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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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The Cabinet Manual 2011 A broader discussion of the Royal Prerogative and efforts to curtail those powers is available in Library briefing SN/PC/3861, The Royal Prerogative, December 2009 A. V. Dicey, Introduction to the Study of the Law of the Constitution, 10th Edition, 1959, p.424 7 Parliamentary approval for military action There is no single accepted definition of the prerogative. It is sometimes defined to mean all the common law, i.e. nonstatutory powers, of the Crown. An alternative definition is that the prerogative consists of those common law powers and immunities which are peculiar to the Crown and go beyond the powers of a private individual e.g. the power to declare war as opposed to the normal common law power to enter a contract. 4 Although the Treasury Solicitor’s Department suggested that “there is no exhaustive list of prerogative powers” the PASC report identified three main areas of prerogative powers: the Crown’s constitutional prerogatives such as the assent of legislation; the legal prerogatives of the Crown; and prerogative executive powers which are exercisable by Ministers on behalf of the Crown. 5 It is under this latter category of powers that the legal authority for conducting defence of the realm, including the deployment of military

forces, rests. The Queens Regulations for the Army state:

The government and command of each of the fighting services is vested in Her Majesty The Queen, who has charged the Secretary of State with general responsibility for the defence of the Realm and established a Defence Council having command and administration over Her armed forces.

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 6 and the Chief of the Defence Staff. While the Defence Council is a legal entity, in practical terms it plays a very limited role in such decisions.

In constitutional terms, therefore, Parliament has no legally established role in the deployment of the Armed Forces 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. This has been achieved primarily through statements to the House, questions and debates. Yet, as the examples below demonstrate, there has been no consistency of approach by any government in the last 60 years and thus the extent to which Parliament has been involved has been an ad hoc affair. 7 Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, HC 422, Session 2003-04, Ev13 Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, HC 422, Session 2003-04, p.5-6 The National Security Council was created in 2010. It brings together Senior Ministers, the Chief of the Defence Staff and the Heads of the Intelligence Agencies together to discuss matters of national security. The NSC meets weekly and is chaired by the Prime Minister.

The convention allowing the Commons to debate and vote on the deployment of

–  –  –

Nor is the Government under any constitutional obligation to abide by the result of a Parliamentary vote on military action, although in reality it is widely acknowledged that engaging in military action without Parliamentary support would be politically difficult for any government. 8

1.2 The role of Parliament in military action prior to 2011 The following are illustrative examples of when military force has been used since the Second World War, indicating the opportunities for debate. This discussion confines itself to statements and debates, in government time, in the House of Commons. 9 World War Two (1939-1945) When the UK declared war against Germany in 1939 this was reported to the House in what Hansard of the day termed a “Prime Minister’s Announcement.” A motion was made prior to Neville Chamberlain’s announcement, but this was procedural and related to the manner in which certain emergency legislation was to be considered. 10 Other Members responded to the Prime Minister’s speech in a short debate, before the motion was put and carried. Around this time the House did vote on a great many substantive motions pertaining to the war, but these were for the passage of related emergency legislation, and not for the onset of hostilities against Germany.

There were many statements and debates throughout the war, and the bulk of the debates were on motions to adjourn. However, there were a number of debates on substantive motions including one which was moved on 6 May 1941 (the debate concluded the next day) approving the Government’s policy in sending assistance to Greece and expressing confidence that operations in the Middle East and other theatres of the war would be pursued “with the utmost vigour.” 11 This followed the fall of Greece despite British assistance, and it was designed to demonstrate confidence in the Government’s war strategy.

Korean War (1950-53) Prime Minister Clement Attlee made a number of statements following the North Korean invasion of South Korea in June 1950. These were often in response to Private Notice Questions from Winston Churchill, then leader of the Opposition, and they included two statements on one day. 12 Attlee gave an account of the reaction to the invasion and the development of policy within the United Nations Security Council.





He then made a statement on 28 June 1950 announcing the decision to This was a view that former Prime Minister Tony Blair expressed during evidence to the Liaison Committee in 6 February 2006.

It is worth noting the distinction between the use by successive governments of debates on a motion to adjourn, which allow for the discussion of a named topic, but if followed by a vote, it would be on the procedural point “that this House do now adjourn”; and debates on a substantive motion which, if followed by a vote, would have allowed the House to approve or oppose the Government’s course of action.

HC Deb 3 September 1939, c291

–  –  –

HC Deb 27 June 1950, c2102-3 & 2159-61 9 Parliamentary approval for military action make British forces available to the United States, which led the multinational force acting in support of South Korea. Those forces were in action shortly thereafter.

A debate was held on 5 July 1950, after the commitment of forces, and

this was on the substantive motion:

that this House fully supports the action taken by His Majesty’s Government in conformity with their obligations under the United Nations Charter, in helping to resist the unprovoked aggression against the Republic of Korea. 13 The motion was agreed without division. The Korean War was addressed in further statements and debates until the cessation of hostilities in July 1953.

