

91.Enhancing the ability of the House of Commons to scrutinise Government policy over military action was strongly supported in our evidence. Professor Lagasse argued that Parliament should focus attempts at further reform on increasing and strengthening parliamentary scrutiny of executive decisions rather than seeking to expand further the convention on prior authorisation.146 Similarly, the All Party Parliamentary Group on Drones told us that “when a pre-deployment vote is not possible, mechanisms to enable post-hoc scrutiny within Parliament must be strengthened and formalised”.147

92.Some witnesses wanted a further strengthening of prior and on-going scrutiny. Dr McCormack drew attention to the Chilcot report and the Intelligence and Security Committee report, which she said were examples of excellent and hard-hitting scrutiny, but also demonstrated the limits of current parliamentary scrutiny because they were retrospective.148 Dr Kenealy also emphasised that “Parliament is a law-making and policy-approving body, not merely a retrospective scrutiniser of the activities of government”.149 He pointed out that Parliament regularly scrutinises Government policy, makes contributions to the substance of that policy and then retains the right ultimately to decide whether or not to approve the policy.150

93.It is the function and responsibility of those in Government to make policy and take decisions. Scrutiny of the Government’s policy and actions is a fundamental function and responsibility of Parliament, which falls particularly on Members of the House of Commons as elected representatives. Scrutiny performs a vital constitutional role as it ensures that the actions taken by the Government, on the authority of the House of Commons, are checked and where necessary adapted or halted. Scrutiny should give assurance to ministers that they are acting with the confidence of the House of Commons, and give assurance to the public that policies have the endorsement of the House of Commons. It is clear to us that strong scrutiny of Government leads to better decisions. This applies as much to the decisions and policies on military action, as it does to any other area of Government policy and decision-making.

94.The decision by the Government that a particular action or a category of action should not require prior consultation and approval by the House of Commons is one that must be open to full scrutiny.

95.Where military action is taken under an exception to the post-2003 convention of prior consultation with the House of Commons, the Government should, at the earliest feasible moment, make a statement to the House and, where necessary, seek retrospective approval. The Government should also produce a report setting out in full its reasons for taking action without prior consultation, which should be presented to the Defence Committee. The Committee would then report to the House as to whether it was satisfied or not with the Government’s explanation, and its report would be the subject of a debate on the next sitting day on a substantive motion.

96.The post-2003 convention of prior consultation with the House of Commons developed as a mechanism to ensure that decisions on military action were democratically authorised and accountable. As the debate around the exceptions to the convention demonstrates, direct, prior consent is not always appropriate or possible. However, this does not mean that in these areas there is no need for democratic accountability and authorisation. It simply leads us to conclude that the mechanisms by which accountability and authorisation are achieved must be different. The increasing frequency and importance of sub-conflict confrontations highlighted throughout the evidence poses new challenges both for the Government and Parliament. While we accept that much of this would not, and should not, be covered by the existing convention on prior parliamentary approval, we do not accept the view of the Minister for the Armed Forces that these are not issues for Parliament. On the contrary, it is imperative that the House of Commons considers how it can effectively fulfil its duty to hold the Government to account in relation to foreign policy and defence issues.

97.The House of Commons should ensure that the Government continues to ask for its approval for proposed military action in every instance where it is appropriate. Where this is not possible for operational or other reasons, the House of Commons should seek to strengthen its ability to scrutinise the Government’s policy and actions in relation to military action and confrontation. In this regard, it is important that the House of Commons does not wait for an issue to reach the point of military conflict before it engages with the substance of it through debate, both in committee and on the floor of the House. Similarly, the Government should not delay, without good reason, in seeking the view of the House of Commons in areas it can see are likely to become areas of concern.

How Parliament considers foreign affairs and defence

98.One of the most striking and concerning issues raised in our inquiry was the view expressed by the former leaders of the Armed Forces that politicians, both in Government and in Parliament, were uninformed, under-educated and under-prepared to debate the issues surrounding international conflict.151 General Sir Richard Barrons said that he thought the quality of debate among politicians on military action was “lousy”.152 He went on to say there was a “massive failure” in the education and training of political leaders, who often have no interest in the business of conflict and security. He expressed concern that positions and decisions on important issues were arrived at only through a snapshot understanding of the issues. He also observed that the Military finds that politicians and Whitehall officials do not even share a common lexicon with military advisers. In general, he thought that as a country “our conversations and our political discourse about conflict and security are generally uninformed and poor”.153 Admiral Lord West agreed with General Barrons’ assessment, although he said that there were a few individuals in Parliament that understood the issues. In general, he found politicians’ lack of understanding of what the Military could and could not do “extremely worrying”.154 He suggested that the lack of military experience among politicians might have led them to forget or not realise “how visceral and thoroughly nasty” war is and that “wars effectively mean killing people and killing them in a pretty nasty way”.155

