Comment: Changing Britain’s war powers will not be easy
It will be a challenge to solve the problem of delivering effective decision-making combined with substantial parliamentary influence.
By Sebastian Payne
In the Libyan intervention debate held in the House of Commons on March 21st the foreign secretary made a surprising announcement with regard to the UK government’s war powers. Mr Hague stated that “we will also enshrine in law for the future the necessity of consulting parliament on military action”. Bearing in mind the prime minister’s recent criticism of the role of the courts, it is surprising that modifying the war powers by statute is the government’s preferred option. Perhaps the government believes that it can draft a bill that will ensure that the courts do not have any role in overseeing challenges to a statutory obligation to consult.
At present the government’s legal authority to deploy troops into armed conflict is derived from the royal prerogative. This is an ancient power that in the case of war powers gives absolute discretion to the crown. Although prerogatives are in principal judicially reviewable, the courts take the view that the exercise of war powers is non-justiciable. In other words, the courts will not deal with such matters.
Because the prerogative power constitutes legislative authority to act without parliament, the government of the day does not need the permission of parliament to send troops abroad into conflict situations. Indeed the government does not even need to consult parliament, which is why Graham Allen said in the same debate: “This House is not taking any decisions: the government have already taken a decision and have graciously allowed us a debate today.”
For those who have followed the cycle of select committee activity on this subject since 2003, it might appear reasonable to assume that such a clear and unambiguous statement of intent by the government must mark the end of the debate on whether and how to change the war powers. In fact the problems that the House of Lords’ constitution committee identified, on trying to give parliament a proper role without comprising executive effectiveness, will not go away simply by putting the matter into an Act of Parliament.
But initial assumptions may be misleading and there is only so much one can glean from Mr Hague’s one sentence as to the intended change. It may be that the war powers will not be embodied in statute. A legal ‘necessity to consult’ does not indicate whether the royal prerogative is to remain but subject to a consultation requirement or whether the prerogative itself is to be abolished and replaced by an Act. In other words will the change be minor or major? Even lesser changes will pose serious problems for the government.
Here are some of the problems that the government will have to address. First, who is to be the decision-maker on whether to deploy troops, is it the government or parliament? Being consulted does not necessarily make parliament the decision-maker. Similarly, if there are too many exceptions to the requirement to consult before deployments begins then parliament’s role will be nominal. Secondly, what is the role of the House of Lords? At the moment the mantra is that since the House of Commons is the elected chamber then only they should have a vote. Clearly that argument will not do if the upper chamber becomes an elected body. Thirdly, will the legal advice of the attorney-general be made available to parliament? The question of the lawfulness of any military action is clearly a crucial influence on whether to approve it. Fourthly, what arrangements will be made for a re-approval process if the nature or scale of the operation significantly changes? Finally, after the Iraq War parliamentarians will be acutely aware that having detailed and accurate background information to any conflict will be vital to making an informed choice on how to vote. Such information obviously includes intelligence assessments. What provisions will the government make to provide such information? Doubtful dossiers are no longer acceptable.
The above list of issues and problems is just a small sample. The public administration select committee in its 2003 report Taming the Prerogative favoured strict legislative control of executive discretion. By contrast the Lords constitution committee in its report Waging war: Parliament’s role and responsibility (2006) recommended a convention setting out the government’s obligation to seek parliamentary approval before deployment of troops abroad into potential or actual armed conflict. That committee thought that embodying these requirements in an Act of Parliament was the least attractive option because of the risk of judicial review and the possibility of soldiers being prosecuted for having protected the national interest. Notwithstanding the outright rejection of the committee’s proposals by the Blair government his successor Gordon Brown accepted the need for reform. This resulted in specific government proposals, contained in The Governance of Britain, of a detailed draft resolution. This non-statutory solution was endorsed by the joint committee on the draft constitutional renewal bill (2008) although that committee thought the draft needed some changes to it. Many witnesses to that committee thought that the government’s draft resolution gave far too much discretion to the prime minister.
The government’s declaration of intent to pursue reform of the war powers is to be welcomed. Parliamentary counsel will have a challenging task to produce a bill that solves the problem of delivering effective decision-making combined with substantial parliamentary influence. One thing is certain, there is a lot more to be discussed on this issue. Acting swiftly, the House of Commons’ political and constitutional reform select committee on March 31st held a session that analysed recent developments. The committee chair, Graham Allen, concluded the session with the words: “Watch this space”.
Sebastian Payne is the joint chair of the UK Constitutional Law Group and associate fellow at RUSI. He participated in an expert seminar on the royal prerogative with the public administration select committee in 2003 and gave evidence to the other three select committees referred to in this commentary.
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