1)Following the 2003 vote to authorise military action in Iraq, committees of both Houses of Parliament and the UK Government have examined the issue of Parliament’s role in decisions to use military force. These reports provide the background against which Parliament’s role in conflict decisions has developed. The following summary of the main conclusions and recommendations of these reports provides important context for PACAC’s inquiry.
2)In Taming the prerogative, PASC looked at the prerogative powers in general. The report found that many of the powers historically held by the Monarch have been delegated to ministers over the years and are therefore best described as ministerial executive powers. PASC recognised that many of the prerogative powers were necessary for effective administration, especially at times of national emergency, but raised the concern that these powers were not subject to systematic scrutiny. The report considered a range of different approaches for how prerogative powers could be scrutinised. The report concluded that a different approach to the royal prerogative powers was needed. It recommended that proposals be brought forward for “legislation to provide greater parliamentary control over all the executive powers enjoyed by Ministers under the royal prerogative”. In particular, the report specified that proposals for full parliamentary scrutiny of decisions on armed conflict, the ratifications of treaties, and revocation of passports should be produced. PASC also concluded that “ any decision to engage in armed conflict should be approved by Parliament, if not before military action, then as soon as possible afterwards.”
3)Following the PASC report and the Government’s response that they were “not persuaded” that replacing prerogative powers with a statutory framework would improve the present position, the House of Lords Constitution Committee examined the issue of Parliament’s role and responsibility in relation to war powers. In its report Waging war, the Constitution Committee considered alternatives to the existing prerogative arrangements for deploying armed forces, whether Parliament should have a more direct role, and whether parliamentary approval should be required. The Constitution Committee concluded that:
… that the exercise of the Royal Prerogative by the Government to deploy armed force overseas is outdated and should not be allowed to continue as the basis for legitimate warmaking in our 21st century democracy. Parliament’s ability to challenge the executive must be protected and strengthened. There is a need to set out more precisely the extent of the Government’s deployment powers, and the role Parliament can—and should—play in their exercise.
4)After considering a range of options for what Parliament’s role should be, the Constitution Committee recommended that there should be a convention determining the role Parliament should play in decisions to deploy military force. It further recommended that this convention should require that the Government seek parliamentary approval if it were deploying forces outside the UK. It also recommended that in emergency situations action could be taken without prior consent, but the Government should then seek retrospective approval within seven days or as soon as feasibly possible.
5)In 2007 the Conservative Party, as the Official Opposition, held an Opposition Day debate on parliamentary approval of armed conflict. This debate built upon the conclusions and recommendations of Taming the Prerogative, and Waging War plus those of the Conservative Party’s Democratic Taskforces report: An End to Sofa Government: Better working of Prime Minister and Cabinet. The Conservative Party motion said:
That this House supports the principle that parliamentary approval should be required for any substantial deployment of British Armed Forces into situations of war or international armed conflict …
6)The amendment put forward by the Government was acknowledged on both sides to be very similar to the main motion and marked a change in position by the Government. While the Opposition motion was defeated, the motion as amended by the Government was agreed without division and the House of Commons passed the following resolution:
This House welcomes the precedents set by the Government in 2002 and 2003 in seeking and obtaining the approval of the House for its decisions in respect of military action against Iraq; is of the view that it is inconceivable that any Government would in practice depart from this precedent; taking note of the reports of the Public Administration Select Committee, HC 422 of Session 2003–04, and of the Lords Committee on the Constitution, HL 236 of Session 2005–06, believes that the time has come for Parliament’s role to be made more explicit in approving, or otherwise, decisions of the Government relating to the major, or substantial, deployment of British forces overseas into actual, or potential, armed conflict; recognises the imperative to take full account of the paramount need not to compromise the security of British forces nor the operational discretion of those in command, including in respect of emergencies and regrets that insufficient weight has been given to this in some quarters; and calls upon the Government, after consultation, to come forward with more detailed proposals for Parliament to consider.
