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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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• Retrospective approval would be sought in emergency situations, where there was a need to protect a critical British national interest or to prevent a humanitarian catastrophe.

• If the House is dissolved the Government would come to Parliament as soon as possible for a parliamentary debate on the matter.

However, as many commentators have observed, the spectrum of potential military operations is vast. Therefore, definitions relating to “conflict decisions” and “critical national interests” which will invoke the emergency caveat, are becoming ever more important. The lack of established definitions within the convention continues to cause unease for many, and has led several to argue that the Government retains considerable discretion on what meets the convention’s threshold, thereby making the whole framework potentially open to interpretation and exploitation.

The need for clarification and formalisation was raised again by the Chair of the Political and Constitutional Reform Committee, Graham Allen, in response to the recall of Parliament on 26 September 2014.

Whilst welcoming the recall and the opportunity for the Commons to

debate, and vote, on military action in Iraq, he stated:

The decision to take military action is the most momentous a Government can make, and I welcome the fact that the House of Commons has been recalled to consider the possible use of armed force in Iraq against Islamic State. It is inconceivable that such action be taken without the consent of Parliament.

However, there is still no clear process in place for how Parliament is consulted on the use of armed force. The Political and Constitutional Reform Committee has repeatedly called for the process whereby Parliament is consulted on the use of armed force to be formalised, but so far the Government has failed to make progress on this [...] it is vital that the process for consulting Parliament on such matters is clarified and formalised. 97 Political and Constitutional Reform Select Committee, Press Release, 26 September Number 7166, 12 May 2015 34

4. Prospects for the future As outlined above, many commentators concur that for any future government to move away from what is becoming adopted practice would be politically impossible. However, despite this new convention it remains the case that Parliament has no legally established role in approving military action.

4.1 Codifying the convention The present convention is essentially a statement of intent on the part of the Government with respect to consulting Parliament on the deployment of military forces and there is no formal process to ensure that it is adhered to. As such, in 2011 the then Foreign Secretary, William Hague, set out the Government’s intention to take this one step further and place Parliament’s role in the deployment of the armed

forces on a statutory basis:

We will also enshrine in law for the future the necessity of consulting Parliament on military action. 98 By the end of the 2010-2015 Parliament, however, no legislative proposals had been put forward. Given its commitment to observe the convention, the Government suggested that the imperative was to consider the issue properly, “rather than being driven by an artificial deadline” and that “the case for urgency has not been established”. 99 It had been reported that officials were struggling to draw up legislation that would allow the House of Commons a formal approval role, while at the same time providing the Government with enough freedom of manoeuvre in an emergency situation. An article in The Daily Telegraph in January 2013 also suggested that a number of former Generals had “urged Mr Hague to abandon the promise, warning it would remove an element of surprise for the Armed Forces and could compromise intelligence”. Lord Guthrie, a former Chief of Defence Staff, was quoted as stating that “it would be crazy to codify it, very dangerous indeed”. 100 In a Lords debate in November 2013 he went on to state that “one should not legislate and have a statutory solution.

Deployments vary so much and are accompanied by much uncertainty.

One template would rarely work for all situations”. 101 Others, including Jesse Norman MP, have argued that plans for formalisation should be abandoned arguing that Parliament’s role is to scrutinise and that once the Commons had voted for military action it could no longer hold the government to account; that “Ministers could simply blame MPs for giving the go-ahead”, and as such, “far from strengthening Parliament, pre-authorisation weakened it”. 102

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Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions – Further Government Response, HC 1673, Session 2010-12 “War footing Commons veto ‘dangerous’ as doubts cast over plans”, The Daily Telegraph, 4 January 2013 HL Deb 28 November 2013, c1611 Joshua Rozenberg, “Lost Prerogative”, Law Society Gazette, 6 October 2014 35 Parliamentary approval for military action In evidence to the Political and Constitutional Reform Committee in October 2013, Lord Wallace, Lords Spokesperson for the Cabinet Office,

summed up the complexity of the issue going forward:

This Government, like its predecessor, has discovered as it goes into it that this is a great deal more complex than one thought.

The definition of armed conflict and the deployment of forces has all sorts of ragged edges, questions of urgency and secrecy come in […] We are in the process of discovering we need a strong convention but how we actually interpret it, let alone how we legislate on it or whether we should legislate on it, is a large question.

Legislation and judicial review go together and the Government has become much more sensitive about judicial review of military action. 103 However, the lack of progress on this issue in nearly four years remains a concern for many observers, most notably the Political and Constitutional Reform Select Committee who have long argued for Parliament’s role to be placed on a statutory footing. In a March 2015

report on its work in the previous Parliament, the Committee stated:

Although it is unambiguously the case that a convention has developed whereby the House of Commons should have the opportunity to hold a debate on conflict decisions before action is taken, unless there is an emergency, there is still no formal process through which the House of Commons is consulted, or legal requirement for consultation to occur. We have consistently called for this convention to be formalised, and for the Government to explain how it would fulfil the Foreign Secretary's statement of March 2011 that the Government would "enshrine in law for the future the necessity of consulting Parliament on military action". The Government has yet to respond to our latest report on this subject. We recommend that the relevant Committee in the next Parliament consider how the convention on consulting Parliament on decisions regarding armed conflict has developed over the 2010 Parliament, and report on how, if at all, the convention should be formalised. 104 A resolution?

