House of Lords - Constitution

Select Committee on Constitution Fifteenth Report

CHAPTER 3: Parliamentary involvement: THE BALANCE OF ARGUMENT

35. We have heard a range of arguments both in favour and against increasing parliamentary involvement in decisions about the deployment of armed forces. The exact impact of any change would, of course, depend upon the way in which that "involvement" was implemented, which we consider in chapter 4. In referring to Parliament, we mean both Houses, but it will be seen from the context that some witnesses tended to focus their thoughts on the House of Commons alone.

THE BENEFITS OF INCREASING PARLIAMENTARY INVOLVEMENT

36. Witnesses have suggested that the need for greater parliamentary involvement in the decision to deploy armed forces overseas stems from two main concerns with the current process: legitimacy and accountability. The questions over legitimacy focus on the source of authority and exercise of the power. Concerns over accountability include suggestions that historical checks and balances have been undermined, and that there are weaknesses in current arrangements for scrutiny, and poor processes for decision-making.

LEGITIMACY: SOURCE AND EXERCISE OF THE DEPLOYMENT POWER

37. A key concern over the current deployment power is one of constitutional principle: that Parliament should be the source of the Government's power and not the Crown. Lord Lester regarded the key question about the deployment power to be: "should it be Parliament that is Sovereign, to whom the executive is constitutionally accountable, or should it be the Monarch?" He considered it anomalous for the Crown to be able to exercise public powers without parliamentary authority, on the basis of mediaeval notions of kingship and through Crown Ministers.[28] Mr Sebastian Payne agreed: "Parliament should be the source of Government's power,"a position also taken by Professor McEldowney.[29] In oral evidence, Professor Bell noted that the principle of the rule of law, on which governments exercise power in most constitutions in Europe, means that there has to be a specific authorisation to exercise powers. Therefore, "having a rule about authorising the exercise of powers is just a natural consequence of that principle".[30]

38. A number of witnesses considered that the extremely serious nature of the decision to deploy armed forces—involving possible loss of life and national consequences—meant that it should necessarily be undertaken, or approved, by Parliament:

"the use of military force is so important, it is a unique capability where the state authorises the use of lethal force ... that Parliament must necessarily take a view on when and where it is used, if it is to be used."[31]
"the authorisation to send men and women into situations which are dangerous ... and which might have enormous national consequences should be taken by a sovereign democratic body. In the United Kingdom this is the Houses of Parliament."[32]
"If you tell young men in the Services that they have got to go under orders and kill, and may be killed, you are talking about the most important decision literally in their lives and that should not be taken other than by a democratic vote in the House of Commons, in Parliament."[33]

39. The former Attorney-General Lord Mayhew of Twysden considered the exercise of the power to be out-of-date in the modern world: "I do not think today that it is practicable to suppose that the public will be satisfied in terms of confidence in the commitment of our Armed Forces to what we might call an 'armed conflict' situation solely on the exercise of the prerogative by the Prime Minister".[34] We also heard evidence to suggest that procedural legitimacy and credibility is necessary if civil society is to accept the sacrifices asked for in a conflict.[35]

INCREASED ACCOUNTABILITY OF DECISION-MAKING

40. Several witnesses advocated greater parliamentary involvement on the grounds that the current deployment power lacks sufficient accountability or restraint. As we noted in paragraph 14, it could be said that the ability of United Kingdom governments to use the royal prerogative power to engage in conflict is paradoxically less democratic than when the Monarch exercised the power personally. In the past, the Monarch's power to make war and deploy armed forces was checked by Parliament's control of the resources necessary for the exercise of the power. Now, the Government of the day not only exercises the royal prerogative but also generally controls the House of Commons and therefore its power over finance—through parliamentary majorities, use of the Whips and control over the parliamentary timetable—thereby undermining this historical brake on executive power.[36]

41. By contrast, the Government insists, as it did when responding to the PASC inquiry, that the current process is sufficient: "In the United Kingdom, ministers are accountable to Parliament for all their actions. Therefore Parliament is always in a position to hold the executive to account in any way it sees fit".[37] Others agreed that the current system provides adequate opportunities for Parliament to hold Ministers to account for their actions: "The existing system of ministerial accountability permits immediacy of response by Parliament to situations which are complex, unpredictable and highly varied in their nature".[38]

42. However, some witnesses questioned the effectiveness of these accountability measures in practice. The Rt Hon Kenneth Clarke MP considered that parliamentary discussion preceding both the Falklands and Kosovo engagements curtailed real accountability:

