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

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

Chapter 3: Parliament's role

Introduction

36. The main focus of our inquiry has been to examine the role of Parliament in relation to decisions on whether to use armed force overseas. Our 2006 report concluded that, though the royal prerogative to deploy the UK's armed forces overseas clearly required parliamentary oversight and control, the most appropriate means for achieving this oversight was through convention rather than a more formalised process.[40] We decided to consider whether, in light of political and military developments in the intervening seven years, these conclusions remain appropriate. We did so particularly in view of statements by various Government ministers about their intention to formalise the convention that Parliament has the opportunity to debate whether to commit troops overseas before troops are committed.[41]

Why parliamentary approval is needed

37. It is now widely accepted that Parliament should have a role in debating and approving the Government's decisions to deploy Her Majesty's armed forces overseas. This is in addition to the continuing need for governments to keep Parliament and its select committees informed about potential and ongoing conflicts. We took evidence on why Parliament should be involved, and on the constitutional, military and political advantages which flow from it.

38. First, and perhaps most important from a constitutional perspective, Parliament is the proper forum for holding the executive to account. As we have previously observed,[42] it is a cardinal principle of the UK constitution that ministers are constitutionally responsible to Parliament. Ministerial responsibility to Parliament generally operates retrospectively; in an area as important as the use of armed force abroad, the norm should be that the Government provide Parliament with the opportunity to exercise prospective oversight of executive decision-making.[43] We recognise that there may be exceptional circumstances in which that norm will be departed from. Closely linked to the principle of ministerial responsibility is the need for the Government of the day to maintain the confidence of the House of Commons, without which they cannot govern. Alistair Burt MP said: "Ultimately, the Government have to carry the confidence of Parliament, however that is devised and whatever system there may be. If that breaks down, the Government are in trouble one way or another."[44]

39. Secondly, the involvement of Parliament greatly enhances the substantive and perceived legitimacy of service deployments. Jack Straw MP told us:

40. Thirdly, Parliament's approval may help improve the morale of service personnel, particularly if Parliament expresses its view by a large majority. Lord Guthrie of Craigiebank told us: "there were huge advantages if Parliament could be involved. When you visit people in the field on operations—for instance, when I went to Iraq—the questions you were asked were, 'is the country behind us? Is Parliament, the Government, behind us?'"[46] Sir Mike Jackson added: "if demonstrably Parliament has taken the decision to support an executive decision to use force in this or that circumstance, that gives considerable succour to the service man or woman on the ground."[47] Added to this is the increasing extent to which service personnel overseas can remain apprised of debates and developments in the UK. Professor Michael Clarke, Director General of the Royal United Services Institute, explained that in modern operational conditions members of the armed forces stationed abroad will be in touch with events at home:

The overriding importance of legality

41. All of our witnesses agreed that the legality of any deployment was a prerequisite for that deployment taking place. Lord Stirrup said: "the legality issue is a sine qua non."[49] The legality of a deployment is of overriding importance. The analysis and conclusions in this report are made on the basis that a proposed deployment is legal.

Parliament's role: the options

42. Three options have been put forward for the role of Parliament:

· primary legislation;

· a detailed resolution of the House of Commons (such as that proposed by the previous Government in their 2008 white paper The Governance of Britain);[50]

· continued reliance on a constitutional convention.[51]

43. Various developments over the last seven years have influenced the debate on what Parliament's role should be. First, there have been significant developments in battlefield technology. In terms of munitions, we were informed of the development of "brimstone" missiles, which are capable of considerable accuracy and which can "literally destroy … one end of a car but not the other."[52] Since 2006 the use of unmanned aerial vehicles ("drones") has increased, both for reconnaissance and strike purposes, leading to increasing public awareness of and controversy about their deployment. Asked whether the UK's use of drones will continue to increase, Nigel Inkster said:

He described the technology involved in intelligence, surveillance, target acquisition and reconnaissance as one of the aspects of armed conflict which has changed most over recent years.[54]

