Written evidence from Dr Tara McCormack[1] (UMF 08)
Public Administration and Constitutional Affairs Committee
SUMMARY
1. From the Royal Prerogative to the Iraq War 2003 and questioning the Royal Prerogative
1. 1 Historically the legitimate authority to take the country to war has resided in the Crown as part of the set of powers commonly known as the Royal Prerogative Powers (RPP). RPP have migrated over the centuries as the locus of legitimate power has changed in Britain. Most RPP now reside with the executive (broadly speaking). The authority to take the country to war has until the end of the Cold War resided within the executive.
1.2 A number of things changed after the end of the Cold War that put a focus on RPP in general and on the specific power to go to war. Firstly, during the 90s and 00s there was a serious concern that the British democratic process was losing legitimacy. In this context there were important political and institutional changes (from publically naming the head of MI5 to constitutional changes initiated with a view to re-forging trust between the government and citizens). This was most apparent in New Labour’s programme of constitutional reform started in 1997 but there was a strong cross party consensus summed up by the Conservative Party’s Democracy Task Force led by Kenneth Clarke in 2007:
There is a sense of malaise and decay surrounding British government and British democracy, reflected in widespread public cynicism, a fall in turnout and clear polling evidence of loss of faith in both the intentions and competence of politicians. It is this crisis of confidence that the Democracy Task Force was set up to address. (p1)
1.3 The RPP over war was seen as unfinished business. The idea of the executive wielding accountable power was increasingly untenable.
1.4 The Iraq War was transformative. Such was the extent of British public opposition to extending the ‘war on terror’ to Iraq that then Prime Minster Tony Blair advocated to then American President George Bush that false links between Saddam Hussein and Al Qaeda should be drawn in order to garner public support for intervention (BBC 2016). On the eve of military action the Labour government held a vote in Parliament on authorising action. At this point it was argued that a new Parliamentary Convention had definitely been established. Gordon Brown also took the same view ‘Now that there has been a vote on these issues so clearly and in such controversial circumstances, I think it is unlikely that except in the most exceptional circumstances a government would choose not to have a vote in parliament.’ (Tempest 2005)
1.5 However, the argument that a new Convention had been established was belied by the numerous excellent and in-depth Parliamentary reports and inquiries on the topic that the Iraq vote kick started. It would perhaps be more factual to say that the Iraq vote propelled the RPP on war into the public domain. The ensuing reports and debates established that political and constitutional opinion remained divided as to the extent of the existence of the new Convention.
1.6 Part of the problem is the nature of constitutional conventions themselves. As a number of constitutional experts pointed out, conventions exist to the extent that we follow them. The House of Lords (2013) called constitutional conventions a ‘term of art’. We might agree on a convention but may disagree on when the convention might be applied (Marshall, 1985: 34). Conventions may also be of long duration or newly established, an example of the latter would be the Sewel Convention (McHarg, 2008: 858)
2. Cameron and the establishment of the convention
2.1 Over the course of the 00s both parties pledged that they would ask Parliament for authorisation to go to war. Although Cameron did engage in military intervention in Libya as part of the NATO coalition he did not ask Parliament. After Libya there was a build up towards intervention in Syria. Cameron was keen to intervene but there was little political support for this to the extent that a number of Conservative MPs wrote to Cameron to demand a debate and vote before any decision to arm anti-government groups. In August 2013 Cameron went to Parliament to ask for authorisation to launch airstrikes against the Syrian government following the use of chemical weapons. Much to his surprise, Parliament said no. The debate in Parliament was in-depth, with fears expressed about mission creep, end goals, further destabilisation. Jim Sheridan memorably argued, ‘We must understand from previous conflicts that war is not some sort of hokey-cokey concept; once you’re in, you’re in (Hansard, 29 August, 2013: Col 1447).
