In July 2007 the Government issued a Green Paper, The Governance of Britain [1]. The Green Paper set a major agenda for constitutional reform including an examination of the legal basis of the exercise of the War Powers and the deployment of troops. At present those legal powers are derived from the royal prerogative, a position that gives the Government separate legal authority to act without recourse to Parliament.

The Green Paper stated, “There are few political decisions more important than the deployment of the Armed Forces into armed conflict”.[2] With regard to the royal prerogative being the legal basis for the Government’s war powers, the Green Paper stated,

“The Government believes that this is now an outdated state of affairs in a modern democracy. On an issue of such fundamental importance to the nation, the Government should seek the approval of the representatives in the House of Commons for significant, non-routine deployments of the Armed Forces into armed conflict, to the greatest extent possible. This needs to be done without prejudicing the Government’s ability to take swift action to protect our national security, or undermining operational security or effectiveness. The Government will therefore consult Parliament and the public on how best to achieve this.” [3]

The Government proposed

“that the House of Commons develop a parliamentary convention that could be formalised by a resolution. In parallel, it will give further consideration to the option of legislation, taking account of the need to preserve the flexibility and the security of the Armed Forces”. [4]

The Government planned a period of consultation before bringing forward more detailed proposals for Parliament to consider. [5]

The consultation paper was published on 25 October 2007, entitled The Governance of Britain. War powers and treaties: limiting Executive powers. The consultation will run until the 17 January 2008.

There are two things that are striking about this consultation paper. First, that it exists at all. Only last year, when Tony Blair was Prime Minister, the Government brushed aside the House of Lords Select Committee on the Constitution’s report, Waging War: Parliament’s role and responsibility. The Government responded to the Report by saying that the existing legal basis for war powers was entirely satisfactory and that they did not intend to change those powers. The second feature is the speed with which the new Government has initiated the process of change: the consultation paper does not include an invitation to argue for the status quo.

The Government invites comment on a number of key questions in relation to drawing up a mechanism for seeking approval of Parliament for the exercise of war powers and troop deployment. The following are some of the key questions:

• What should fall within the scope of the new mechanism? If linked to actual or armed conflict how should the term ‘armed conflict’ be defined?
• Should any new procedure allow for deployments to occur without the prior approval of Parliament for exceptional (urgent or secret) operations?
• What should be the consequences of a decision by the Government to deploy forces without Parliamentary approval (for reasons of urgency, national security etc)? Should the Government be obliged to seek retrospective approval, or should it just inform Parliament? What should the consequences be if an approval was sought for a deployment retrospectively and denied?
• What information should be provided to Parliament? Should it go beyond the objectives, locations and indication of the legal basis for the operation? Who should decide what information should be disclosed? How might requirements to disclose information be adapted to the particular circumstances of different deployments?
• At what point during the preparations for deployment should Parliament’s approval be sought? Should the exact timing be left to the discretion of the Prime Minister? Should there be a Parliamentary role in deciding the best timing?

The over-arching question the consultation paper poses is whether the new mechanism should be based on a Parliamentary convention or enshrined in law through statute.

The reform of the War powers is a highly complex matter both in terms of constitutional and legal structures that would have to be created and also in preserving effective military capability. An indication of the nature of these complex issues can be found in the House of Lords Select Committee Report and the accompanying evidence (15th Report of Session 2005-06 HL Papers 236 Volume I Report and Volume II Evidence).

Sebastian Payne

Lecturer, Kent University Law School
Associate Fellow, RUSI

NOTES

[1] CM 7170

[2] Page 18 at Paragraph 25

[3] Page 18 at Paragraph 26

[4] Page 19 at Paragraph 29

[5] Page 19 at Paragraph 30

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