House of Lords - Constitutional arrangements for the use of armed force

Constitutional arrangements for the use of armed force - Constitution Committee Contents

Constitutional arrangements for the use of armed force

CHAPTER 1: THE CONTEXT OF OUR INQUIRY

Introduction

1. The decision to use armed force overseas is one of the most momentous a Government can make. At present the role played by Parliament in such decisions varies widely: there is no standard process by which Parliament becomes involved. In 2006 we conducted an extensive inquiry into Parliament's role in authorising the use of armed force overseas.[1] Since 2006 the nature of military interventions overseas has changed: the majority of recent interventions have concerned either "failed states" or anti-terrorism operations. In addition, the techniques of warfare have continued to evolve, particularly in the fields of intelligence-gathering, surveillance, cyber-warfare and remotely conducted military operations.

2. There have also been changes in the Government's institutional arrangements. In 2010 the National Security Council was established; as a new body its interaction with the other organs of Government involved in authorising the use of force overseas, particularly the Cabinet, is still developing. There is also a lack of clarity about the role in decision-making on the use of armed force of the Defence Council.

3. In the light of these changes in the military context and within the Government, we decided to look again at the constitutional arrangements for the use of armed force overseas. We have focused in particular on the significance of developments since 2006 for Parliament's role and on the Government's internal advisory and decision-making arrangements.

Previous consideration of Parliament's role

4. The debate about Parliament's role over decisions on whether to deploy force has centred on whether it should be formally set out (and if so by what means) or whether it should be left to convention and practice.

5. The domestic legal position on the deployment of force is relatively straightforward: Her Majesty's armed forces are deployed under the royal prerogative, exercised in practice by the Prime Minister and the Cabinet.[2] The decision to engage in armed conflict is one for the Government; Parliament has no legal role in authorising or approving the use of the armed forces overseas.

6. In practice, however, Parliament scrutinises the use of force closely, through debates and questions. In respect of the two conflicts with Iraq and the intervention in Libya, the House of Commons voted on substantive motions to approve the use of force.

7. The role that Parliament should play has been subject to significant consideration over the last decade. A 2004 Public Administration Committee report[3] recommended that the Government legislate to provide for greater parliamentary control over decisions on the use of armed force.

8. This committee's 2006 report[4] concluded that the use of the royal prerogative to deploy armed force overseas was outdated, and recommended that there should be a parliamentary convention that the Government should seek parliamentary approval if they propose to deploy British forces outside the UK into actual or potential armed conflict. Provision should be made for emergency deployments, in which case Parliament's approval should be sought within seven days or as soon as is feasible. The committee envisaged the House of Commons approving the use of force by way of a substantive motion, discussion of which could be informed by a debate in the Lords on a neutral motion. Significant alterations to the nature or objectives of deployments should require a renewal of the approval.

9. In their response[5] the then Government quoted Prime Minister Tony Blair saying he could not "conceive of a situation in which a Government … is going to war—except in circumstances where militarily for the security of the country it needs to act immediately—without full parliamentary debate". The Government said they were "not presently persuaded of the case for going beyond that to establishing a new convention determining the role of Parliament in the deployment of armed forces … But the matter needs to be kept under review."

10. As part of the Governance of Britain programme[6] in March 2008 the then Government proposed a detailed resolution which would formalise Parliament's role.[7] The resolution would be passed by the House of Commons, but would not have the force of law. It would mean that decisions on deploying force would still be taken by the Government, but Parliament's role in scrutinising and approving those decisions would be formally set out. The draft resolution would not have required retrospective approval for secret or urgent deployments, nor regular re-approval. The Prime Minister would have decided at what point it was most appropriate to seek parliamentary approval. The House of Lords would have played a consultative role, with the Commons making the final decision.[8] No draft resolution was placed before the House of Commons before the 2010 general election.[9]

The current Government's position

11. British participation in the operation to enforce the no-fly zone over Libya was announced on Friday 18 March 2011; at the same time the Prime Minister indicated that a substantive motion seeking retrospective approval for the deployment of forces would be tabled. Accordingly, on Monday 21 March 2011 the Commons approved a motion which, inter alia, "supports Her Majesty's Government … in the taking of all necessary measures … to enforce the No Fly Zone, including the use of UK armed forces and military assets".[10] During that debate the Foreign Secretary, the Rt Hon. William Hague MP, said: "We will … enshrine in law for the future the necessity of consulting Parliament on military action."[11]