44. Secondly, the types of situations into which the armed forces may be deployed have continued to evolve. We heard that it is increasingly difficult to draw clear distinctions between military and diplomatic engagement in foreign crises. Lord Wallace of Saltaire said:

45. Nigel Inkster similarly observed: "inter-state warfare has rather gone out of fashion … however, we are seeing a lot of internal intra-state disputes and also … countries that exist in a state which is neither war nor peace, where it is very difficult to ascribe clear motivations to particular actors."[56] Such fluid, non-conventional situations can pose difficulties for parliamentary scrutiny, as has been demonstrated by recent debates over UK military involvement with Syria.

46. Thirdly, the speed with which situations can escalate, and the corresponding military (and political and diplomatic) flexibility required to respond to such escalations, must be taken into account when devising an appropriate parliamentary approval mechanism.

47. Allied to that is the fact that the scope of an intervention may not be clear at the outset. Lord Guthrie of Craigiebank told us: "you slide into a lot of … wars or operations. They start in a small way and may have unforeseen consequences. Before you know where you are, you are up to your neck in it."[57]

Formalising Parliament's role

THE CASE FOR FORMALISATION

48. Those in favour of formalisation identify a number of advantages of passing legislation or a resolution. They would provide clarity and transparency about the role of Parliament in decisions over the deployment of the armed forces. Primary legislation would also provide democratic legitimacy to what is otherwise a legally unchecked exercise of the royal prerogative. Though under a Commons resolution the deployment power would remain a prerogative power, such a resolution would also enhance legitimacy. It is also argued that formalisation would mean that a Prime Minister could not bypass the parliamentary process: in the words of Jack Straw MP it would no longer "be a matter of grace and favour by the Prime Minister as to whether the House of Commons is asked for its view."[58] Although those against formalisation argue that it would be difficult to draw up workable definitions, Jack Straw MP emphasised that if, in the light of experience, the definitions in a Commons resolution proved inadequate, it could easily be amended.[59] (It would not, of course, be so straightforward to amend primary legislation.)

49. As Lord Chancellor from 2007 to 2010, Jack Straw MP proposed a detailed House of Commons resolution which would have formalised Parliament's role in debating and voting on Government decisions to deploy troops overseas. Although the draft resolution was never put before the Commons for adoption, he continues to support formalisation:

THE CASE AGAINST FORMALISATION

50. The majority of our witnesses were opposed to formalisation, and favoured the flexible arrangements which exist at present. Notwithstanding the advantages which formalisation of Parliament's role might bring, they highlighted various obstacles to formalisation, which are potentially more significant now than they would have been in 2006.

51. One of the main obstacles to formalisation is that of definition: formalisation (either through legislation or resolution) would mean specifying the kind of action which would engage parliamentary involvement. As set out above, however, the range of situations in which the UK's armed forces might be deployed is very wide and getting wider. There are large grey areas between military and diplomatic engagements. Professor Clarke, although not arguing in favour of formalisation, said: "if one was looking to establish a rough working threshold [for engaging the need for parliamentary approval], it might be where troops were going to be deployed overseas with the clear intention of engaging in conventional military combat operations"[61]—something he referred to as "death and destruction".[62] Other witnesses felt that the definitional problems of formalisation would be insurmountable.[63]

52. An issue that would have to be resolved in drawing up a resolution or legislation is what counts as "armed conflict". Should small deployments or the use of special forces alone be excluded? Another issue is the point at which Parliament's approval would be sought. The military might normally prefer blanket approval at the outset,[64] but Parliament may want to keep its options open until deployment is imminent. Different processes would have to be devised for when Parliament is not in session or is dissolved. Another issue is whether retrospective approval should be sought for certain deployments (such as emergency deployments). In that case, what happens if approval is declined? An additional dilemma is how much information Parliament should be given. Problems arise in disclosing secret, legal and tactical information, yet Parliament may not want to give approval if it has not been given full information.

