UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Gavin Phillipson: ‘Historic’ Commons’ Syria vote: the constitutional significance. Part I

gppDoes the recent vote in the House of Commons on military action against Syria have real constitutional significance? Is it the final piece of evidence that there is a constitutional convention that the consent of the House of Commons must be sought before armed force is used?  If so, should anything be done to concretise and clarify this Convention? And what is the broader constitutional significance of this episode in terms of the evolution of controls over the prerogative power and its significance for the evolving separation of powers in the UK?

The first part of this post, below, sets out to provide some preliminary answers to the first two questions above. The second part, to be published later on this blog, deals with the third and fourth.

The facts

Rocket attacks launched in Eastern Ghouta, Syria, on 21 August used a deadly chemical agent (since confirmed as the nerve agent sarin), causing widespread civilian casualties; suspicion almost immediately fell on the Syrian government as the likely guilty party. The Cameron government then became one of those, along with France and the US, pressing hardest for a military strike against Syria, to punish the regime and deter any further use of such weapons. David Cameron recalled Parliament specifically to allow MPs to debate and vote on a Resolution approving the use of military action in principle on 29th August. Following negotiations with the Labour leader, Ed Milliband, Cameron agreed that, even following the assumed passage of that resolution, a second resolution would be put to the House, authorising the actual use of military force: the Government Resolution put to the House specifically provided for such a later Resolution. However, Labour nevertheless put down an Amendment to the Resolution, setting out a more restrictive set of criteria to be satisfied before any military action was taken. Notably, before the debate took place, the Government published both a summary of the Joint Intelligence Committee’s reasons for believing that the Syrian regime was most likely to be have been the perpetrator of the chemical attack and the Attorney General’s (brief) statement of reasons for believing that an armed intervention by the West would be lawful under international law.

The Labour amendment was defeated, but, in a shock result, the Government Resolution was also voted down,  by 285 to 272. Immediately after the result was announced by the Speaker, the Prime Minister, in response to a question from Ed Milliband, pledged that the Government had ‘got the message’ that the House did not support military action and would ‘act accordingly’. In all subsequent public statements, Ministers made clear that the vote meant a complete change in Government policy: the UK would not now take part in any armed attack on Syria. Commentators were quick to hail the result as ‘historic’ and ‘unprecedented’ in modern times, with some asserting that one had to go back to the 19th Century to find a comparable precedent.

The constitutional basics: three norms.

It is important to note that, when it comes to the use of armed force, there are not one, but two conventions in play, one very old, the other (if it exists) very new. Throw into the mix the archaic but hugely important source of  Executive legal authority known as the Royal Prerogative, and it’s no surprise that even seasoned political commentators have struggled to explain the significance of the Syria vote to their audiences. As Jeremy Paxman said, rather fretfully on Newsnight that evening: ‘What’s this about the Royal Prerogative?’ So to rehearse the basics briefly, there are three norms in play:

(1) the Queen holds the legal power to command the armed forces, through the Royal Prerogative.

(2) But by a well established convention, this power is exercised on her behalf by the Prime Minister/the Cabinet.

(3) By a second, emerging convention, it seems now to be the case that the House of Commons must be consulted before action is taken (unless urgent action is required).

That one of the most important powers any government has – to used armed force – is governed in the UK by a legal source that is both archaic and undemocratic and by two non-legal norms, one of which is of very recent pedigree and still perhaps open to doubt, says much about the nature of our ‘unwritten’ constitution.

Does the second convention exist?

History up to Iraq 2003.

Up until very recently, the lack of any necessity to seek approval from, or even consult with Parliament before committing the country’s armed forces to conflict, whether in a formal state of war or not, has been one of most remarkable features of the executive’s prerogative powers. Brazier put it well:

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 (R. Brazier, Constitutional Reform, 2nd edn, 1999, p 123).

