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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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That this House notes its decisions of 25th November 2002 and 26th February 2003 to endorse UN Security Council Resolution 1441; recognises that Iraq's weapons of mass destruction and long range missiles, and its continuing non-compliance with Security Council Resolutions, pose a threat to international peace and security; notes that in the 130 days since Resolution 1441 was adopted Iraq has not co-operated actively, unconditionally and immediately with the weapons inspectors, and has rejected the final opportunity to comply and is in further material breach of its obligations under successive mandatory UN Security Council Resolutions; regrets that despite sustained diplomatic effort by Her Majesty's Government it has not proved possible to secure a second Resolution in the UN because one Permanent Member of the Security Council made plain in public its intention to use its veto whatever the circumstances; notes the opinion of the Attorney General that, Iraq having failed to comply and Iraq being at the time of Resolution 1441 and continuing to be in material breach, the authority to use force under Resolution 678 has revived and so continues today; believes that the United Kingdom must uphold the authority of the United Nations as set out in HC Deb 18 January 1999, c565; 1 February 1999, c597; 11 February 1999, c565; 24

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HC Deb 24 March 1999, c483; 29 March 1999, c731; 31 March 1999, c1089 & 1204; 13 April 1999, c19; 10 May 1999, c21; 26 May 1999, c355; 8 June 1999, c463; 9 June 1999, c744 and HC Deb 19 April 1999, c573; 18 May 1999, c882 HC Deb 24 September 2002, c26; 7 November 2002, c431; 25 November 2002,

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Resolution 1441 and many Resolutions preceding it, and therefore supports the decision of Her Majesty's Government that the United Kingdom should use all means necessary to ensure the disarmament of Iraq's weapons of mass destruction; offers wholehearted support to the men and women of Her Majesty's Armed Forces now on duty in the Middle East; in the event of military operations requires that, on an urgent basis, the United Kingdom should seek a new Security Council Resolution that would affirm Iraq's territorial integrity, ensure rapid delivery of humanitarian relief, allow for the earliest possible lifting of UN sanctions, an international reconstruction programme, and the use of all oil revenues for the benefit of the Iraqi people and endorse an appropriate post-conflict administration for Iraq, leading to a representative government which upholds human rights and the rule of law for all Iraqis… The motion was agreed on division by 412 to 149.

Military operations subsequently commenced on 20 March 2003. 26 By the end of major combat operations on 1 May 2003 a further nine ministerial statements and three written ministerial statements had been made. 27 The Iraq conflict in 2003 was the first example in modern times of prior parliamentary approval having been sought, and granted. As such it was regarded by advocates of a formal role for Parliament as setting a precedent for any future decisions on military action.

Afghanistan (2001-2014) Following the events of 11 September 2001, Parliament was recalled on 14 September, 4 October and for a third time on 8 October 2001 to debate the issue and inform Parliament of the diplomatic, humanitarian and military action that had been taken by the Government in response to the attacks. In the 4 October debate the then Prime Minister, Tony Blair, stated that there should be no “moral ambiguity” concerning the events in the US. He said that nothing could excuse or condone the terrorist attacks. Military action undertaken would be on clearly stated moral grounds, not for revenge but “for the protection of our people and our way of life, including confidence in our economy” and “for justice”. 28 On 16 October, after returning from the summer recess, the Commons once again debated the coalition against international terrorism.

All of those debates were on a Motion to Adjourn. There was no debate, or vote, on a substantive government motion relating to the deployment of British forces into Afghanistan. Consequently, several Members sought to pursue the matter of a parliamentary vote on UK Military operations officially began at 0234 GMT on 20 March 2003, although some preparatory air operations had been undertaken in the southern no-fly zone on 19 March 2003.

HC Deb 20 March 2003, c1087; 21 March 2003, c1211; 24 March 2003, c21; 26 March 2003, c291; 3 April 2003, c1069; 3 April 2003, c70WS; 7 April 2003, c21; 10 April 2003, c405-22; 11 April 2003, c38WS; 14 April 2003, c615; 28 April 2003, c21 and 30 April 2003, c15WS HC Deb 4 October 2001, c675 13 Parliamentary approval for military action involvement in military action through parliamentary questions and a series of Early Day Motions. 29 Subsequent deployments of British troops to the International Security Assistance Force in Afghanistan, including the more significant deployment of several thousand military personnel to the southern province of Helmand from 2006, 30 were also announced to Parliament through Ministerial Statements. There has been no Parliamentary vote on a Government-tabled motion on the deployment of British forces in Afghanistan.

However, the Commons Backbench Business Committee 31 did schedule a debate and a vote on a substantive motion on the presence of British forces in Afghanistan on 9 September 2010. That debate was on the substantive motion “That this House supports the continued deployment of UK Armed Forces in Afghanistan” and was agreed on division by 310 to 14. 32 See HC Deb 8 October 2001, c829 and c823; EDMs 219 and 220, Session 2000-01 UK forces in Afghanistan reached a peak of 9,500 personnel in 2010.





The Backbench Business Committee was established in March 2010 although did

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2. Attempts at reform The Royal Prerogative and Parliament’s lack of formal involvement in approving the deployment of the Armed Forces has long been criticised for what many perceive to be an absence of democratic accountability over one of the most fundamental decisions a government can make.