99.When General Sir Richard Barrons was asked about his view on the Syria debate in 2013, which took place while he was Commander of the Joint Forces Command, he described the debate as a “failure of political mobilisation”. He told us that there was certainly a view among officials that taking the proposed action in Syria was the right thing to do, but that the Government did not provide sufficient briefing to Members of the House of Commons. The result, he said, was that the decision was taken on a debate that appeared to him “rushed and rather amateur”.156 Lord Hague shared this assessment of why the action in Syria was not approved. He thought, in retrospect, that the Government had failed to provide the House of Commons with the information and the reassurances it required.157 This view of the quality of the Syria debate in 2013 contrasted with the view expressed by Professor Phillipson, who described it as “a forensic examination of the Government’s case”; and Dr McCormack, who described it as “excellent” and said that Members of the House of Commons asked many, “very probing questions”.158

100.When asked how the quality of debates on military action could be improved, General Sir Richard Barrons identified two primary routes. First, there needed to be investment in the training and education of political leaders. Second, he said that there needed to be improvements in “the way that Parliament exercises oversight of military operations”.159

101.The former leaders of the Armed Forces were not alone in their concerns about the knowledge and engagement of parliamentarians with the issues involved in military action. Sebastian Payne said that Parliament needed to engage actively in foreign affairs and defence issues, and that knowledge and access to information was vital for this. Lord Hague also thought that Members of the House of Commons would benefit from more information and education in order to help them make the decisions about military action which, as the elected representatives of the people, they were qualified to make. This should take the form of:

… regular enhancement of their knowledge and understanding of these situations, of the choices being made by Government, the capabilities of armed forces, and the activities of potential adversaries. It would be a bigger commitment than just coming to a meeting once when military action was envisaged.160

102.Jack Straw told us that greater parliamentary engagement would not replace the decision-making responsibilities of ministers. The decision to engage in armed conflict would still be taken by the Prime Minister and Cabinet. Involving Members of Parliament through committees, he said, would allow for testing the opinion of the House and, hopefully, aid in building a consensus.

General defence debates

103.Both Jack Straw and Lord Hague said that they believed the House of Commons should spend more time debating foreign affairs and defence. Until 1998 a Service Day debate for each of the Armed Forces and two days of debate on the Statement on Defence Estimates took place every year. Following the Strategic Defence Review 1998, the Labour Government changed the policy and committed to five set-piece defence debates a year on: Defence Policy; Defence in the UK; Defence in the World; Armed Forces personnel; and Defence Procurement. When the Backbench Business Committee was established in 2010 these “set piece debate” days were included along with other “set piece debates” in 35 days over which the Committee was given control.161 The intention set out in the Backbench Business Committee’s initial report was to continue the defence debates for the first session.162 However, none of these general defence debates appear to have taken place since the establishment of the Backbench Business Committee, although one or two debates a year have taken place on specific defence-related topics.163 Both Jack Straw and Lord Hague agreed that the House of Commons had lost something meaningful when these debates were stopped. Jack Straw added that “we should get those debates back for a start”, and Lord Hague said that he believed “Parliament needs to spend more time on foreign affairs and defence”, but that there needed to be “a decision of the House to bring [these debates] back”.164

104.When asked about whether the Government provides enough opportunities for the House of Commons to debate defence issues, the Chancellor of the Duchy of Lancaster said he thought the opportunities were there.165 Addressing the five defence debates, he was clear, however, that the Government had given these up and it was for now an issue for the Backbench Business Committee “to decide what the appropriate priorities are for them to use to fill that time”.166 He said that there is indeed an argument to say the House of Commons lost something because these defence matters were no longer being formally and regularly debated, but he considered that this loss had to be “set against the gain to the House from having time that is outwith the Government’s control”.167

105.When asked how the Government informs itself on the views of House of Commons on defence and foreign affairs, the Chancellor of the Duchy of Lancaster said:

It will vary from Minister to Minister. The Whips Office’s information gatherers will obviously advise Ministers, so the departmental Whips at Defence or the Foreign Office, will be advising their Ministers if they pick up either discontent or support, not just from the Government benches but more widely across Parliament.