Despite the absence of any legal requirement to consult Parliament, has there been a practice of doing so, or a convention that this should occur? Surprisingly, again, the historical answer has been no. Brazier notes that in the cases of the Suez crisis, the Falklands Conflict, and the Gulf War of 1991, no attempt was made to seek formal parliamentary approval before committing forces to war. To these can be added the deployment and use of the RAF in Bosnia in the 1990s by the Major Government, and the prolonged campaign of air strikes against the targets in Kosovo and Serbia authorised by the Blair Government, neither of which were the subject of formal parliamentary approval. The long campaign in Afghanistan – far more costly in lives than either of the Yugolsav campaigns – was likewise started twelve years ago (in October 2001) without such approval and long continued without it. The newly formed Backbench Business Committee (of which more later) held a debate and a vote on a substantive motion on the presence of British forces in Afghanistan on 8th September 2010, but this was almost ten years after the relevant action began. The debate was on the substantive motion “That this House supports the continued deployment of UK Armed Forces in Afghanistan” and was agreed on division by 310 to 14. However, since this vote took place so many years after troops were initially deployed, it cannot be seen as setting any meaningful precedent for consulting Parliament before or even shortly after military action is taken.

Some Ministers have claimed therefore that David Cameron has been the first Prime Minister to give the House of Commons a say on military action; however, this is mistaken, as will appear when we look at the two recent precedents.

The two previous precedents: Iraq and Syria

It was not until the Iraq war in 2003 that the Government decided that a formal vote should be held in Parliament before committing troops to that particular battle, and this was done more as a matter of political necessity than out of a sense of constitutional obligation. Nevertheless, this dramatic parliamentary debate in March of that year, which saw the resignation of Robin Cook from the Government, and a massive Labour rebellion, rapidly assumed significance as a precedent for the future. Blair’s statements to Parliament before the vote about consulting the Commons were carefully equivocal; while saying, “I cannot think of a set of circumstances in which a Government can go to war without the support of Parliament”, he steadfastly refused to give an undertaking that he would consult Parliament before undertaking military action against Iraq (see e.g. his Oral Evidence to the Liaison Committee, 21 January 2003). The way he framed it at one point, ‘ I have never had any difficulty at all with Parliament either being consulted and informed or expressing its view’ (ibid) hardly seemed to conceive of Parliament’s role as a crucial one. Moreover, very shortly before the crucial debate, the Attorney General, in answer to a Parliamentary Question, said bluntly:

“The decision to use military force is, and remains, a decision within the Royal Prerogative and as such does not, as a matter of law or constitutionality, require the prior approval of Parliament” (19 February 2003, emphasis added).

In other words, the attitude of the Blair Government seemed to be that while it was permitting a vote (and would respect its outcome, as a matter of political necessity) it did not normatively admit to the existence of a convention that it was bound to do so.

It is useful at this point to recall Jenning’s classic three fold test for the existence of a Convention:

 First, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? (The Law and the Constitution, (5th ed, 1959), at 136).

There certainly seems to be a clear ‘reason for the rule’ in this case: to allow the Commons to perform its constitutional role as a check upon the executive, ensuring democratic scrutiny of a vitally important decision. However, it seems very hard to argue that in this instance the Government actors believed themselves to be ‘bound by a rule’; this weakens the normative value of the Iraq precedent. In response it may be noted that this point throws up something of a paradox about Jenning’s three-fold test. Precedents are necessary to establish a convention, but, in order to count as a full ‘normative’ precedent, those engaging in the action must have believed themselves to have been bound by a (presumably) already-existing rule. But since it was the occasion itself which helped create the rule (by being the first precedent establishing it) it is hard to see how it would have been possible for the actors in that first case to have considered themselves to bound by a rule which did not then exist. Strictly applied, therefore, this criterion would therefore appear to prevent any first precedent being established.[i] To avoid this difficulty, we might conclude that Jenning’s second criterion may properly be waived in relation to the first, or foundational precedent.

Whether this argument is accepted or not, the simple fact is that the 2003 vote has been treated by subsequent constitutional actors as a precedent, as we shall see. Such is the power of the vivid example.

