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Gavin Phillipson: “Historic” Commons’ Syria vote: the constitutional significance. Part II – the way forward

gppIn Part I of this blog post I set out in detail the reasoned case for my opinion that, following the Syria vote in August 2013, there is a constitutional Convention 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 where truly urgent action is required.’ The question I address in this post is whether this situation has now resolved the long-standing democratic deficit in this area, or whether further reform is needed, and if so, what form that should take.

There are three basic options for reform. First, and most radically, the prerogative could be abolished and replaced by legislation, a War Powers Act, setting out the lawful powers of the government to use armed force, and the procedures to be followed whereby Parliament may authorise it in specific cases. In replacing a prerogative power by a statutory one, this would follow the model used in relation to the prerogative of dissolution in the Fixed Term Parliaments Act 2011. Second, the prerogative could be retained, but supplemented by a legal obligation to consult Parliament on the use of force – the model used for the recent codification of the ‘Ponsonby’ rule in Part 2 of the Constitutional Reform and Governance Act 2010.  The Foreign Secretary, William Hague, made a rather surprising pledge during the Libya debates that “we will enshrine in law for the future the necessity of consulting Parliament on military action” (HC Deb, 21 March 2011, col. 799). However, since then, the Government has shown no appetite for pursuing this pledge, and successive governments and parliamentary committees have come out against this option, including most recently a report this year by the Constitution Committee of the House of Lords (2nd of 2013-14), discussed further below. That then leaves what seems to be the only currently realistic option: that the existing/emerging Convention be placed on a firm basis and concretized by means of a House of Commons resolution, setting out in a definitive and authoritative text the terms of the relevant Convention. The rest of this post considers the case for such a resolution and makes some preliminary suggestions about its possible content.

The core of the case for a Resolution

The arguments for a resolution are three-fold and may be summarised as the arguments from (1) clarifying the existing Convention, (2) guaranteeing its integrity; and (3) enhancing the separation of powers. As to the first, as the Constitutional and Political Reform Committee has said: ‘There is an urgent need for greater clarity on Parliament’s role in decisions to commit British forces to armed conflict abroad’ (8th Report of 2010-12, para 6). Despite the new Syria precedent, it is submitted that this argument still applies, in that many aspects of the Convention remain uncertain, and some may even still dispute its existence.  The House of Lords Constitution Committee in its 2013 report, rightly commented that, ‘The decision to use armed force overseas is one of the most momentous a Government can make’ and immediately went to note that ‘At present…there is no standard process by which Parliament becomes involved’ (para 1). A resolution would both end any uncertainty as to the existence of a Convention, and also serve to clarify – at least to some extent – its terms. Parliament’s constitutional role in relation to a matter of such high importance should not be left in doubt any longer.

Second, there is the argument based on preserving the integrity of the Convention. As Adam Tomkins observed about the adoption of parliamentary resolutions in 1997 setting out the terms of the Convention of Ministerial Responsibility:

No longer is ministerial responsibility merely an unwritten constitutional Convention… It is now a clear parliamentary rule, set down in resolutions by both Houses of Parliament… The government acting on its own cannot now change the terms [of this Convention] in the way that the Conservative government did throughout its period in office. (The Constitution after Scott: Government Unwrapped (1998), p. 62).

In other words, once a Convention is given concrete form through embodiment in a parliamentary resolution, it may not be unilaterally altered by the government of the day as a way of easing, should they become irksome, the constraints that conventions impose on government action. Passing such a resolution places the content of the Convention in the keeping of Parliament – the body responsible for checking the executive – rather than with the executive itself. In turn this deals with a key weakness of Conventions generally: that those bound by them are often responsible for defining and redefining their content, and may use that power to water down or even emasculate the norm that is meant to bind them.

The final argument is related, and like the second, ultimately derives from the separation of powers. Were Parliament to set down the terms of this Convention it would serve an important symbolic function: it would assert that the Convention is not merely a matter of executive obedience to a self-created rule, but of compliance with a norm authoritatively and formally affirmed by Parliament. Compliance would become not merely a matter of what we might call the Executive’s internal morality, but rather an aspect of the formal set of checks and balances exercised by the legislature as against the executive. This would greatly strengthen its perceived normative force.

There might seem therefore to be a clear case for a parliamentary resolution in this area, as previous Committees, including the Public Administration (10th Report of 2007-08, para 79) and Political and Constitutional Reform Committees (8th Report of 2010-12, para 6) both found. Surprisingly, however, as noted above, the House of Lords’ Constitution Committee has recently come out against such a course of action, something that is contrary to what seemed to be the Committee’s previously expressed position (15th Report of Session 2005-06, paras 85-93 and 108-110). What then are the Committee’s arguments against it in its 2013 Report?

