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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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3.1 Initial observations on the convention and the Libya conflict (2011) While the convention was broadly welcomed, there was also some initial debate as to whether such a parliamentary convention could be said to exist. Between the Iraq vote in 2003 and the Government’s observations in March 2011 there had been no debate, or vote, on any deployment of the Armed Forces. As outlined above, debate prior to the deployment of British forces to Afghanistan in December 2001 was on the general issue of the coalition against international terrorism and not specifically on the deployment of forces. The deployment of significant numbers of British forces to Helmand province in 2006 (which reached 9,500 troops at its peak) 63 has never been the subject of a governmenttabled debate or vote. Instead the progress of the military campaign in Afghanistan has been announced to Parliament through a series of Written Ministerial Statements.

Military action in Libya in March 2011 was the first deployment of the Armed Forces overseas after the Conservative/Liberal Democrat coalition government came to power in May 2010. Even though this deployment happened in concert with the Government’s acknowledgement of the convention, it was not the subject of a prior parliamentary debate and vote, which led Professor Gavin Phillipson at Durham University to argue that Libya therefore was “not a fully satisfactory precedent” for parliamentary approval. 64 British participation in the Libya operation was announced on 18 March

2011. 65 At the same time, the Prime Minister indicated that a substantive motion seeking retrospective approval for the deployment of forces would be tabled for debate on Monday 21 March, stating that “I am sure the House will accept that the situation requires us to move forward on the basis of the Security Council Resolution immediately”.

The debate on 21 March was on the Government motion:

That this House welcomes United Nations Security Council (UNSC) Resolution 1973; deplores the ongoing use of violence by the Libyan regime; acknowledges the demonstrable need, regional support and clear legal basis for urgent action to protect the people of Libya; accordingly supports Her Majesty’s Government, working with others, in the taking of all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya and to enforce the No Fly Zone, including the use of UK armed forces and military assets in accordance with UNSC Resolution 1973; and offers its wholehearted support to the men and women of Her Majesty’s armed forces.

That motion was approved, on division, by a vote of 557 to 13.

–  –  –

The view that a convention did not exist at this time was shared by Dr David Jenkins of the University of Copenhagen School of Law, Sebastian Payne of the University of Kent and Professor Nigel White at the University of Nottingham. 66 As Professor White explained in evidence to

the Political and Constitutional Reform Committee on 31 March 2011:

I don’t think there is a constitutional convention or unwritten law that Parliament should be consulted about conflict decisions… there is simply a very uneven trend of Parliament asserting itself towards greater consultation, greater debate. If you look at recent practice it is very inconsistent as to what that amounts to because, as I said, the Executive controls the agenda. So, sometimes, it is a matter of information for Parliament, sometimes there is debate and consultation, as with the NATO use of force in Kosovo in

1999. There was no substantive vote on that occasion. It dragged towards a vote in Iraq in 2003, a couple of days before the deployment of force when arguably that was a little late in challenging that decision, in a sense.

There has been plenty of debate on Afghanistan but no substantive vote as far as I can see. Then we have Libya where there was a Security Council resolution, then a debate, then the deployment of force, and then a Floor debate and a vote, all in the space of a week, which again illustrates a different pattern of relationship between the Executive and Parliament… that shows there is no consistent pattern of behaviour, never mind any evolving rules or unwritten constitutional conventions. 67

As Dr David Jenkins also observed:

Conventions most usually derive their constitutional force through consistent and obligatory political observance over a period of time. In absence of a long-standing political practice and in view of disagreements over reform in this area, it is difficult to identify an existing convention requiring parliamentary approval before the Government can commit military forces to armed conflict […] a future Government might simply renounce the convention, if politically expedient. 68 This latter comment has also been supported by James Strong of the London School of Economics who has noted that “As a conventional power it is nowhere enshrined in law. It exists for as long as politicians think it exists”. 69 Given this myriad of opinion, in its May 2011 report the Political and Constitutional Reform Committee called “for greater clarity on Parliament’s role in decisions to commit British forces to armed conflict abroad” and recommended that the government work toward formalisation of the process, initially through the adoption of a Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions, HC 923, Session 2010-12, Q.38 ibid, Q.4 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions, HC 923, Session 2010-12, Written Evidence submitted by Dr David Jenkins James Strong, “The accidental prerogative: why Parliament now decides on war”, Political Studies Association Blog 25 Parliamentary approval for military action parliamentary resolution, but with a view to the introduction of legislation in the longer term. 70





3.2 Evolution of the convention Dr David Jenkins’ suggestion that conventions derive their constitutional force from consistent political observance over a period of time provides a useful position from which to view the evolution of the convention over the last few years.

The first deployment of British military assets after the Libya campaign was in Mali in early 2013. That deployment was undertaken without any debate or vote in Parliament, which drew some criticism given the Government’s previous assurances and once again raised the question of how credible the convention is. The main problem identified by observers has been the lack of detail in the convention as to the threshold for action which would trigger a parliamentary debate.

