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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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2.1 Labour’s proposed Governance of Britain reforms – 2008 Despite granting a Parliamentary vote on military action in Iraq in 2003, in the period that immediately followed the position of the then Blair government was that longer term reform of war making powers was unnecessary and that existing practice, based on the Royal Prerogative, remained sufficient. 41 As outlined above, in its response to the Lords Government Response to the House of Lords Constitution Committee’s Report, Fifteenth report of Session 2005-06, Cm 6923, November 2006 House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role and Responsibility: Follow-up, HL Paper 51, Session 2006-07 HL Deb 1 May 2007, c981-2 This was despite support from several members of the Cabinet at the time, including former Foreign Secretary Jack Straw and then Chancellor of the Exchequer, Gordon Brown. See for example the speech by Gordon Brown at the Fabian New Year 17 Parliamentary approval for military action Constitution Committee in November 2006 the Government stated that it was not “presently persuaded of the case for […] establishing a new convention determining the role of Parliament in the deployment of the armed forces”. 42 Giving evidence previously to the Liaison Committee in February 2006, Mr Blair had acknowledged, however, that, in practice, it would be difficult for a government to engage in armed conflict without

Parliamentary support:

I think, with great respect to other political parties, you can overdo all this stuff about the Royal Prerogative. The fact of the matter is that I cannot conceive of a situation in which a government (and I think I have said this before, even here) is going to go to war—except in circumstances where militarily for the security of the country it needs to act immediately—without a full Parliamentary debate. Actually, as I say, the irony is, although people keep talking about this as a result of the Iraq conflict, I think the one thing you could not say is that we did not have a full Parliamentary debate or that we did not have a vote—because we did. I think the reality is that that is the way it will happen in practice, unless you have a circumstance where you need to act urgently. 43 Less than two months after Gordon Brown became Prime Minister in 2007 the 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 The Governance of Britain Green Paper proposed that the Government should seek the approval of the House of Commons for significant non-routine deployments of the Armed Forces into armed conflict, to the greatest extent possible and without prejudicing the Government's ability to act to protect national security, or undermining operational security or effectiveness. That Green Paper

stated:

25. There are few political decisions more important than the deployment of the Armed Forces into armed conflict. The Government can currently exercise the prerogative power to deploy the Armed Forces for armed conflict overseas without requiring any formal parliamentary agreement.

26. The Government believes that this is now an outdated state of affairs in a modern democracy […] The Government will therefore consult Parliament and the public on how best to achieve this. 44 In order to determine the most effective means of enhancing Parliament’s role in this regard, the Government subsequently published a consultation paper on War Making Powers and Treaties: Limiting Executive Powers. This paper posed one overarching question: should any role for Parliament in approving the deployment of the Armed Forces be established by parliamentary convention, and possibly Conference, 14 January 2006, and Jack Straw “Abolish the Royal Prerogative” in A.

Barnett, Power and the throne: the monarchy debate, London, 1994 Government Response to the House of Lords Constitution Committee’s Report, Fifteenth report of Session 2005-06, Cm 6923, November 2006 Evidence to the Liaison Committee, 6 February 2006, Q303

–  –  –

embodied in a resolution of the House of Commons, should it be set down on a statutory basis, or should it be a combination of both? In asking this question the paper made it clear that any Parliamentary role must not compromise national security, the morale and operational effectiveness of the Armed Forces, or the UK’s ability to work with its allies. 45 A number of further questions were raised, including what types of deployment should fall within the scope of the new mechanism; what information or intelligence should be provided to Parliament; and what should the consequences be of a decision by the Executive to deploy military forces without prior parliamentary approval?

On the basis of that consultation the Government subsequently proposed, as part of its 2008 White Paper, The Governance of Britain Constitutional Renewal, that Parliament should be given a formal role in the deployment of the Armed Forces in situations of armed conflict, and that that role should be established by a resolution of the House of

Commons:

While not ruling out legislation in the future, the Government believes that a detailed resolution is the best way forward. This will take the form of a House of Commons resolution which sets out in detail the processes Parliament should follow in order to approve any commitment of Armed Forces into armed conflict.





The resolution could be underpinned by a specific standing order, but that is ultimately a matter for each House and not the Government. 46 Specifically, the Government proposed that in future the Prime Minister would lay a report before Parliament detailing the need for an armed deployment and that the House of Commons would be asked to approve that report. The Government also proposed that any debate in the House of Commons should be preceded by a debate in the House of Lords (although not a formal vote), which would inform Members.

However, the paper acknowledged that:

The uncertain nature of military deployments and likelihood that the lead up to each conflict or potential conflict situation would not necessarily conform to any pattern would require a high degree of flexibility from the proposed mechanism. 47 It therefore argued that some practical aspects of the current regime should be retained, including: that the Government should be able to take swift action to protect national security; operations involving the Special Forces should not require approval; there should be no requirement to obtain retrospective approval for those operations of a secret or urgent nature; there should be no regular re-approval process;

and the Prime Minister should determine the scope and nature of any information provided to Parliament as part of the approvals process. The paper also concluded that there was no argument for making special arrangements for the recall of parliament if a deployment was necessary when the House was either adjourned or dissolved, or the need for a Ministry of Justice, The Governance of Britain – War Powers and Treaties: Limiting Executive Powers, October 2007 Ministry of Justice, The Governance of Britain – Constitutional Renewal, Cm 7342-I, Session 2007-08, para 215 ibid, para 215 19 Parliamentary approval for military action new committee to be established in order to oversee Parliament’s decision making in this respect. The text of a draft resolution was published as part of the White Paper. 48 A Joint Committee which had been convened to scrutinise the Draft Constitutional Renewal Bill also examined the White Paper’s proposals relating to war making powers. The Joint Committee published its report on 31 July 2008. It began with an