Ministers are MPs. If they are wise, they do make themselves available around the House. They go into the tearoom. They socialise in the Lobbies with their colleagues and make themselves available to pick up information and opinion less formally. Ministers do also meet both for one-off briefing sessions; they meet MPs for one-off briefing sessions but also more regularly will meet the members of the relevant all-party parliamentary groups or the UK delegations to the various international assemblies.168

106.The Minister for the Armed Forces also said that briefings were often available to Members, including one-to-ones with the Secretary of State for Defence, but he told us that the attendance at these meetings was low.169 He suggested that the issue was often a lack of demand from Members rather than an unwillingness on the part of Defence Ministers to provide briefings, adding that “there is nothing more depressing, as a Minister, than offering a briefing and no one turning up”.170

107.We take very seriously, as should every Member of Parliament, the concerns raised by the former leaders of the Armed Forces about the lack of knowledge and education amongst Members in relation to defence and foreign affairs, and their lack of preparedness to engage with decisions on military action. We acknowledge that Members of Parliament come from many different backgrounds and naturally have different policy interests. This variety and breadth of experience and expertise benefits the House of Commons as a whole. However, Members must take seriously their wider responsibility to inform themselves on issues which affect the nation as a whole, and foreign affairs and defence are two such areas. All Members should develop a sufficient understanding of foreign affairs and defence issues so that they are prepared to engage effectively with these most serious of issues when the nation needs them to do so.

108.Whatever the view of the quality of the debate in the House of Commons on the proposed military action in Syria in 2013, there was undoubtedly a failure on the part of the Government to communicate with the House its case for military action. Following the experience of Iraq and Afghanistan, trust between the House and the Government has broken down, and that resulted in the Government’s failure to win the support of the House for its proposed military action. The burden is on the Government to provide the House with the necessary information to support its policy. However, given the understandable sensitivity of some of this information, there is a duty on both the Government and the House of Commons to work together to find ways to communicate the necessary information to gain the confidence of the House of Commons.

109.The loss of the five annual set-piece defence debates has had a detrimental effect on MPs engagement with defence and security issues, and this is regrettable. We understand the position expressed by the Government, that it followed the recommendation of the Wright Committee in giving up control of these and other days, and that it is open to Members to request that the Backbench Business Committee reinstate these debates. We believe that these set-piece debates formed an important strand of Members’ education in defence matters. The House may wish to reflect on whether it should find a way for these defence debates to be reinstated. However, the Government also has a duty to ensure that the House is fully informed on such important matters of State, especially when the Government holds a near monopoly on the flow of information. While current opportunities to scrutinise the Government are comparable with those under previous administrations, we are convinced by the Government’s own argument about the need for flexibility to adapt to new challenges and changes in the nature of conflict, and believe that new mechanisms for informing the House of Commons and for providing time for debate, if necessary in government time, should be considered to keep pace with these changes.

The changing nature and challenges of war

110.A common theme in both oral and written evidence to the inquiry has been the changing nature of conflict and the new and emerging challenges the UK faces. For example, the Government stated:

The nature of armed conflict is evolving, driven both by the development of advanced military technology and the range of situations in which Armed Forces might be deployed.171

111.The Government highlighted this as an argument against creating formal definitions that could unwittingly impose limitations on its ability to act in the future. The Minister for the Armed Forces emphasised this point, telling us that, when he joined the Army, he was only concerned with “tanks, planes and ships” but now there are the new elements of “cyber and space that I certainly never envisaged we would be dealing with on a daily basis”.172 He considered that future-proofing any convention effectively would be an impossible task given the pace of change in the nature of conflict.173 Both the Minister and the Chancellor of the Duchy of Lancaster further argued that, in the context of some of these emerging types of conflict which may not engage armed force in the traditional sense, it is not always clear if they reach the threshold which would engage the convention for a prior parliamentary vote.174 The Minister for the Armed Forces added that, in the case of areas like cyber, events might unfold so quickly that “it would not be possible to come and seek Parliament’s permission to respond to it”.175