53. The previous Government's 2008 draft resolution defined a conflict decision for which parliamentary approval is required as "a decision of Her Majesty's Government to authorise the use of force by UK forces if the use of force (a) would be outside the United Kingdom, and (b) would be regulated by the law of armed conflict."[65] We note that had the House of Commons adopted this resolution any decision to provide arms to the Syrian National Coalition would not be covered. Thus there is a risk that an inflexible resolution or legislation may exclude a military intervention from parliamentary control even in cases where it was widely accepted that Parliament should have a role in deciding on that intervention.

54. Another objection to formalisation is the risk of rendering deployment decisions justiciable, particularly through applications for judicial review. There was consensus amongst our witnesses that the appropriate forum for controlling and scrutinising deployment decisions is Parliament, not the courts. Specifying the parliamentary approval process in primary legislation may create a risk of the domestic courts being invited to rule on the lawfulness of a deployment decision.

55. We received evidence that when courts (particularly coroners' courts) scrutinise operational decision-making by service personnel, this has a deleterious effect on the morale of the armed forces and leads officers to become more risk-averse. Lord Stirrup told us:

We share the concerns expressed to us about the negative effect on the morale and operational independence of the armed forces of courts scrutinising operational decisions.

56. The apparent increasing willingness of the courts to become involved in decisions relating to the battlefield was highlighted by the recent case of Smith v Ministry of Defence.[67] The Supreme Court held that it is possible for certain actions and decisions of service personnel on the ground, as well as certain planning and procurement decisions, to give rise to liability under the common law of negligence, as well as under human rights law. Commenting on this decision, Alistair Burt MP said: "my view is that the Supreme Court judgment highlights that some options for formalising the convention we are talking about through legislation could make it more likely that government decisions to commit our armed forces to operations would be rendered justiciable."[68] This may illustrate the risks potentially associated with a formalised parliamentary process, particularly if it involves legislation.

57. A third objection to formalisation is the risk that it would lead to parliamentary involvement in operational decisions, either before or during deployments. In some instances Parliament might want to grant consent subject to constraints on the type of action that may be undertaken. This could harm military effectiveness and limit commanders' freedom of manoeuvre. Lord Guthrie of Craigiebank told us that, once the decision to deploy has been made, "the commanders must be given freedom to command the battlefield in the way they think best … You have got to trust the commanders to get it right."[69]

58. A fourth objection to formalisation is the need to ensure political and military flexibility. Any formalised process would need to leave a wide margin of discretion to the Prime Minister over whether and when to bring a matter to Parliament. Jack Straw MP observed in relation to the previous Government's 2008 draft resolution: "The crucial thing … is that the triggers are entirely in the hands of the Prime Minister. The Prime Minister decides whether there is a conflict decision. If it is something rather trivial, he may decide that there is no conflict decision to be made, in which case he calls it something else and this resolution does not operate."[70] Any formalised process would have to allow for emergency deployments or for the armed forces to take defensive action. There may be instances where the UK's international obligations require the Government to commit to action—for example to achieve collective security with fellow NATO members.[71] In such instances it would be detrimental to the Government's position to be in doubt as to whether they can secure the commitment of Her Majesty's armed forces: ministers might therefore seek an exemption from the requirement to follow a formal parliamentary process. Such extensive discretion limits the effectiveness of a formalised process in enhancing Parliament's control over deployment decisions. Indeed, there comes a point at which the number of exceptions is so great that it effectively negates the purpose of formalising Parliament's role.

59. A fifth objection, allied to the argument about the need to preserve flexibility, is that formalisation is unnecessary. In practice any Prime Minister seeking to commit British forces to a conflict overseas would have to obtain the approval of Parliament. In the words of Lord Guthrie of Craigiebank, any Government which took the country to war without the support of Parliament would be "mad".[72] Similarly, Alistair Burt MP told us that he found it: "difficult to imagine the circumstances in which a vote of the House of Commons would be disregarded by the Government."[73] If that is so, it may be argued that little will be gained by setting out a rigid, formal process.