Abstract

which included the

following summary of the Committee’s views on war making powers:

War powers: We agree with the Government's case for strengthening Parliamentary involvement in armed conflict decisions, and that a detailed resolution approach is a well balanced and effective way of proceeding. But we are concerned about the definition of "conflict decision" in the White Paper and we recommend that the Government take steps to ensure that ongoing deployments are subject to effective Parliamentary scrutiny. 49 Whilst broadly supporting the Government’s proposals the Joint Committee did, however, recommend some specific changes to the draft resolution and to the process that should be followed once the House of Commons had agreed the War Powers Resolution. The Joint Committee acknowledged the difficulty in defining ‘a conflict decision’ and recommended that “the Government, in consultation with key stakeholders, take more time to come up with an effective definition of 'a conflict decision' before bringing any proposals forward”. 50 The Joint Committee also agreed that the Executive should have discretion over the information provided to Parliament, and over the timing of the Parliamentary process; that retrospective approval was “not desirable”;

and that there should be no requirement for Parliamentary approval of the deployment of Special Forces. 51 The Committee did, however, ask the Government to give an undertaking that “it will always arrange for a recall of Parliament in order to allow for Parliamentary approval of a deployment”, 52 and that ongoing deployments would be subject to effective scrutiny. 53 In its inquiry into constitutional renewal in May 2008, the Public Administration Select Committee welcomed the principle behind the

proposals but disagreed with many of the specifics:

We’re glad the government has come forward with proposals in these areas, where it exercises unfettered power right now. But when you look at the detail of the proposals, Parliament is essentially being asked to let things continue as they are. It isn’t right for the Prime Minister to have complete discretion over the information Parliament is allowed to see when deciding whether to support a decision to go to war. And Prime Ministers shouldn’t be able to avoid a parliamentary vote when a conflict is too The text of that resolution is available in Appendix One of Library Research Paper, Parliamentary Approval for Deploying the Armed Forces, RP08/88.

Joint committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill – Volume 1: Report, HC 551-I Session 2007-08, Abstract ibid, para 321

–  –  –

urgent or too secret to seek Parliament’s permission in advance.

This is what democracy is about. 54 Although a draft text was produced and discussed at length, the proposed resolution was not subsequently adopted prior to the Labour government leaving office in 2010. 55

2.2 Position of the then Conservative and Liberal Democrat opposition At the time of Labour’s Governance of Britain reforms, both the Conservative Party and the Liberal Democrats supported formalising Parliament’s role in this area. In February 2006 David Cameron, as leader of the Conservative Party, launched a Democracy Task Force to review whether amendments to the scope of the Royal Prerogative

should be made. In a speech on 6 February 2006 Mr Cameron stated:

I believe the time has come to look at those powers exercised by Ministers under the Royal Prerogative. Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making government more accountable. Just last week, we first heard about the Government’s decision to send 4,000 troops to Afghanistan in the pages of the Sun newspaper […] Restoring trust in politics means restoring trust in Parliament – and one way to do that is to enhance the role of Parliament in scrutinising the Government’s decisions. 56 The report of that task force was published on 6 June 2007. The report concluded that the decision to commit British forces should require parliamentary approval, including retrospective approval where

necessary:

We believe that it is no longer acceptable for decisions of war and peace to be a matter solely for the Royal Prerogative. The Democracy Task Force therefore recommends that a Parliamentary convention should be established that Parliamentary assent – for example, the laying of a resolution in the House of Commons – should be required in timely fashion before any commitment of troops. Under conditions of dire emergency, this requirement could be waived with the proviso that the Prime Minister must secure retrospective Parliamentary approval. 57 Writing in The Guardian in May 2007 the then Shadow Foreign Secretary, William Hague, set out the Conservative Party’s position in greater detail, reiterating that fact that while established procedures for Parliament should be set down, it remained vital that military action itself should not be constrained.

Further detail on the report’s conclusions is available at: Public Administration Select Committee: Constitutional Renewal Draft Bill and White Paper, HC 499, Session 2007-08 Progress was made, however, with respect to other areas of the Royal Prerogative, including Parliament’s role in the ratification of treaties. Those changes were implemented in the Constitutional Reform Act 2010.

Speech by David Cameron, Modernisation with a Purpose, 6 February 2006 http://www.conservatives.com/pdf/dtfpaper.pdf 21 Parliamentary approval for military action The Liberal Democrats also supported giving Parliament a greater role in deploying the Armed Forces, primarily through support for the successive Private Members’ Bills that were introduced during this period. 58

–  –  –

There is no universally accepted definition of a convention. However, it is generally understood to be a “practice which is politically binding on all involved, but not legally binding” (House of Lords Constitution Committee, Pre-emption of Parliament, HL165, Session 2012-13) Written Evidence submitted to the Political and Constitutional Reform Committee Inquiry into The Role and Powers of the Prime Minister, Session 2010-12 HC Deb 10 March 2011, c1066 Political and Constitutional Reform Committee, Constitutional Implications of the Cabinet Manual, HC 734, 29 March 2011 23 Parliamentary approval for military action It is worth noting that this convention has developed with respect to the House of Commons, and does not apply to the House of Lords.



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