Written evidence from Professor Philippe Lagassé[1] (UMF 06)

Public Administration and Constitutional Affairs Committee

The Role of Parliament in the UK Constitution: Authorising the Use of Military Force inquiry

As per the Committee’s terms of reference, my submission to your inquiry examines arguments in favour of retaining military deployments as an executive responsibility and royal prerogative, as well as the development of a convention of parliamentary control over the use of force. I further address a potentially unintended consequence of granting the Commons greater control over military deployments: the blurring of the government’s accountability for policy decisions. I then examine how the Canadian case highlights this risk. Thirdly, I analyse the state of the convention in the United Kingdom today and propose that the Committee consider the option of strengthening legislative scrutiny of the executive’s choice to employ armed force, rather than transferring decision-making power to the Commons. To conclude, I argue that the Fixed-term Parliaments Act, 2011 provides further reasons to preserve executive discretion over military deployments.

Summary of Key Points

• The deployment of military forces should remain an executive responsibility to ensure that the government can respond to emergencies and threats with dispatch and discretion, as well as minimize judicial review of deployment decisions.
• The convention of parliamentary control that has developed around the military deployment prerogative requires greater clarity about its scope and application.
• Further efforts to strengthen Parliament’s role in military deployments should avoid a blurring or diluting of the executive’s accountability for these decisions.
• The Canadian experience highlights how military deployment votes can be used by governments to deflect debate, sow doubt about who is responsible for military operations, and weaken the executive’s accountability to Parliament.
• In light of these concerns, future reforms should focus on strengthening Parliament’s ability to scrutinize the executive and hold the government to account for military deployments decisions.
• The Fixed-term Parliaments Act, 2011, which has removed the prime minister’s ability to trigger a dissolution of Parliament, further argues in favour of keeping the deployment of armed force an executive responsibility.

1) To what extent is the deployment military force a necessary responsibility and function of Government? Is the royal prerogative still the appropriate mechanism for deploying military force?

1.1 Executive Authority and Parliament Control by Convention[2]

1.1.1 The deployment of military forces remains a government function and responsibility for several reasons. Above all, the executive must be able to act with dispatch and discretion when using force in certain situations. Speed, surprise, and secrecy can be essential components of military success. Keeping decisions for the use of force within the executive ensures that operations can have these attributes when necessary. Second, the decision to use force, and in what way, should involve a careful weighing of military advice, intelligence and threat assessments, and foreign policy considerations. The government is best placed to weigh these considerations, owing to the classified information they typically involve. Thirdly, having the government responsible for the deployment of armed force ensures that the United Kingdom is better placed to meet its alliance commitments and that British defence policy is consistently and coherently implemented. Dividing the power to deploy armed force between the executive and the legislature could result in indecisiveness and incoherent policies.[3] Fourthly, the royal prerogative has traditionally been met with deference by the courts, with judges noting that matters falling under this power are questions of ‘high policy’. Placing the power to deploy armed forces on a statutory footing may encourage more regular and robust judicial reviews of military actions, which could result in a less consistent and effective British foreign and defence policies.

1.1.2 These issues shaped how Parliament sought to assert greater control over military deployments after the 2003 Iraq War. Parliamentarians and standing committees looked to limit the executive’s authority to deploy its armed forces without the approval of the House of Commons.[4] A first option was to pass an act of Parliament. This could either place legal constraints on the executive’s authority or replace the Crown’s prerogative with a narrower, statutory power. The advantage of such a statutory option was that it would have enshrined the Commons’ role, as well as the limitations on the executive’s authority, in law. There would then have been no question that the executive would be required to abide by the provisions of a statute requiring the approval of the Commons to deploy armed forces. However, this approach would have brought about a fundamental change regarding the legal authorities of the Crown and Commons with respect to the use of the armed forces, with Parliament dividing the power to deploy the military between the executive and the elected House.

1.1.3 Rather than displacing the executive prerogative authority with statute, Parliament and the government settled on a convention. Under this convention, the government seeks the Commons’ approval to deploy armed force when practical and when the operation in question is not essential to the security of the United Kingdom or the protection of its national interests. (My understanding of the convention today is provided at paragraph 3.2).

