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 languageit 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
couldand on occasion didengage 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
advicewith 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 argumentfor the retention
of the status quohad 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 canand shouldplay
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 possibilityhowever remoteof, 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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