CONSTRAINTS ON THE DEPLOYMENT
POWER
14. The power to deploy the armed forces is not
absolute. The Government are of course subject to certain constitutional
constraints, including the general principle of their accountability
to Parliament for the exercise of their powers. Government may
also require the agreement of Parliament for financial provision
for military deployment, although this was a more significant
check on the Monarch's exercise of the prerogative in the past
than it is for any Government which commands a majority in the
House of Commons. Supply for deployments may be obtained from
within the ordinary defence appropriation or from the contingency
fund in an emergency. Otherwise, it is an item in the Budget,
sometimes subject to special funding arrangements. The additional
costs of spending in Iraq have been met from a special reserve
set aside by the Treasury in 2003 and topped up from Budgets since.
For instance, the Budget in 2006 contained provision for £800m
for Iraq and Afghanistan and other international commitments and
£200m for peacekeeping. In answer to a question about Afghanistan,
the then Secretary of State for Defence said:
"When we have embarked on unexpected deploymentsand
over a period of years until 9/11, Afghanistan was unexpectedthe
Chancellor has been prepared, sometimes under very difficult circumstances,
and in addition to the money spent on maintaining the defence
posture, to support Her Majesty's armed forces in the tasks that
this House asks them to carry out."[6]
15. Judicial rulings from 1985 removed the complete
insulation of the exercise of prerogative powers from review by
the courts, although there is a lack of clarity over which of
them might be subject to judicial control, and to what extent.
Some powers however remain beyond judicial review because there
are no legal standards by which to assess their exercise. Among
these are the powers to make treaties and defend the realm.[7]
In chapter 2 we look in more detail at the legal constraints on
the deployment power, but note here that while the occasions have
been few, the domestic courts have consistently held that the
exercise of the umbrella power of deployment and its various subsidiaries
are beyond their supervision.[8]
16. In summary, the deployment power's status
as a prerogative power means that there are few restrictions to
its use, other than those that have arisen from precedent or convention.
Parliament has no formal role in approving deployments, although
governments have usually kept Parliament informed about the decision
to use force and the progress of military campaigns[9].
The decision to invade Iraq in 2003 was the first time Parliament
had voted on a substantive motion to deploy forces into conflict
before fighting had begun since the Korean War in 1950. While
the armed forces are technically subject to statutory control
because legislative authority is needed for the Crown to maintain
a standing army in time of peace, their use is for the Government
alone to decide. Generally speaking, however, the deployment power
is one to which no statutory or legal standards can be applied,
and the courts have been reluctant to use arguments based on international
law as a standard for assessing the legality of government decisions.[10]
It is difficult to envisage how legal standards could be established,
since precise lines cannot easily be drawn between the various
tactical operational decisions that might be takenfor example
to send troops into that town today, or to use air power rather
than artillery. Even a decision to commit armed force at all may
be qualitatively less significant in a legal sense than major
in-theatre operational decisions, for example to escalate an existing
conflict or to extend an area of operations. One only needs to
recall the "Belgrano" incident during the Falklands
campaign to see how controversy may develop.
17. British forces are nowadays rarely deployed
overseas by unilateral British governmental decision. There have
been instances of deployments of wholly British forces following
a solely British decision, for example the Falklands in 1982 and
Sierra Leone in 2000, but more often deployment is part of coordinated
action in partnership with allies (whether or not through an international
organisation like NATO). In some cases, such deployments have
lacked formal authorisationin international law termslike
UN Security Council (UNSC) resolutions. In other cases, the UNSC
may establish a UN force to which states might contribute their
armed forces for peace-keeping or peace-building (such as the
UN Protection Force in Bosnia-Herzegovina between 1992-95), or
it may authorise one or several states to use force with a mandate
and on conditions set out by itself (for example the authorisation
to states to use force in support of Kuwait in 1991).[11]
Such "multilateral" operations might involve many thousands
of personnel, from all the armed services, down to a handful from
a single service. In evidence, the Geneva Centre for the Democratic
Control of Armed Forces drew attention to what it called the "double
democratic deficit" of the use of force under such international
auspices, arguing that there was inadequate accountability at
the domestic level in some states, not compensated for at the
international level of decision-making[12].
18. Although some witnesses have suggested that
the entire class of prerogative powers requires re-assessment,
and this was also the view of the House of Commons Public Administration
Select Committee in its report two years ago,[13]
in this report we focus solely on the power to deploy armed forces
overseas. This is arguably the most serious decision that can
be taken by a government, and we hold the view, shared by several
witnesses[14], that its
consideration should be given priority, especially because of
the public concern that has been expressed on the subject since
the decision to join the coalition which invaded Iraq in 2003.
Our focus on one prerogative power, rather than the entire class,
also reflects the reality that the historical process of transforming
the status of prerogative powers has, for the most part, been
an incremental and evolutionary one. It has also attracted the
most interest from parliamentariansprivate members bills
on or including proposed measures on the matter have been sponsored
by Neil Gerrard MP, the Rt Hon Tony Benn, Lord Lester of
Herne Hill and, in the current parliamentary session, the Rt Hon
Clare Short MP (see paragraph 80).
19. The United Kingdom's constitution is a combination
of statute, common law and unwritten convention, with the result
that it is flexible and constantly evolving. There are therefore
dangers in seeking to compare our constitutional practice with
that of other nations, most of which have written constitutions
with complex procedures for their amendment, and there is perhaps
only limited advantage in trying to draw lessons from them. Nevertheless,
there is a greater degree of parliamentary involvement in deployment
decisions in some other countries, and information about their
practice can be instructive. We therefore attach at Appendix 4
a summary of the processes followed by other states in reaching
decisions on the deployment of military force overseas.
1