The views of the House of Lords Constitution Committee against formalisation of the convention.

  1. It is important to note that the Committee is not opposed to the Convention it believes ought to and does exists in this area. The Report states clearly:

in an area as important as the use of armed force abroad, the norm should be that the Government provide Parliament with the opportunity to exercise prospective oversight of executive decision-making (para 38).

The Report added that it was:

inconceivable that the Prime Minister would either refuse to allow a Commons debate and vote on a deployment decision, or would refuse to follow the view of the Commons as expressed by a vote (para 67).

Why then did the Committee come out against formalising the Convention in a resolution? As an initial point, it may be noted that it is not always easy to tease out the Committee’s specific arguments against a parliamentary resolution, because the report also discusses the possibility of a legal requirement to consult Parliament and the Committee does not always distinguish clearly between the two: paragraphs 48–61 of the Report discuss the case for and against both types of ‘formalisation’ of Parliament’s role, and this is not conducive to the clearest analysis.

Perhaps the Committee’s key objection was that legislation or a resolution would have to set out in detail when Parliament’s consent was required and this could cause major definitional problems: a definition of ‘armed conflict’ might be needed, which could be problematic and even then, the Committee said, there can be ‘grey areas between military and diplomatic engagements’; moreover, there would be the question of whether operations involving Special Forces alone would require permission (paras 51-52). There are five linked responses to this line of argument. First, with respect, the line between diplomacy and use of force is surely not as grey as suggested; no example was giving of when undertaking military action might be seen as ‘really diplomacy’. Second, even if there could be de facto grey areas (such as the deniable deployment of Special Forces), while this might matter greatly in relation to a legal obligation to seek the consent of Parliament, it would matter far less (if at all) in relation to a Resolution. This is because, third, a Resolution could overcome this difficulty either (a) by specifically exempting any operation involving only Special Forces, as recommended in the Brown Government’s Governance of Britain proposals (para 217), (b) leaving it to the Prime Minister to decide when the consent of the Commons was required, or (c) allowing the Commons, by vote, to decide when to trigger the requirement for resolution (see further below). Either of the latter two routes would wholly solve the problem that troubled the Committee, and yet neither were discussed, despite the fact that the latter was the suggestion of one of its witnesses, Lord Mayhew, discussed in its 2006 Report (para 92).

Moreover, fourth, even if a definition retained some area of ambiguity, were a situation to arise in which a Prime Minister wished to authorise some kind of military action, and genuinely considered that it fell outside the terms of the Resolution, then he or she could simply proceed to order that action and rely on persuading the House of this at the relevant time. If, in the event, the House was not so persuaded, then neither the government, nor the armed services would be at risk of any legal consequences as result; rather the Prime Minister would face only the possibility of formal censure by the House. And fifthly, of course, this risk of censure already applies under the current Convention. No-one is clear now about exactly what situations the Convention covers so that exactly the same problem (lack of clarity as to when a Commons’ vote was required) could arise now as under a resolution. The difference is that a resolution would be bound to clarify at least some of the current uncertainty and thus (contrary to the Committee’s view) would necessarily improve the current position in that respect.

In short, the crux of the argument here is that the Committee appeared to think that lack of certainly would only matter under a resolution. However, since the same or a higher degree of lack of clarity arises under the current situation, this does not amount to an argument against a resolution.

The Committee’s other arguments against codification-by-resolution were similarly unpersuasive. Thus, the Committee said:

 ‘In some instances Parliament might want to grant consent subject to constraints on the type of action that may be undertaken. This could harm military effectiveness and limit commanders’ freedom of manoeuvre’ (para 57).

This however is beside the point: since there is already a Convention that Parliament be consulted, Parliament could already grant its consent in this way. This objection is thus irrelevant to the question whether the already existing Convention should be formalised. Whether this happens or not, in any future case of proposed military action, the terms on which any consent might be granted would be set down in the specific government motion put down for approval in the House. The issue the Committee raises is to do with the terms upon which Parliament should grant its consent to military action – as it must already do – and has nothing to do with the issue under discussion, which is whether or not the existing Convention should be formalised.