It was the Libya conflict in 2011 that saw the most significant progress toward the establishment of at least a basic convention of consultation. While the option of imposing a “no fly zone” in Libya via NATO air assets was under active consideration, Sir George Young for the Government stated in the House of Commons on 10 March 2011:

 A convention has developed in the House that before troops are committed, the House should have an opportunity to debate the matter… As with the Iraq war and other events, we propose to give the House the opportunity to debate the matter before troops are committed.

The promised debate duly took place on 21 March 2011. The motion, a substantive one, approving the use of UK armed forces to enforce UN Security Council Resolution 1973, by protecting civilians and enforce the No Fly Zone, was approved by a vote of 557 to 13. Notably also, the Government’s belief in the existence of such a convention was confirmed by the Cabinet Secretary, Sir Gus O Donnell, who wrote to the Commons Political and Constitutional Reform Committee in March 2011, stating that:

 “the Government believes that it is apparent that since the events leading up to the deployment of troops in Iraq, a convention exists that Parliament will be given the opportunity to debate the decision to commit troops to armed conflict and, except in emergency situations, that debate would take place before they are committed.”

Note how the Government treats the Iraq case as the foundational precedent. The Cabinet Manual was published the same year and the relevant para states:

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 (Cabinet Office, 2011, 1st ed, para 5.38).

The Libya episode then was perhaps more significant than that of Iraq in 2003 in that in this instance, the Government granted a debate because it believed that a convention required it to do so. As a precedential action it thus fulfilled all three of Jenning’s criteria, as Iraq had not. However, in terms of the substantive content of the emerging Convention, Libya is not a fully satisfactory precedent for one simple reason: the debate took place after military action had already started. The debate was held on 21 March. However, action had in fact started two days earlier: on 19 March, Royal Navy submarines had fired cruise missiles at Libya, as had RAF Tornados on the night of 19th-20th March, while on the 20th, Tornados flew an offensive mission over Libya (although not in the end bombing their targets due to intelligence of a risk of killing civilians). Despite the Government’s statement above, then, it did not appear to regard itself as bound to obtain the assent of Parliament before commencing military action and did not in fact do so. Hence it does not unequivocally support such a norm.

The significance of the Syria vote

Given, then, the two previous precedents and the fact that the current Government had stated its view that a convention already existed, what was the significance of the Syria vote? On one level it may be seen as simply providing a third precedent, which clearly satisfied all three of Jenning’s tests, and thus as the final piece of evidence required to establish firmly the existence of the convention. But beyond this simple but important role it has three particular points of significance, as follows:

(1) The Government was defeated and, as a result, publicly reversed its policy. This is the most obviously distinctive feature of the Syria episode. On one level of course, this may be seen simply as a matter of brute political chance, of the parliamentary arithmetic, and not as having normative significance. What it did though, was display in the most vivid and dramatic way that the Government did indeed accept an obligation not to use armed force if the House of Commons voted against such action. Government Ministers subsequently repeatedly spoke of the Government not being in a position to take action in the face of the vote. While it was said that Tony Blair would have withdrawn British forces from the Gulf had the vote gone against him in March 2003, that outcome of course did not transpire. The actual event of the Government publicly revoking its previously – and publicly-declared – foreign policy has tremendous importance in displaying to Britain and the world the practical force of the Commons ‘no’ vote. This establishes beyond doubt that such votes in the Commons are not just a matter of form (like say the Royal Assent to legislation), but that they amount to a real veto. In short, the Commons has shown both that it now has real teeth and that it is not afraid to use them.