7)The Government’s proposals called for in the resolution were made in the Governance of Britain Green Paper, the War powers and treaties: Limiting Executive Powers consultation papers, the Governance of Britain: Constitutional Renewal White Paper and in The Governance of Britain Review of the Executive Royal Prerogative Powers: Final Report. The Governance of Britain Green paper noted that, for centuries, the Executive has been able to exercise authority in the name of the Monarch without the people or their elected representatives in Parliament being consulted. It then said, “[t]his is no longer appropriate in a modern democracy. The Government believes that the Executive should draw its powers from the people, through Parliament.”
8)The Green Paper concluded that the current arrangement, under which the Government can deploy military force without a formal parliamentary agreement, is “an outdated state of affairs in a modern democracy”. It went on to say that the approval of the representatives of the people should be sought for significant, non-routine deployments of the Armed Forces. However, the Green Paper also argued that this must be done “without prejudicing the Government’s ability to take swift action to protect our national security, or undermining operational security or effectiveness”. The consultation considered the best means of securing Parliament’s role in authorising the use of military force, and the Government decided the convention should be formalised, but opted against using legislation, preferring to recommend a resolution of the House of Commons to secure the convention. This was set out in both the Governance of Britain: Constitutional Renewal White Paper and in The Governance of Britain Review of the Executive Royal Prerogative Powers: Final Report.
9)The proposals of the Labour Government set out in the Governance of Britain papers were not implemented before the 2010 general election. Following the election, the newly created Political and Constitutional Reform Committee (PCRC) raised the issue of the convention for parliamentary approval with the new Coalition Government. In evidence to the Committee, the Deputy Prime Minister, Rt Hon Sir Nick Clegg, and the Cabinet Secretary Lord O’Donnell acknowledged that there was a convention. The PCRC noted that this convention was not included in the new Cabinet Manual and in its report Constitutional implications of the Cabinet Manual recommended that the convention, as the Executive understands it, be placed into the revised Manual. It followed up the recommendation in its report Parliament’s role in conflict decisions. In this report it repeated the recommendation that the convention be set out in the Cabinet Manual. While the Committee welcomed the commitment made by the Foreign Secretary Rt Hon William Hague to “enshrine in Law” Parliament’s role, it said that there was an urgent need to provide clarity and recommended that the Government bring forward a draft resolution for consultation and, once this resolution had been agreed, the longer-term project of legislation could be considered in more depth. In response to the PCRC’s recommendation, the Government said it had included the convention in the newly revised Cabinet Manual.
10)In 2013 the House of Lords Constitution Committee returned to the issue of the constitutional arrangements for the use of armed force. This inquiry took place in the context of the 2013 House of Commons vote against taking military action in Syria and was a decade on from the 2003 House of Commons vote to approve military action in Iraq. The report highlighted a lack of clarity on the part of the Government over the role that Parliament should play in the decision to take action in Syria. It concluded that the full Cabinet should continue to be the ultimate decision-maker, but that the detail of the internal decision-making arrangements should be set out in the Cabinet Manual. On the role of Parliament, the report said that the existing convention, that “save in exceptional circumstances, the House of Commons is given the opportunity to debate and vote on the deployment of armed force overseas”, is the best means for the House of Commons to exercise political control over, and confer legitimacy on, the decision to use military force. The report considered formalising the convention both through legislation and through a resolution of the House of Commons, concluding that the risks of these outweigh the benefits. In particular, the report expressed concern that a resolution would face a number of practical and definitional difficulties, and that it could limit the options available to Parliament.
