Memorandum by Humphry Crum Ewing[6]
Credentials
1. The views set out in this submission
are derived primarily from my practical experience in recent years
as an adviser to Opposition defence spokesmen in Parliament and,
for a period, as Special Adviser to the House of Commons Defence
Committee on Defence Related Information for Parliament. [7]The
views also reflect my academic studies over many years—back
to my time as an undergraduate student at Oxford in the later
1950s—and my active participation in recent years in the
international Defence Studies community.
2. In advising successive Opposition Defence
Spokesmen in the House of Lords. [8]I
have been regularly confronted with the issue of how to advise,
from the point of view of an Opposition which is also an alternative
government, on the question of how far Governments should properly
be expected to take Parliament into their confidence in relation
to military operations and, in particular, how far Governments
should be expected to seek explicit Parliamentary support in respect
of specific actions rather than simply accounting generally to
Parliament for those actions.
Summary of Views Expressed[9]
3. Based on both my practical observations
and my studies I am clear in my own mind that the engagement of
United Kingdom Armed Forces in military operations should remain
absolutely an exercise of Prerogative powers and should not be
subject to statutory restrictions involving the approval of Parliament.
I develop my reasoning for this conclusion at 11 below.
4. I am equally clear in my judgement that
there is no place for intervention by the Courts in this process.
I explain my reasons for this further conclusion at 23. At
12 to 22 I give a very brief view on the other points
on which the Committee has invited submissions.
NEED
FOR SCRUPULOUS
ACCURACY IN
INFORMATION PROVIDED
TO PARLIAMENT
5. But at the same time as I am against
procedural steps to restrict, by Parliamentary process, the power
of the executive to deploy the UK's Armed Forces I believe that
it would be in accordance with general concepts of democratic
accountability if greater care were to be taken to adhere as far
as possible to scrupulous accuracy in what is said to Parliament
and to the public about the likely necessity for military operations
and about their conduct.
6. In Kosovo, for instance, the gross exaggerations
of battle damage claims by NATO air attacks was a matter of particular
embarrassment, as much to the Minister answering Questions as
it was to the Opposition spokesman asking them.
7. I will not repeat the observations of
the Foreign Affairs Committee and of Lord Butler of Brockwell
and his panel on the information provided to Parliament and the
public in advance of the invasion of Iraq. Having carefully considered
those observations and knowing much about the (unpublished) evidence
that the Butler Inquiry received I entirely endorse the criticisms
the Committee and the Inquiry have reported.
8. I wholeheartedly endorse the recommendation
of the House of Commons Foreign Affairs Committee that papers
presented to Parliament explaining and/or justifying decisions
to take military action should be signed off by a Minister, [10]who
would, by Parliamentary convention, be responsible and accountable
for the accuracy, to the best of his knowledge, information and
belief, of the statements made therein, in the form and context
in which they appear. [11]
9. Part at least of the public pressure
for greater accountability about "going to war"—to
which the Committee may be seen as responding by its decision
to undertake this Inquiry—follows from a sense that what
"we" are told about what happens in war is not necessarily
true and is distorted, often deliberately.
10. A note on sources
In preparing this submission I have considered
directly and carefully the 2004 Report of the Public Administration
Select Committee; [12]the
Government's response to this; Bill 16 of 2005-06[13]
and the House of Commons Library Note on this last. These taken
together are usefully, indeed comprehensively, informative. By
and large however I am unconvinced by the arguments in favour
of Parliamentary control which they adduce, notwithstanding some
of the distinguished names that back the Bill. These documents
do, however, serve to bring out the practical difficulties of
drafting and interpreting such a measure, a factor which weighs
very strongly with me in bringing my judgement down against Parliamentary
control. In this I agree (admittedly somewhat selectively) with
the view of Lord Hurd as to the difficulty of defining "a
major conflict" in unambiguous statutory terms. [14]My
observations also reflect very extensive background reading in
both the academic and defence studies fields which, in the interests
of brevity, I do not cite.
Arguments in relation to the use of Prerogative
powers
11.1 Where crises and potential conflict
situations arise it is better to resolve them if possible without
the use of force. Frequently however the coercion needed to achieve
such a result will involve the threat to use force. For that threat
to be effective it must be plausible. If the actual use of force
is perceived by those threatened with it to be unlikely, because
of procedural difficulties, then it becomes ineffective. Her Majesty's
Government (HMG) must have at its disposal, as a diplomatic and
negotiating instrument, a power to use force which is untrammeled
and seen to be so.
11.2 If the United Kingdom or its direct
interests are attacked (as, for instance, in the case of the Falklands,
or by missiles or by terrorists,) HMG must be free to respond
immediately with the armed force it judges necessary without further
Parliamentary formalities.
11.3 There is the military argument that
a drawn out process of Parliamentary endorsement could diminish
or deprive our armed forces of the value of surprise and diminish
the valuable `effect' of uncertainty on the part of our prospective
opponents.
11.4 If Parliamentary consent to use force
is required it is inevitable that a propaganda campaign in this
sense will be undertaken in order to achieve that consent. This
will have a momentum of its own and may result in applying military
force to justify the propaganda campaign whereas if tempers had
not been raised it might have been possible to stop short of war.