The Committee also argues that there is a need to maintain flexibility – for example, in leaving it to the Prime Minister alone to decide how and when, in the course of an unfolding international situation, to seek Parliamentary approval (para 58). Again, however, this is a non-sequitur. This concern relates to a substantive issue, regarding the content of any resolution – it does not address the issue of whether a resolution is desirable or not in the first place. If the Government and others believe that any conventional obligation to consult Parliament should leave maximum flexibility in the hands of the Prime Minister, then the resolution can be drafted that way – and indeed there is a model in the draft resolution proposed by the Brown Government: Governance of Britain, pp. 53-56. In the same way, the other matters about which the Committee expressed concerns – whether intelligence information and/or legal advice as to the lawfulness of use of force should be disclosed (para 52) – are likewise substantive issues. The resolution could – again, as in the draft Brown resolution– leave all such questions in the hands of the Prime Minister. Or it could specify that the legal advice itself – or the gist of it – must be disclosed. Again, the Committee’s arguments here go to the question of how the resolution ought to be drafted, not whether there ought to be one. As before, the Committee seemed to think that, because there could be disagreement over the precise content of the resolution, it would be better not to have one at all. But this is surely wrong-headed. It is precisely because of the fact that there is at present some disagreement over the terms of the emerging convention (e.g. as to whether legal advice should be disclosed) that such questions should be resolved one way or the other in a resolution, so that the position is clear.

In other cases, the Committee simply overstates the rigidity that a resolution would bring. For example, it notes:

The House of Commons has secured a commitment from the Government that any decision to arm the Syrian National Coalition should be taken only after the Commons has voted on the matter. Provision of arms to a conflict such as that in Syria was not a scenario envisaged by previous proposals for formalising Parliament’s role, yet a process has been crafted by which the House of Commons will have its say. This demonstrates the benefits of flexibility (para 62).

The suggestion seems to be, that, had a resolution been passed, limiting the Convention to instances in which the Government planned to take military action, that somehow the Commons could not have secured the commitment to a vote before arming the rebels. This however is clearly not the case: the commitment was secured because many MPs felt strongly about the issue and were able to pass a Commons motion. This could happen in future, regardless of whether any resolution on consultation over force were passed. A resolution requiring a vote before using military force does not preclude votes on other issues, should the House wish to hold them.

The Committee then puts forward a fifth argument, which unwittingly undercuts many of its other objections. This is that formalisation is unnecessary, because the Government is bound to seek the consent of the Commons anyway (paras 59 & 62-64). First of all this takes no account of the points made above, that the Resolution has the triple benefits of clarification, preserving the Convention’s integrity and affirming it as not merely a rule self-created by the Executive. But second, by acknowledging that the government must seek the consent of the Commons already, the Committee implicitly accepts that many of the things that it fears could come about only as a result of a resolution could in fact happen regardless of any such resolution. At present, when such a debate and vote happens, an Opposition amendment could be passed, which would tie the military’s hands; at present uncertainties could arise over the disclosure of intelligence and legal advice and in relation to the appropriate time when approval should sought – indeed whether approval should be sought at all in particular cases when swift, or even secret action is thought necessary.

In short the Committee’s report seems bedevilled by a straightforward confusion: between the question of whether there is or ought to be a Convention at all, and the quite separate issue of whether that Convention should be clarified and formalised. Most of the Committee’s concerns were to do with the first issue, not the second. Even when dealing with the second issue, the Committee failed to note that the ambiguities it identified all arise under the current situation; in other places the Report simply exaggerated the extent to which codification would inevitably bring undesirable rigidity.

If one were therefore minded to reject the view of the Constitution Committee as unpersuasive, what is the best way forward?

The way forward: how should a resolution be drafted?

Given that the previous Brown Government brought forward a detailed proposal on this issue, which has never been implemented, one might be tempted to look back to the model set out in Governance of Britain. However, any such temptation should be resisted. The scheme set out therein appeared to be designed to allow for the appearance of a liberalising reform, while in reality maintaining maximum governmental control over the process. The proposal was for the approval of the House of Commons to be sought by way of debate and vote before committing the armed forces to conflict. However, there were numerous important caveats. First of all, as is generally agreed to be necessary, the government could decide to waive the requirement in cases of urgency or where surprise military action was required (para 216). This is only sensible; however, there was no requirement for retrospective approval of a decision to use armed force in such cases: the government would simply inform the House without, seemingly, permitting either debate or vote (para 218).