In order to achieve some progress, in the absence of legislative proposals, the Political and Constitutional Reform Committee recommended in a report in March 2014 that a parliamentary resolution setting out Parliament’s role in conflict decisions should be introduced as an interim measure.

In doing so, the Committee argued that “a parliamentary resolution on this subject would serve as a useful interim step by embedding the current convention and clarifying some of the ambiguities that exist under current arrangements”. Specifically, it would “have the effect of setting out in writing the procedure by which Parliament is consulted on Political and Constitutional Reform Committee, Oral Evidence, HC 649, 24 October Political and Constitutional Reform Committee, The Work of the Committee in the

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conflict decisions, and create a strong political expectation that the Government would follow this procedure”. 105 As a resolution is not legally binding and, therefore, not open to legal challenge in the courts, the Committee also suggested that the problems associated with defining the threshold for parliamentary involvement, and defining those scenarios which could fall under the “emergency” caveat, would also be significantly less than they would be under a legislative approach. 106 A resolution would also be more easily amended, and not open to legal challenge if elements contained within it were proving impractical or unworkable. The Committee also noted that the introduction of a resolution would also allow the Government more time to fully consider the implications of passing legislation in this area. 107 In the annex to its report the Committee produced the text of a possible draft resolution for consideration. That resolution is reproduced in Appendix One to this paper. 108 The proposal for a parliamentary resolution, either as a first step towards legislation, or as the sole means of formalisation, is one that has been met with support from many quarters. The draft resolution that had been proposed by the former Labour government in 2008 was one that was supported by Jack Straw, then Secretary of State for Justice and Lord Chancellor. Giving evidence to the Lords Constitution Committee in June 2013 he expressed his ongoing preference for that option. He suggested that “although, down the track, I would prefer to see the requirement for approval of military action by the House of Commons contained in legislation rather than a resolution, I was perfectly happy to opt for a resolution because it almost has the force of law in any case; the Prime Minister is not going to ignore it”. 109 In a House of Lords debate on 28 November 2013, Lord Maclennan argued for a resolution as the sole means of formalisation, and not just

as an interim measure:

I hope that the possibility of a statute will not be pursued. None the less, there is a strong case for parliamentary resolution: for setting out the requirements for the taking of action and for approving or rejecting the proposals of the Executive. Parliament, in particular the House of Commons, is the representative of the people, and the decision in most cases should be that of the people through their representatives. I therefore urge the Government not to seek hurriedly to reconcile the differences that have been made clear within it, but to think about the possibility of couching a resolution in terms that are wide enough to cover Political and Constitutional Reform Committee, The Work of the Committee in the 2010 Parliament, HC 1128, Session 2014-15, para.24 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward, HC 892, Session 2013-14, para.33 and 39 ibid, para.29 By the end of the 2010-2015 Parliament the Political and Constitutional Reform Committee had not received a Government response to its report.

House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Force: Oral Evidence, 12 June 2013, Q43 37 Parliamentary approval for military action most eventualities. In so doing, they would strengthen the basic protections of our constitution. 110 Lord Hennessy also advocated a resolution on the basis that


…can be friable and fragile. They can crumble at the touch of a powerful, insensitive and determined Executive, especially in circumstances where one’s country and its allies are living and breathing in the shadow of potential armed conflict.

House of Commons resolutions, by contrast, are things of sinew and, one would wish, endurance. I hope that the noble Lord, Lord Wallace, when he winds up, will give a more detailed explanation of why the coalition has ruled out the framing of a “Use of Armed Forces” resolution in time for it to be put to the House of Commons before the end of this Parliament 111 However, there are others who refute this position, arguing instead that resolutions are not legally binding and therefore achieve little more than the current convention does. In its July 2013 report on the Constitutional arrangements for the use of armed force the House of Lords Constitution Committee also rejected the notion that either a resolution or legislation was required. Instead they argued that the convention which has developed is the best means for exercising

political control over the use of force. The Committee concluded:

The existing convention [...] is the best means by which the House of Commons can exercise political control over, and confer legitimacy upon, decisions to use force. We do not think Parliament’s role should be formalised by way of legislation or a resolution; the risks that are associated with formalisation outweigh the benefits. We consider that the House of Lords is well placed to debate deployment decisions, but that the approval of such decisions should be for the House of Commons. 112 That report was debated in the House of Lords on 28 November 2013.

In her opening statement Baroness Jay summed up some of the arguments for and against formalising Parliament’s role in statute. She


Those in favour of a formal process argue that parliament is the only body that can provide the necessary democratic legitimacy for a decision as important as this. It is argued that parliament’s role should be enshrined so that no Government can bypass it. If parliament’s role is formalised all concerned will understand the process that must be followed before force is deployed and that following due process will itself increase the legitimacy of any action [...] On the other side of the current debate, none of those against formalising Parliament’s role sought to argue that Parliament should have no role. However, the committee heard several arguments against having either a formal parliamentary resolution or primary legislation. They were problems of definition, the risk of challenge in the courts, the risk of parliamentary engagement in operational decisions, the need to preserve political and military

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