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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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59. I am also satisfied, however, that the objections to the claim go deeper than that. First, the claim would take the court into areas of foreign affairs and defence which are the exclusive responsibility of the executive Government - areas that the court in R (on the application of Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 described at paragraph 106(iii) as "forbidden areas". Of course, the field of activity alone does not determine whether something falls within a forbidden area: "justiciability depends, not on general principle, but on subject matter and suitability in the particular case" (Abbasi, paragraph 85). In the course of his excellent submissions, Mr Rabinder Singh QC took us through the case-law of the last 20 years to show the evolution of the courts' approach to that question and how far the courts have gone in identifying matters that can properly be the subject of judicial determination even though they fall within fields of activity once thought to be immune from review. He submitted that the subject matter of the present claim was one plainly suitable for judicial determination, namely a clinical point of law, and that to leave it within the exclusive province of the executive would be contrary to the rule of law. But that neat attempt to isolate a purely judicial issue

ignores two important features of the present case:

i) According to Mr Ricketts's evidence, the assertion of arguments of international law is part and parcel of the conduct of international relations; it is frequently important for the successful conduct of international affairs that matters should not be reduced to simple black and white, but should be left as shades of grey and open for diplomatic negotiation; and in relation specifically to Resolution 1441 it would be detrimental to the conduct of this country's international relations for the Government to go further than its considered position. In the face of that evidence, it seems to me clear that the legal issue cannot in practice be divorced from the conduct of international relations and that by entertaining the present claim and ruling on the interpretation of Resolution 1441 the court would be interfering with, indeed damaging, the Government's conduct of international relations. That would be to enter a forbidden area […] ii) A plain purpose of the present claim is to discourage or inhibit the Government from using armed force against Iraq without a further Security Council Resolution. Thus the claim is an attempt to limit the Government's freedom of movement in relation to the actual use of military force as well as in relation to the exercise of diplomatic pressure in advance. That takes it squarely into the fields of foreign affairs and defence. In my view it is unthinkable that the national courts would entertain a challenge to a Government decision to declare war or to authorise the use of armed force against a third country. That is a classic example of a non-justiciable decision. I reject Mr Singh's submission that it would be permissible in principle to isolate and rule upon legal EWCA 1598, 2002, para 85. Para 37 provides some useful historical case law that

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issues e.g. as to whether the decision was taken in breach of international law. The nature and subject matter of such a decision require it to be treated as an indivisible whole rather than breaking it down into legal, political, military and other components and viewing those components in isolation for the purpose of determining whether they are suited to judicial determination. The same objections of principle apply to an attempt to isolate in advance a potential legal component of a possible future decision with a view to limiting the Government's freedom of movement when taking the decision itself.

60. In the course of argument I suggested that justiciability might be an aspect of discretion. The contrast drawn was with the court's jurisdiction. Whilst I adhere to the view that justiciability is not a jurisdictional concept, it seems to me on reflection that it engages rules of law rather than purely discretionary considerations. They are rules that, in this context at least, the courts have imposed upon themselves in recognition of the limits of judicial expertise and of the proper demarcation between the role of the courts and the responsibilities of the executive under our constitutional settlement. The objections on grounds of nonjusticiability therefore provide a separate and additional reason for declining to entertain the claim.

Despite this previous case law, there are some who argue that the involvement of the courts is inevitable, and is likely to stem from the ability of the courts to review any breach of process by the Government with respect to any war powers legislation. Sebastian Payne contends


It is not because I think the courts necessarily want to meddle in questions of high policy in relation to war, but if you look at the supervisory jurisdiction of the High Court what they do is: one, interpret the scope of legislation; two, see if it has been properly followed. I don’t see how you can rule that out from happening, plus the growth of judicial review in general. 165 In its March 2014 report the Political and Constitutional Reform Committee acknowledged the Government’s “wariness about the risk of Judicial Review if Parliament’s role in conflict decisions were set out in an Act of Parliament”. 166 Indeed, in his evidence to that committee in

October 2013 Lord Wallace concluded:

We are in the process of discovering we need a strong convention but how we actually interpret it, let alone how we legislate on it or whether we should legislate on it, is a large question.

Legislation and judicial review go together and the government has become much more sensitive about judicial review of military action [...] I think the Government has now reached the point, after three and a half years, of not wanting to take the initiative to provide something in law that will be open to judicial review. 167 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions, HC 923, Session 2010-12, Q,14 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward, HC892, Session 2013-14, para.29 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward: Oral Evidence, 24 October 2013, Q.23 53 Parliamentary approval for military action Constraints on operational effectiveness There is a long-held belief that any role for Parliament should not impinge upon the operational effectiveness of the Armed Forces, or place Armed Forces personnel in danger. Previous parliamentary inquiries into war powers have largely avoided this topic, considering that it was for military commanders to determine the conduct of operations.