11)In 2014 the PCRC conducted a follow-up inquiry into Parliament’s role in conflict decisions. The report noted that the PCRC had repeatedly called on the Government to honour the Foreign Secretary’s commitment to enshrine Parliament’s role in law by bringing forward a resolution of the House of Commons setting out the Parliament’s role in conflict decisions, as an interim step towards enshrining the process in law. The PCRC “respectfully disagreed” with the conclusion in the Lords Constitution Committee report Constitutional arrangements for the use of armed force that the existing convention without formalisation was the best means for the House of Commons to be involved in conflict decisions. The PCRC repeated its earlier views that there is a need to formalise and clarify Parliament’s role in conflict decisions. It recommended that the Prime Minister give a specific minister the responsibility for making progress on formalising Parliament’s role and that the Government make a clear statement of how it intends to honour the Foreign Secretary’s commitment. The report also highlighted that there was no provision in the convention for the information that should be made available to Parliament and said that the idea of a select committee being charged with reporting to the House of Commons on legal issues in relation to conflict decisions should be considered further. The main recommendation of the report was that the Government’s priority on this issue should be to agree a parliamentary resolution and the PCRC produced a draft resolution annexed to the report for the Government to consider.
211 Public Administration Select Committee, Fourth Report of Session 2003–04, , HC 422, Para 60
212 Public Administration Select Committee, Fourth Report of Session 2003–04, , HC 422, Para 57
213 House of Lords Select Committee on the Constitution, fifteenth report of the session 2005–6, : Parliament’s role and responsibility, HL 236-I, para 103
214 House of Lords Select Committee on the Constitution, fifteenth report of the session 2005–6, : Parliament’s role and responsibility, HL 236-I
215 HC Deb, 15 May 2007, [Commons Chamber]
216 Public Administration Select Committee, : Strengthening Ministerial Accountability to Parliament, HC 422, Session 2003–04; House of Lords Select Committee on the Constitution, fifteenth report of the session 2005–6, : Parliament’s role and responsibility, HL 236-I; , Conservative Democracy Taskforce
217 HC Deb, 15 May 2007, [Commons Chamber]
218 Ministry of Justice, , Policy paper, Cm7170; Ministry of Justice, The Governance of Britain, , CM7239; Ministry of Justice, , White Paper, Cm 7342-I; Ministry of Justice, , October 2009
219 Ministry of Justice, , Policy paper, Cm7170, para 14
220 Ministry of Justice, , Policy paper, Cm7170, para 26
221 Ministry of Justice, , Policy paper, Cm7170, para 26
222 Ministry of Justice, , Policy paper, Cm7170; Ministry of Justice, The Governance of Britain, , CM7239
223 Ministry of Justice, , White Paper, Cm 7342-I; Ministry of Justice, , October 2009
224 Political and Constitutional Reform Committee, Sixth Report of the Session 2010–12, , HC 734, para
225 Political and Constitutional Reform Committee, Sixth Report of the Session 2010–12, , HC 734, para 61
226 Political and Constitutional Reform Committee, Eighth Report of the Session 2010–12, , HC 923
227 Political and Constitutional Reform Committee, Eighth Report of the Session 2010–12, , HC 923
228 Political and Constitutional Reform Committee, Twelfth Report of the Session 2010–12, , HC 1673
229 House of Lords Constitution Committee, Second report of Session 2013–14,, HL 46,
230 House of Lords Constitution Committee, Second report of Session 2013–14,, HL 46, p 4
231 House of Lords Constitution Committee, Second report of Session 2013–14,, HL 46, para 61
232 Political and Constitutional Reform Committee, Twelfth Report of the Session 2013–14, , HC 892, para 4
233 Political and Constitutional Reform Committee, Twelfth Report of the Session 2013–14, , HC 892, para 9
234 Political and Constitutional Reform Committee, Twelfth Report of the Session 2013–14, , HC 892, para 17, 19
235 Political and Constitutional Reform Committee, Twelfth Report of the Session 2013–14, , HC 892, para 45, 47
236 Political and Constitutional Reform Committee, Twelfth Report of the Session 2013–14, , HC 892, para 49, Annex
Published: 6 August 2019