"I think on both occasions the Government, when it had parliamentary debates, put down motions on the adjournment precisely to make sure that there was no substantive vote taking place at any stage. The whole thing was used more as a process of explanation and persuasion than it was of giving Parliament a real way to challenge the decision and to be accountable fully, which I think means throwing down before Parliament the opportunity to reject this policy if it wants to before any military action takes place."[39]

Air Marshal Lord Garden pointed out that "When we keep on saying Parliament is informed, we all know how Parliament is informed: we get a statement, if we are lucky we get it ten minutes before it is given and we debate it for under an hour. That does not seem to me to be a democratic process".[40]

43. This view was echoed in other evidence. Professor John McEldowney, for example, told us that Parliament relies on the Government to provide sufficient information and allow debate. He thought the lessons of the Iraq war were that the Government could set the agenda, identify the issues and provide its own publicity on the need for military action and its subsequent outcome, leaving Parliament relatively weakened.[41] Democratic Audit considered the current system of Ministerial accountability to Parliament to be too broad, retrospective and vulnerable to executive power to be an effective check on the Prime Minister's use of the prerogative.[42] Accountability was also described as problematic because, in line with all prerogative power, it is "dependent on the goodwill of the executive or the existence of a convention that Parliament should be informed".[43] Dr Ziegler told us that parliaments could be marginalised by lack of information (at any rate in time to influence their decisions) or by being confronted by faits accomplis: "this is known as the de-parliamentarisation of decision-making".[44]

"BETTER" DECISION-MAKING

44. Other witnesses proposed that a change to the current deployment power was necessary because the highly personalised nature of the royal prerogative power leads to poor processes of decision-making. Clare Short told us that because the royal prerogative power is exercised by the Prime Minister alone—without any formal requirement for scrutiny or discussion—this can lead to decisions being taken in a "vacuum". A requirement for scrutiny by Parliament, she argued, might lead to better considered and prepared decisions: "If any Prime Minister knew that he had to bring before the House of Commons—and maybe both Houses ... a full statement of why and the analysis, I think that means the whole issue would have to be better scrutinised, better thought through, better prepared and the decision would be better made".[45] Lord King of Bridgwater also considered that there was a need for post-deployment scrutiny of ministerial decisions to ensure people "understand they have to answer for their account". He described the current instinctive reaction of the Armed Forces as, "to stand to attention, to salute and say, 'If that's what you want, Secretary of State, of course we'll do it,' and only afterwards that you find that they actually suggested something absolutely ludicrous".[46]

THE IMPACT ON MILITARY MORALE

45. Several witnesses suggested that more legitimate decision-making would result in greater support for deployment decisions among the public, senior military figures and serving troops. This opinion was evinced by a number of retired leaders of the Armed Forces. General Sir Michael Rose told us:

"It would be enormously advantageous to members of the armed forces for such a formal and legal justification to be made by the government before entering into armed conflict. There can be no more debilitating effect on the morale of members of the armed forces for them to know that their country does not support the mission or that the case for war is based on doubtful moral or legal arguments. A proper justification should always be a sine qua non for engaging in conflict. A formal requirement for prior parliamentary authorisation for entering into conflict situations can therefore only be of benefit to members of the armed forces."[47]

46. Lord King also believed "very strongly indeed" that it was important to the morale of the Armed Forces to know that the country is really behind them.[48] Field Marshal Lord Bramall considered that the Armed Forces would like to know three things before being committed to a large scale military operation; that they had the support of the country; that they had the support of Parliament and that what they had been asked to do was legal.[49] He placed slightly less emphasis on the importance of this later in his evidence: "it is obviously better if [a soldier is] thinking that you have got the cause and the people are behind you" but, "I do not want to put too much stress on it because even if it was not I think most of them would still do their duty but yes, it would be better".[50] Air Marshal Lord Garden considered that approval by Parliament before the use of military force should be the "default position", because "people should, through their elected representatives, have a say when such an important authorisation is given" and "the military need to know that what they are doing is legal".[51] He thought Parliament's "stamp of approval" would help that process.

47. The Armed Forces Minister, The Rt Hon Adam Ingram, MP, told us that in his opinion morale is affected by operational considerations, such as equipment, good leadership and a clear mandate coming down through the chain of command, rather than, for instance, the public debate about the second Iraq war.[52] Indeed, we heard mixed evidence about what might be the impact on the morale of the troops of changing the deployment-power. The contrasting view on the effect on morale of greater parliamentary involvement is discussed below in paragraph 59.