2.2 Following this vote it was argued that the Convention had been firmly established and that it would be unthinkable for a future government to go to war without asking Parliament (Chalmers, 2013). For many political commentators the Convention was a negative development as it would stop the government from acting. In 2015 Cameron again asked Parliament for authorisation to join in airstrikes, now against ISIS. Parliament said yes. After this, the Government explicitly acknowledged the Convention but stated that it was relevant to offensive military operations, in particular committing troops (Fallon cited in Mills 2018: 35).
3.The April 2018 airstrikes and the end of the short lived convention?
3.1 On 14th April 2018 the Conservative Government, together with France and America, launched airstrikes against the Syrian Government following the use of chemical weapons. There was a week of intense political and media discussion globally during the week between the chemical weapons use and the airstrikes. Polls conducted in Britain showed the majority of British people did not support airstrikes. Russia threatened retaliation if any Russian personnel were harmed. May refused to recall Parliament. May argued that although the Convention did exist, the situation did not fall with the remit of the Convention. It is of note the situation was exactly the same as in 2013 and 2015 when Cameron asked Parliament for authorisation of airstrikes only, with troops explicitly ruled out.
3.2 In the emergency debate on 17 April May acknowledged the existence of the Convention but set out four fundamental reasons why the airstrikes did not fall within the remit of the Convention: effectiveness; protecting intelligence; the need to work closely with allies and to keep allied plans secret; and that there was an existing legal basis for the intervention already, that of humanitarian emergency. May also argued that the military action the government had just taken demonstrated that putting the Convention on a statutory footing would stop Britain from being able to act flexibly (Hansard, 17th April, 2018, Col 205 – 208).
3.3 The first three reasons are all related to secrecy and effectiveness. May categorically told the House that the Syrian government was unaware of any military plans for the operation (Col 205). However, it was reported in several media outlets (The Telegraph, Reuters, Al Jazeera, Sky) that America and Russia had discussed the strikes in advance. French Defence Minister Florence Parly informed the French Parliament of this (Al Jazeera, 2018). This would mean also that the Syrian Government would have known of the strikes. It is not possible to say for certain exactly who knew what, but it is notable that the targets were all evacuated in advance. The advantage of this for world peace was to avoid a potential clash between nuclear powers, for which we can all be very thankful. However, it makes rather a nonsense of claims about secrecy and effectiveness. Mattis called the strikes ‘show strikes’ (Kheel, 2018).
3.4 We are left with the idea that the strikes could not be discussed with Parliament in order to maintain secrecy but the ‘enemy’ was in full possession of the information. Certainly had Theresa May come to Parliament and said - we wish to indulge in some show strikes (at the cost of hundreds of thousands of pounds in a time of austerity) that will damage a couple of evacuated facilities and leave the Syrian Government’s capacities untouched but with the added wildcard of potentially ending up in WWIII - there might have been some interesting contributions from the Commons.
3.5 The legality justification is also weak. As the House of Commons briefing paper explains, there is serious dispute about the existence or otherwise of an international legal basis of humanitarian intervention (Ware 2018). In this context however it is irrelevant for the Convention which is about domestic authorisation of war. International law may well be important in terms of making a case for the domestic argument but it is a separate matter. The action also did not meet the government’s own criteria for humanitarian action, for example urgency and last resort.
3.6 Jeremy Corbyn tabled a motion that would allow for a retrospective vote of disapproval on Government action (‘That this House has considered Parliament’s rights in relation to the approval of military action by British Forces overseas. Hansard, 17th April, 2018, Col 192). The motion however was passed by 317 votes to 256. Ultimately, constitutional and legislative constraints on executive behaviour are only as good as the political will to uphold them, as Jenkins (2007) argued in response to the 2006 report of the House of Lords Select Committee on the Constitution entitled Waging War: Parliament’s Role and Responsibility
4.What is left of the Convention after the April 2018 airstrikes and what should happen?
4.1 Essentially the Government has committed itself to follow the Convention apart from when it chooses not to. In effect this means a weak to non-existent Convention. More worrying than the Government attempting to wriggle out of oversight is however that Parliament would not retrospectively assert its rights. and hold the Executive to account. This also supports long standing critiques of Parliamentary powers over the executive; political context and politicisation in which the actual issue at hand is secondary to questions of party loyalty and party critique.
