Select Committee on Constitution Fifteenth Report

CHAPTER 5: Conclusions

96.  It has been the purpose of this inquiry to consider the nature of the executive's powers in relation to the fundamentals of peace and war, and to consider whether, and if so how, Parliament can play a fuller part as the voice of Ernest Bevin's "common man".[161] In doing so we have been guided by the principle that, whatever concerns there may be about decisions to put forces in the field, our inquiry should not extend to any aspect of operational decision-making once force has been deployed. Nor has it done so. Clearly, however, major instances of "mission creep" or anything that represented a significant change, qualitative or quantitative, to an existing deployment would have to be treated as a new proposal. Afghanistan is possibly an example.

97.  The British constitution is made up of a combination of common law, written statute, tradition and convention, much of it unwritten. In some respects, the constitution is like the English language—it is not preserved in aspic, requiring an academy, a two-thirds majority or a referendum to authorise variation; it is a living organism, adapting to change as evolutionary circumstances require. It is almost infinitely flexible: landmark judgments or pragmatic political deals can materially amend the constitution as comprehensively as primary legislation. A recent example of the latter is the Concordat of January 2004 between the Lord Chancellor and the Lord Chief Justice about the administration of justice in England and Wales[162].

98.  The Royal Prerogative reflects two of the constitutional features outlined above: it is rooted in the common law and its exercise is governed by convention. As we noted in chapter 1, its extent has been reduced over time through the enactment of statute law. Furthermore, its exercise has been progressively refined by the evolution of the conventions surrounding it and by the willingness of the courts to supervise the exercise of some prerogative powers. In the nineteenth century governments could—and on occasion did—engage in military adventures with little or no reference to Parliament. Today, as the Prime Minister himself has said, there are unlikely to be any circumstances in which a government could go to war without the support of Parliament. The precise meaning of "support" is, of course, elusive: it could be implicit, as the Lord Chancellor would have it, in the sense that in the absence of disapproval, the support can be assumed; or it could be explicit, through a more formal parliamentary process. Many would agree with the inference to be drawn from Gordon Brown's 2005 remarks that the House of Commons vote on 18 March 2003 (endorsing the decision to invade Iraq[163]) marked a new stage in the evolution of the convention governing parliamentary oversight of the deployment power. He was, unfortunately, unable to take up our invitation to appear before us, but we note the close similarity between his conclusion in January 2006, that "a case now exists for a further restriction of executive power and a detailed consideration of the role of Parliament in the declaration of peace and war", and that of David Cameron, leader of the Opposition, that "… the time has come to look at those [prerogative] powers exercised by Ministers … Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making government more accountable."[164] Mr Cameron's conclusions were in turn echoed by Jack Straw, the recently appointed Leader of the House of Commons, when he said that "decisions in respect of Iraq were agreed through explicit, substantive, voteable motions [which] established a precedent for the future, making it very likely that any similar decisions about military action would be taken with a Parliamentary vote".[165] He subsequently said that "the parliamentary votes on military action against Iraq not only showed Parliament at its best, but also set a clear precedent for the future".[166]

99.  Partly because of the controversies surrounding the decision to invade Iraq in 2003, many witnesses expressed concerns about the legality of deployment decisions. There was considerable debate about whether or not the Attorney-General's advice to the Government on the legality (in terms of International Law) of the deployment should be published in full. We note the jointly held views of two former Attorneys-General that it would be counter-productive to demand full disclosure. But what we feel is important is that what Lord Mayhew described as the "character" of that advice should be provided in as much detail as possible. As we noted in paragraph 74, the less comprehensive that disclosure the greater the likelihood that Parliament will seek independent advice—with possibly less access to all the relevant facts and with the attendant risk of conflicting opinions.

