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

Conclusions and recommendations

The royal war prerogative: an executive function

1.The royal prerogative has for centuries been the source of legal authority to wage war and conduct foreign relations. The legal authority to order the use of military force today, is still derived from the royal prerogative and the power to deploy the UK’s Armed Forces will remain under the royal prerogative unless an Act of Parliament is passed, setting out a new legal basis for the use of that power. However, who exercises these powers in practice has changed as political attitudes and constitutional arrangements in the UK have developed. In practice, the Sovereign no longer has the legitimate authority to exercise this prerogative power, which has for some time been exercised on their behalf, by ministers drawn largely from the House of Commons. The continuance of this convention is essential to the integrity of UK’s constitutional arrangements and the legitimacy of the UK’s use of military force. This convention is now unquestioned, and as such it is unthinkable that the Sovereign could exercise her own discretion in the use of this royal prerogative. (Paragraph 23)

2.The development of policy in relation to foreign affairs and defence is also an executive function and responsibility. It is for the Government to develop this policy and monitor, judge and react to new information that may affect it. It is for Parliament, and in particular the elected House of Commons, to scrutinise, analyse and approve or reject the Government’s policy. (Paragraph 24)

3.The source of the legitimacy for the exercise of the royal prerogative to order the use of military force has changed over the years. Currently, the Prime Minister, together with the Cabinet, exercises this power on behalf of the Monarch. In a parliamentary democracy it is clear that the authority for the Government to exercise the royal prerogative is derived from having the confidence of the elected House of Commons. This fact in no way diminishes the responsibility and accountability of the Government for its policy in relation to foreign affairs and the use of military force. It is, therefore, of paramount importance that every Member of the House of Commons understands that the government of the day ultimately enters into military conflict on the basis of an authority which Members themselves have conferred through the mechanism of the confidence of the House. (Paragraph 33)

War power conventions

4.Since the Second World War, it has been the practice of successive governments to consult the House of Commons to ensure that the will of the House is supportive of the Government’s policy on armed conflict. On a number of occasions, the Government has also sought and been granted retrospective support for military action. The decision to seek prior approval from the House of Commons for the Iraq War in 2003 was the first example in modern times of a government seeking approval in advance of specified military action. While circumstances particular to the question of the 2003 Iraq War were a factor, the decision to seek prior approval from the House of Commons represented a further development of the convention that the government of the day should consult the democratically elected House of Commons in its use of the royal prerogative before the Prime Minister gives orders to use military force. (Paragraph 38)

5.It is important that the Cabinet Manual recognises that a convention has been in place since the Second World War that the Government will consult the House of Commons to ensure that the Government’s policy on armed conflict reflects the will of the House of Commons. The Cabinet Manual should be updated to this effect. As currently drafted, the Cabinet Manual may give the erroneous impression that seeking the view of the House of Commons has been and could be treated as a formality. We further recommend that the Cabinet Manual should be updated to make clear that there are precedents for debates of this nature to take place on a substantive motion and not just on motions for the adjournment. (Paragraph 41)

6.There is a general consensus that the 2003 vote in the House of Commons to give approval for military engagement in Iraq in advance of the commencement of conflict set a precedent. This is a development of the pre-existing convention that the House of Commons should be consulted, to include an explicit vote in advance of major military action (Paragraph 49)

7.The vote in 2003 did not itself establish the convention. Rather, it signified a shift in the expectation of Parliament and the British people that was demonstrated through recommendations by committees in both Houses of Parliament. This was also confirmed in the House of Commons in 2007 by approval of an Opposition Day resolution. The Government then recognised that a convention was emerging, and this convention was confirmed by the votes on military action in Libya in 2011 and Syria in 2013. It has for some time been unthinkable that major planned military action would not be openly discussed in Parliament. There is now an expectation that the Government would seek prior approval for such an action, where practicable to do so. (Paragraph 50)

8.We have found a general consensus in the evidence to this inquiry that the Government is expected to seek prior authorisation from the House of Commons before taking military action, subject to certain exceptions, such as the need to respond quickly or if it would otherwise preclude open, prior debate in the House of Commons. Furthermore, where exceptional action is taken without prior approval, the Government is expected to come to Parliament at the earliest opportunity to explain and be held to account for its decisions. (Paragraph 55)

