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«BRIEFING PAPER 7166, 12 May 2015 Parliamentary approval By Claire Mills for military action Inside: 1. Introduction 2. Attempts at reform 3. Emerging ...»

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BRIEFING PAPER

7166, 12 May 2015

Parliamentary approval By Claire Mills

for military action

Inside:

1. Introduction

2. Attempts at reform

3. Emerging parliamentary

convention

4. Prospects for the future

5. Conclusion

www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | papers@parliament.uk | @commonslibrary Number 7166, 12 May 2015 2 Contents Summary 3

1. Introduction 6

1.1 The Royal Prerogative 6

1.2 The role of Parliament in military action prior to 2011 8 World War Two (1939-1945) 8 Korean War (1950-53) 8 Suez Crisis (1956) 9 Falklands Conflict (1982) 10 Gulf War (1991) 10 Kosovo (1999) 10 Iraq (2002-2003) 11 Afghanistan (2001-2014) 12

2. Attempts at reform 14

2.1 Labour’s proposed Governance of Britain reforms – 2008 16

2.2 Position of the then Conservative and Liberal Democrat opposition 20

3. Emerging parliamentary convention 22

3.1 Initial observations on the convention and the Libya conflict (2011) 23

3.2 Evolution of the convention 25 Military involvement in Mali (2013) 25 Syria (August 2013)

–  –  –

Cover page image copyright: UK Parliament/Mark Crick 3 Parliamentary approval for military action Summary The Royal Prerogative The decision to deploy the Armed Forces in situations of armed conflict is currently a prerogative power. In the event of a declaration of war or the commitment of British forces to military action, constitutional convention requires that authorisation is given by the Prime Minister, on behalf of the Crown. Decisions on military action are taken within the Cabinet with advice from, among others, the National Security Council and the Chief of the Defence Staff.

In constitutional terms Parliament has no legally established role and the Government is under no legal obligation with respect to its conduct, including keeping Parliament informed. In practice however, successive Governments have consulted and informed the House of Commons about the decision to use force and the progress of military campaigns, although there has been little consistency in how that has been achieved.

Nor is the Government under any constitutional obligation to abide by the result of any Parliamentary vote on military action, although in reality it would be politically difficult to engage in military action without Parliamentary support.

Pressure for reform Since 2003, and the decision to allow Parliament a vote on military action in Iraq, there has been increasing pressure for reform. In 2007 the Labour Government announced a package of constitutional reforms intended to strengthen democracy and accountability and establish a new relationship between the Government and the people. Among suggested reforms was the proposal that a resolution of the House be passed giving Parliament the right to approve “significant non-routine” deployments of the Armed Forces, albeit “to the greatest extent possible” and “without prejudicing the Government's ability to act to protect national security, or undermining operational security or effectiveness”. Those proposals were never implemented before the Labour government left office in 2010.

2011 parliamentary convention In 2011 the Coalition Government suggested that, since 2003, a convention had emerged in Parliament that before troops were committed to military operations the House of Commons should have an opportunity to debate the matter. It also proposed to observe that Convention except when there was an emergency and such action would not be appropriate.

While the convention was broadly welcomed, there was some initial debate as to whether such a parliamentary convention could be said to exist. Between the Iraq vote in 2003 and the Government’s observations in March 2011 there had been no Government-tabled debate, or vote, on any deployment of the Armed Forces, including the commitment of significant numbers of British forces to Helmand province in Afghanistan in 2006. Even the deployment of forces in Libya, which happened in concert with the Government’s acknowledgement of the convention in March 2011, was not the subject of a prior parliamentary debate and vote, which led Professor Gavin Phillipson at Durham University to argue that Libya was “not a fully satisfactory precedent” for parliamentary approval.

In a May 2011 report the Political and Constitutional Reform Committee called “for greater clarity on Parliament’s role in decisions to commit British forces to armed conflict abroad” and recommended that the Government work toward formalisation of the Number 7166, 12 May 2015 4 process, initially through the adoption of a parliamentary resolution, but with a view to the introduction of legislation in the longer term.

Evolution of the convention The first deployment of British military assets after the Libya campaign was in Mali in early

2013. That deployment was undertaken without any debate, or vote in Parliament which drew some criticism given the Government’s previous assurances, and once again raised questions over the credibility of the convention and what sort of deployments would be likely to trigger its use.

By the end of 2014 Parliament had been given the opportunity to debate, and vote, on the deployment of British forces on two further occasions. The first was in response to the alleged use of chemical weapons against civilians by the Assad regime in Syria in August 2013 and the second was in response to the actions of Islamic State (ISIS) in Iraq in September 2014.





The Government motion to deploy military forces in Syria in 2013 was defeated by 13 votes. Despite its defeat the Government stated that it would respect the will of the House, a move that was widely viewed as an assertion of Parliamentary sovereignty and a direct challenge to the Royal Prerogative on such matters. It also led many commentators to suggest that any future significant deployment of the Armed Forces would now be inconceivable without prior recourse to Parliament.

That view gained further credence following the decision to seek parliamentary approval for offensive military action against ISIS in Iraq in September 2014, in line with the newly adopted convention. On that occasion the House supported the deployment of military forces.

