Memorandum by Richard Ramsey, Oxford Brookes
University
1. WHAT ALTERNATIVES
ARE THERE
TO THE
USE OF
ROYAL PREROGATIVE
POWERS IN
THE DEPLOYMENT
OF ARMED
FORCES?
i. As the Queen is Commander-in-Chief of
the Armed Forces, it must follow that their deployment is effectively
at the behest of the Government of the day. Those in the Armed
Forces take an oath of allegiance to the Queen personally as well
as promising to obey those in authority over them, but in this
sense the Crown is the Government and it seems that no difference
would exist were that allegiance to be given to "The State".
The Crown Prosecution Service may be renamed the State Prosecution
Service. It is difficult to see what real advantage is derived
from such a change in rhetoric, although the dissociation of monarch
from state might be perceived as democratically increasing the
transparency of the actual apparatus. No one seriously expects
the monarch personally to command troops in battle any more than,
strictly speaking, attacking a judge in court would now be tried
as treason.
ii. Presumably an Act of Parliament or perhaps
an Order in Council would enable authority to be transferred ostensibly
to the Prime Minister but whilst executive command may reasonably
be left to the senior officers of the Armed Forces, it cannot
be imagined that they would be left in absolute control of on
what occasions such forces should be used. In practice, it is
inconceivable how hostilities could be commenced or directed save
by a `War Cabinet'.
2. CAN MODELS,
DRAWN FROM
THE PRACTICE
OF OTHER
DEMOCRATIC STATES,
PROVIDE USEFUL
COMPARISONS?
i. I am unaware of the practice of other
states.
3. SHOULD PARLIAMENT
HAVE A
ROLE IN
THE DECISION
TO DEPLOY
ARMED FORCES?
i. Parliament's present role seems to be
more a subsequent check, derived from its power to vote or withhold
supply, as well as providing necessary legislative support for
the government's actions and possibly, if such action were seen
as ill-advised by a majority in Parliament, passing a vote of
no confidence. Parliament's approval of the United Kingdom's entry
into hostilities with another state might be as well controlled
by ex post facto checks such as those already mentioned. It is
hard to conceive of a situation where the government would entertain
clandestine pre-emptive action but there might be situations where
a government would need to react swiftly in defence. One imagines
that a sense of the country's mood would already have been assessed
in such a position. Joseph Chitty's A Treatise on the Law of the
Prerogatives of the Crown (1820) says (chapter IV, section IV)
that the right to make war or peace may be exercise partially
or absolutely, but this relates more to the sovereign's right
to wage war against a country and yet except some of its inhabitants.
Chitty, albeit almost 200 years ago, says that the king alone
has the discretion to make war, even where another state has behaved
contumaciously. Citing Brooke's Abridgement, he adds that even
were all the people of England wishing to make war against Denmark,
there is no war unless the King consents to it.
ii. It appears from Chitty that a war should
be publicly declared (citing Grotius and Blackstone) but he concludes
that no formal declaration is needed for the King's subjects to
be bound to treat as enemies those that the King has decided so
to denominate and has commenced war. I cannot see how an act of
war can be other than an act of state rather than the private
aggression of individuals and they cannot, as citizens, effectively
dissociate themselves from it, once commenced.
iii. This is especially awkward where politicians
have repeatedly said that there is a war against terrorism. This
seems as much a metaphor as the phrase "war on want".
It follows that, whilst special emergency powers may be justified
in the face of severe terrorist activity, we should not allow
ourselves to be obfuscated by the implementation of excessive
powers arrogated to the state as if it (and we as its citizens)
were truly at war with another nation-state. It is extremely difficult
to determine accurately what the population as a whole wants its
Government to do and, aspects of totalitarian democracy aside,
a Government must follow not mere populist fancy but a form of
"right reason" in the pursuit of its policies, Parliament's
function should be a cautious weighing up of the demands of the
entire state and the countervailing expression of any large number
of its citizens. Parliament should call on Government to account
for its decisions and even make a particular administration withdraw
from a course of action, but if this were to precede Government's
exercise of power, this might lead to mere obstruction and produce
inertia.
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?
i. The deployment of troops abroad is of
the highest political significance. Express authority might be
required where this occurs in peace-time, for instance to assist
a civil government suffering a natural disaster. Swift reaction
might well be needed but must often not be so urgent as to side-step
parliamentary debate. It is hard to envisage situations where
British troops would be sent to undertake covert operations either
in pursuit of our own policies or to aid our allies with overt
parliamentary approval preceding it.