Suez Crisis (1956) A debate was held in the House of Commons on 2 August 1956 during which Prime Minister Anthony Eden announced that "Her Majesty's Government have thought it necessary … to take certain precautionary measures of a military nature. Their object is to strengthen our position in the Eastern Mediterranean and our ability to deal with any situation that may arise”. 14 That debate was not followed by a vote.

A subsequent vote did take place when the House was recalled on 12September 1956 to debate the Suez situation. However, it was on a motion endorsing the Government's approach to resolving the crisis and was not specifically to approve deploying British forces to the region.

Therefore it has never been considered a precedent in this matter. The

debate was on the motion:

That this House condemns the arbitrary action of the Egyptian Government in seizing control of the Suez canal; endorses the proposals adopted by the 18 powers at the London conference which would ensure that an international waterway so essential to the economic life, standard of living and employment of this and other countries would not remain in the unrestricted control of any single Government; Welcomes the sustained and continuing efforts of Her Majesty's Government to achieve a peaceful settlement; and affirms its support for the statement of policy made by the Prime Minister to this House on 12th September.

An Opposition amendment to the Motion was tabled which sought to express criticism of the Government's refusal to refer the matter to the

authority of the UN. That amendment stated:

That this House while condemning the arbitrary methods employed by the Egyptian Government in respect of the Suez Canal Company and resolved to support the legitimate rights of the users of the Canal, deplores the refusal of Her Majesty's Government to involve the authority of the United Nations over the dispute, and calls upon Her Majesty's Government to refer the dispute immediately to the United Nations, to declare that they will not use force except in conformity with our obligations under the Charter of the United Nations and to refrain meanwhile from any form of provocative action.

–  –  –

That amendment was defeated on division by 321 to 251, 15 while the Main Question was passed on division by 319 to 248 votes. 16 Falklands Conflict (1982) Following the Argentine invasion of the Falkland Islands in April 1982 the House was recalled, on a Saturday, and a debate was held on a motion to adjourn. 17 There were 14 statements and another five debates, all on motions to adjourn, before the Argentine surrender in June 1982. The Falkland Islands had been the subject of parliamentary interest for many years before this, and there were other statements in the period just before the invasion.

Gulf War (1991) During the Gulf War of 1991 there were seven statements and one debate, which was on a substantive motion. 18 The commencement of hostilities was announced in a statement by then Prime Minister John Major on 17 January 1991 and a debate took place on 21 January. The

Government’s motion was:

that this House expresses its full support for British forces in the Gulf and their contribution to the implementation of United Nations resolutions by the multinational force, as authorised by United Nations Security Council Resolution 678. 19 The Government accepted an Opposition amendment, which was put and agreed to on division. This amended the motion by adding at the

end:

commends the instructions to minimise civilian casualties wherever possible; and expresses its determination that, once the aggression in Kuwait is reversed, the United Nations and the international community must return with renewed vigour to resolving the wider problems in the Middle East. 20 In the period between Iraq’s invasion of Kuwait in 1990 and the onset of the Allied action in January 1991 there were five statements on the crisis, plus two Prime Ministerial statements following European Council meetings in which mention was made of the situation, and three debates, all on motions to adjourn. 21 Kosovo (1999) Throughout the late 1990s concern over events in Kosovo and the lack of adequate debate was raised in Parliament. A turning point came with the killings at Racak in January 1999, following which NATO threatened the use of force. There were five statements on Kosovo after the Racak Division No. 278, 13 September 1956 Division No. 279, 13 September 1956 HC Deb 3 April 1982, c633-68 HC Deb 17 January 1991, c979; 18 January 1991, c1113; 21 January 1991, c23; 28 January 1991, c655; 31 January 1991, c1107; 18 February 1991, c19; 25 February 1991, c645; 28 February 1991, c1117.

HC Deb 21 January 1991, c24.

HC Deb 21 January 1991, c113.

HC Deb 6-7 September 1990, c734; 24 October 1990, c335; 30 October 1990, c869; 22 November 1990, c425; 28 November 1990, c867; 3 December 1990, c27;

6 December 1990, c468; 11 December 1990, c822; 18 December 1990, c157; 15 January 1991, c734 11 Parliamentary approval for military action killings and before the onset of NATO military action. 22 The commencement of hostilities was announced by then Deputy Prime Minister John Prescott in a statement on 24 March 1999 which was followed by a debate on a motion to adjourn on 25 March 1999. At the time Tony Benn MP and others expressed concern over the Government’s reluctance to hold a debate on a substantive motion that would have allowed Parliament to record its view on the Government’s policy over Kosovo. 23 There were a further seven statements on Kosovo and two further debates on motions to adjourn before the suspension of military action on 10 June 1999. 24 Other general statements included reference to the campaign, for example, the Prime Minister’s statements on the NATO summit and the Berlin European Council.

Iraq (2002-2003) Parliament was recalled on 24 September 2002 to debate the situation in Iraq and the possible recourse to military action. Between September 2002 and March 2003 there were two further Government debates on Iraq and eleven statements, plus two debates on defence in the world, during which mention was made of the ongoing situation. 25 Although not obliged to, the Labour government announced that Parliament would be given a vote on the deployment of British forces to Iraq. A debate on a substantive motion was subsequently held on 18

March 2003. That motion stated:



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