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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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it is this House that will decide what steps we next take. If Members agree to the motion I have set down, no action can be taken until we have heard from the UN weapons inspectors, until there has been further action at the United Nations and until there is another vote in this House. Those are the conditions that we—the British Government, the British Parliament—are setting and it is absolutely right that we do so. 76 That motion was defeated on division, however, by a vote of 272 to 285. 77 The defeat of the Government, the first time in relation to military action reportedly since the late 18th century, 78 and the Government’s commitment to respect the will of the House, was widely viewed as an assertion of Parliamentary sovereignty and a direct challenge to the Royal Prerogative on such matters. As Professor Nigel White of the

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University of Nottingham observed “Syria has been important for democracy because it showed that although executives have the legal power to go to war or to use force, they are increasingly concerned with gaining approval from the wider polity”. 79 As a result, many analysts suggested that future significant military action would now be largely unthinkable without recourse to Parliament. In a RUSI analysis

paper in August 2013, Professor Malcolm Chalmers suggested that:

It is now hard to see how any UK Government could undertake significant military action without the support of Parliament, or indeed of the wider public. And it is difficult to see such support being given unless there is a clear national interest involved, or if military operations are undertaken with the imprimatur of a UN Security Council mandate – at least until the shadows of Iraq and Afghanistan have faded much further from the national consciousness [...] The UK Parliament and public are no longer prepared to give their Government the benefit of the doubt on military operations, and the Government will be constrained in what it can do in future as a result. 80

Joshua Rozenberg, writing in The Guardian also argued:

Where does this leave the UK’s constitutional convention on the use of armed force? There must still be a parliamentary debate before any military deployment unless circumstances make this impossible. But one can argue that the convention also now requires a vote on a substantive motion and that an adverse vote would make military action impossible, at least until circumstances changed. 81

However, he also went on to note that:

[it] does not mean that leaders of democratic states will always require prior approval for future military action. If Presidents and Prime Ministers are sure they are acting in the best interests of those who elected them, they will still be free to act. What emerged... is, after all, just a convention. 82 In an updated report on this issue, the Political and Constitutional Reform Committee welcomed the recall of the House in August 2013,

stating:

Not only did this serve to highlight the important role of Parliament in conflict decisions, it also showed how the de facto situation on conflict decisions appears to have outpaced the legal position. 83 Military action in Iraq (2014) In August 2014 the UK began deploying military assets to assist in humanitarian operations being conducted in Iraq. Until 26 September Professor Nigel White, Written Evidence to the Political and Constitutional Reform Committee Inquiry: Parliament’s Role in Conflict Decisions: An Update, PCD0001, October 2013 “Parliament’s decision on Syria: pulling our punches”, RUSI Analysis, 30 August “Syria intervention: is there a new constitutional convention”, The Guardian, 2

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Political and Constitutional Reform Committee, Parliament’s Role in conflict decisions: an update, Eighth report of Session 2013-14, para.8 29 Parliamentary approval for military action that military assistance had been confined to the provision of humanitarian supplies, surveillance and support for Iraqi government and Kurdish forces. However, there had also been increasing momentum for the UK to participate in offensive military operations against the terrorist group Islamic State (ISIL/ISIS). 84 During questions in the House on 8 September 2014 the Prime Minister confirmed that any decision to join offensive military action in Iraq would be put to a Parliamentary vote.

I have always believed, in this role and as leader of a Government, that you should consult the House of Commons as regularly as you can and the House of Commons should have an opportunity to vote. 85 However, he went on to stress the Government’s continuing right to undertake action in the event of an emergency, and therefore without

prior recourse to Parliament:

The point I always make […] is that it is important that a Prime Minister and a Government reserve the right to act swiftly without consulting the Commons in advance in some specific circumstances—for instance, if we had to prevent an immediate humanitarian catastrophe or, indeed, secure a really important, unique British interest. But other than that I believe it is right, as he said, to consult the House of Commons. 86

This position was also reiterated by the Foreign Office:

As the Prime Minister said on Monday in the House, the Government, while wanting to put such a matter to Parliament, including for a vote, as rapidly as possible, will need the freedom to act in the case of an urgent threat to the security of the United Kingdom or of an impending humanitarian disaster, and to come to the House as soon as possible after such action. 87 The House was recalled on 26 September 2014 to discuss the UK’s possible involvement in air strikes against ISIS in Iraq. The Government motion did not extend that debate to Syria, which it stated would be the subject of a separate Parliamentary vote, should that become





necessary:

Motion made and Question put, That this House condemns the barbaric acts of ISIL against the peoples of Iraq including the Sunni, Shia, Kurds, Christians and Yazidi and the humanitarian crisis this is causing; recognises the clear threat ISIL poses to the territorial integrity of Iraq and the request from the Government of Iraq for military support from the international community and the specific request to the UK Government for such support;

further recognises the threat ISIL poses to wider international security and the UK directly through its sponsorship of terrorist attacks and its murder of a British hostage; acknowledges the broad coalition contributing to military support of the Government of Iraq including countries throughout the Middle The initial response to events in Iraq are discussed in further detail in Library

Briefings, SN06977: Iraq, Syria and ISIS – Recent Developments, September 2014:

SN06995, ISIS: The Military Response in Iraq and Syria, December 2014 and SN07063, In Brief: Progress Against ISIS, December 2014 HC Deb 8 September 2014, c663

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East; further acknowledges the request of the Government of Iraq for international support to defend itself against the threat ISIL poses to Iraq and its citizens and the clear legal basis that this provides for action in Iraq; notes that this motion does not endorse UK air strikes in Syria as part of this campaign and any proposal to do so would be subject to a separate vote in Parliament; accordingly supports Her Majesty’s Government, working with allies, in supporting the Government of Iraq in protecting civilians and restoring its territorial integrity, including the use of UK air strikes to support Iraqi, including Kurdish, security forces’ efforts against ISIL in Iraq; notes that Her Majesty’s Government will not deploy UK troops in ground combat operations; and offers its wholehearted support to the men and women of Her Majesty’s armed forces. 88 That Motion was approved by a vote of 524 to 43.

