Britain’s government announced recently that it has dropped proposals to introduce a British War Powers Act. In most countries where parliamentarians enjoy some sort of influence over military deployment powers, their role is codified in this sort of law. It can form part of a written constitution, as in the United States, or it may be defined by subsequent legislation.
Britain, with its unwritten constitution and wide reliance on convention over formal legislation to delineate the scope of executive powers, perhaps naturally does things differently. Under the present arrangements, the Prime Minister exercises the formal right to direct the armed forces in the name of the monarch, while MPs by informal convention expect the opportunity to veto combat deployments. By reserving executive powers to the government while introducing constraints in the form of rules that everyone follows though they lack the force of law, this system perfectly fits Britain’s broader constitutional tradition, with its reliance on accumulated precedents and historical practices over written law.
That is not in itself a reason to abjure legislation. The present convention leaves several questions open. Most obviously, the question of what sort of deployment warrants a parliamentary vote depends on how the government presents its actions and how MPs respond. If a critical mass demand a say, they will probably get one. Otherwise, they will not. Most MPs wanted to vote on actions in Iraq in 2003, Libya in 2011, Syria in 2013, Iraq in 2014 and Syria in 2015. They were rewarded. Most did not want a vote on operations to counter Ebola or to support French activities in Mali in 2014. There were accordingly no votes. A War Powers Act could stipulate that MPs should have a say on combat but not on non-combat deployments.
Since the Libya vote in 2011 the Cameron government has accepted that MPs should have their say before any actual deployment. It has reserved the right to act first and seek permission later only in an emergency or in direct self-defence. What this means for Britain’s international obligations, for example as a member of NATO, remains unclear. Would a future government, referencing Article 5 of the Washington Treaty, treat a Russian attack on the Baltic States as necessitating a British response? Under what circumstances might a situation requiring British combat forces not constitute an emergency? A War Powers Act could specify at what point in the decision-making process MPs should be involved, as well as reserving the right of ministers to act in an emergency or in fulfilment of treaty obligations.
Finally, a War Powers Act might profitably clarify the sort of information MPs should hold before deciding if Britain should use force. Recent debates suggest they care about three distinct questions surrounding any potential deployment: Is it necessary? Is it legal? What will it achieve? MPs are particularly interested in understanding the strategic case for British involvement in any given conflict. They want assurance that the use of force complies with international law. They want clear objectives, and some sort of exit strategy. All of these questions could be defined in law, and it is difficult to argue that forcing governments to answer them would be anything other than a positive step.
The problem with all of this, however, is that enshrining each of these points in written law would actually reduce MPs’ influence over their interpretation. Under the present convention, parliamentarians can argue with ministers about what constitutes a combat deployment, as for example they seem certain to do if Britain sends troops to help train Libyan government forces. They can challenge the government over what constitutes an emergency, and accept or reject strategic and legal arguments laid before them. Opponents of government policy might not necessarily win on any particular point. But whether they win or not will depend on how their fellow MPs respond.
Royal prerogative powers are not justiciable. They are not, in other words, subject to review by the courts. Whether a government acts properly in using prerogative powers depends on convention, and the power to interpret conventions rests with parliament. If MPs were to pass a War Powers Act, they would give up the right to argue over the ambiguities surrounding their present power, vesting them instead in the hands of the courts. Instead of elected MPs deciding what constituted a combat deployment or an emergency, interacting with the government, that responsibility would fall on the unelected judges of the Supreme Court. The government would lose power, which advocates of greater executive constraint would welcome. But parliament would lose power too, something I doubt most MPs want.
There are further reasons not to want to place the interpretation of military deployment decisions in the hands of the courts. To begin with, judges can only act after the fact. The courts are reactive and never proactive entities. They can rule that a decision to use force was illegal, with hindsight, but they do not comment on hypotheticals and so can offer no guidance in advance. Under the present arrangements, ministers can and do consult MPs ahead of any decision to determine what parliament will accept. They would not be able to do this if forced to gain approval from the courts, instead having to act first and hope for retrospective approval, which might not be forthcoming. Similarly, a formal War Powers Act would not just bind the government itself, as the present convention does. It would also apply to those tasked with executing ministers’ orders. At the moment, if MPs subsequently decide a government improperly described a military deployment as an emergency measure in order to avoid a prior House of Commons vote, they can censure ministers or even turn them out of office. If a court were to make a similar decision, however, individual military officers who followed orders in good faith would retrospectively be found to have broken the law, raising the prospect of widespread prosecutions. The principle that following orders is no defence for breaking the law, established at Nuremberg, would apply. That is not, I would argue, what even proponents of a War Powers Act want.
For all its ambiguities, in other words, the present system probably offers Britain the best of both worlds. This was the conclusion reached by the House of Lords Constitution Committee in its 2013 report, probably the best available on the subject. Governments are by convention required to seek MPs’ approval before launching military combat operations, and MPs can argue over what exactly that entails. Decisions about military deployments remain vested in the executive, but the executive is accountable in the legislature for them. There is still a role for the courts, but it is focused on jus in bellum rather than jus ad bello. That, it appears to me, is what most parliamentarians, and most British people, ultimately want.
James Strong is Fellow in Foreign Policy Analysis and International Relations at the LSE. He tweets @Dr_James_Strong.
Image: Cibi Chakravarthi