1.1.4 Relying on convention has notable advantages. Because conventions are political rules, rather than laws, they cannot be enforced by the courts. Constraining the prerogative through convention thus guards against heightened judicial review. Conventions also allow for a greater degree of flexibility than statutory provisions. As conventions do not impose any legal constraints on prerogative authority, the armed forces can still be legally deployed when Parliament is not sitting. Insofar as they are politically binding, however, convention can impose a degree of control on the government. If the House of Commons feels that the executive has flouted this convention, members of Parliament have the option of finding the government in contempt or withdrawing their confidence in the ministry. Without being legally enforceable, then, this convention can serve a check on the government’s authority to deploy the armed forces.

1.1.5 As discussed in my answers to the third question below, however, the exact nature of the convention of parliamentary control is contested. Rather than accept this ambiguity, the Parliament and the government would be advised to arrive at a shared understanding the legislature proper role in military deployment decisions.

1.2 Royal Prerogative versus Statutory Authority

1.2.1 The authority to deploy armed forces under the royal prerogative has endured for a reason. The prerogative is flexible and adaptable, allowing the executive and the military to more easily respond to various threats and circumstances. As an example, the prerogative could be used to address situations ranging from coastal defence, to the cyber defence of military networks, to a retaliatory nuclear strike. The broad category of actions that can fall under the ‘defence of the realm’ grants the executive the necessary freedom of action to effectively protect the United Kingdom and its interests. Similarly, the discretion afforded the government by the prerogative ensures that alliance and treaty commitments can be met with greater certainty.

1.2.2 Placing the power to deploy armed forces on a statutory footing would have a different set of benefits, depending on what the act would aim to do. If the aim of the statute is to grant the House of Commons a role in approving certain types of military deployments, while leaving the executive's underlying prerogative authority intact, then the law could add clarity about the respective roles of Parliament and government.[5] If, on the other hand, the statute sought to displace the military deployment prerogative with statutory authority, challenges are likely to arise in terms of providing the same degree of flexibility as the prerogative, delineating what statutory authority covers and what the remnants of the prerogative still afford the executive, and inviting greater judicial review of deployment decisions. 

1.2.3 An important point that should be made about keeping the prerogative or replacing it with statutory authority is that the latter option is not necessarily more democratic than the former.[6] Too often discussions about the executive's authority over military deployments focuses on form (prerogative or statutory authority) over substance (informed debates, accountability for decisions, balancing executive discretion with legislative control). Democratizing military deployments is less about the source of authority than about the practices that surround its exercise.

1.3 Executive Accountability[7]

1.3.1 As the Committee examines Parliament’s role in military deployment decision, I recommend that careful consideration be given to the relationship between responsibility and accountability. The Westminster system of government focuses responsibility for policy decisions on ministers to ensure that the government can be effectively held to account by Parliament. When Parliament becomes a party to these decisions, responsibility is blurred and accountability diluted. Simply put, there is an inverse relationship between parliamentary control of military deployments and Parliament’s ability to hold government to account for the use of armed force.

1.3.2 Preserving the executive’s authority over military deployments clarifies the government's accountability to Parliament. In accordance with the conventions of ministerial responsibility, the Secretary of State for Defence is individually responsible and accountable for the armed forces and defence affairs, while Cabinet is collectively responsible owing to the convention of cabinet solidarity. Those who have the authority and responsibility to exercise power on behalf of the Crown are accountable to the House of Commons for the conduct of the affairs of government. The government’s accountability to Parliament is a function of the responsibility that the executive holds to make and implement policy decisions. When the executive retains the full authority to deploy armed force, it is fully accountability for these decisions. 