112.Admiral Lord West told us that, in areas of conflict such as cyber where speed of response is of the essence, the responsibility to respond may need to be sub-ministerial and rest with someone quite junior.176 General Sir Richard Barrons raised the issue that with some of the new areas of conflict like cyber and the use of proxies, producing evidence publicly to a legal standard becomes problematic if it necessitates revealing intelligence material.177 General Barrons cautioned us that there was also a danger of Parliament being left behind in the era of hybrid warfare. Giving the example of current tensions and confrontations with Russia, and potentially with China, he told us Parliament must find a way to “oversee that confrontation from a policy perspective, understand what is going on and have a voice on how we identify it, call it out, and push back.”178

113.The All Party Parliamentary Group on Drones had similar concerns, telling us that “Britain’s growing military capabilities and commitments are far outpacing the existing procedures for parliamentary scrutiny and oversight”.179 It said it was:

… crucial that Britain pursues the development of democratic accountability, scrutiny and oversight, that can match the rapid development of military capabilities. By grounding the responsibility of and decision to deploy force in Parliament, the UK will significantly ensure that high-stakes decisions are carefully considered and executed to the highest democratic standard.180

114.Dr McCormack raised the question of how to define what amounts to a “deployment of military force”. She told us that the current understanding of what Parliament must be consulted on is too narrow, as it appears only to include large “boots on the ground” deployments.181 She suggested that any definition of what constitutes military action should consider the impact and effect of the action rather than simply the means of delivery.182 Dr Strong also said that changes in the nature of warfare have complicated the question of what constitutes military deployment. While large-scale use of infantry, artillery and aerial bombardment are generally understood to fall within the definition of “armed conflict”, he considered that it was “less clear whether Special Forces, intelligence, and cyber operations, or the use of Unmanned Aerial Vehicles, meet the definition”.183

115.The Oxford Research Group also pointed out that special forces have operated both in countries where no authorisation had been given and where authorisation specifically precluded the deployment of UK ground troops.184 The use of clandestine methods, Dr Strong told us, has increased over the last twenty years and if this trend continued, clandestine methods would become a significantly larger part of how the UK engaged in military conflict.185 Dr Kenealy argued that “it is clearly problematic if activities that are going to form an increasingly large part of international military activities fall, by definition, outside of the [post-2003 convention]”.186 As such, both Dr Strong and Dr Kenealy suggested that the exclusion of clandestine methods of conflict from the convention on parliamentary consent may have to be reconsidered.187 Dr Strong said that while there are very sensible reasons why clandestine operations are not talked about in public, there was no reason why the principle of action being taken could not be debated.188

116.Considering this issue of the changing nature of warfare, Lord Hague said that there was increasing uncertainty as to whether there was, in fact, a state of war or peace. Jack Straw also acknowledged that potential combatants were increasing efforts to achieve what would otherwise be the political end of military action by other means. But he also said that none of these innovations in warfare change the fact that troops on the ground are needed if the aim is to liberate or recapture a city or town.189

117.Developments in the nature of conflict highlight the need for both the Government and Parliament to adapt rapidly to new challenges. We support the Government’s view on the importance of retaining flexibility in the decision-making process so that governments can react and adapt to as yet unknown challenges. However, in a democracy such executive flexibility must be subject to democratic scrutiny. The challenges posed by the changing nature of conflict must be taken seriously.

118.We agree with the Government that the uncertainty around these areas such hybrid and cyber warfare requires flexibility over decision-making, and that direct approval from the House of Commons may not be appropriate or possible. The House of Commons must be flexible and be ready to adapt by keeping itself informed. We judge that the House has work to do to keep abreast of developments in areas such as in hybrid and cyber warfare. At the same time, we accept the need for secrecy around the use of clandestine operations and in relation to intelligence.

119.The House of Commons should consider how it best manages these competing demands. We are persuaded, for example, that the principle of how special forces and drones are utilised should be considered by the House, even if specific instances of deployment cannot be debated openly. This would both hold the Government to account for its general policy and give the Government guidance in relation to the types of policy which the House of Commons would, in principle, tolerate and support.

Potential expanded and new roles for committees

120.Throughout the evidence to the inquiry, the idea of expanding and establishing new roles for committees of the House of Commons has been suggested as a way to address some of the issues, concerns and uncertainty surrounding the authorisation of the use of military force.