However, there are those who contend that placing Parliament’s role on a statutory footing, and in particular specifying any process or timeframe, and the information to be provided, will hinder the military’s capacity for action, and may even lead toward the adoption of operational caveats, at Parliament’s behest. 168 In its July 2006 report the Lords Constitution Committee summarised

the main concerns relating to operational effectiveness:

Several witnesses regarded operational efficiency to be the key benefit of the present deployment arrangements, and one which could be undermined by greater parliamentary involvement in the process. Field Marshal Lord Vincent of Coleshill said that the success of many military operations relies on the need to maintain “secrecy, security and surprise”. Admiral Lord Boyce summarised

his concern:

“... all my experience over conducting or being involved with the conduct of several wars over the last five or six years or so is that those allies who go through the parliamentary process are frankly in my view not as operationally effective as those who do not... I cannot see any advantage whatsoever in shedding the current practice of going to war from an operator’s point of view. I believe it would make us operationally far less effective and we would probably start to lose.”

50. General Sir Rupert Smith also considered that an open debate about whether or not to deploy Armed Forces could risk compromising their effectiveness, which he considered to be greatly enhanced by the opponent’s current expectation that “we will fight to win and that the popular will at home is more or less disaster-proof”. Lord Boyce told us that an open debate in Parliament on deployments could undermine six key aspects of

Armed Forces operations:

• escalating the conflict through rhetoric;

• skewing decisions through access to only limited information (since a great deal of intelligence cannot be revealed in public);

• compromising operational security by publicly discussing too much detail prior to action;

• impairing flexibility of operational response if parliamentary approval is required for every change of the situation on the ground;

• undermining clarity about the timetable for preparation, if it is contingent on a parliamentary debate or vote;

The imposition of operational caveats is well documented amongst the German

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• removing the ability of United Kingdom Forces to have “strategic poise” by giving the opponent early notice of intent. 169 Timing The timing of any parliamentary debate has exercised many in the

House of Lords. As Lord Stirrup has noted:

There are imperatives of time and secrecy, which do not apply in equal measure to all operations but do apply in some measure to all. Any process that hindered either of those two requirements to such an extent as to put the operational objectives at risk or to increase the risk to personnel would be a concern. 170

Lord Guthrie commented:

I think that Parliament must have the right to approve but it may not approve too early, if that makes sense. I think that the military have to keep some things secret. They have to move very quickly if they are going to put out the embers before they become flames. It is difficult if you are having debates and that sort of thing going on at the same time as you are trying to prepare. 171 However, there are others who favour early debate as a means of avoiding any impact on military efficiency. Professor White is of the

opinion that:

Focus should be on the initial decision to deploy and not the dayto-day command and control of an operation.

I don’t think allowing MPs a decision making stage affects military efficiency; it just stops the military activity... the whole debate should take place before we get into arguments about operational efficiency. 172 Indeed there are those who would argue that early debate is also essential for the whole process of parliamentary approval to have credibility. While the 2003 vote on Iraq has largely been hailed as a precedent for prior approval, many have argued that the timing of the debate, less than 48 hours before military action commenced, 173 made approval almost inevitable as the momentum was moving very strongly in that direction. Indeed, military preparations had been going on since November 2002. 174 By the time of the debate and vote on 18 March 2003, almost 45,000 British military personnel and extensive air, land and naval assets were in theatre.

Operational caveats Were parliamentary approval to be placed on a statutory basis, it is worth considering the extent to which the imposition of caveats on the House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role and Responsibility, HL Paper 236-I, Session 2005-06 Lords Constitution Committee, The Constitutional Arrangements for the Use of Armed Force: Oral Evidence, 5 June 2013, Q.18 ibid, Q.20 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward: Oral Evidence, 17 October 2013, Q.15 The debate and vote was held on 18 March 2003. Military action commenced in the early hours of 20 March 2003.

A chronology of MOD preparations prior to the Iraq conflict is detailed in the MOD publication Operations in Iraq: First Reflections, July 2003 55 Parliamentary approval for military action use of force, in order for approval to be given, would become an entrenched part of the process.

The operational caveats placed on several countries operating within the International Security Assistance Force in Afghanistan, 175 by virtue of their Parliamentary mandates, were heavily criticised by NATO Commanders and the NATO Secretary General as a major hindrance to the operational effectiveness of forces, and with the potential to undermine the objectives of the operation more generally. The use of caveats in Afghanistan is something which British military commanders were highly critical of. 176 Some consider, however, that even under the convention this potential exists. In its motion on Iraq in 2014 the Government specifically excluded the possibility of military action in Syria, due to the lack of a Parliamentary consensus. 177 However, writing in The Daily Telegraph in September 2014, RUSI Director General, Michael Clarke, questioned the limits that had been imposed on British operations in the fight against

ISIS. He commented:

It is the first time that Britain has not joined a relevant US-led coalition from the beginning. Being there for combat, “on day one” has been an implicit principle of British military planning for a very long time. Worse, from a military point of view, we go into this with a big political caveat that operations cannot extend to Syria.

In truth, there are not so many meaningful ISIS targets to attack in northern Iraq. Warfare is ultimately about attacking an enemy at its centre of gravity and in the case of ISIS that definitely resides in Syria.

The British military was always privately contemptuous of those allies whose forces went to Afghanistan beset with “national caveats” that limited what their troops could and could not do.

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