1.3.3 For accountability to function in this way, however, the responsibilities of executive cannot be shared. When responsibility for military deployments is divided between government and Parliament, it is harder to hold the government to account, since those charged with holding ministers to account would be responsible for the policy as well, and thus also accountable for the policy. This applies to the national defence portfolio as much as to every other government department. Accountability for defence affairs is predicated on the government having an unshared responsibility for matters of national defence. As the Canadian Privy Council Office noted when comparing the Westminster tradition with the American congressional system:

              ‘The control of power by its division (rather than by making those who use it constitutionally responsible and daily and directly accountable to the representative of the electorate) tends to weaken accountability for its use. The division of powers makes it difficult to focus responsibility or to hold individuals personally accountable. In any given area of major policy one finds a succession of players in the Administration as well as the Congress each of whom has a degree of responsibility and a share of power, but as a rule there is no one with ultimate responsibility for the exercise of all the power necessary to take action...A system of divided powers makes it virtually impossible to hold individuals personally accountable, except in the narrow sense of prosecuting personal misconduct.’[8]

1.3.4 The Canadian case, discussed below, illustrates how military deployment votes can be used by governments to dilute their accountability to Parliament.

2) What can the UK learn from international comparators?

2.1 Of the core Westminster states, only the United Kingdom and Canada have seen notable efforts to increase the legislature's role in military deployment decisions. Australia and New Zealand have seen calls for such reforms, but they have yet to lead to a significant for their parliaments. Belgium offers another close comparator, given that its constitution was historically derived from the British model. Research suggests that the Belgian experience is close to the Canadian one in terms of how the executive has used deployment votes.[9]

2.2 The Canadian experience highlights how the executive can use these votes to its own advantage, blurring ministerial responsibility and diluting ministerial accountability. While the Canadian executive is better placed to leverage these votes for its own advantage owing to stricter party discipline in Canada, this case nonetheless highlights how parliamentary consultations can be manipulated by governments for their own ends. Indeed, the Canadian experience with military deployment votes can best be described as a form of parliamentary laundering by the executive.[10]

2.3 Parliamentary laundering involves the executive consulting Parliament in a way that is meant to imply that parliamentarians are a party to a policy decision – that is, that the government and the legislature decided the matter together. Although the decision-making authority remains with the executive, laundering makes it seem that the government’s choice was contingent upon Parliament’s approval or recommendations. Parliamentary laundering thus serves to sow confusion about where responsibility for the decision lies, which, in turn, complicates efforts to hold the government to account. When questioned about the decision, the government reminds critics that it consulted Parliament and secured the legislature’s approval prior to acting. The executive can further claim that it acted according to the will of Parliament, despite exercising authority that is the government’s alone. Opposition parties that voice their approval of a policy as a result of an executive’s laundering strategy, furthermore, will be poorly placed to critique the government or hold ministers to account for the policy thereafter. Having approved the policy and being seen as sharing responsibility for it, an opposition party will have an incentive not to discuss the policy if it leads to a poor or controversial outcome.

2.4 In 2006, the Conservative government of Prime Minister Stephen Harper initiated the practice of seeking Commons’ approval of military deployments involving combat. A first vote was held in May 2006 to extend Canada's mission in Kandahar, Afghanistan. Harper made it clear that he would move ahead with an extension, regardless of the result of the vote. His aim in holding the vote was largely driven by a desire to split the Liberal caucus and mute the opposition's criticism of the mission. A second vote was held in 2008. The 2008 vote requested that the Commons approve a second extension of the Canadian Armed Forces’ mission in Afghanistan. This vote offers a particular visible form of parliamentary laundering.

2.5 With casualties mounting and an election on the horizon, the Harper government recognized that extending the mission could harm the Conservatives’ electoral prospects. Obtaining the Commons’ approval of the extension would offset the potential problem in two ways. First, having secured a recommendation that the mission should be extended from an independent panel chaired by former a Liberal Cabinet minister, the Conservatives were confident that the Liberals would support an extension. Once the Liberals voted in favour of the extension, the ability of Liberal MPs to criticize the policy would be diminished. As expected, after the vote, debate about the Kandahar deployment quieted significantly, and both the Conservatives and the Liberals avoided the topic during the subsequent election.

