Memorandum by Claire Wren, One World Trust
Summary
The One World Trust welcomes the decision by
the Constitution Committee to conduct an inquiry into the use
of the Royal Prerogative power by Government to deploy UK armed
forces.
Recent research by the One World Trust, in conjunction
with Democratic Audit and the Federal Trust, [36]has
found that the continued existence of the Royal Prerogative in
a wide range of areas limits the ability of Parliament to hold
the Government to account for decisions that it makes in many
areas of foreign policy, including the deployment of troops.
The One World Trust believes that there should
be a legislative requirement that parliamentary approval be sought
prior to the deployment of UK armed forces. The issue of Government
compliance with this legislation should be subject to judicial
review.
1. What alternatives are there to the
use of royal prerogative powers in the deployment of armed forces
1.1 The powers granted by the Royal Prerogative
should be limited and codified so that the Government must seek
the approval of Parliament prior to the deployment of armed forces.
Although some have argued that the House of Commons vote on UK
involvement in the invasion of Iraq created a constitutional convention
whether or not this is the case is superfluous. Just as it is
possible to create a constitutional convention so it is possible
to remove one, therefore the role of Parliament should be enshrined
in primary legislation. This would not only rebalance the relationship
between the Government and Parliament in the area of armed conflict,
but also firmly establish the principle of parliamentary control
in the area of international affairs. This is a matter of democratic
oversight.
2. Can models, drawn from the practice
of other democratic States, provide useful comparisons?
2.1 The example of the War Powers Resolution
in the United States provides an interesting comparison. The US
President is obliged to consult Congress in every possible instance,
and Congress also has the power to require troops to be withdrawn.
[37]However,
the language in the resolution is weak and open to various interpretations,
including who represents Congress for the purpose of consultation.
Congress has also been reluctant to enforce the requirements of
the resolution, limiting further its usefulness.
2.2 From this example it is clear that any
legislation requiring parliamentary approval in the deployment
of troops must be clear as to the practical exercise of the requirements
including what is meant by parliamentary approval. Any legislation
should also allow for the courts to adjudicate on the Government's
compliance with the requirements of the legislation where appropriate.
3. Should Parliament have a role in
the decision to deploy armed forces?
3.1 Yes—the role of Parliament should
be defined by primary legislation ensuring that the principles
of democracy are upheld and that the Government is held to account
for decisions it makes.
4. If Parliament should have a role,
what form should this take?
(a) Should parliamentary approval be
required for any deployment of British forces abroad, whether
or not into conflict situations?
4.1 Any troop deployment is a significant
act of foreign policy, and any act of such significance should
be overseen by Parliament. The regimen recommended by Democratic
Audit in their submission to the Committee provides a framework
which accounts for the varying levels of troop deployments and
maintains the role of Parliament at the appropriate level.
4.2 Any such parliamentary approval should
be time limited and require regular reports to Parliament on the
in country situation. The provision of information is an important
part of any oversight structure and as such Parliament would need
to receive regular reports, which could be in written form placed
in the library, to ensure that the oversight was effective.
(b) Should parliamentary approval be
required before British forces engage in actual use of force?
Is retrospective approval ever sufficient?
4.3 There are clearly cases when issues
of time or secrecy exclude the possibility of ex ante approval;
these are mostly a matter of common sense but would include invasion
of the UK and hostage-rescue situations. However, these situations
are the very rare exception, not the norm, and the presumption
would be that of requiring parliamentary approval. In the very
limited set of circumstances that would exclude the possibility
of ex ante approval such parliamentary approval should
be sought as soon as is practicable after the event. The issue
of correct use of procedure should be justiciable by the UK courts
thus creating the accountability structure to ensure that the
Government does not exceed its authority under any primary legislation.
4.4 That Parliament is on recess is not
a reason for acting without parliamentary approval Parliament
should be recalled to discuss and vote on the issue.
5. Is there a need for different approaches
regarding deployment of UK armed forces:
(a) Required under existing international
treaties?
5.1 No—parliamentary approval should
still be sought. Obligations under the North Atlantic Treaty do
not preclude national procedures requiring parliamentary approval,
just as they do not exclude the right of the Prime Minister to
act under the Royal Prerogative.
(b) Taken in pursuance of UN Security
Council authorisation
5.2 Although a Security Council resolution
has implications under international law these are facilitating
implications and do not oblige the UK to participate in any deployment
of troops.
(c) As part of UN peace-keeping action?
5.3 Such peace-keeping missions may have
a degree of urgency if they are an intervention to prevent genocide
or similar atrocity. It would be possible to make provision for
a limited deployment of troops in such situations. The recent
declaration from the Millennium Review summit of the United Nations
included reference to the need of the United Nations to react
under Chapter VII of the United Nations Charter to prevent genocide,
war crimes, ethnic cleansing and crimes against humanity under
the principles of the "Responsibility to Protect". Peace-keeping
actions taken under such provisions authorised by the Security
Council may be an example of a case where ex ante approval
is not possible as urgent intervention is required. However, if
at all possible prior parliamentary approval should be sought
and will normally be possible as troop deployments are not instant.
Neither are United Nations peace-keeping actions; it will normally
be possible to seek parliamentary approval, possibly in advance,
but conditional on, the final confirmation of the peace-keeping
action.
(d) Placed under the operational control
of the UN or a third State?
5.4 Such transfer of control should always
be subject to parliamentary approval and be made conditional on
adherence to obligations under international law.
6. Should the Government be required,
or expected, to explain the legal justification for any decision
to deploy UK armed forces to use force outside the UK, including
providing evidence upon which the legal justification is based?
6.1 Access to information is an important
part of any system of oversight and thus it is essential that
full legal justification under UK and international law is provided
to Parliament including evidence. Parliament should also have
an independent legal counsel who would provide an opinion on the
evidence and justification given for Parliament and be available
to answer specific queries.
7. Should the courts have jurisdiction
to rule upon the decision to use force and/or the legality of
the manner in which force is used. If so, should that jurisdiction
be limited by considerations of justiciability of the issues involved?
7.1 The courts have a long established role
in ensuring that the law is upheld, including ruling on the legality
of activities of the executive. Primary legislation on the processes
governing military deployment would provide the basis for judicial
review, thus providing an additional mechanism for ensuring that
the Government complies with its legal requirements. There is
no prima facie case for concerns about the justiciability of any
matters that might arise and in any event the courts are more
than competent to deal with any difficulties.
October 2005
36 Burrall, Simon, Brendan Donnelly and Stuart Weir,
Not in our Name: Democracy and foreign Policy in the UK, London:
Methuen, 2006 (forthcoming). Back
37
Grimmett, Richard F, "War Powers Resolution: Presidential
Compliance", Congressional Research Service Issue Brief for
Congress, 2004. Back
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