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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 should also be noted that the current convention is dependent on a shared understanding between Parliament and the Government about which decisions Parliament should have the opportunity to debate. We do not, for example, want the Government to be required to consult with or seek approval from the House on peacekeeping or training missions. 130 At the other end of the spectrum, former Foreign Secretary, Jack Straw, suggested that arming opposition forces, and providing equipment and training should be included in the threshold because “we would be going in for death and destruction by proxy”. 131 The inclusion of peacekeeping or training forces in any threshold would take parliamentary involvement beyond the current expectations of the convention. Arguably one of the dangers of being overly prescriptive and including such a diversity of operations in any resolution or legislation, is the potential for inertia within Parliament. Others fear that such extensive Parliamentary involvement would hamper the UK’s ability to act and in turn its military standing. 132 Exceptions and retrospective approval It is widely accepted that any resolution or legislation defining the role of Parliament will need to contain caveats, whether they be outright Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward: Oral Evidence, 17 October 2013, Q.18 Written Evidence to the Political and Constitutional Reform Committee Inquiry Parliament’s Role in Conflict Decisions: A Way Forward, PCD0001, October 2013 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward, HC892, Session 2013-14, para.34 Lords Constitution Committee, The Constitutional Arrangements for the Use of Armed Force: Oral Evidence, June 2013, Q.36 The effect on operational effectiveness is examined in greater detail on p.44 43 Parliamentary approval for military action exceptions or scenarios which will require the Government to seek retrospective Parliamentary approval.

The deployment of Special Forces is acknowledged as one such reasonable outright exception. But what of military deployments that prove necessary in order to meet a UK international treaty commitment, such as NATO’s Article V? 133 The publication UK Defence Doctrine, for example, considers treaty obligations a legitimate use of armed force in the protection of UK interests. 134 Should Parliament be required to give approval to a military operation that has come about as the result of a pre-existing, legally binding, treaty obligation? 135 On the issue of retrospective approval more generally, in 2008 the Labour Government suggested in its response to the Joint Committee

on the Draft Constitutional Renewal Bill that:

the government believe that the potential dangers of either a retrospective approval process or a detailed debate on the merits of a conflict already underway outweighs the benefits in terms of democratic accountability. It may call into question the credibility of the UK’s use of force, damage international relations and threaten the security and morale of the UK armed forces […] it is also mindful of the possible implications of a parliamentary vote that was not supportive of an engagement that is already in progress and from which it is impossible to withdraw. 136 These concerns continue to be expressed in some quarters but from a government perspective, the debate on retrospective approval appears to have moved on since 2008. Under the convention, retrospective approval will be sought in an emergency situation where there is a need to protect a critical national interest or prevent a humanitarian catastrophe. While the latter scenario is self-explanatory, the question arises as to what reasonably constitutes a critical national interest and how should that be defined in legislation?

The MOD publication UK Defence Doctrine sets out what the Government considers ‘legitimate interests’ when contemplating the

use of armed force. In short, those interests are defined as:

• Protecting the UK’s security – the integrity of the UK, its territorial waters and airspace.

• Protecting the security of the UK’s dependent territories.

• Responding to a UN Security Council Resolution • Treaty obligations • Promoting and defending the UK’s interests worldwide. 137

With respect to the last point, the publication states:

NATO’s Article V is the ‘mutual defence clause’ which states that an armed attack against one NATO state will be considered an armed attack against them all.

Ministry of Defence, Joint Doctrine Publication 0-01, UK Defence Doctrine, Annex

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Government Response to the Report of the Joint Committee on the Draft Constitutional Renewal Bill, Cm 7690, July 2009, Para 233 and 240 Ministry of Defence, Joint Doctrine Publication 0-01, UK Defence Doctrine, Annex

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In view of the UK’s widespread interests and investments, as well as its critical dependence on a stable, secure international environment for trade, it is likely that threats to international security would also represent a threat to our national interests […] in certain situations the interests at stake may only be indirectly pertinent to the national interest, in a narrow sense, but it may be judged expedient to intervene on humanitarian, compassionate or moral grounds. 138 Such a broad definition of national interest would arguably leave any government with considerable discretion as to Parliament’s role. As





Baroness Jay noted in the Lords debate in November 2013:

Any Government would also want to preserve flexibility to take defensive action or deploy force in an emergency. It is likely that any formalised process would leave a wide margin of discretion to the Prime Minister about when and where to see Parliament’s approval, and there might in the end be so many exemptions that the formal process itself became only theoretical. 139 In his written evidence to the Political and Constitutional Reform Committee in 2013 Professor White argued that “in most instances (including of self-defence and humanitarian necessity) there is time for Parliament to be involved in a meaningful way in decisions to deploy significant forces or to use military force. It would be an exceptional situation where the government has to deploy forces in an emergency without seeking Parliamentary approval”. As such he concluded that “prior co-decision making should be the norm and the exceptions should be carefully defined in order to prevent exploitation”. 140 In his previous evidence to the Committee in 2011 he provided more detail on what he considered to be the exceptional circumstances

allowing for retrospective approval:

In any piece of legislation or resolution I would have two clear exceptions... the necessity of self defence if the UK is under attack or one of our allies is under attack, that we don’t have any choice but to act. That is recognised in international law; that is our right, but also increasingly recognised is humanitarian necessity. If there is no alternative and there is a clear legal basis, as there is with the Security Council resolution, then I think those are the two instances where parliamentary approval can be retrospective. 141 In its draft resolution (see Appendix one) the Political and Constitutional Reform Committee considered that retrospective approval should be sought where Parliament was dissolved at the time of a conflict decision; deployment was necessary as a matter of urgency, or where the prior involvement of Parliament would prejudice the effectiveness of any action or the safety of military personnel. In all cases retrospective approval should be sought within 20 days. The only exception to seeking retrospective approval would be in the case of the latter

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HL Deb 28 November 2013, c1605-6 Written Evidence to the Political and Constitutional Reform Committee Inquiry Parliament’s Role in Conflict Decisions: A Way Forward, PCD0001, October 2013 Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions, HC 923, Session 2010-12, Q.22 45 Parliamentary approval for military action scenario where the laying of a report would prejudice national security or the UK’s international relations.

In contrast, in a 2006 report the Lords Constitution Committee recommended that Parliament’s approval should be sought within “7 days or as soon as feasible”. 142 Mission creep All military operations carry the inherent risk that the dynamics of the security situation will change, therefore requiring a shift in the tempo and intensity of operations. A peacekeeping operation has the potential, for example, to quickly shift into peace enforcement, as occurred in Somalia in 1993-94. British military forces were initially deployed to Afghanistan in 2001 in a post-conflict building and regional reconstruction role. Those forces were soon engaged in offensive operations at a much greater scale, over a protracted period of time.

Any resolution or legislation would have to accommodate this potential for ‘mission creep’ and identify the point at which fresh approval for an operation should be sought from the House were the dynamics of that operation to change. This is a position supported by both Sebastian Payne, a Lecturer in Constitutional and Administrative Law at the

University of Kent, and Professor White:

Sebastian Payne: When the Government comes to the House of Commons they must indicate the scale and likely duration of the deployment, and that there should be an obligation to report back. Now, if the Government is required to indicate what the scale of the operation is then I think it follows that, were it to drastically change, there would be an obligation on them to seek fresh approval. 143 Professor White: I think any resolution or piece of legislation should require parliament to be regularly kept abreast of developments. That is part of the consultation. Any significant change in the nature of the deployment or rules of engagement or use of force should require further parliamentary approval. 144 However, what of those scenarios where unforeseen changes to an operation require an immediate military response? Arguably the need to seek fresh parliamentary approval could undermine operational effectiveness and limit the UK’s capacity for action. In such cases, should retrospective approval then be sought? Or should blanket approval for an operation be given at the outset?

Access to intelligence and legal advice If the approval of the House for military action is established in a resolution or in statute, there is also the expectation that the House would require sufficient prior knowledge of issues such as the legal basis, likely duration and size of any deployment in order to make an informed decision. It is also considered likely that there would be Lords Constitution Committee, Waging War: Parliament’s Role and Responsibility, HL 236-I, Session 2005-06, para. 110 Political and Constitutional Reform Committee, Parliament’s Role in Conflict

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pressure for Members to be given access to intelligence briefings.

Indeed, Thomas Raines, a Research Associate at Chatham House, writing of the Syria vote in 2013, suggested that the outcome of that vote “has shown that UK parliamentarians now require a higher burden of proof when making judgements on the use of force than they may have been, although that brings its own consequences, including on the international perception of the UK”. 145 The current convention makes no reference to the information that the Government should make available to Parliament prior to a debate on

any conflict decision and as Lord Wallace confirmed in October 2013:

It is a very strongly established convention that the advice given by the Attorney general which includes advice on interpretation of the law, contested areas where it might be open to legal challenge, for obvious reasons… should not be disclosed to Parliament. 146 Ahead of the Libya debate in 2011, the Syria debate in 2013 and the Iraq debate in 2014 a summary of the Attorney General’s advice on the legality of deployment was published. Many attributed the decision to publish shortened versions of the Attorney General’s legal advice as a reaction to the aftermath of the Iraq campaign in 2003 when two versions of the Attorney General’s legal advice eventually emerged, amidst much criticism.

Going forward, there are two issues to consider: whether the Attorney General’s advice should be published, in full, prior to any debate, and secondly, whether Parliament should have access to any available intelligence. Again, opinions differ across the political spectrum and the academic community on what information should be made available to Parliament, and how, and whether it should be set down in legislation.



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