ARGUMENTS AGAINST INCREASING PARLIAMENTARY INVOLVEMENT

48. A range of arguments against increasing parliamentary involvement in the decision to deploy armed forces was outlined to us. In summary, they related to concerns about the possible detrimental effect on operational effectiveness and coalition-working; the importance of maintaining executive authority over the decision; the difficulties Parliament might have in reaching an informed decision; the legal impact if legislation were put in place and the detrimental effect this may have on Armed Forces morale.

UNDERMINING EFFECTIVENESS OF OPERATIONS

49. Several witnesses regarded operational efficiency to be the key benefit of the present deployment arrangements, and one which could be undermined by greater parliamentary involvement in the process. Field Marshal Lord Vincent of Coleshill said that the success of many military operations relies on the need to maintain "secrecy, security and surprise".[53] Admiral Lord Boyce summarised his concern:

"... all my experience over conducting or being involved with the conduct of several wars over the last five or six years or so is that those allies who go through the parliamentary process are frankly in my view not as operationally effective as those who do not ... I cannot see any advantage whatsoever in shedding the current practice of going to war from an operator's point of view. I believe it would make us operationally far less effective and we would probably start to lose."[54]

50. General Sir Rupert Smith also considered that an open debate about whether or not to deploy Armed Forces could risk compromising their effectiveness, which he considered to be greatly enhanced by the opponent's current expectation that "we will fight to win and that the popular will at home is more or less disaster-proof".[55] Lord Boyce told us that an open debate in Parliament on deployments could undermine six key aspects of Armed Forces operations:

escalating the conflict through rhetoric;
skewing decisions through access to only limited information (since a great deal of intelligence cannot be revealed in public);
compromising operational security by publicly discussing too much detail prior to action;
impairing flexibility of operational response if parliamentary approval is required for every change of the situation on the ground;
undermining clarity about the timetable for preparation, if it is contingent on a parliamentary debate or vote;
removing the ability of United Kingdom Forces to have "strategic poise" by giving the opponent early notice of intent.[56]

COALITION-WORKING

51. Mr Ingram told us that in his experience coalition partners liked to work with British units because the current process gave the Government the capacity to make quick decisions about deployments and to provide wide mandates for British forces.[57] He gave as an example the intervention by Kosovo-based British troops in civil unrest in the area in 2005, when a United Kingdom force was assembled and deployed in circumstances in which other countries' forces could not respond because of the limited terms on which they had been committed. Indeed, the British government had actively sought to encourage new NATO members to establish fast parliamentary decision-making processes about deployments, because:

"it facilitates the bringing together of coalitions as early as possible. It does not mean to say that you don't plan properly, it just means you have got quick processes to deal with the threat, because the military chain of command requires that of the political masters. They need clarity. They need to know what the mandate is and anything which puts delay, confusion or uncertainty into it detracts the military planners from their prime role, which is looking after our interests."[58]

Witnesses referred to the deployment of troops in Afghanistan, contrasting the procedure in the United Kingdom with that in the Netherlands. Lord Boyce deprecated the delay and uncertainty caused by the negotiations between government and parliament in the Netherlands,[59] whereas Professor Weir held it out as an example of proper decision making.[60]

MAINTAINING EXECUTIVE RESPONSIBILITY FOR ACTION

52. We have heard evidence to suggest that the responsibility for taking the decision to deploy armed forces should very clearly rest with the executive and not be dictated by the immediate views and reactions of Parliament or of the people. The Government has clearly stated that "the power to deploy troops is an executive power. Such decisions are by their nature most suitable for the executive to take".[61] Professor Denza also considered the decision to be essentially an executive one: "While the government which has taken it should be required to explain and justify its decision to Parliament and to the people, the decision itself should not be dictated by the immediate views and reactions of Parliament or of the people".[62]

53. There was also concern that any increase in the involvement of Parliament might lead to attempts to pre-empt operational decisions. Although we also heard some evidence to suggest that parliamentary involvement in detailed considerations was desirable,[63] the majority of views did not favour this approach:

"the tactical deployment of troops is very much a matter ... for the officer commanding ... The idea that Parliament will then second-guess that as well is I think quite difficult ... [Parliament] must not take away from where executive authority and responsibility has to lie and hold people accountable".[64]

"If anybody was so foolish as to table a motion that was talking about the tactics of military deployment, the strategy, the timing or anything of that kind, I would regard that as ridiculous and I do not think there is much chance the House of Commons would pass any such thing."[65]

54. Notably, although both Lord Garden and Lord Bramall were in favour of greater parliamentary involvement in the deployment power, they strongly opposed parliamentary involvement in operational decision-making:

"What you cannot do is end up with Parliament micro-managing the forces, taking tactical decisions, and you have to set thresholds at a level where this will not happen. On any roulement you get a sudden bulge of numbers and then a decrease in numbers. You do not want Parliament involved in that";[66]