2.6 Second, the 2008 vote created confusion about where responsibility for the deployment lay. Stating that Parliament approved the mission arguably masked ministers’ constitutional responsibility for the decision. In a speech given shortly before the vote, Harper stressed that the mission was supported by both the Conservatives and the Liberals and implied that the decision was one that parliamentarians, rather than the executive, would make. As he noted when discussing the extension: ‘It is a clear and principled position. But it is not a Conservative position or a Liberal position. It is a Canadian position that can be supported by a majority of the elected representatives of the Canadian people’.[11] While there was surely a degree of sincerity in the prime minister’s statement, the benefit to the executive of clouding where the responsibility to extend an increasingly unpopular mission belonged should not be overlooked. Holding a parliamentary vote to approve the extension served this laundering purpose well.

2.7 Since 2008, Canadian governments have continued the practice of holding votes to obtain the Commons' support for deployments involving combat. The timing of the votes have been decided by the government and they have arguably served to put an end to debate about the deployment decisions.[12] Given that the executive has explicitly rejected the notion that it is required to consult the House of Commons, and that governments only hold these votes when they know they will carry them, the practice has had little effect on the balance of power between Parliament and the government in Canada. Instead, it has provided a semblance of reform and democratization, while drawing attention away from other initiatives that could strengthen legislative scrutiny.

3) What are the conventions governing the deployment of military force in the United Kingdom?

3.1 A convention of parliamentary control over the deployment of military force emerged in the United Kingdom between 2003-2013, but has since been weakened.[13] Unlike the reform of other royal prerogatives, such as those that governed the civil service and the dissolution of Parliament, the executive has succeeded in preserving the prerogative as the authority to employ armed force, both internally and overseas. As the 2011 Cabinet Manual further implies, the executive has only ever acknowledged a convention to hold a debate on military deployments rather than granting the Commons control of deployment decisions.[14] More recently, the May government has arguably narrowed the convention of parliamentary control that seemed to have been established in 2013. Specifically, the air strikes in Syria authorized by the May government in April 2018 demonstrated that the executive retains significant of discretion in deciding when the House of Commons will be consulted.

3.2 Currently, the convention of holding a Commons vote on military deployments appears to hold when: a) the deployment is significant, either in terms of size or controversy;

b) the deployment is likely to involve sustained combat or notable risk to British forces; c) the deployment is not urgent, an emergency, and not necessary to defend the realm or protect vital national interests. Conversely, the executive can exercise discretionary prerogative authority to deploy armed forces when: i) there is an emergency or a situation that requires an immediate response; ii) the British territories, public order, or vital national interests are threatened; iii) the action is of limited scope, duration, and risk; iv) the operation does not illicit significant political debate or controversy.

The August 2013 Precedent

3.3 Momentum toward greater parliamentary control of military deployment grew significantly in the decade that followed Britain’s involvement in the 2003 Iraq War. A possible British intervention against the Syrian regime in the summer of 2013 brought the issue to the fore. On 29 August 2013, Prime Minister David Cameron recalled the Commons to vote on a motion condemning the Syrian government’s use of chemical weapons. It was defeated 272 to 285. Following the vote, the leader of the opposition, Ed Miliband, asked whether the prime minister would respect the vote and not exercise prerogative authority to deploy the armed forces. Cameron made clear that he would respect the will of the House. The vote set an important precedent. By allowing the House to decide Britain’s involvement, the prime minister suggested that the authority to decide the deployments was now divided between the executive and legislature; the legal authority to send the armed forces remained with the government, but the political authority to dispatch them rested with parliamentarians. Cameron’s promise to respect the vote, in effect, indicated that the Commons had secured an informal veto over exercises of the military deployment prerogative. While the government could have ignored the vote, doing so would have been politically untenable.