In his opening comments the Prime Minister referred to the convention

on parliamentary approval:

I think the convention that has grown up in recent years that the House of Commons is properly consulted and there is a proper vote is a good convention. It is particularly apt when there is—as there is today—a proposal for, as it were, premeditated military action. I think it is important to reserve the right that if there were a critical British national interest at stake or there were the need to act to prevent a humanitarian catastrophe, you could act immediately and explain to the House of Commons afterwards. I am being very frank about this because I do not want to mislead anybody. 89 On the issue of Syria, and its exclusion from the Government Motion, he

stated:

Let me address directly the issue of ISIL in Syria. I am very clear that ISIL needs to be destroyed in Syria as well as in Iraq. We support the action that the United States and five Arab states have taken in Syria, and I believe that there is a strong case for us to do more in Syria, but I did not want to bring a motion to the House today on which there was not consensus. I think it is better if our country can proceed on the basis of consensus. In this House, as I am sure we will hear in the debate today, there are many concerns about doing more in Syria, and I understand that. I do not believe that there is a legal barrier, because I think that the legal advice is clear that were we or others to act, there is a legal basis, but it is true to say that the Syrian situation is more complicated than the Iraqi situation. It is more complicated because of the presence of the brutal dictator Assad. It is more complicated because of the state of the civil war [...] we will come back to the House if, for instance, we make the decision that we should take air action with others in Syria, but I am not contemplating the use of British combat forces because I think it would be the wrong thing to do. The lesson to learn from previous conflicts is that we should play the most appropriate role for us. It is for the Iraqi Government and for the Iraqi army to defeat ISIL in Iraq. 90 House of Commons Votes and Proceedings, 26 September 2014 HC Deb 26 September 2014, c1265 ibid, c1259 and c1266 31 Parliamentary approval for military action However, in a Written Statement on 21 October 2014 the MOD stated that Reaper Remotely Piloted Aircraft (RPAS) and Rivet Joint aircraft would be deployed, to conduct surveillance operations over Syria. Those aircraft are not deployed in an offensive capacity, which the MOD

confirmed would require approval:

As well as their operations over Iraq, both Reapers and Rivet Joint surveillance aircraft will be authorised to fly surveillance missions over Syria to gather intelligence as part of our efforts to protect our national security from the terrorist threat emanating from there. Reapers are not authorised to use weapons in Syria; that would require further permission.

The legal basis for this authorisation is as set out to Parliament in the debate on 26 September.

I will continue to provide updates to the House on our military activity. 91

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had been ongoing for over a month and it was only the possibility of UK involvement in the offensive air campaign against ISIS that led the Government to seek Parliamentary support in September 2014. While surveillance capabilities have been deployed over Syria, the Government has stated that any deployment of offensive capability in Syria would be the subject of a further vote in Parliament. The deployment of nearly 800 military personnel and assets in support of the UK’s response to the Ebola outbreak in Sierra Leone, which has never been subject to parliamentary approval, also falls below this threshold of offensive capacity. 93 This position was summed up by the Defence Secretary, Michael Fallon, in February 2015, in response to questions about the deployment of a

UK military training team to Ukraine:

There is a well established convention that if we are engaged in offensive military operations in a country we would of course come to the House […] This [the Ukraine deployment], however, is not a military operation. We are providing trainers and advisers to help the armed forces of Ukraine better to defend themselves and to help reduce the very high number of fatalities and casualties that they are suffering. 94 The votes on Syria and Iraq also provided further insights into the perceived threshold for parliamentary involvement, and where the ‘emergency caveat’ may be invoked. In his statement on Iraq the Prime Minister made reference to Commons approval in clear cases of premeditated military action. He also went on to note the need to reserve the right to undertake immediate action in the event that a critical British national interest was at stake or there was a need to act to prevent a humanitarian catastrophe. In such cases retrospective approval would be sought. 95 Were the House to be dissolved at the time military action was being contemplated, and therefore not liable to recall, the Government has suggested that “what would happen in practice is that whoever emerged in government after the general election would need to come to parliament as soon as possible thereafter for parliamentary debate on this issue”. 96 On the basis of this evidence, one could make the argument that, at the very least, parliamentary approval will be sought under the convention if

any of the following applies:

• The possibility of premeditated military action exists.

• Military forces are to be deployed in an offensive capacity.

Deployments for training, humanitarian aid or logistical assistance would not meet these threshold criteria. However, should an existing non-combat operation evolve into one in which offensive action is envisaged (mission creep), then it could be feasibly Details of the UK military response to events in Sierra Leone was set out in answer to a parliamentary question, PQ212430, 29 October 2014, HC Deb 25 February 2015, c327 HC Deb 26 September 2014, c1265 HC Deb 26 February 2015, c480-481 33 Parliamentary approval for military action expected that the threshold would be reached and fresh approval would have to be sought from Parliament.



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