11.5 To introduce Parliamentary restrictions
would not be to return to Parliament powers which it once had—it
never had them[15]—but
rather to extend the powers of the Assembly at the expense of
the Executive, this latter being something which is nowadays effectively
an Executive Committee of the Assembly.
11.6 Power over the Armed Forces in general
terms is vested by Parliament in the Executive, as provided by
the Bill of Rights 1688, as developed by succeeding Armed Forces
legislation[16]
and the terms of Warrants of Appointment. Taken with International
Law (jus gentium) and the Laws of War (jus ad bellum)
these form a sufficient and wholly workable set of checks and
balances. There is no good case for changing this further.
11.7 Parliamentary control over deployment
would, logically, carry with it Parliamentary control over withdrawal,
requiring it or preventing it.
12. The possibilities of other appropriate
authority
It is essential that decisions to send in the
Armed Forces should be put to and endorsed, on a recorded vote,
by the full Cabinet, properly informed, and not just made by the
Prime Minister plus a small inner group. [17]
13. Examples from elsewhere
The decision of the Spanish Cortes following
a General Election to force the withdrawal of Spanish troops from
Iraq. The US War Powers Act.
14. Any role for Parliament in decision
to deploy armed forces?
A right to be informed promptly and in reasonable
detail by an Oral Statement, followed by regular updating Statements
which may usually be Written.
15. For deployment abroad, whether or
not into conflict situations
Certainly not. This is a management, not a policy,
decision. Should be dealt with by Written Answers to Questions
on a regular cycle.
16. For actual use of force
Certainly not. This must be a matter of military
judgement by the Commander on the ground subject to his Rules
of Engagement.
17. Retrospective
Governments should document and explain their
actions promptly, clearly and accurately. These Reports should
be made to Parliament, by a Minister[18]
and should be made on a substantive Resolution. See also 22
below Legal Justification and evidence.
18. Under existing international treaties
To be reported at once but not requiring further
Parliamentary sanction under any new arrangements.
19. UN security council resolutions
An absolute and unquestionable authority for
action. To be reported at once but not requiring further Parliamentary
sanction under any new arrangements.
20. UN Peace-keeping action
To be reported at once but not requiring further
Parliamentary sanction under any new arrangements.
21. Operational control of UN or a third
state
A much more difficult question on which to lay
down a single rule of practice. I would suggest that the instructions
given to the Commander should be disclosed in confidence to the
House of Commons Defence Committee and to Opposition leaders and
spokesmen on the equivalent of Privy Council terms.
22. Legal justification + evidence
As in 17 (Retrospective Reporting).
23. Any role of courts?
Absolutely not. In accordance with the doctrine
of the Separation of the Powers this is a matter for Executive
decision monitored by the Legislature/Assembly and is not a matter
suitable for Judicial review. The rule salus populi suprema
lex (the public safety is the over-riding law) must apply.
The intrusion of Human Rights Doctrines into Military Law is already
responsible for considerable and damaging difficulties.
10 October 2005
6 Humphry Crum Ewing is an Associate Fellow of the
Royal United Services Institute for Defence & Security Studies,
Whitehall (RUSI) and was previously a Research Fellow at the Centre
for Defence & International Security Studies, then at Lancaster
University (CDISS). He served in the political office at 10 Downing
Street of (Sir) John Major as Prime Minister. Back
7
It was during this period that pressure from the Defence Committee
led to the Inquiry and Report by the Procedure Committee on Parliamentary
Scrutiny of Treaties (HC 210 of 1999-2000). Back
8
The late Lords Burnham and Vivian and most recently and currently
Lord Astor of Hever. Back
9
The views expressed in this memorandum are the writer's own and
do not represent those of RUSI, the Conservative Party or any
other organisation with which he is connected. Back
10
Recommendation 24 on p.5 and Para 141 of the Ninth Report 2002-03
of the House of Commons Foreign Affairs Committee The Decision
to go to War in Iraq HC 813-I. Back
11
A recommendation in similar terms was made earlier by the writer
to the Rt Hon Michael Howard QC MP, then Leader of the Opposition. Back
12
Taming the Prerogative: Strengthening Ministerial Accountability
to Parliament HC 422 of 2003-04. Back
13
Armed Forces (Parliamentary Approval for Participation in Armed
Conflict). Back
14
Taming the Prerogative Para 20. Back
15
It would be possible to offer many pages of historical disputation
on the issue of whether or not, and if so to what extent, Parliament
had such powers in the past-starting with the Anglo-Saxon fyrd-but
the only two points in this that are material to the Committee's
present inquiry relate to 1914 and 1939, both of which conclusively
support the view that in the past Parliament has not seen itself
possessed of War Powers. Back
16
The Armed Forces legislation is set to be put on a fresh footing
by the Tri-Service Bill promised for the present session. This
observation is made before seeing the terms of that Bill, about
which there may be some important reservations. Back
17
While the decision to go to war in Iraq in 2003 is an immediately
pertinent example of wrong practice a similar situation also applied
in the cases, for instance, of Neville Chamberlain and his inner
Cabinet of three others (Halifax, Simon and Hoare, advised by
Sir Horace Wilson) in the sequence of Munich, the Polish Guarantee
and War in 1938-39 and of Sir Anthony Eden in respect of Suez
in 1956. Back
18
As at 8 above. Back
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