Following the Iraq vote in 2003 several attempts to capitalise on the decision to allow that vote and give Parliament a formal, statutorybased, role were made. Between 2003 and 2007 three Private Members Bills were introduced although only one, the Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill (Bill 16 of 2005-06), was ever debated. All were subsequently dropped. 33 Both the issue of war powers, and the Royal Prerogative more generally, also received increasing attention from a number of Parliamentary Committees in the aftermath of the Iraq conflict. In 2004 the Public Administration Select Committee held an inquiry into prerogative powers and ministerial accountability. In its final report the Committee concluded that there was a need to review the current Royal Prerogative

arrangements:

The Government should initiate before the end of the current session [2003-04] a public consultation exercise on Ministerial prerogative powers. This should contain proposals for legislation to provide greater parliamentary control over all the executive powers enjoyed by Ministers under the royal prerogative. This exercise should also include specific proposals for ensuring full parliamentary scrutiny of the following Ministerial prerogative actions: decisions on armed conflict; the conclusion and ratification of treaties; the issue and revocation of passports.

This is unfinished constitutional business. The prerogative has allowed powers to move from Monarch to Ministers without Parliament having a say in how they are exercised. This should no longer be acceptable to Parliament or the people. 34 In the 2005-06 session the House of Lords Constitution Committee also conducted a comprehensive inquiry into the prerogative power of “waging war”.

The purpose of the inquiry was to consider:

what alternatives there are to the use of the Royal prerogative power in the deployment of armed force, whether there should be a more direct role for Parliament and in particular whether Parliamentary approval should be required for any deployment of British forces outside the United Kingdom (whether or not into areas of conflict), or if there is a need for different approaches in different situations, for example in honouring commitments under international treaties or in pursuance of UN Security Council

Neil Gerrard introduced a Private Member’s bill (Bill 31) in the 2004-05 Session,

although it was subsequently dropped before its second reading because of the general election. In 2005-06 an almost identical bill was sponsored by Clare Short.

Although that Bill was debated, on division the House did not agree to it being given further time and the bill was subsequently dropped. In the 2006-07 session a similar bill entitled Waging War (Parliament’s Role and Responsibility) Bill (Bill 34), was adopted by Michael Meacher. However it did not proceed to second reading and the bill was subsequently dropped.

Public Administration Select Committee, Taming the prerogative: strengthening ministerial accountability to parliament, HC422, Session 2003-04, p.17 15 Parliamentary approval for military action resolutions. Other important issues for consideration have been whether the Government should be required, or expected, to explain the legal justification for any decision to use force outside the United Kingdom, and whether the courts have jurisdiction to rule upon the decision to use force. 35

The Committee’s report was published in July 2006 and concluded:

Our conclusion is that the exercise of the Royal Prerogative by the Government to deploy armed force overseas is outdated and should not be allowed to continue as the basis for legitimate warmaking in our 21st century democracy. Parliament’s ability to challenge the executive must be protected and strengthened.

There is a need to set out more precisely the extent of the Government’s deployment powers, and the role Parliament can— and should—play in their exercise. 36 After consideration of several options the Committee made the

following recommendations:

we recommend that there should be a parliamentary convention determining the role Parliament should play in making decisions to deploy force or forces outside the United Kingdom to war, intervention in an existing conflict or to environments where there is a risk that the forces will be engaged in conflict.

While not seeking to be prescriptive, we recommend that the

convention should encompass the following characteristics:

(1) Government should seek Parliamentary approval (for example, in the House of Commons, by the laying of a resolution) if it is proposing the deployment of British forces outside the United Kingdom into actual or potential armed conflict;

(2) In seeking approval, the Government should indicate the deployment’s objectives, its legal basis, likely duration and, in general terms, an estimate of its size;

(3) If, for reasons of emergency and security, such prior application is impossible, the Government should provide retrospective information within 7 days of its commencement or as soon as it is feasible, at which point the process in (1) should be followed;

(4) The Government, as a matter of course, should keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly should seek a renewal of the approval. 37 In its November 2006 response to the inquiry the then Government

commented:

The Government is not presently persuaded of the case for […] establishing a new convention determining the role of Parliament in the deployment of the armed forces. The existing legal and constitutional convention is that it must be the Government which takes the decision in accordance with its own assessment of the position. That is one of the key responsibilities for which it has been elected. But the matter needs to be kept under review.

The ability of the executive to take decisions flexibly and quickly using prerogative powers remains an important cornerstone of our democracy. However, it is important to note that when exercising these powers, Ministers remain accountable to Parliament. 38 In view of what it considered to be an inadequate response from the Government, the Committee published a short follow-up report in

February 2007. In it the Committee reiterated:

Irrespective of the response we received, we consider that a crossparty political consensus appears to be emerging that the current arrangements are unsustainable. Accordingly, we are optimistic that our recommendations will be revisited in the very near future.

We hope that this vitally important constitutional issue will then be addressed in a more satisfactory manner and we look forward to playing our part in that debate. 39 On 1 May 2007 the House of Lords debated the Committee’s reports. In introducing the report the then Chairman of the Committee, Lord

Holme, said:

[This] led the committee to prefer the flexibility of a new convention that the Government should seek parliamentary approval if they propose the deployment of British forces outside the UK into actual or potential armed conflict to, as some have suggested, a comprehensive statutory abolition of this prerogative power. Such a convention would continue to allow executive emergency action under prerogative powers but with the important proviso that, within seven days of its enactment, retrospective parliamentary approval should be sought.

Another consideration which weighed with the committee in recommending the convention route was the view that it would be unacceptable for there to be a possibility, however remote, of subjecting forces of the Crown to criminal procedures for action taken in good faith in protecting the national interest. However, the compromise preference for convention should not obscure the unanimous clarity of a cross-party committee that the exercise of the royal prerogative as the authority for the Government, in the person of the Prime Minister, to deploy armed forces is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st-century democracy. 40



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