9.There is consensus around the need for exceptions to the convention that, where possible, the Government will seek parliamentary approval for planned military action. The Government should be able to exercise its judgement about how best to protect the security and interests of the UK. We note that the Government has set out four broad bases under which it might not seek prior authorisation. These are, where it could compromise the effectiveness of UK operations and the safety of British service men and women; to protect the UK’s sources of secret intelligence; so as not to undermine the effectiveness or security of operational partners; and where the legal basis for action has previously been agreed by Parliament. (Paragraph 64)

10.However, there is also a legitimate concern that the Government will remain the sole arbiter of what constitutes military action such as would require parliamentary approval under the post-2003 convention; what the exceptions to the convention are; and whether the planned military action falls under one of these exceptions. This is of particular importance in respect of clandestine operations and other areas of sub-conflict confrontation which are becoming much more frequent, and this includes instances when Parliament may not even be notified of actions that could quickly escalate into full conflict. (Paragraph 65)

11.We attach the highest importance to the concerns expressed by former leaders of the Armed Forces about the possibility of parliamentary consultation on proposed military action leading to a protracted decision-making process and the potentially negative implications this could have for military preparations. It is important that Parliament, and in particular the House of Commons, is cognisant of the need for nimble decision-making and the Government would be right to reflect this in the way the convention is applied. (Paragraph 66)

12.In line with our earlier conclusion, it is clear that the reference to the post-2003 convention in the Cabinet Manual lacks clarity. This may have been the cause of some unnecessary uncertainty around the convention. The Cabinet Manual is not the source of this or any other rule, but it is viewed by many as an essential guide. The Cabinet Manual should be an accurate record and give an accurate and up-to-date account of how the convention will be applied. (Paragraph 67)

13.The Cabinet Manual should be reviewed and updated to set out an accurate account of how the conventions around the use of the royal prerogative power in relation to military action will be applied, together with a clearer exposition of the exceptions to those conventions. References should identify sources of authority and precedent. (Paragraph 68)

Formalising the convention: legislation and resolution

14.The decision to deploy military force is an executive function, exercised in modern times by the Prime Minister in conjunction with the Cabinet. While we believe that the involvement of Parliament at the earliest possible stage of decision-making is vital, we consider that any statutory formalisation of this expectation would create new risks. Members of Parliament are not in possession of the depth and quality of information and confidential advice necessary to take on the role of primary decision-makers. We are persuaded by the evidence that any attempt to legislate for all possible contingencies and exceptions would lead to unintended and unfortunate consequences, including the unwelcome possibility of judicial review of government decisions as well as legal action against members of the Armed Forces and consequent uncertainty in relation to the deployment of military force, which could be detrimental to the national interest. We regard it as significant that two former foreign secretaries who had previously been committed to the principle of statutory formalisation have since changed their minds. The Government should, nevertheless, be held accountable for its actions and policies, and Parliament, and the House of Commons in particular, should continue to develop its scrutiny role. (Paragraph 81)

15.We were not convinced by the Government’s arguments against setting out the post-2003 convention in a resolution of the House of Commons. We note the Government’s concerns in relation to the difficulty of anticipating all contingencies, and the need to adapt to the changing nature of conflict. These are strong arguments which preclude the legally enforceable constraints of statutory codification, but not the political constraints of a resolution of the House of Commons requiring a debate and a vote of the House of Commons. A resolution would provide both clarity and flexibility for the Government to act in ways not previously anticipated, but still within the spirit of the post-2003 convention and the exceptions. (Paragraph 82)

16.We therefore recommend a resolution that would acknowledge the core convention and work in conjunction with agreed changes to practices in the communication between the Government and the House of Commons. We set out a draft resolution in paragraph 133. We also invite the Procedure Committee to consider whether the procedures of the House of Commons should be changed to allow the Government, in exceptional circumstances, to table without the customary minimum period of notice a motion seeking the authorisation of the House of Commons for military action, to be scheduled alongside previously announced business in similar fashion to the scheduling of emergency debates agreed to by the House under Standing Order No. 24. (Paragraph 83)

Parliamentary scrutiny

17.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. (Paragraph 93)

18.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. (Paragraph 94)

19.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. (Paragraph 95)

20.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. (Paragraph 96)

21.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. (Paragraph 97)

22.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. (Paragraph 107)

23.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. (Paragraph 108)

24.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. (Paragraph 109)

25.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. (Paragraph 117)

26.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. (Paragraph 118)

27.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. (Paragraph 119)

28.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. (Paragraph 130)

29.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. (Paragraph 131)

30.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. (Paragraph 132)

31.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. (Paragraph 133)

32.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:

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

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

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

h)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.” (Paragraph 134)

Published: 6 August 2019