121.Lord Hague and Jack Straw were very clear in their evidence that there should be new and expanded roles for the committees of the House of Commons. Lord Hague said that they should have a higher level of information and briefing, and this would then enable them to give views to the House as a whole. He emphasised that he thought this should happen through several committees rather than placing immense power and authority on one small group of Members of Parliament.190 Lord Hague suggested that briefings should not just be one-offs, but rather there should be:

… some mechanism by which decisions on such matters come under scrutiny, whether that requires secret briefings to be given to parliamentary committees so that they can then alert Parliament to whether they need to have a fresh debate.191

122.Jack Straw proposed establishing a committee of the House of Commons under strict obligations of secrecy whose remit would be to consider which matters should go before the House for prior approval. He considered that this would address some of the uncertainty around the post-2003 convention.192 It would also mitigate some of the problems associated with engaging in military action under the exceptions to the convention (that is, without prior approval from the House of Commons) as it would provide a means of “explaining [the Government’s reasoning] secretly to a committee of leading parliamentarians.”193 Lord Hague said that this was “the only answer” to military concerns about an open debate in Parliament potentially compromising military action.194

123.General Sir Richard Barrons thought that providing a committee with “full access to the intelligence at the above secret level” was necessary for the House of Commons to provide oversight of military operations.195 Sebastian Payne proposed that where information was regarded as secret, committees equivalent to the US Defence or Intelligence Committees could be given access to this information. He said that the UK’s Intelligence and Security Committee already heard evidence subject to some degree of secrecy.196 Professor Phillipson also thought the Intelligence and Security Committee, or a similar committee, could be given greater access to sensitive information and this would allow it to report to the House on whether it supported the Government’s case for military action.197

124.Dr Strong suggested that this role could be spread out more effectively between committees. The Foreign Affairs Committee could be given access to greater information about the UK’s broader diplomatic strategy; the Defence Committee could be granted access to fuller information in order to scrutinise the capacity of the UK’s Armed Forces to achieve objectives; and the Intelligence and Security Committee could conduct a “smell test of any secret intelligence that could not be made public”.198 Sebastian Payne suggested that giving Parliament greater access to information would likely have the effect of improving Government decision-making, because it would have to explain its policies with a greater degree of detail and sophistication.199

125.Dr Kenealy emphasised the increasing recognition of the influence of parliamentary committees and suggested that a committee be given oversight of special forces as was the case in other countries.200 Reprieve told us that in Denmark information on special forces operations were provided to the Danish Parliament’s Foreign Policy Committee in a closed session.201

126.The Chancellor of the Duchy of Lancaster told us that he had seen the strategy of giving House of Commons committees greater access to information and briefings work on two counts. First, the Intelligence and Security Committee has shown that committees can operate with access to secret information, and the Government has even accepted that the Committee should operate with more independence than was originally envisaged. He also acknowledged that the Committee had not leaked. Second, he told us that, when he had been in the Foreign Office, private briefings had been given to committees in private session. This had allowed him to take Committee Members a little more into the Government’s confidence about issues it was facing. He did, however, emphasise that this was done without divulging classified information.202

127.The Chancellor of the Duchy of Lancaster made the point, though, that the issue was not just about parliamentarians trusting Ministers. He said that it was also about “Ministers feeling that they are able to trust Members of Parliament and Committees.”203 Addressing the example of the Committees in the United States of America, he said he was struck that:

… it is routine for very senior officials and senior military people to give secret briefings to some of the key committees. It is done on the very clear understanding that that confidence is respected.204

128.The Chancellor of the Duchy of Lancaster considered that the idea of giving information in secret raised “quite challenging questions for Parliament”, as it went beyond the normal parliamentary practices. He told us that, in his experience, select committees had always operated on the basis that their proceedings should be in public and, wherever possible, that “information given to the Committee is in the property of the Committee and of Parliament, then to decide whether to make such information public or not”.205 As such, he said, this raised “quite tricky constitutional issues for Parliament as well as for Government”.206

129.When asked if the Government would be open to providing briefings to committees on a confidential or secret basis, the Chancellor of the Duchy of Lancaster said, “the case would have to be made”.207 The Minister for the Armed Forces told us, “[u]ltimately it is a balance with risk, isn’t it? It is the return of an increase in trust and at what level that is now”.208 The risk he continued is that “[a] secret is not a secret once it is shared with more than those who absolutely need to know it”.209 The Minister thought that the current balance between providing information to Members of the House and the risk of it coming out was about right.210

130.Nothing should compromise the ability of governments to use military force when our national or global security is threatened, but a clearer role for the House of Commons is necessary in order to underline the legitimacy of the use of military force, and to give the public confidence that the Government is being held to account. Expanding the role of the House of Commons, and of its committees, and giving them greater and, in some instances, full access to information would strengthen both the scrutiny and development of policy in relation to foreign affairs and defence. There are precedents in other jurisdictions for committees having access to high-level information of this kind. Making the necessary arrangements so that Members of the House of Commons could be trusted to carry the responsibilities that would come with being given access to high-level and top-secret information will strengthen accountability, legitimacy and public confidence in the decisions taken.