12. In May 2011 the House of Commons Political and Constitutional Reform Committee welcomed the Foreign Secretary's commitment. Noting that it was a longer-term project, it recommended "that the Government should as a first step bring forward a draft detailed parliamentary resolution, for consultation with us among others, and for debate and decision by the end of 2011."[12]

13. There were no further public developments on the matter until November 2012 when the Rt Hon. Lord Wallace of Saltaire, Government spokesman in the House of Lords for the Cabinet Office, stated in a written answer:

14. In a subsequent written answer Lord Wallace of Saltaire said, "There are a number of important questions of detail that need to be addressed in the options for the formalisation of this convention. These are under consideration."[14]

15. In his annual oral evidence to us in January 2013 the Deputy Prime Minister, the Rt Hon. Nick Clegg MP, said there was a debate within Government about how to formalise and enshrine the convention. He said that he was in favour of making the convention as strong and fixed as possible, but others were more cautious. He said the debate had not been resolved.[15]

16. Similarly, in their response to the report of the Political and Constitutional Reform Committee, the Government said the imperative was to consider the issues properly, "rather than being driven by an artificial deadline. As the Government has already committed to observing the convention, the case for urgency has not been established".[16]

17. In oral evidence to our inquiry, Alistair Burt MP, Parliamentary Under-Secretary of State at the Foreign and Commonwealth Office, stated that the Government have taken no decisions on how to proceed.[17] He said there was a difference of opinion on how to proceed amongst members of the Government;[18] Lord Wallace of Saltaire implied that this difference was not on party political lines.[19]

Developments over Syria

18. Our inquiry was conducted against the backdrop of the continuing escalation of the civil war in Syria. As a result of the public and parliamentary debates on the nature of the UK's involvement in Syria, there have been a number of statements in the House of Commons about when parliamentary debates and votes should take place.

19. The EU has not renewed its arms embargo on the Syrian opposition (which expired on 1 June 2013), although at the time of writing there has been no decision to send arms to Syrian rebels. On 18 June 2013 the Foreign Secretary clarified the position with regard to a Commons vote on arming the Syrian National Coalition: "We certainly would not want to pursue any aspect of our policy on this issue against the will of the House of Commons. That is neither feasible nor desirable, so of course we have made clear that there would be a vote. I have also made it clear that we would expect it to be before any such decision was put into action."[20] Later the same day, in responding to a point of order, the Speaker of the House of Commons indicated that: "an explicit commitment [has been given] by the Foreign Secretary that there will be no implementation of such a decision without the prior assent in the form of a vote on a substantive motion in this House of Commons."[21] In oral evidence to our inquiry, Alistair Burt MP confirmed that: "in relation specifically to the Syrian situation, [the Government] would look for the view of the House of Commons through a vote."[22]

20. In anticipation of further developments over Syria, on 11 July 2013 the House of Commons agreed by 114 votes to 1 a motion put forward by the Backbench Business Committee, "That this House believes no lethal support should be provided to anti-government forces in Syria without the explicit prior consent of Parliament."

21. The Government's intentions as to the role Parliament should play as the civil war in Syria has escalated have been unclear. It took some time for the Government to give a commitment that the House of Commons should vote before any arms are supplied to the Syrian opposition, and it is unclear how they intend to involve Parliament should Her Majesty's armed forces become further engaged in the conflict.

1 Constitution Committee, Waging war: Parliament's role and responsibility (15th Report Session 2005-06,
HL Paper 236). Back

2 The Governance of Britain-Review of the Executive Royal Prerogative Powers: Final Report (October 2009) described the position-

"The Royal prerogative is the legal mechanism which allows the State to appoint people to carry arms in its service. Thus, the prerogative provides the authority for the Crown to:

· recruit members of the Armed Forces;

· appoint commanders and grant commissions to officers;

· establish the Defence Council; and

· make agreements with foreign states about stationing troops on their soil.

Other matters, however-such as the enforcement of military discipline and the trial of offences under military law-are regulated by statute." (Para 46.) Back

3 Public Administration Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (4th Report Session 2003-04, HC 422). Back

4 Op. cit. Back

5 Constitution Committee, Waging war: Parliament's role and responsibility: Follow-up (3rd Report, Session 2006-07, HL Paper 51). Back

6 The Governance of Britain, Cm 7170, July 2007. Back