3.4 Over the next two years, the nature of the convention was refined. In August 2014, Cameron again asked the Commons to approve a military deployment, this time to assist Iraqi forces against the Islamic State. Leading up to the vote, the prime minister acknowledged that a convention of Commons approval now existed. However, Cameron further noted that the executive retained the authority to act in times of urgency.[15] After the Cameron government ordered a targeted killing in Syria in September 2015, on the grounds that the individual represented a threat to Britain, the exceptions were expanded to include acts of self-defence. When asked about the government’s understanding of when votes were required, defence secretary Michael Fallon replied that the convention only applied to ‘offensive military operations’.[16] This meant that the contribution of military trainers to Ukraine was not brought to a vote, nor was the deployment of forces to assist with the containment of Ebola. Starting in the fall of 2015, however, the Cameron government undertook a concerted effort to garner support for air strikes against the Islamic State in Syria. The care taken to win the Commons’ approval, and lack of any questioning about the need to secure it, seemed to suggested that a robust convention was taking root.

The April 2018 Precedent    

3.5 In April 2018, Prime Minister Theresa May ordered air strikes against the Syrian regime without holding a vote in the House of Commons. In light of the August 2013 precedent, it might have been argued that the government was required to hold a vote before authorizing these strikes. The prime minister clearly disagreed. The contrast between Cameron's failed August 2013 vote and May's decision not to hold a vote was quite striking. Cameron proceeded with significant caution, and he backed down immediately when the Commons voted against his motion. May accepted notable political risk by circumventing the Commons, but she did not face any consequences.

3.6 Following the air strikes, May argued that she acted within the parameters of the convention. The prime minister argued that her actions fell within the convention, given that the operation was an emergency. Since backbench MPs choose not to sanction her in any way, her interpretation stands as an important precedent. The case can be made that this precedent has expanded the executive’s discretion to deploy armed forces on combat operations without consulting the Commons.

3.7 In light of the events of April 2018, it is not difficult to imagine how future governments could not use this precedent to avoid a vote on limited air strikes or strikes from the sea. While the convention of parliamentary control may still apply to major land operations or sustained aerial or naval deployments, the April 2018 precedent suggests that the executive need not consult the Commons if a deployment is of limited duration and involves minimal risk to British forces.

3.8 Finally, it is notable that May acted despite opposition calls for a vote in a hung parliament. This weakens the convention more than the specific nature of the action. Until greater clarity is provided, the convention risks becoming a pro forma procedure applied to major operations that governments know the Commons will approve.

4) What role, if any, should Parliament have in the authorisation of military force?

4.1 As discuss in my answer to the first question, the executive has legitimate reasons for wishing to retain its discretion over military deployments. Speed, surprise, and secrecy are often necessary to reduce mission risk and ensure operational success. Emergencies and threats to the national interest also argue in favour of retaining the executive’s authority, as does the appeal of ensuring a coherent and consistent foreign policy. Subjecting military operations to judicial review represents another legitimate concern, as does the loss of accountability that can occur when the responsibility for the use of armed forces is divided between the government and Parliament. Rather than aiming to increased parliamentary control of military deployments, I recommend that steps be taken to increase parliamentary scrutiny of the executive’s decisions in this area.

4.2 There are four ways to improve parliamentary scrutiny of military operations while preserving proper executive discretion and focused government accountability.

4.3 First, when the government has decided to deploy the military on an operation, the Prime Minister or Secretary of State for Defence should be required to provide the House of Commons with the mission objectives, anticipated threats and risks, the operation’s expected duration, details of which units that will be deployed and their rules of engagement, the sustainability of the deployment and its effect on training and readiness, rough order of magnitude mission costs, and the legal justification of the operation. A substantive debate should then be held based on this information.

4.4 Next, the Commons Defence Committee should be tasked with overseeing the mission, with ministers and senior military commanders providing regular briefings to the committee members. The Defence Committee should then periodically report on the operation to the Commons, and the House should hold additional debates to discuss the committee’s findings and further question the government.

4.5 Third, once a mission has ended, the Defence Committee or House of Lords International Relations Committee should be tasked with reviewing the operation and producing a report on lessons learned. The committee's report could provide Parliament’s assessment of the mission’s successes and failure, and what could be done to improve future operations.