100.  The majority of our witnesses agreed that it is anachronistic, in a parliamentary democracy, to deny Parliament the right to pass judgement on proposals to use military force in pursuit of policy, although there was no consensus on the best means to bring that about. Underlying this sentiment is an anxiety to ensure, so far as is possible, that the action is not only legal but legitimate and is seen to command the support of the nation as a whole. The contrary argument—for the retention of the status quo—had two main themes. First, that any alternative would constrain the Government of the day's freedom of action (both in terms of timing and of the objectives) that alone made it possible vigorously to pursue the national interest; and, secondly, that change would bring with it the politicisation of military decision making. Coupled with the second concern was a fear that political controversy surrounding a proposed deployment would sap the morale of the forces deployed and jeopardise their security.

101.  Although there have been exceptions, such as emergencies, recent history shows that the processes leading up to deployments are generally protracted, allowing plenty of time not only to evaluate and plan for the action but to obtain parliamentary support. The fact that it might be inconvenient for the Government to seek this support is hardly a justification for denying it. The Government's preparations have also been conducted under full media coverage, rendering the arguments about security and secrecy more theoretical than real. The Government also argues that it is in any case accountable to Parliament; but it seems to us that if substance is to be given to the glib cliché that "Parliament can decide" then significant adjustment needs to be made to the processes that are employed to enable it to do so.

102.  As for the potential problem of politicisation of military decision making, we do not believe that constraints on the deployment power will affect the freedoms which military commanders have and should continue to enjoy. We fully acknowledge that controversy at home could have a deleterious effect on the morale of the troops in the field and agree the importance of guarding against it, but note that that would be so whatever process was followed. More to the point, we believe strongly that the balance of the argument falls in favour of ensuring that those troops know that Parliament is behind them rather than be left to speculate. We can do no better than repeat Lord Bramall's view that "… the armed forces need to be reassured … that they had the support of the country … Parliament represents the will of the people and if Parliament supports the action … the Armed Forces can take heart that constitutionally the country supports it".[167]

103.  Changes in the prosecution of policy by the use of force reflect changes in global politics more generally, but have also had consequences for domestic politics and have exacerbated what is perceived as the "democratic deficit" between citizens and Government. The immediacy of communications and the advent of "24 hours news" have also affected the process by which Parliament scrutinises Government. Our conclusion is 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 war-making 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.

104.  In chapter 4 we examined the various options. For us, the least persuasive argument is the one for a statutory solution on the lines of the Private Members bills that have been introduced in recent years in both Houses. We have not been persuaded that the difficulties of putting the deployment power on a statutory basis could easily be overcome, and consider that the problems of the uncertainty generated outweigh any constitutional merits. In our view, the possibility—however remote—of, for example, subjecting forces of the Crown to criminal prosecution for actions taken in good faith in protecting the national interest is unacceptable. We also see no merit in legislative architecture which creates the possibility of judicial review of Government decisions over matters of democratic executive responsibility. In addition, the need to provide for "emergency" exceptions would create loopholes that could be readily exploited by a future administration with ambitions less benign than those to which we are accustomed.

105.  Nor are we persuaded by the proposal simply to transfer the prerogative from the Crown to Parliament, but otherwise leave its exercise to precisely the same discretions as currently prevail. For the constitutional purist, it has the attraction of resolving a historical anomaly and eroding the prerogative still further. But it would substitute a historical anomaly with a political one, and signally fail to address the fundamental constitutional issue of parliamentary oversight of the decision-making process.

106.  In paragraphs 75-78 we examined proposals that there should be a joint parliamentary committee to assume strategic oversight of international defence and foreign policy interests. It had been suggested to us that such a committee could appoint its own experts and legal adviser (as does the Joint Committee on Human Rights) and have the capacity to sit in private to hear intelligence and other sensitive evidence. It was also argued that, being representative of both Houses, it could draw on a wide spread of experience. However, the creation of such a committee would not, of itself, resolve the underlying issue of parliamentary sovereignty over the deployment power. Furthermore, it would duplicate the work of the existing House of Commons Defence and Foreign Affairs Select Committees.