(2) The debate was held before the use of any armed force (in contrast to the vote on Libya). While this was also the case in Iraq, in that case there had been a major deployment of armed forces, including thousands of personnel, to the Gulf (and limited air operations by the RAF under the same government several years earlier in the ‘Desert Fox’ action). It is, of course, far harder, politically, for Parliament to vote against such a proposal when troops have already been deployed in a neighbouring country and war is imminent, as in the case of Iraq. Such a vote would be likely to force the prime minister to resign, as Tony Blair was prepared to do had he lost the vote on the Iraq war, something that is likely to deter a negative vote by MPs from the governing party. Holding the vote well in advance of the armed forces going into action, as opposed to doing so on the eve of action, or it has already started, gives Parliament far more of a real choice: MPs voting against action cannot be accused of undermining the morale of the already-deployed or in-action personnel (‘our boys’ as the tabloids will inevitably start calling them). The point then is that, in the Syria example, Parliament was given a real choice without the pressure of a major deployment having already taken place.

(3) The Government published its legal advice on the lawfulness of military action. This may be contrasted both with the Iraq episode, in which the Government notoriously refused to publish to Parliament the AG’s advice (which itself had changed) and with the later proposals of the Brown Government for a parliamentary resolution setting out the terms of the Convention (see later post on this). This may establish a precedent-within-a-precedent requiring disclosure on the crucial issue of legality.

It may now be said with some confidence, therefore that, following the Syria episode, a constitutional convention exists to the effect that the Government must, before, commencing any military action, permit a debate and vote in the House of Commons and abide by its result, subject to a narrow exception exists where truly urgent action is required.

In Part II of this post, to follow, I consider whether this situation has now resolved the long-standing democratic deficit in this area, or whether further reform is needed; I examine in particular the option of a resolution, approved by both Houses, setting out the terms of the new convention.

 Gavin Phillipson is a Professor of Law at Durham University.

Suggested citation: G. Phillipson, ‘ ‘Historic’ Commons’ Syria vote: the constitutional significance (Part I)’  UK Const. L. Blog (19th September 2013) (available at http://ukconstitutionallaw.org).


[i]  An exception could apply to instances like the well known ‘Sewell Convention’, in which the Government announces a new convention and declares itself bound by it, before then proceeding to act in accordance with it. In such an instance, the rule may be considered to have come into being, before the first compliance with it, so that the actors in the first precedent could indeed consider themselves bound by – and cite – the rule when acting. However, even in such instances some purists argue that in such a case the announcement does not create the Convention itself (which can only be created by a web of precedents) but merely amounts to a statement of intention to create a convention. In any event, our war powers example does not fall within this category of a pre-announced rule.

12 comments on “Gavin Phillipson: ‘Historic’ Commons’ Syria vote: the constitutional significance. Part I

  1. Pingback: Gavin Phillipson: “Historic” Commons’ Syria vote: the constitutional significance. Part II – the way forward | UK Constitutional Law Group

  2. Pingback: An answer to the West Lothian Question  | various thoughts, quips, musings and questions

  3. Pingback: EJIL: Talk! – Embedded Troops and the Use of Force in Syria: International and Domestic Law Questions

  4. Pingback: The Fixed Term Parliaments Act – A cautionary tale | The Public Eagle

  5. Pingback: Gavin Phillipson: Voting on Military Action in Syria: A Reply | UK Constitutional Law Association

  6. Pingback: The Queen at 90: the changing role of the monarchy, and future challenges | The Constitution Unit Blog

  7. Pingback: Do the airstrikes in Syria have a legal justification? – University of Hertfordshire Law Blog

  8. Pingback: Sionaidh Douglas-Scott: Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty | UK Constitutional Law Association

  9. Pingback: Brexit, the referendum and the UK parliament: some questions about sovereignty | The Constitution Unit Blog

  10. Pingback: Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty | eutopialaw

  11. Pingback: Brexit | On why, as a matter of law, triggering Article 50 does not require Parliament to legislate – Public Law for Everyone

  12. Pingback: Alison L Young: Brexit, Article 50 and the ‘joys’ of a flexible, evolving, un-codified constitution | UK Constitutional Law Association

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Information

This entry was posted on September 19, 2013 by in UK Parliament and tagged , , , , , .
%d bloggers like this: