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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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flexibility, and the argument that, given our convention, more formal procedures are just unnecessary. 113 On that basis the Committee “concluded that much of the impetus for formalisation was to make a political statement rather than to correct deficiencies in the existing legal or military process”. 114 This attitude toward formalisation appears to be shared by the Prime

Minister, David Cameron. In the House on 8 September 2014 he stated:

[It] has been an interesting issue of debate and we have not come up with the final answer. There are problems with trying to write down every scenario into a law of the land. The convention that has grown up – it is now clear that the House of Commons should be consulted and a vote taken – is now very clearly understood on both sides of the House, and my personal view is that that might be better than trying to write everything down in some inflexible document that can create all sorts of legal problems of its own. 115 In evidence to the Political and Constitutional Reform Committee in September 2014 the then Deputy Prime Minister, Nick Clegg, expressed a slightly different view, reiterating the range of views within the Coalition Government that had resulted in little agreement being

reached. He stated:

I think the good news is everybody agrees on the substance, which is that the convention, the principle that it is this House that debates and votes and consents to British military forces being committed elsewhere in the world is the standing convention that will be adhered to at all times, other than those exceptions where any reasonable thinking person sees that there are overnight emergencies that require a military response. That is the good news. I think everybody accepts that.

The bit that is eluding everybody, including, I have to be open with you, the coalition Government, is how you translate that, how you give effect, how you express that rationale […] There is this range of views, ranging from the original commitment that the then Foreign Secretary made through to the counsel that we received from the very august Select Committee in the House of Lords that we should not formalise it; of course there is a range of views, and as you know, I am on the more formal end. I have always been inclined to think that we should formalise this as fully as possible. We have already accepted […] that the recommendations should be reflected in the Cabinet Manual, when next revised, is something we will act upon. So we have already committed to reflect this convention in the Cabinet Manual, but I am not going to pretend to you that this difference of opinion between those people like myself, who think we should explore either a resolution of the House or possibly something even more formal to transcribe this convention into a fixed rule, is countered by those who, for perfectly sincere and sincerely-held views feel that—and that is the view of the House

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4.2 Issues to consider Should any government decide to introduce a resolution and/or legislate and place war making powers on a statutory basis, there are several issues that would require careful consideration. Over the years many of these issues have been considered in some depth by the relevant select committees, constitutional lawyers and other commentators, and in line with the broader debate, there is no apparent consensus of opinion.

The main question is one of definition and how a resolution or legislation can adequately cover the spectrum of potential deployment scenarios and specifically pinpoint those which would trigger parliamentary involvement and those where the “emergency” caveat could be invoked. In those latter situations what circumstances would then require retrospective parliamentary approval? That leads on to the further question of how a resolution or legislation would deal with the escalation of a military operation, more commonly referred to as ‘mission creep’. At what point would the Government be required to seek fresh approval from Parliament?

In addition, should any legislation codify what information Parliament should have access to prior to making a decision? Should the legal advice of the Attorney General be published in full as part of that information and/or should Parliament be able to seek its own legal counsel? What would the impact be on operational effectiveness and should any resolution or legislation go so far as to enable Parliament to impose caveats on the use of force? Placing Parliament’s role on a statutory basis also raises issues of justiciability and the potential for legal challenge in the courts.

Definitions The definition of conflict As evidenced by the ad hoc approach to Parliament’s involvement in the deployment of the armed forces, even after the introduction of the convention in 2011, by far the greatest problem for lawmakers has been how to define armed conflict or those conflict decisions which Parliament could reasonably expect to be consulted on. While the events of recent years have established some sort of rudimentary threshold for the current convention (see section 3.3 above), formalisation by way of a resolution or statute would undoubtedly require something more detailed.

Early efforts to codify this threshold attempted to link a definition to those scenarios which would invoke the Geneva Conventions and the Laws of Armed Conflict. 117 The draft resolution presented by the Labour Political and Constitutional Reform Committee, The Work of the Deputy Prime Minister 2014: Oral Evidence, HC 464, 9 September 2014 As used in the Armed Forces (Parliamentary Approval for Participation in Armed

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government in 2008 also favoured this approach. However, the Geneva Conventions do not define armed conflict and they have been criticised on the basis that they “lack clarity and are out of date”. 118 It has been argued that the changing nature of military operations, and indeed the deployment of military technologies such as unmanned air systems and cyber capabilities, undermine the relevance of rules which were last amended in 1977.