By the end of 2014, however, Parliament had been given the opportunity to debate, and vote, on the deployment of British forces on two further occasions. The first was in response to the alleged use of chemical weapons against civilians by the Assad regime in Syria in August 2013 and the second in response to the actions of Islamic State in Iraq in September 2014. The defeat of the Government in the Syria vote was hailed as a victory by advocates of greater Parliamentary involvement and a credible strengthening of the convention’s status.

The subsequent vote on Iraq consolidated that view.

Military involvement in Mali (2013) On 14 January 2013 the Government announced that military assets would be deployed, at the request of the French Government, to support the deployment of French personnel and equipment to Mali. 71 That logistical assistance was later expanded to include the deployment of a surveillance aircraft, 72 the deployment of up to 40 military personnel to the EU Training Mission in Mali and the potential deployment of up to 200 military personnel for the training of Anglophone forces in the UN-mandated African-led International Support Mission in Mali (AFISMA). 73 The Government consistently reiterated that no British personnel would be deployed in a combat role. 74 The deployment of those forces was regarded by the Government as a response to an emergency request from the French and Malian authorities and in support of a UN Security Council Resolution. It was also consistently highlighted that British forces would not be deployed in a combat role. On that basis no Government-led debate and no Parliamentary vote on the deployment of the Armed Forces to Mali was Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions, HC 923, Session 2010-12, para. 6-7 Initial logistical assistance consisted of the deployment of two RAF C-17 transport

–  –  –

held. It is worth highlighting that this approach differed from the approach adopted at the outset of the Libya conflict, which was also considered to be a response to an emergency request and in support of a UN Security Council Resolution. The difference, as far as parliamentary involvement was concerned, appeared to be the lack of a combat role for forces deploying to Mali.

Responding to criticisms over the lack of Parliament’s role in the deployment of military forces to Mali, particularly in light of the Government’s previous assurances on this matter, the Leader of the

House, Andrew Lansley, commented on 31 January 2013:

Of course, it is absolutely our intention and that of my right hon.

Friend the Defence Secretary that the House should be regularly and appropriately informed about our engagement in Mali and in north-west Africa [...] I cannot promise an oral statement in every case, for reasons of the progress of business, but I am sure we will keep the House fully informed through a combination of written ministerial statements, oral statements and answers to questions [...] As the Government have made clear, we will observe the existing convention that before UK troops are committed to conflict, the House of Commons should have an opportunity to debate and vote on the matter, except when there is an emergency and such action would not be appropriate. One should also recognise, as my right hon. Friend the Defence Secretary said in the House this week, that the role of British troops is clearly not a combat role and it is not our intention to deploy combat troops. We are clear about the risks of mission creep—that was the nature of the question being asked—and have defined carefully the support that we are willing and able to provide to the French and Malian authorities. I would not carry the analogy to the point where the convention is engaged in the sense of a requirement for a debate and vote in this House. 75 Syria (August 2013) The House was recalled on 29 August 2013 to debate, and vote, on the principle of taking military action against Syria following the alleged use of chemical weapons against Syrian civilians by the Assad regime.

That debate was on the Government motion:

That this House:

Deplores the use of chemical weapons in Syria on 21 August 2013 by the Assad regime, which caused hundreds of deaths and thousands of injuries of Syrian civilians;

Recalls the importance of upholding the worldwide prohibition on the use of chemical weapons under international law;

Agrees that a strong humanitarian response is required from the international community and that this may, if necessary, require military action that is legal, proportionate and focused on saving lives by preventing and deterring further use of Syria’s chemical weapons;

Notes the failure of the United Nations Security Council over the last two years to take united action in response to the Syrian crisis;

HC Deb 31 January 2013, c1054, c1059-60 27 Parliamentary approval for military action

Notes that the use of chemical weapons is a war crime under customary law and a crime against humanity, and that the principle of humanitarian intervention provides a sound legal basis for taking action;

Notes the wide international support for such a response, including the statement from the Arab League on 27 August which calls on the international community, represented in the United Nations Security Council, to “overcome internal disagreements and take action against those who committed this crime, for which the Syrian regime is responsible”;

Believes, in spite of the difficulties at the United Nations, that a United Nations process must be followed as far as possible to ensure the maximum legitimacy for any such action;

Therefore welcomes the work of the United Nations investigating team currently in Damascus, and, whilst noting that the team’s mandate is to confirm whether chemical weapons were used and not to apportion blame, agrees that the United Nations Secretary General should ensure a briefing to the United Nations Security Council immediately upon the completion of the team’s initial mission;

Believes that the United Nations Security Council must have the opportunity immediately to consider that briefing and that every effort should be made to secure a Security Council Resolution backing military action before any such action is taken, and notes that before any direct British involvement in such action a further vote of the House of Commons will take place; and Notes that this Resolution relates solely to efforts to alleviate humanitarian suffering by deterring use of chemical weapons and does not sanction any action in Syria with wider objectives.

In opening the debate the Prime Minister, David Cameron, stated:

In drawing up my motion I want to unite as much of the country and of this House as possible. I think it is right, on these vital issues of national and international importance, to seek the greatest possible consensus. That is the right thing for the Government to do and we will continue to do it...



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