131.The House of Commons must have access to as much of the information as possible so it can carry out effective scrutiny of the Government’s use of military force. In the twenty-first century, this means access to all but the most sensitive information at the earliest opportunity. This should include a summary of any relevant legal issues. Committees of the House should if possible be able to scrutinise foreign affairs and defence policy before the point of conflict is reached, so that the opinion of the House is clear and can inform the development of Government policy in advance of the need for military deployment.

132.In situations such as the conflict in Syria in 2013, where there was time to debate UK engagement in the conflict in advance, an appropriate committee, such as the Intelligence and Security Committee, with full access to relevant information, would be able to inform and reassure the House of Commons on the scope of the action proposed by the Government. Such a committee should be composed of Members of the House who both understand the trust and responsibility being placed on them in terms of keeping sensitive information confidential, and in whose advice and judgement the rest of the House can have confidence.

133.The Government should in its response to this report set out what arrangements it feels would be appropriate for committees of the House of Commons to be given access where possible to the most relevant information which have informed the Government’s decisions about foreign affairs, military action and intelligence.

134.The House of Commons should consider and approve a substantive motion setting out the core principles of the convention governing the relationship between the Government and Parliament in relation to decisions to take military action. We propose a draft resolution for discussion:

That this House:---

recognises that Her Majesty’s Government exercises Her Majesty’s prerogative power to authorise the use of the UK’s armed forces on her behalf on the basis that the use of force is legitimate and has the confidence of the House;

recognises that, in order to strengthen the legitimacy of the use of military force and maintain this confidence, a convention has become established that Her Majesty’s Government has a duty to inform and consult the House in relation to the deployment of the UK’s armed forces in armed conflict, and to consult and seek prior authorisation from the House before engaging in military conflict, except in the following circumstances:

a)where arrangements for prior authorisation could compromise the effectiveness of UK operations and the safety of British servicemen and women;

b)where arrangements for prior authorisation could compromise the UK’s sources of secret intelligence;

c)where arrangements for prior authorisation could undermine the effectiveness or security of the UK’s operational partners; or

d)where a legal basis for action has previously been agreed by Parliament;

(3) requires, in each instance where UK armed forces have engaged in conflict without the prior authorisation of the House, that the Government shall explain its decisions to the House and be held to account for them, and that to this end a Minister of the Crown shall make an oral Statement to the House, or shall provide oral evidence to a committee of the House, on the engagement at the earliest opportunity;

(4) requires Her Majesty’s Government, in each instance where UK forces have engaged in military conflict, to inform the House of the basis for its policy and decisions by facilitating the provision of all relevant information and intelligence material to such bodies of the House as the House shall determine, under arrangements for confidentiality which the House shall approve.”

132 Q53, Dr James Strong (UMF0003)

137 Q41 (Sebastian Payne)

146 Professor Philippe Lagasse (UMF0006)

147 All-Party Parliamentary Group on Drones (UMF0018)

148 Dr Tara McCormack (UMF0008)t

149 Dr Daniel Kenealy (UMF0020)

150 Dr Daniel Kenealy (UMF0020)

158 Q63 [Phillipson]; Q101 [McCormack]

161 Backbench Business Committee, First Special Report of session 2010–12, Provisional Approach Session 2011, HC 334, para 6; House of Commons Reform Committee, Rebuilding the House, 24 November 2009, HC 1117

162 Backbench Business Committee, First Special Report of session 2010–12, Provisional Approach Session 2011, HC 334, para 8

171 Cabinet Office (UMF0022)

179 All-Party Parliamentary Group on Drones (UMF0018)

180 All-Party Parliamentary Group on Drones (UMF0018)

181 Dr Tara McCormack (UMF0008); Q128

182 Q128; Dr Tara McCormack (UMF0008)

183 Dr James Strong (UMF0003)

184 Oxford Research Group (UMF0001)

185 Q108; Oxford Research Group (UMF0001)

186 Dr Daniel Kenealy (UMF0020)

187 Dr James Strong (UMF0003); Dr Daniel Kenealy (UMF0020)

200 Dr Daniel Kenealy (UMF0020)

201 Reprieve (UMF0019)

Published: 6 August 2019