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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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Publication of the Attorney General’s advice Professor White has expressed the view that “the legal advice coming from the Attorney General should be clear and laid before Parliament, because it is so important, so that Parliament can make a fully informed decision about supporting deployment of troops or not”. 147 Sebastian Payne has also argued that the Attorney General’s advice should be published in full, “save and except for those elements that are clearly secret”. 148 In contrast, Professor Philippe Sands has argued that Parliament should not be given the Attorney General’s full legal advice “due to the sensitivity of some information and that any advice given to parliament will end up in the public domain”. Instead he offered two possible solutions. Firstly, that Parliament should explore ways of working with the Attorney General, possibly through the appointment of its own legal Thomas Raines, “UK’s Syria vote: A Parliament of Doves?”, Chatham House Expert Comment, 3 September 2013 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward: Oral Evidence, 24 October 2013, Q.41 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions, HC 923, Session 2010-12, Q.27 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward: Oral Evidence, 17 October 2013, Q.18 47 Parliamentary approval for military action adviser who could consult and then provide a view on which Parliament can have a debate. Alternatively a parliamentary committee could retain independent legal advice on which to form its own view. Aspects of that advice could then be made public to the whole of Parliament. 149 This idea of Parliament seeking its own legal advice has received a significant degree of support. Baroness Falkner has supported this view, as has Professor White, who, although a supporter of the full publication of the Attorney General’s advice, commented to the Political

and Constitutional Reform Committee:

What has been happening, certainly with the recent legal advice, is you are just getting one side of the argument [...] if they [the government] are not prepared to put forward both sides of the argument then Parliament must seek advice on what the other side of the argument is. 150 However, there are other prominent academics who have disagreed with the notion of Parliament retaining its own legal adviser. By publishing the Attorney General’s legal advice in full Sebastian Payne

has suggested:

Then you avoid what I would see as a ridiculous scenario of people waving their different opinions at each other in parliament and so on. [...] I am not happy with this model of Parliament having one opinion and the Attorney General having another… 151 Professor Mike Clarke has argued for a more middle-of-the-road


I think there is a case [for making legal advice public]. I think it will vary from case to case because certain operations may involve intelligence material that is known to the Attorney General and to the law officers which could not be produced... In most cases, there would be an advantage in, if not publishing the advice, at least making clear on what basis the advice was given. I think it would be difficult to say that all legal advice to the Government should be published, because that is a difficult principle. 152 Lord Wallace’s view on the suggestion that Parliament should retain its

own legal adviser is that:

Parliament is not a legal body. Parliament is a political body. It has lawyers within it and we all have lawyers we can consult... I am not sure that parliament itself needs formal legal counsel as you are suggesting, an alternative to the Attorney General, who would be the parliamentary adviser on all of these things. That is my instinctive response [...] Good lawyers can provide a whole range of legal opinions, depending on who asks them. 153 Political and Constitutional Reform Committee, Parliament’s Role in Conflict

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Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward: Oral Evidence, 17 October 2013, Q.18 Lords Constitution Committee, The Constitutional Arrangements for the Use of Armed Force: Oral Evidence, 22 May 2013, Q.12 Political and Constitutional Reform Committee, Parliament’s Role in Conflict

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Access to intelligence The issue of access to intelligence is one that has also proven contentious in the past. 154 National security and tactical considerations aside, it is also unclear how useful access to intelligence information would be as Members would be unlikely to be able to use any of this information during a debate in the House that was on the public record.

For such information to be useful the House would have to sit in private.

This procedure was occasionally used during World War Two.

However, there are considered to be two possible mechanisms through which the House could be provided with intelligence information prior

to making an informed decision on military action:

• The Intelligence and Security Committee - The most appropriate mechanism is considered to be through the existing Intelligence and Security Committee (ISC). It was established in 1994 by the Intelligence Services Act, and reformed by the Justice and Security Act 2013. Under that latter legislation the ISC became a Committee of Parliament; it was given greater powers and had its remit expanded to include the oversight of operational activity and the wider intelligence and security activities of Government. In addition to the work of the three intelligence and security agencies (MI5, MI6 and GCHQ), the committee now also examines the intelligence-related work of the Cabinet Office, including the Joint Intelligence Committee, the Assessments Staff and the National Security Secretariat. It also provides oversight of Defence Intelligence within the MOD and the Office for Security and Counter-terrorism within the Home Office.

Members of the ISC are now appointed by Parliament and the Committee reports directly to Parliament. 155 The Committee may also make reports to the Prime Minister on matters which are national security sensitive.

Consequently, the remit of the ISC could be expanded to analyse any intelligence relating to issues that may result in military action, and then make a recommendation to Parliament which could be used to inform any debate. However, a change to the remit of the ISC would likely require a further change to the Intelligence Services Act 1994.

• Establish a new Joint Committee or Commons Select Committee - Alternatively, a Joint Committee or a Commons Select Committee could be established precisely for the purpose of providing this advisory role, along similar lines to the existing Joint Committee on Human Rights. In order to make the committee effective its rights of access to classified information and personnel would have to be set down in the Standing Order establishing the Committee. It would also be useful for any Foreign Affairs Committee, The Decision to go to War in Iraq, HC813-I, Session 2002-03 examines this issue on p.48-49 Prior to 2013 the members of the ISC were appointed by the Prime Minister, after consultation with the other party leaders. It reported annually to the Prime Minister and those annual reports, after any deletion of sensitive information, were laid before Parliament.