Specifically, the spectrum of operations is now so diverse that linking a definition of armed conflict to the Geneva Conventions has become increasingly unfeasible. For example, in 2014 more than 90,000 service personnel were deployed on over 300 commitments in 50 countries. 119 Those operations ranged from counter-piracy, training and humanitarian assistance to air policing, peacekeeping and stabilisation operations. At the time of writing British military forces are conducting offensive airstrikes against Islamic State (ISIS) in Iraq; conducting surveillance operations against ISIS over Syria; assisting the humanitarian operation in Sierra Leone; and contributing to four UN peacekeeping missions 120 and several NATO and EU missions respectively. 121 The emerging consensus now appears to favour defining any threshold for parliamentary involvement on the basis of the actual nature of operations. Yet, that in itself is not clear cut. Legislating for every scenario is acknowledged as unrealistic and yet there is no consensus on what types of operation should come within the remit of any resolution or statute. Lord Wallace provided a useful summary of this dilemma in

the House of Lords debate in November 2013 when he stated:

the definition of armed conflict and the decisions about deployment we are taking could take many forms. Those include whether or not one puts troops on the ground, sends cruise missiles or drones or sends a training unit to Mali, supported by a couple of transport planes, to deal with a situation in which one is dealing not with conflict, let alone with forces of another state, but with armed groups operating across borders in states which do not entirely control their own territory and one does not know how far they may have to go once they are there. That is very much where we are now [...] There are a number of other conflicts in Africa at the present moment—indeed, there have been a number of other requests for a couple of British transport aircraft or a training team—of the sort that we are likely to be find ourselves in in the coming years where the question of where the threshold comes is very difficult to operate... 122 (Parliament’s Role and Responsibility) Bill, Bill 34 of Session 2006-07. Professor Rodney Brazier also supported this use of language in his paper to the Public Administration Select Committee enquiry in February 2004 (HC 422, Session 2003Foreign Affairs Committee, Visit to Guantánamo Bay, HC44, Session 2006-07, p.27 Ministry of Defence, Defence in the Media, 12 May 2015 UN Troop and Police Contributions Including peacekeeping, counter-piracy, training and air policing operations. The UK’s recent contribution to EU military operations were detailed in PQ 214602, 1 December 2014.

HL Deb 28 November 2013, c1621 41 Parliamentary approval for military action Former Chief of the Defence Staff, Lord Stirrup, also made the point to the Lords Constitution Committee that “even when you send people into areas of operation where you are not expecting them to use lethal force and the rules of engagement reflect that, nevertheless they always have the right of self defence”. 123 Another former Chief of the Defence Staff, Lord Guthrie, has also expressed concerns over this issue. In an interview on the Today programme and reported in The Guardian in December 2007, Lord Guthrie asked “what do you mean by armed conflict?”, and suggested that “what we do is slide into war, you cannot avoid that. An apparently benign peacekeeping mission could turn into fighting. That happened in Bosnia. It could happen in Darfur too”. 124 Within the debates that have occurred over the last few years, commentators have therefore expressed varying opinions of where that threshold should lie. In evidence to the Political and Constitutional

Reform Committee in March 2011, Professor White stated:

I would argue against having a definition linked to the concept of war. Indeed, war in international law is no longer used or recognised as a legal concept [...] there is [also] a lot of international jurisprudence about what exactly is an armed conflict. I would argue to stay away from that. I agree that there has to be some sort of threshold to identify, but I think it should be quite a practical and factual rather than a legal one. 125

Professor Mike Clarke offered one possible option:

If one was looking to establish a rough working threshold it might be where troops were going to be deployed overseas with the clear intention of engaging in conventional military combat operations. 126

Lord Stirrup supported this view:

If you are looking for some sort of dividing line for when parliament should be consulted and when it should not, I would perhaps go along with Michael Clarke to the extent – and subject to the caveats I mentioned earlier about speed and secrecy of some operations – that if you are deploying forces out of country in the clear expectation that they will blow things up and kill people to achieve their objectives, I would have thought that it would not be unreasonable for parliament to take a view on that.

You can identify a clear class of cases where that would be reasonable but inevitable there would be grey areas where it will be extremely difficult and a matter of political judgement. 127 Lords Constitution Committee, The Constitutional Arrangements for the Use of Armed Force: Oral Evidence, June 2013, Q29 “Former defence chiefs oppose role for MPs in war decisions”, The Guardian, 28 December 2007 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions, HC 923, 2010-12 Session, Q.26 A discussion on the problems associated with declarations of war is available in Library Briefing, Parliamentary Approval for Deploying the Armed Forces: An Introduction to the Issues, RP08/88, November Lords Constitution Committee, The Constitutional Arrangements for the Use of Armed Force: Oral Evidence, 22 May 2013, Q4 Lords Constitution Committee, The Constitutional Arrangements for the Use of

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However, others including Professor White, have suggested that “any significant deployment of troops, whether we know it is going to be for combat purposes or even for peacekeeping purposes, should be governed by this process that we are looking at”. 128 In his submission to the Political and Constitutional Reform Committee’s inquiry in 2013 he

went on to state:

Any War powers resolution or statute should avoid legal language such as ‘use of force’ or the presence of armed conflict and should be triggered by “any proposed decision to deploy significant numbers of British troops/forces to an overseas crisis, conflict or post-conflict situation […] Any statute should apply to any significant deployment of forces whether they are peacekeeping, peace support, peace enforcement or war fighting. To exclude peacekeeping forces on the basis that they traditionally do not become engaged as combatants might tempt the Government into sending the wrong sort of force in order to escape scrutiny, but in any case most modern peacekeeping operations are authorised by the Security Council to use force not only to defend themselves, but to defend civilians and, more broadly, their mandates. 129 In its March 2014 report, however, the Committee itself argued against such a requirement.

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