4.2 This is not a situation that can be maintained for a number of reasons. Democracy; a recent history of catastrophic foreign policy decisions and dishonesty from both parties; the limits to existing Parliamentary scrutiny; the changing nature of war; last but not least, a rapidly changing geopolitical context.
4.3 Democracy. The question is simple; who is to govern? In a democracy, it must be the citizens, especially when it comes to matters of war and peace, potentially existential decisions not just the life and death of soldiers but the state. As Brazier argued in 1999:
How odd – perhaps bizarre – it is that the approval of both Houses of Parliament is required for pieces of technical, and often trivial, subordinate legislation, whereas it is not needed at all before men and women can be committed to the possibility of disfigurement or death.’ (Brazier, 1999: 123).
In the specific recent case, the Government knew full well that the majority of British people were against any intervention. Ultimately, it is not for the Government to make these decisions.
4.4 Recent history of catastrophic foreign policy decisions and limits of
Parliamentary scrutiny. The Society for Conservative Lawyers argue that the executive should maintain control over this power because the executive only ever makes the best of judgements and for the greater good ‘as it is hard to imagine a situation where military force would be deployed not in response to a threat to a national interest or to prevent a humanitarian disaster’ (2019).
4.5 It is possible that colleagues may not be familiar with recent British history. They may have missed the excellent Chilcot Report. Recent history shows us that it is simply not the case that the Executive always deploys force in the national interest. The Iraq war is a perfect illustration of a decision to go to war that was not based on any kind of threat to a national interest or indeed to prevent a humanitarian disaster (given what had already happened). In fact, as the Chilcot Report clearly demonstrates, groups within a state may decide to go to war for a number of reasons that are nothing to do with national interest and indeed in the face of intense opposition. Not only that, but the then Prime Minister aided and abetted the creation of a false narrative for war. One can also make a similar argument about the Libyan intervention in which as the House of Commons’ own excellent report on the intervention demonstrates there was weak intelligence; over-interpretation of dangers and an utter failure of political negotiation on our part. All used to support the Government’s will to intervene. The consequences of both military operations have been profoundly against our national interests. The Committee will no doubt be aware of the recent Intelligence and Security Committee Report on Britain’s role in extraordinary rendition. It is made clear that successive Executives have mislead Parliament. The point here is not to go over the inequities of our Governments but to point out the simple established fact that recent Governments have not acted in the national interest or out of necessity.
4.7 The Chilcot Report, the Libya Report and the ISC Report also demonstrate the limits to existing Parliamentary scrutiny. Make no mistake, these reports are excellent and very hard hitting. But they are retrospective. Extremely so in the case of Chilcot and the ISC.
4.8 The changing character of war. May argued in Parliament that the new Parliamentary Convention was relevant only for planned, traditional (‘boots on the ground’) style military operations, an example would be Iraq. However, this is untenable for a number of reasons. Declarations of war are very uncommon in the post WWII system not least because of the outlawing of war as a legitimate act of foreign policy under the terms of the UN Charter. Moreover, post Iraq, there has been an important shift in how states are fighting war, towards what Paul Rogers has termed ‘remote control’ war, eg drones, special forces, funding of opposition groups and other forms of smaller scale military intervention that avoids the public scrutiny of large scale traditional military deployments.
4.9 The attractions of these methods is that they are seen as controllable, swift and permit the state to act with ‘no skin in the game’ outside of the realm of public debate. For example, despite the fact that the House of Commons voted against ‘boots on the ground’ in Syria, the Government has sent in special forces as The Times reported last week.
4.10 However, as is increasingly being recognised, these methods of intervention are far from consequence free. Intervention is not a neat controllable thing with foreseeable outcomes. An example would be the way in which vast amounts of weapons given to ‘moderate’ Jihadis in Syria ended up in ISIS hands.