ROLE OF THE HOUSE OF LORDS

60. Any discussion of the role of Parliament, of course, includes the House of Lords. We heard evidence on the appropriate constitutional role for the House of Lords in providing parliamentary oversight of Government decisions on the use of armed force. Our witnesses agreed that, though the House of Lords (as currently constituted) has an important advisory role, the approval decision itself should be vested in the House of Commons.[74] Lord Wallace of Saltaire told us that: "the House of Lords, as we all regularly say, is an advising and revising House. The Commons represents the sense of the nation … we all accept the supremacy of the Commons, and, if we are talking about maintaining confidence, trust and a sense of legitimacy for operations overseas, the Commons has to come first."[75] We note that the House of Lords contains a number of experts in fields relevant to this inquiry, including former senior military personnel and retired senior diplomats. The House of Lords is well-placed to debate the merits of deployment decisions. However, the decision on whether to approve a deployment decision should be vested in the House of Commons.

CONCLUSION ON FORMALISATION

61. Our view is that formalising the Parliament's role in approving the deployment of Her Majesty's armed forces overseas would face a number of significant practical and definitional difficulties. The adoption of a formal resolution would potentially limit the options available to Parliament by removing flexibility; in addition, any such resolution might need to be regularly amended to reflect the changing nature of warfare and deployments. We consider that the risks and difficulties associated with formalisation outweigh any benefits which it might bring. Neither primary legislation nor a resolution should be introduced as a means of formalising the role of Parliament in approving deployment decisions.

A constitutional convention

62. The current arrangements for allowing parliamentary approval of deployment decisions seem to be working well. The Government have recognised that the need for Commons approval of deployment decisions is now a constitutional convention, and therefore politically binding on them.[76] Parliamentary approval was sought and obtained for enforcing the no-fly zone over Libya. Recent debates in the House of Commons on Syria have shown that the existing convention is capable of adapting to reflect new circumstances. The House of Commons has secured a commitment from the Government that any decision to arm the Syrian National Coalition should be taken only after the Commons has voted on the matter. Provision of arms to a conflict such as that in Syria was not a scenario envisaged by previous proposals for formalising Parliament's role, yet a process has been crafted by which the House of Commons will have its say. This demonstrates the benefits of flexibility.

63. The current arrangements are such that it is inconceivable that the Prime Minister would either refuse to allow a Commons debate and vote on a deployment decision, or would refuse to follow the view of the Commons as expressed by a vote. It seems that much of the impetus for formalising Parliament's role is to make a political statement about where decisions should be taken, rather than to correct deficiencies in the legal or military process.

64. We conclude that the existing convention—that, save in exceptional circumstances, the House of Commons is given the opportunity to debate and vote on the deployment of armed force overseas—provides the best framework for the House of Commons to exercise political control over, and confer legitimacy upon, such decisions. It is flexible, effective and consistent with the existing structure of parliamentary scrutiny of the executive. Parliamentary control over the Government in this area should remain a matter of constitutional convention.

40 Op. cit., paras 103 and 108. Back

41 See paras 11 to 17. Back

42 Constitution Committee, The accountability of civil servants (6th Report, Session 2012-13, HL Paper 61), para 12. Back

43 Q38. Back

44 Q44. Back

45 Q40. Back

46 Q19. Back

47 Ibid. Back

48 Q17. Back

49 Q23. This point was supported by Jack Straw MP at Q40. Back

50 The Governance of Britain-Constitutional Renewal, Cm 7342-I, March 2008. Back

51 In our recent report on the pre-emption of Parliament (13th Report, Session 2012-13, HL Paper 165) we considered the definition of constitutional conventions: "The word 'convention' is, in constitutional parlance, a term of art. Although there is no universally accepted definition of the term, the feature common to all definitions is that, whilst a convention is not justiciable, it is nevertheless regarded by all relevant parties as binding. Constitutional conventions may therefore be regarded as practices which are politically binding on all involved, but not legally binding" (para 25). Back