4.6 Finally, the government could be required to respond to the committee’s report, and include a summary of its own, internal lessons learned exercise.

4.7 None of these recommendations are incompatible with holding a binding vote. But the unintended consequences of holding a vote could arguably affect how well these other measures would fare. Committee members may less rigorous in scrutinizing the operation if a majority of MPs voted in favour of the operation, for instance, particularly if members of the committee themselves voted for the deployment.

 
a)  How should this role be assured?

4.8 A statute could be enacted that outlines the responsibility of the government to provide the House of Commons with the mission objectives, anticipated threats and risks, the operation’s expected duration, details of which units that will be deployed and their rules of engagement, the sustainability of the deployment and its effect on training and readiness, rough order of magnitude mission costs, and the legal justification of the operation. The statute could also ensure proper scrutiny of the operational by the Defence Committee, the Lords' International Relations Committee, or a special committee established for the particular military mission. The form of this statute might resemble the provisions of the Constitutional Reform and Governance Act, 2010 with respect to parliamentary scrutiny of treaties.

5) Conclusion

5.1 To conclude, I wish to highlight how the Fixed-term Parliaments Act, 2011 argues in favour of retaining executive discretion over military deployments. Prior to this legislation, governments had the option of making military deployment votes matters of confidence, with the possibility of a dissolution if the government was defeated. In linking these votes to a possible dissolution, governments could signal their belief in the necessity of military action. The Commons was then forced to choose: if MPs truly opposed the proposed deployment, then could defeat the government and risk a dissolution; if, on the other hand, they were not ready to face the electorate, then they would have to accept the executive's preferred course of action.

5.2 Today, Prime Minister Tony Blair's decision to make the vote on Britain's participation in the Iraq War a matter of confidence can be seen as a manipulative tactic that facilitated a catastrophe. But the Iraq War vote should not blind us to other considerations. Above all, the Iraq War demonstrates that votes do not, in and of themselves, prevent bad decisions. Nor should we ignore the opposite possibility, namely that a negative Commons vote might prevent a government from making a correct decision. The removal of the prime minister's ability to advise a dissolution of Parliament increases the likelihood of this possibility.

5.3 Under the Fixed-term Parliaments Act, 2011 the Queen’s prerogative over dissolution has been displaced. The prime minister can no longer request a dissolution; only the House of Commons can dissolve Parliament prior to the date set out in the law. Before the passage of the Act, a prime minister could request a dissolution following a vote of non-confidence. Indeed, it was this threat of an election that arguably made the declaration of a vote as a matter of confidence a means of bringing party members into line. Now, the prime minister can still declare that votes are matters of confidence, but without the power to request a dissolution, this means that they are threatening their resignation alone. Since the resignation of a prime minister does not directly impact members of Parliament who are not in Cabinet, the threat is arguably weaker. Equally important, since the prime minister can no longer automatically turn to the electorate after a vote of non-confidence, resignation is a rather unpalatable option. Put bluntly, prime ministers have few incentives to resign, regardless of how the Commons votes, since their choices have been narrowed to heading the government or not.

5.4 The Fixed-term Parliaments Act, 2011 therefore, restricts the prime minister’s options when facing a Commons determined to veto a military deployment that the executive considers vital. The prime minister can resign if the Commons does not accept their reasons for acting; the prime minister can simply accept the Commons’ veto over a matter of foreign or security policy that touches on a core executive responsibility; or the prime minister could ignore the Commons and deploy the armed forces, daring MPs to move a motion of non-confidence after the fact. All three options introduce complex parliamentary politics and potential constitutional crises into foreign and security policy decisions that should ideally be focused on the threats or interests that the United Kingdom seeks to protect.

5.5 The more complicated executive-legislative relations introduced by the Fixed-term Parliaments Act, 2011 further highlights the need for caution when considering reforms of the military deployment prerogative. Rather than continuing to focus on who decides, Parliament or the government, the Fixed-term Parliaments Act, 2011 reinforces the need to redirect the conversation toward how best to hold a responsible executive to account for the deployment of armed forces.

February 2019