107.  While we conclude that there is no benefit in pursuing this proposal, we do believe that if our recommendation at paragraph 108 below is accepted, and Parliament is to play a more significant role in future decision-making, these two Committees will represent the Parliamentary vanguard of the process. They will consequently need to be even more vigilant and proactive than they already are in informing Parliament of international developments with the potential to require deployment decisions, providing relevant and timely information to help ensure that Parliament is able to exercise this important new responsibility effectively. Similarly, in the case of on-going deployments, they would be expected to provide early warning of potential changes in those deployments of sufficient significance to require renewed Parliamentary authority.

108.  In paragraphs 85-93 we considered proposals for the creation of a parliamentary convention. We were struck by Lord Morris's reference to the need to prepare for eventualities far in the future, when he spoke of the need for "democratic credibility, to have an embracing situation which you cannot conjure [in statute] to anticipate the needs of 20, 30 or 40 years ahead," and his suggestion of "all the party leaders agreeing on the convention that our troops would not … be sent overseas without parliamentary approval."[168] Despite the official Government response from the Lord Chancellor and his Ministerial colleagues in favour of the status quo, it is clear from the remarks of political leaders across the spectrum that a cross-party consensus of this sort is more than possible. In that spirit, we recommend that there should be a parliamentary convention determining the role Parliament should play in making decisions to deploy force or forces outside the United Kingdom to war, intervention in an existing conflict or to environments where there is a risk that the forces will be engaged in conflict.

109.  Whereas some witnesses conflated "Parliament" and the House of Commons, for these purposes we mean Parliament to be both Houses, although we recognise that in the event of disagreement between the two the will of the House of Commons should prevail. That is not to say that the House of Lords does not have a contribution to make. It has been suggested for instance that the vote on a substantive motion in the House of Commons should be preceded, and informed, by a debate on a take note motion in the House of Lords.

110.  While not seeking to be prescriptive, we recommend that the convention should encompass the following characteristics:

(1)  Government should seek Parliamentary approval (for example, in the House of Commons, by the laying of a resolution) if it is proposing the deployment of British forces outside the United Kingdom into actual or potential armed conflict;

(2)  In seeking approval, the Government should indicate the deployment's objectives, its legal basis, likely duration and, in general terms, an estimate of its size;

(3)  If, for reasons of emergency and security, such prior application is impossible, the Government should provide retrospective information within 7 days[169] of its commencement or as soon as it is feasible, at which point the process in (1) should be followed;

(4)  The Government, as a matter of course, should keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly should seek a renewal of the approval.

111.  These are matters of significant constitutional interest which we publish for the information and consideration of the House. We look forward to receiving the Government's response, and the opportunity to debate the issues, at the earliest possible date.

161   "There never has been a war yet which, if the facts had been put calmly before the ordinary folk, could not have been prevented … The common man, I think, is the greatest protection against war" (Ernest Bevin, Foreign Affairs debate, 23 November 1945, HC Hansard col 786). Back

162   See our reports "Meeting with the Lord Chancellor" and "Meeting with the Lord Chief Justice", respectively 6th and 14th reports of Session 2005-06, HL Papers 84 and 213. Back

163   Among other things, the resolution "supports the decision of Her Majesty's Government that the United Kingdom should use all means necessary to ensure the disarmament of Iraq's weapons of mass destruction." Back

164   The Rt Hon David Cameron, MP; speech on 6 February 2006, launching the Democracy Task Force. Back

165   The Rt Hon Jack Straw, MP; speech to the Fabian Society, 28 June 2006. Back

166   Speech to the Hansard Society, 11 July 2006. Back

167   Volume II: Evidence, Q 109 Back

168   Volume II: Evidence, Q 217 Back

169   This is the time limit within which Parliament must approve emergency regulations issued under the Civil Contingencies Act 2004; otherwise they lapse (s. 27(1)(b)). Back

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