4.11 Furthermore, the assumption at the heart of such interventions is that our own definitions will govern how those on the receiving end will define it. A simple thought experiment will illustrate this fallacy. If another government bombed our industrial facilities or funded anti-government militias or sent special forces into Britain, Britain would (rightly) understand itself to be under attack and at war. It would not matter if the state sending in the special forces was saintly Sweden.
4.12 The point here is not to make an argument about the rights and wrongs of specific foreign policies, but to make the simple point that to deny that this is in many cases military intervention is simple sophistry. It does not matter if we believe we are acting as a force for good in the world. Limiting any convention or future statute to large scale military operations planned in advance means that most methods of contemporary warfare are simply excluded. We should follow the German model of Parliamentary approval for all forms of military intervention.
4.13 Rapidly shifting geo-political order. Brazier’s comment however does not cover the full potential of war. It is not just British armed forces that will be sent to their possible death but that military action is not a neat scientific experiment that can be finished when required. A country may become embroiled in a far greater conflict than envisaged. Since the end of the Cold War Britain, and other powerful states, have become used to the idea of ‘wars of choice’, wars waged against comparatively poor and weak states ostensibly in the name of human rights, that have begun and ended as domestic policy has changed. With the ‘return’ of Russia to global power politics, China becoming much more assertive over its backyard, and a relative decline in American power and authority the easy assumptions that guided post Cold War foreign policies must be left behind and a more realistic assessment of the behaviour of other states made. Regardless of what one thinks about Russian or Chinese actions (or indeed Western actions), the point is Western states will have less and less of a free hand to intervene where they will without potential clash with other great powers, something that somewhat raises the stakes of an intervention. This is a reality that not all British politicians have grasped.
References
Al Jazeera (2018), Syria’s War: France Rules Out Confrontation with Russia, April 14 https://www.aljazeera.com/news/2018/04/syria-war-france-rules-confrontation-russia-180414063828974.html
BBC (2016), Chilcot Report: What Blair Said to Bush in Memos, July 6, https://www.bbc.co.uk/news/uk-36722312
Chalmers, Malcome (2013) Parliament’s decision on Syria: pulling our punches”, RUSI Analysis, 30 August 2013
Democracy Taskforce (2007), An End to Sofa Government, Better Working of Prime Minister and Cabinet, available from http://image.guardian.co.uk/sys-files/Politics/documents/2007/03/27/DemocracyTaskForce.pdf
Hansard (2018) 17 April 2018, Emergency Debate, Military Action Overseas, Parliamentary Approval, https://hansard.parliament.uk/commons/2018-04-17/debates/EF164C0A-E0F5-40B6-A718-DD8693A2490C/MilitaryActionOverseasParliamentaryApproval
House of Lords (2013), Constitution Committee, Second Report, Constitutional Arrangements for the Use of Force, HL Paper 46
Jenkins, D (2007), Constitutional reform goes to war: some lessons from the United States, Public Law 258
Kheel, R (2018), Mattis Resists Trump’s Calls For Larger Syrian Strike: Report, April 13, The Hill, available from http://thehill.com/policy/defense/383107-mattis-halted-two-opportunities-to-strike-syria-this-week-report
McHarg, A (2008), Reforming the United Kingdom Constitution: Law, Convention, Soft Law, The Modern Law Review, Vol. 71, No. 6, pp. 853-877
Marshall, G (1985), What Are Constitutional Conventions? Parliamentary Affairs, Volume 38, Issue 1, pp 33–39
Mills, C (2018), Parliamentary Approval for Military Action, Commons Briefing Paper 7166, House of Commons Library
Tempest, Matthew (2005), Inquiry to Look at MPs’ role in Declaring War, August 11 https://www.theguardian.com/politics/2005/aug/11/houseofcommons.uk
Ware, R (2018), The legal basis for air strikes against Syrian government targets, House of Commons Library Briefing Paper Number 8287, 16 April
[1] Dr Tara McCormack, Lecturer in International Politics, University of Leicester