2003 No to Iraq march. Flickr / Vertigogen
It’s now ten years since the joint US and UK invasion of Iraq and the one good that came from the protests here in Britain is still not realised. That is, constitutional acceptance that future governments would have to obtain the prior approval of MPs in the House of Commons before committing British troops to action abroad.
As it became clear that Tony Blair intended to join George W Bush’s invasion of Iraq, MPs and the public demanded the recall of Parliament in late 2002 to debate the impending action. The demand led to substantive debates in 2003 on a government motion in Parliament for action against Iraq. These debates were taken to create a precedent for the constitutional convention that governments would have to seek prior approval from the House of Commons for the deployment of the armed forces in actual or potential ‘conflict situations’. However, the convention that is supposed to anchor Parliament’s role is proving to be an elusive mirage in the political desert.
It remains the case in law and practice that the government, led by the Prime Minister, has total liberty of action to dispose of the armed forces as he or she sees fit. Parliament has no legally established role in approving the UK’s participation in military action and any formal parliamentary involvement continues to be determined by the government. Under the Royal Prerogative, all decisions involving defence and the armed forces are exercised by the government, on behalf of the Crown; and in the event of taking military action, constitutional convention requires the authorisation only of the Prime Minister.
However the parliamentary debates on Iraq did establish a convention that Parliament had the right to be consulted in advance on any future military action, cemented by a war powers resolution passed by the House of Commons in May 2007:
Hansard, HC vol 460 col 492, 15 May 2007
"Resolved, That this House welcomes the precedents set by the Government in 2002 and 2003 in seeking and obtaining the approval of the House for its decisions in respect of military action against Iraq; is of the view that it is inconceivable that any Government would in practice depart from this precedent; taking note of [various parliamentary reports] . . . , believes that the time has come for Parliament’s role to be made more explicit in approving, or otherwise, decisions of the Government relating to the major, or substantial, deployment of British forces overseas into actual, or potential, armed conﬂict; recognises the imperative to take full account of the paramount need not to compromise the security of British forces nor the operational discretion of those in command, including in respect of emergencies and regrets that insufﬁcient weight has been given to this in some quarters; and calls upon the Government, after consultation, to come forward with more detailed proposals for Parliament to consider.
The Labour government under Gordon Brown proposed to introduce a formal resolution in the House of Commons, giving Parliament such a role in the deployment of troops in situations of armed conflict. Both the Conservatives and Liberal Democrats in opposition supported giving Parliament this formal role. The government actually acknowledged in 2011 that the convention existed; and in the debate on the deployment of forces in Libya on 21 March 2011, William Hague said the government would “enshrine in law for the future the necessity of consulting Parliament on military action.”
But it ain’t happened yet. The commitment of British forces in Afghanistan has never been subject to a vote on a substantive motion tabled by government. Not even in 2006, when the then foreign secretary, John Reid, despatched troops into the Helmand campaign, saying, “We're in the south to help and protect the Afghan people to reconstruct their economy and democracy. We would be perfectly happy to leave in three years time without firing one shot.” This and other deployments have been announced to Parliament by way of ministerial statements.
In a speech on Royal Prerogative powers that year, David Cameron said, “Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making government more accountable. Just last week, we first heard about the government’s decision to send 4,000 troops to Afghanistan in the pages of the Sun newspaper ..."
In the case of Libya, on 10 March 2011 Sir George Young reassured MPs who were calling for a vote on UK participation in the no fly zone, recognising the existence of the convention and stating that the government would give the House “the opportunity to debate the matter before troops are committed” – with the caveat that it would not be able to do so in an emergency. On 18 March the no fly operation was announced in an MOD press release. At the same time David Cameron indicated that a substantive motion seeking retrospective approval for the disposal of forces would be tabled for debate three days later, arguing that Britain had to move forward immediately on the basis of the Security Council resolution. Some emergency!
The deployment of British military advisers and troops to Mali and neighbouring countries, along with a support crew for transport aircraft, was not subject to debate or a vote in Parliament. Andrew Lansley, for the government, told the House of Commons that they would observe the convention were troops to be committed to conflict, dismissing fears of ‘mission creep’.
The fact is that ministers, the civil service and political parties have played fast and loose with the convention – first you see it, now you don’t. The first draft in 2010 of the Cabinet Manual, which purported to set out “the main laws, rules and conventions” of government in the UK, entirely omitted the convention on Parliament’s role in the deployment of troops. Given the prevailing assumption that the Cabinet Manual was an embryo codified constitution, this was a very disturbing omission. Graham Allen MP, chair of the Political and Constitutional Reform Committee (PCRC), Democratic Audit and others seized on the omission, and the PCRC engaged in intense dialogue with Sir Gus O’Donnell, the cabinet secretary and chief author of the manual, over this and other omissions. Allen had a particular interest in the issue, as he had acted as unofficial whip of MPs demanding a vote on Iraq and had blackmailed Blair into the recall of Parliament by making plans for an alternative parliamentary debate in Church House, Westminster.
The current Cabinet Manual describes the position as follows:
5.36 Since the Second World War, the Government has notified the House of Commons of significant military action, either before or after the event, by means of a statement and has in some cases followed this with a debate on a motion for the adjournment of the House.
5.37 In the two most recent examples of significant military action, in Iraq and Libya, Parliament has been given the opportunity for a substantive debate. Debates took place in Parliament shortly before military action in Iraq began in 2003. In relation to Libya, the Prime Minister made a statement in the House of Commons on 18 March 2011 in advance of military action, which was followed by a government motion for debate on 21 March, expressed in terms that the House ‘supports Her Majesty’s Government [...] in the taking of all necessary measures to protect civilians and civilian-populated areas’.
5.38 In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate.
The Political and Constitutional Reform Committee is still pursuing the issue. In a report in September 2011, its members criticised the government for failing to publish any sort of timetable for progress, calling for a government statement “as soon as possible after the return of the House in October”. No legislative proposal was forthcoming. According to Lord Wallace of Saltaire, in answer to Parliamentary Questions in November 2012 and February 2013, the government is “currently exploring options for formalising the convention”.
A House of Commons Library briefing quotes reports that “officials are 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.” At the same time the Daily Telegraph has reported 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 was quoted as stating that “it would be crazy to codify it, very dangerous indeed”.
Let’s be clear, most constitutional conventions are putty in the hands of the executive. As I have shown, the differing circumstances of conflicts and potential conflicts militate against consistency in the exercise of the war powers convention, and the provision for retrogressive approval in an ‘emergency’ boosts even more the government’s powers for evasion. Cameron’s justification for acting first, then going for approval, over the Libya operation shows just how open to abuse the convention is. The government evidently finds it very difficult to reconcile itself to the convention even though it can wriggle out of it in practice. This surely is because there are MPs in the House of Commons who are committed to the principle that the government must submit itself to parliamentary approval for the deployment of troops abroad and who will insist on the convention being observed in potentially embarrassing circumstances in the future.
The convention is worth fighting for, first to uphold the House’s original resolution against the government’s equivocation, and secondly, to ensure that any decision to commit troops abroad will be subject to parliamentary scrutiny or political controversy in the House. The convention is of course also an important element in the ongoing struggle to re-balance the unequal balance of power between an overly powerful executive and a weak Parliament and make government truly accountable.