(b) Should Parliamentary approval be
required before British forces engage in actual use of force?
Is retrospective approval ever sufficient?
i. In many situations hostilities must develop
slowly and the mood of Parliament might then be tested and be
a pre-requisite to action, politically if not legally necessary.
The seriousness of a threat might not be known of or understood
by the public (one appreciates that Government would not wish
to cause unnecessary alarm) but despite the naivety of one's childish
fears of the "four-minute warning" of the 50s and early
60s, the invasion of the Falklands seems to have come as a surprise
to most of the public and even to have taken the Government relatively
unawares. It can hardly have been a popular decision (except among
a jingoistic few) to take to arms to re-conquer the islands, but
it would not have added a sense of resolve if Parliament had merely
discussed the issue inconclusively. Retrospective approval must
be sufficient in such cases. No problem can arise unless the ratification
seeks to render a past illegal act legal.
5. IS THERE
A NEED
FOR DIFFERENT
APPROACHES REGARDING
DEPLOYMENT OF
UK ARMED FORCES:
(A)
REQUIRED UNDER
EXISTING INTERNATIONAL
TREATIES;
(B)
TAKEN IN
PURSUANCE OF
UN SECURITY COUNCIL
AUTHORISATION;
(C)
AS PART
OF UN PEACE-KEEPING
ACTION;
(D)
PLACED UNDER
THE OPERATIONAL
CONTROL OF
THE UN OR
A THIRD
STATE?
i. I am not qualified to comment on this
and lack time to consider it fully.
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
THE EVIDENCE
UPON WHICH
THE LEGAL
JUSTIFICATION IS
BASED?
i. Briefly, yes. The legal advice received
by Government from the Attorney-General is unlike other ministerial
papers. "By convention, written opinions of the Law Officers,
unlike other Ministerial papers, are generally made available
to succeeding Administrations." (Ministerial Code of Conduct,
paragraph 22). It is hard to comprehend why the present Government
should have been so keen to keep secret Lord Goldsmith's advice
on the legality of the Iraq War. A more historical view might
have been appreciated, along with more frankness, especially in
the light of the Freedom of Information Act and the general trend
towards open government.
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
ANY OF
THE ISSUES
INVOLVED?
i. Emphatically, no. The decision in CCSU
v Minister for the Civil Service (GCHQ) [1985] AC 374 expressly
excludes matters of national security from consideration of the
prerogative by the courts (per Lord Diplock). Lord Roskill said
the courts "have also been obliged to recognise that in some
fields that barrier [against inordinate claims by the executive]
must be lowered and that on occasions, albeit with reluctance,
the courts must accept that the claims of executive power must
take precedence over those of the individual. One such field is
that of national security."
ii. It may be different with matters concerning
a single individual but general policy, despite affecting the
lives of thousands of individuals, must be left in the hands of
Government which alone has the information (as Lord Diplock said)
to enable it to know how to proceed. This view may be complacent
but it is better than having the judiciary entering upon a collision
course with the executive. The Belmarsh detainees case may well
be rightly decided by the Law Lords, but the subsequent refusal
of Government to uphold its spirit shows that there is no doubt
who would be the winner. The judiciary might be more trustworthy
than politicians, but dependence upon judicial activism would
lead to the flouting of any check through the doctrine of the
separation of powers.
iii. In conclusion, the apparent establishment
of a constitutional convention that Parliamentary approval be
sought prior to engaging in hostilities is desirable and seems
to have happened after the Iraq War debate. It may be better left
at that. I am more concerned about the apparent convention that
MPs do not criticise the Government's handing of a conflict while
it subsists, for fear of undermining the morale of the troops
in action. In the light of the amount of general media criticism
that must have been evident to all engaged in the present conflict:
such self-denial is unnecessary. Self-interest and stupidity are
not necessarily vices abandoned by those in government and pusillanimous
and dishonest motives cannot be left for historians to discover.
I commend the statement of Sir Thomas Smith in De Republica Anglorum
(1583) who wrote:
"But as such absolute administration
in time of warre when all is in armes, and when lawes hold their
peace because they cannot be heard, is most necessarie: so in
time of peace, the same is verie daungerous, aswell to him that
doth use it, and much more to the people upon whom it is used:
whereof the cause is the frailtie of mans nature, which (as Plato
saith) cannot abide or beare long that absolute and uncontrowled
authorities, without swelling into too much pride and insolencie."
(Lib 1, chap 8).
31 October 2005
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