"Under no circumstances must parliamentary approval be allowed into the tactical field or the minute field of the way you carry out the operation".[67]

DIFFICULTIES OF INFORMED DECISION-MAKING

55. There was broad agreement that it is necessary to restrict some information in a potential deployment situation and an acknowledgement that this could compromise the ability of Parliament to make informed decisions about a given situation. Clare Short considered that a demand to put security information in the public domain could not be agreed to, because it might put people's lives in danger, but this could also be "used as a smokescreen".[68] The Government told us that:

"The provision of information to Parliament on any deployment will always be constrained by the need not to reveal sensitive information on the way the armed forces propose to act or the extent or nature of intelligence on the forces they will act against."[69]

56. General Sir Rupert Smith also supposed that a parliamentary debate might lead to confusion about the purpose and intention of the debate "between the legality of the action we are intending to take and its utility, its usefulness, in the set of circumstances at the time. We will also, I suspect, get confused as to the decision to deploy the Forces and whether to employ force". All of this might "risk weakening our capacity to act in the field at the time necessary".[70]

LEGAL IMPACT OF LEGISLATION

57. We have heard that if parliamentary involvement in the deployment decision was enshrined in legislation that required, for instance, prior parliamentary approval, this would require language tantamount to definitions of what is lawful and might lead to the legality of any deployment being challenged in the United Kingdom courts. Some witnesses raised concerns that this could lead to individual servicemen facing criminal prosecution for actions in an "unlawful" deployment. In written evidence, Professor Rowe raised the issue of whether such legislation would have legal implications for members of the armed forces (the possibility of involving the courts in action against a particular soldier) and whether national obligations might differ from those they already have under international law.[71] Ms Wilmshurst also questioned whether it would be desirable for legislation to provide that prior parliamentary approval was required to make a deployment lawful, since "troops themselves are acting unlawfully if the government fails to obtain Parliamentary approval".[72] She considered that if a legislative requirement for prior parliamentary approval were put in place, the consequences of failure by the Government to obtain parliamentary approval would need to be looked at very carefully.[73]

58. Others wondered whether a requirement for parliamentary approval might lead to troops refusing to obey orders to implement a deployment that they perceived to be unlawful. Professor Rowe told us that a soldier might refuse to obey an order because it was unlawful or because he believed it to be unlawful because no parliamentary authorisation had been given.[74] General Sir Michael Rose considered that it would "certainly put soldiers in a difficult position both legally and morally if they were ordered to undertake a mission when Parliamentary approval had expressly not been given".[75]

UNDERMINING MORALE

59. While we have heard evidence to suggest that greater parliamentary involvement in the deployment power would improve morale (paragraphs 45-47), we also heard contrasting evidence to suggest that it might actually undermine it. The Lord Chancellor and Secretary of State for Constitutional Affairs told us that any restriction on deployment might introduce an "unpredictable and damaging level of uncertainty" as to the legality of the actions of Armed Forces on the ground.[76] Lord Boyce told us that the uncertainty that resulted from relying on Parliament's approval would be bad for morale.[77] Other concerns hinge on whether Parliament is shown to be unanimously in favour of action, or whether divisions are exposed, as outlined by Sebastian Payne:

"The advantages could be, of course, that there is public support for the action, that is manifested also in parliamentary support ... that the Chiefs of Staff enacting know that they have widespread political backing for the action and ... that the Government would be more cohesive in its pursuit of a war or military action. On the other hand, those are double-edged, because it all depends what happens in Parliament, so that, for instance, the parliamentary support might be wafer-thin and that in itself might weaken the resolve of the Government. There are clear advantages but I believe they come with a corresponding risk as well."[78]

28 Volume II: Evidence, Q 3; see also Tony Benn, Volume II: Evidence, Page 1. Back

29 Volume II: Evidence, Q 79 and Professor McEldowney, Volume II: Evidence, Page 228. Back

30 Volume II: Evidence, Q 82 Back

31 Lord Garden, Volume II: Evidence, Q 110 Back

32 David Berry, Volume II: Evidence, Page 209 Back

33 Tony Benn, Volume II: Evidence, Q 2 Back

34 Volume II: Evidence, Q 214 Back

35 Dr Ziegler, Volume II: Evidence, Q 84 Back

36 Anthony Tuffin, Volume II: Evidence, Page 243; also see New Politics Network, Volume II: Evidence, Page 92. Back

37 Volume II: Evidence, Page 120. Back

38 Professor Eileen Denza, Volume II: Evidence, Page 214. Back

39 Volume II: Evidence, Q 309 Back