49 Parliamentary approval for military action legislation to contain a clause referring to the establishment and role of such a Committee.

This latter option was considered in some detail during the Lords

Constitution Committee inquiry in 2005-06:

The proposal of a joint committee was generally well received by witnesses in oral evidence. Tony Benn regarded a joint committee to be “a perfectly sensible thing to do…” but said that “it would be purely advisory”. Lord Lester and Clare Short regarded a joint committee as a useful complement to legislation requiring prior parliamentary approval. Clare Short also considered that getting the two Houses working together on such an issue would be a desirable thing. Professor Loveland considered that “there is a great deal to be said for a statutory regime which imposes ex post facto or continuing scrutiny”. Kenneth Clarke considered “very attractive” the proposal that a joint committee could receive privileged and secret information on a scale not available to the rest of the House, because much information was kept secret unnecessarily and “the reason most of it is kept secret is because it is embarrassing and not helpful for the government trying to make its case”. He did not agree with the idea that a select committee should recommend the initiation of military action. In evidence the Lord Chancellor told us that he considered the issue to be a matter for Parliament. 156 In its conclusion, however, the Committee considered that “the creation of such a committee would… duplicate the work of the existing House of Commons Defence and Foreign Affairs Select Committees”. 157 In its 2008 White Paper the Labour Government also stated its opposition to the establishment of a new committee of the House to oversee Parliament’s decision making. Instead it expressed the view that the involvement of existing committees in the approval process would be for the House of Commons to determine. 158 Justiciability Concerns have been expressed that specifying Parliament’s role in primary legislation risks allowing the domestic courts the potential to rule on the lawfulness of a deployment decision. In contrast, the formalisation of Parliament’s role by way of a resolution would not incur the same risk as resolutions are not justiciable.

The Lords Constitution Committee highlighted the recent case of Smith v Ministry of Defence in 2013 159 as an example of an apparent increasing willingness on the part of the courts to become involved in decisions relating to the battlefield. In summary, the Supreme Court held that it is possible for certain actions and the 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.

House of Lords Select Committee on the Constitution, Waging War: Parliament’s

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However, that ruling was not specifically related to the decision to engage in military action. Indeed many observers have argued that the Courts themselves consider questions of war powers as not suitable to

judicial review. As Rosara Joseph notes in the book The War Prerogative:

The courts have long asserted their jurisdiction to determine the existence and scope of the prerogative. In relation to the war prerogative, however, the courts have tended to limit their consideration of its existence and scope to a broad assertion of the Crown’s undoubted and exclusive prerogative to declare war and deploy the armed forces. They have not considered in depth or detail its precise existence or scope, as these have been taken as axiomatic, and matters over which the courts should properly defer to the Crown. 160 This is a view advocated by Professor Nigel White. He has argued that while “the courts would be concerned with clear abuse of the process”, they would not be concerned “with detailed arguments about the

legality to going to war under international norms”. He suggests that:

There is sufficient evidence of the Courts’ deference on such matters to be confident that they would not see this as an opportunity to assert powers of review over Government and Parliament. The Courts already recognise that these are decisions for the political organs making difficult judgements in constantly changing international security situations. […] Such an approach would continue under a War Powers Act given the rationale is that it is the type of governmental decisions that is not reviewable whether it is derived from prerogative powers or not.

The reality is that the Courts would not present a brake on operational efficiency or the general ability of the executive to prosecute a war, but they would keep the Government and Parliament honest in the way they interpret a War Powers Act. 161 Dr David Jenkins of the University of Copenhagen School of Law shares

this view:

This does then open up the possibility of judicial review. I don’t think that is a danger... as the American example shows, American courts, even under the constitution, will not involve themselves in these questions. I don’t think there is any reason to think that British courts would as well, when you look at British jurisprudence, except in possibly the most extreme circumstances where you have a conflict between the Government and Parliament [...] the courts will stay out of these questions but they will reserve a power to get involved if there is some constitutional crisis in which you need the courts to act as some kind of safety valve. 162 Supporters of this position point specifically to the High Court cases in 2002: R (on the application of Abbasi) v. Secretary of State for Foreign R Joseph, The War Prerogative, Oxford University Press, 2013, p.111. See chapter 4 for further discussion of this issue.

Written Evidence to the Political and Constitutional Reform Committee Inquiry Parliament’s Role in Conflict Decisions: A Way Forward, PCD0001, October 2013 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions, HC 923, Session 2010-12, Q.15 David Jenkins examines the US experience in “Judicial Review Under a British War Powers Act”, Vanderbilt Journal of Transnational Law, Vol. 43:611, 2010 51 Parliamentary approval for military action and Commonwealth Affairs 163 and CND v the Prime Minister of the United Kingdom, 164 which both considered that such matters were nonjusticiable. Ruling on the latter case, in which CND sought a ruling on the legality of military action against Iraq without a further UN Security

Council Resolution, Mr Justice Richards stated:

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