Memorandum by David M Berry, University
of Sussex
1. The deployment of armed forces should
be the prerogative of Parliament not the Prime Minister. The authorisation
to send men and women into situations which are dangerous (ie
war/peace-keeping) and which might have enormous national consequences
should be taken by a sovereign democratic body. In the UK this
is the Houses of Parliament. The decision to send can be made
by the Prime Minister but the authorization is subsequent to the
agreement of Parliament. The only exception could be that of a
state of exception (ie emergency) where there is a direct and
unambiguous threat to the UK by another country in an act of war.
But this act under a state of exception must be subject to eventual
Parliamentary approval and scrutiny and misuse of this power by
the Prime Minister must be subject to censure. Troop deployments
under the so-called "war-on-terror" cannot be a state
of exception as they are clearly non-state and unbounded.
2. Parliament should look to other countries
to discover a "democratic safeguard" in organising the
way in which acts of war and troop deployments are organised and
legitimised. For example, constitutionally the US President cannot
declare war, that is the prerogative of Congress (although clearly
in practice the system leaves a lot to be desired). A similar
system should operate in the UK with stronger safeguards. Of course,
no system of accountability will be perfect, but at least the
final decision is subject to the scrutiny of the representatives
of the people.
3. Parliament should have a major role in
the final authorisation to deploy armed forces. Parliament must
have the final authority for troop deployment. It should not be
under royal prerogative, as this gives no possibility of a secondary
check on power. Secondly Parliament should have the power to recall
the troops should this decision turn out to be mistaken or they
were misled. It should also have the power to offer advice to
the Prime Minister on time-limitations and scope of the campaign.
4. Parliamentary agreement should be required
for any extraordinary deployment into (possible) conflict situations.
Training and normal stationed troops (eg on British Bases under
existing international treaty etc) should not require Parliamentary
approval.
5. As part of the agreement to deploy troops
into likely conflict situations Parliament should agree to defensive
or aggressive action as required in the context of the deployment.
The only retrospective approval should be where under defensive
(or supportive) deployment troops come under fire and have to
defend themselves aggressively (ie to escape/save lives/protect
civilians). This right must be judiciously monitored by Parliamentary
scrutiny to prevent misuse and any further aggressive deployment
must have Parliamentary approval.
6. All extraordinary troop deployments outside
of the United Kingdom, which are not for training or normal British
base deployment (eg under existing treaty conditions), should
require Parliamentary approval to prevent loopholes and misuse.
Clearly those actions taken unilaterally by the UK government
should require a higher level of evidence before Parliament than
those "police-type" actions that are authorised through
UN peace-keeping action. The only exception where Parliamentary
approval cannot be sought in a short time frame would be under
a state of exception such as a declaration of war against the
UK (see note 1).
7. The Government must provide evidence
to support the deployment of troops. However, Parliament has absolute
sovereignty and the legality (or not) of a deployment lies within
its sovereign decision-making powers (ie Parliament decides whether
the deployment is itself legal). Misleading Parliament in evidence
for a deployment must be subject to censure by Parliament itself
under its standing orders. It should also be illegal to do so
under law, and civil servants should have a duty to supply unbiased
and independent advice to ministers. Whistleblowers should be
given full protection under law for supplying evidence of any
such misleading actions by government to Parliament.
8. Courts cannot and should not have jurisdiction
over Parliament, which remains the pre-eminent sovereign democratic
body. Government may be found to have taken an illegal act (under
the law) through the courts but Parliament itself defines whether
the act of war itself (or troop deployment) is legal or not. Parliament
can also reconsider this deployment should misrepresentation or
misleading actions on behalf of the Government be uncovered later.
Jurisdiction should be limited by considerations of justiciability
of any of the issues involved (see note 7).
15 September 2005
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