Second, it would be entirely for the prime minister to decide (a) when in the process of the build-up to conflict to seek approval from Parliament (para 223); and (b) what information to give Parliament on the background to the situation and the government’s reasons for wishing to use armed force (para 221). In relation to the former, 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. As discussed in Part I of this post, 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; and this is likely to deter a negative vote by many MPs belonging to the governing party. Therefore leaving the timing of the vote in the hands of the Prime Minister simply invites them to time the vote in a way that puts maximum pressure upon their own side to vote yes.

As to the latter issue – what information Parliament should be supplied with – given the huge controversy over the completeness and accuracy of the information given to Parliament in the run-up to the Iraq war, the suggestion of leaving this matter entirely within the Prime Minister’s discretion seems perverse. In particular, the Brown Government proposed that the Attorney General’s advice on the legality of the proposed use of force would not be revealed (para 222) – despite the intense controversy over this point in relation to the Iraq war and calls for such advice to be revealed in full on future occasions. Moreover, it was proposed that the Prime Minister could decide not to provide any information, if to do so would, in his or her opinion, ‘prejudice . . . the United Kingdom’s international relations’ (p. 53, Annex A, para 3(11)(a)). In short, the Prime Minister, in deciding how to present the case for war to Parliament, would, as the Public Administration Select Committee pointed out, be left entirely judge in his or her own case:  there was to be no independent element at all in the process (10th Report of 2007–08, paras 72-74). In short, the proposed reform was of the most timid and executive-friendly nature.

My own view therefore would be that, while a proposed resolution could usefully draw upon some of the basics of the draft in Governance of Britain, the following changes should be made:

    • The timing of the debate and vote should not be left to the Prime Minister. The resolution should provide that a debate and vote should take place as soon as reasonably practicable after the Government had formulated a policy in favour of military action, and except in cases of genuine urgency, before the deployment of military forces and well before the outbreak of hostilities.
    • Either the A-G’s full legal advice should itself be disclosed to Parliament, or as the Public Administration Committee recommended, at the least a ‘genuinely full and frank statement of the legal basis for a conflict decision’ (ibid, para 78) should be provided.
    • The Prime Minister should provide to Parliament as full an account as possible of the factual case for the use of force. Where any part of the case depended upon intelligence that it was genuinely necessary to keep secret, it could, as previously suggested, be shared on a confidential basis with the Intelligence and Security Committee, which could then report on whether it shared the Prime Minister’s view that the evidence justified the use of force.
    • Where a case of genuine urgency required the use of force without Parliament’s consent, then such approval should be sought retrospectively, within a set period of time, e.g. seven or 14 days.
    • There should be no exception for the requirement to seek the Commons’ assent simply on the basis that the House was not then sitting. For such an important matter, the House should be recalled, as with the Syria vote (except, as with all votes, in a case of genuine urgency).
    • If it was felt that there was real difficulty in coming up with drafting that made it clear when the obligation to consult Parliament applied, then Lord Mayhew’s suggestion above could be adopted: the resolution could provide that the Commons would trigger the application of it to a particular conflict decision by motion. Alternatively, the resolution could include a definition of when the obligation applied but supplement it by a clause stating the obligation would also apply in any case where the Commons voted by motion that it should.
    • The Resolution, once passed, should then be underpinned by changes to the Standing Orders of the House, as Sebastian Payne has suggested, in order to reinforce its binding force on the executive.

There are indications that the Coalition Government is divided on the issue and has no plans at present to bring forward a Resolution: its response last month to the Constitution Committee’s Report made clear that it had still not decided how to proceed. There is however, nothing in principle to stop the House of Commons, via the Political and Constitutional Reform Committee, which is shortly to report on this issue, taking the initiative by bringing forward a text of its own for consideration by the Lords or adoption by the Commons. Now that the Back Bench Business Committee can schedule time for a debate and vote, there is no need for the Commons simply to await action from the government. Even if the Committee’s resolution was not eventually adopted by the Commons, such action would be likely to provoke the Government into bringing forward its own resolution without further delay. Given the critical importance of proper parliamentary accountability for conflict decisions, it is high time for Parliament in this area to take control of its own destiny. 

 Gavin Phillipson is a Professor of Law at Durham University.

Suggested citation: G. Phillipson, ‘ ‘Historic’ Commons’ Syria vote: the constitutional significance. Part II – the Way Forward’  UK Const. L. Blog (29th November 2013) (available at http://ukconstitutionallaw.org).

The author has given evidence to the Political and Constitutional Reform Committee, and this post largely reproduces that evidence, which was first published on the Committee’s web pages.

One comment on “Gavin Phillipson: “Historic” Commons’ Syria vote: the constitutional significance. Part II – the way forward

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

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