Has clarity been achieved?

The Syria vote in 2013 was, and continues to be, viewed by many as a turning point in the debate on parliamentary approval. Commentators have argued that the defeat of the Government laid to rest doubts over the convention’s existence and made the deployment of the Armed Forces without parliamentary approval, from a political perspective, virtually impossible in the future.

Yet, has clarity on the use of the convention been achieved? At issue now is not whether the convention exists at all, but when it will be triggered. On the basis of recent deployments a nominal threshold for parliamentary approval appears to have been

established:

• The possibility of premeditated military action exists.

• Military forces are to be deployed in an offensive capacity.

• Retrospective approval would be sought in emergency situations, where there was a need to protect a critical British national interest or to prevent a humanitarian catastrophe.

• If the House is dissolved the Government would come to Parliament as soon as possible for a parliamentary debate on the matter.

However, as many commentators have observed, the spectrum of potential military operations is vast and ‘critical national interests’ can be broadly interpreted. The lack of established definitions therefore continues to cause unease for many, and has led several to argue that the Government retains considerable discretion on what meets the convention’s threshold thereby making the whole framework potentially open to interpretation and exploitation.

5 Parliamentary approval for military action Prospects for the future Despite the emergence of this new convention it remains the case that Parliament has no legally established role in approving the deployment of the Armed Forces. A commitment to legislate was made by the then Foreign Secretary, William Hague, in 2011.

By the end of the 2010-2015 Parliament no legislative proposals had been put forward by the Government, which suggested that the imperative is to consider the issue properly “rather than being driven by an artificial deadline” and that given its commitment to observe the convention, “the case for urgency has not been established”.

However, the lack of progress on this issue in nearly four years remains a concern for many observers, most notably the Political and Constitutional Reform Select Committee who have long argued for Parliament’s role to be placed on a statutory footing. Several commentators, including the Committee, have called for an interim parliamentary resolution in order to “clarify some of the ambiguities that exist under current arrangements. Others have suggested that a resolution alone would address the issue of formalisation whilst also avoiding some of the complexities associated with legislation.

The problems of formalising Parliament’s role Defining either a resolution or legislation in a way provides Parliament with a meaningful role, yet safeguards the Government and military’s capacity to act, is paramount. Yet it is fraught with difficulties and potentially raises more questions than it resolves. One of the main problems is that of definition and how to adequately define the sort of military action that would trigger Parliamentary involvement; under what circumstances the Government could invoke the “emergency caveat”; and whether the escalation of an operation should require fresh approval. Parliament’s access to information, including legal advice and intelligence, prior to making a decision would also have to be carefully set down. Placing Parliament’s role on a statutory basis also raises issues of justiciability and the potential for legal challenge in the courts.

Conclusion One of the biggest challenges in moving beyond the current convention is that all stakeholders, even within Government, have differing opinions on what they want a resolution or legislation to achieve. This dilemma also lies at the heart of the current convention and is one of the reasons advocates are pushing for a more formalised solution. There are no right or wrong answers and possibly this circle will never be squared. Achieving a solution acceptable to all will require immense political will and, as such, makes the continuation and strengthening of the current convention a much more likely prospect for the foreseeable future.

Number 7166, 12 May 2015 6

1. Introduction The decision to deploy the Armed Forces in situations of armed conflict is currently a prerogative power, exercised by Ministers. However, since 2003, and the decision to allow Parliament a vote on military action in Iraq, there has been increasing pressure for reform. In 2008 the then Labour government proposed that a resolution of the House should be passed giving Parliament the right to approve “significant non-routine” deployments of the Armed Forces, albeit “to the greatest extent possible”. Those proposals were never implemented before the Labour government left office in 2010.

In 2011 the Coalition government suggested that a convention had emerged in Parliament that before troops were committed to military operations the House of Commons should have an opportunity to debate the matter. It also proposed to observe that convention except when there was an emergency and such action would not be appropriate. 1 The defeat of a Government motion to deploy military force in Syria in 2013 was welcomed by many as evidence of Parliament’s increasing strength in such matters. It also led many commentators to suggest that any future significant deployment of the Armed Forces would now be inconceivable without recourse to Parliament. That view gained further credence following the decision to seek parliamentary approval for military action against Islamic State (ISIS) in Iraq in September 2014, in line with the newly adopted convention.

Despite the emergence of this new convention it remains the case, however, that Parliament has no legally established role in approving the deployment of the Armed Forces. Many supporters of strengthening Parliament’s role have continued to push for a legal basis, arguing that the Convention lacks clarity. A commitment to legislate was made by the then Foreign Secretary, William Hague, in 2011. By the end of the 2010-2015 Parliament, however, no legislative proposals had been put forward by the Government.

1.1 The Royal Prerogative 2 It has long been accepted that the Royal Prerogative is difficult to both explain and to define. In his book Introduction to the Study of the Law

of the Constitution, A. V. Dicey described the Royal Prerogative thus:

The remaining portion of the Crown’s original authority, and it is therefore… the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers. 3 The Treasury Solicitor’s Department, in a Memorandum to the Public Administration Select Committee (PASC) inquiry into the Royal

Prerogative in 2004, stated:



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