Dr Veronika Fikfak and Dr Hayley J. Hooper make some valuable points in their two part post on today’s vote on whether to expand British military action against ISIL to Syrian territory. I do not have sufficient expertise to engage with Dr Fikfak’s thoughtful analysis of the international law position, and would wholeheartedly endorse Dr Hooper’s argument that the Commons’ role becomes more worthwhile the more information it is given and that the current situation on that score is problematic in the ways she points out. On the other hand, I think Dr Hooper goes too far when she says that the need for a concurring vote in the Commons ‘does not automatically signal a reduction in the “democratic deficit” which exists in relation to the British control of armed conflict powers’ (my emphasis). I think the current position, even with the limited information available to the Commons on intelligence and security matters, and even if MPs are whipped, is still a considerable democratic advance on the previous position in which Parliament had no formal role at all in conflict decisions. (I’m not sure I agree that such votes ought always to be ‘free’ but don’t take that point here).

The main point on which I take issue with Dr Fikfak and Dr Hooper is their assessment of the significance of the Prime Minister having repeatedly said that he will not hold a vote over military action in the Commons unless he is sure there will be a clear majority in favour. Here they argue respectively that this devalues the role of the Commons and/or places in doubt the existence of the so-called Consultation Convention. I think their argument makes an important misstep, often made when discussing the influence of the Commons on government policy making. The two make the point in slightly different ways so I will take them in turn.

Dr Fikfak argues that Cameron’s stance on this reduces Parliament to ‘act[ing] as a rubber stamp of a fait accompli.’ However, the fact that the Government won’t put a policy before the Commons unless it believes the Commons will assent to it does not mean it is treating Parliament as mere rubber stamp; merely that it is practising ordinary political common sense. Exactly the same thing happens all the time with legislation: governments will not put Bills (or particular provisions in Bills) before the Commons unless it believes they will pass. But this does not mean that Parliament is a mere rubber stamp: if the Government believes it will not get approval for a proposal to use military action, it will not put the matter to a vote, and without a vote the military action will not happen. Thus Parliament has an effective veto; that is what matters, not whether in practice, motions are put before it and defeated or even whether governments put forward motions authorising action that it thinks will or may be defeated.

Parliament would only be reduced to a rubber stamp if MPs in practice always simply accepted the government’s case on military action so that assent was a mere formality, as with Royal Assent to legislation; however it is already clear, not just from the negative Syria vote in 2013, but from the intense debate going on within both main parties right now, that this is very far from being the case.

So Dr Fikfak I think goes too far when she says, ‘if reliance on Parliament is limited to situations in which it agrees with the Government, surely this also undermines the role of Parliament as an institution scrutinising the Government and holding it to account.’ For the Government is always ‘reliant’ on Parliament to approve military action and can’t go ahead if it thinks Parliament won’t give approval. The fallacy of the argument lies in the notion that Parliament only has meaningful influence when it defeats the government or, perhaps, when the government wins, but the outcome is uncertain and there is a close vote. However as important recent empirical research by the Constitution Unit on the Commons’ legislative role demonstrates, this view is misleading because it misses the very important ‘pre-legislative’ influence that the Commons has over legislation precisely through the fact that governments will withdraw legislation, revise it before it starts its progress through Parliament, or itself bring forward amendments to it, in order to avoid the defeats that would or might otherwise follow. (See the following article which I think presents research of high significance: M. Russell, D. Gover, K. Wollter, ‘Does the Executive Dominate the Westminster Legislative Process?: Six Reasons for Doubt’ (2015) Parliamentary Affairs 1-23 available here; there is more by the Constitution Unit here, in particular an article on the same theme by Russell and Cowley here).

Thus the fact that the Government will only formally propose military action to the Commons when it thinks it will win the vote does not ‘limit Parliament’s role to situations in which it agrees with the Government’ as Dr Fikfak suggests; this is to miss the great importance of the role that Parliament has in stopping the government from pursuing military action precisely because it knows the outcome of a vote would be negative or uncertain.

One could of course argue that governments should still put motions authorising military action before the Commons even if it thinks it will or may lose them. I think this is simply unrealistic; it is part of the ordinary business of politics when dealing with the Commons (matters are of course different with the Lords) that governments do not put proposals before it that they think will be defeated. (One can imagine that that might conceivably happen, perhaps in extremis where a government was utterly convinced of the stark necessity of action and was prepared to see itself defeated in order perhaps to spark a more intense national debate on the issue).

Alternatively, Dr Fikfak may be arguing that the Commons should still be able to debate military action where the Government is still deciding its policy, or has decided it wishes to use force, but knows it doesn’t yet have the support of the Commons (as was the case for some time under David Cameron); the purpose here would not be to give or withhold assent to a firm Government proposal, but simply to hold the matter up to public parliamentary scrutiny. I would of course agree – but would point out that, since the inception of the Backbench Business Committee, the Commons is not, as it used to be, reliant on the government to make time available for any debate it would like to have. It can debate the matter any time it wants, and while the outcome of any such debate would not be binding, one can be sure that the government would pay careful heed to any debate that expressed clear majority disapproval for proposed military action. While it appears to be unlikely that the Committee would stage a debate on a particular topic where one was going to happen through other means, or on a substantive motion in the Chamber, I assume this would not apply in the case where government had no plans at that time to put a motion before the Commons.

Moreover, Select Committees can and do investigate policy around suggested military action, as the Foreign Affairs Committee has done, very influentially, re the current vote on Syria (see also the recent work of the Defence Committee on ISIL). And, as is generally accepted, it is through its Select Committees that the Commons does its best work in scrutinising government. In short, Parliament has many ways of scrutinising government plans to use armed force short of the kind of formal debate on a government motion that is taking place today.

Similarly I take issue with Dr Hooper’s assertion (in Part II of this post) that Cameron’s refusal to put the issue to a vote until he was confident of winning it means that ”the ‘historic’ democratisation of the war prerogative via the Consultation Convention is already in doubt’. The points I make above apply equally to this assertion, but I would add two. Recall that the core of the Consultation Convention is that the assent of the Commons is constitutionally required before the government takes military action (as I have previously argued). Now consider: suppose the Government were to say of a piece of a controversial piece of legislation, ‘we won’t put it before the House unless we’re sure it will pass.’ Would that put in doubt the notion that Bills cannot become law until passed by the Commons? Clearly not. Cameron’s stance would only put the convention in doubt if the convention required the government to put the matter to a vote even if it thought it was unlikely to win; I am open to correction but am not aware that it has been put that way.

Indeed I would argue that the very fact that Cameron would not put the issue to a vote until he was reasonably sure he would win is, if anything, further evidence of the existence of the Convention. If the Government took the view that it was free, constitutionally, to disregard the view of the Commons, that would surely make it more likely to risk defeat in the Commons, embarrassing as it would be, since it would not then to be bound to alter its policy. Of course, one cannot be sure of this, since the avoidance of the embarrassment of a Commons’ defeat is motivation enough for not risking it. And of course one can argue, as Sir Malcom Rifkind did in my debate with him, that it is political, not constitutional necessity which makes a government abide by the will of the Commons in such situations. But if that were so, one would expect the Government to say, loud and clear, that it is giving the Commons a vote because the backing of the Commons is good for morale, strengthens its hand etc, but that, constitutionally, it would be fully within its rights to go ahead with no vote or even in the face of a negative one. But I have seen no such clear statement from this Government. Overall therefore, I consider that the run-up to today’s vote on Syria if anything strengthens the evidence for the existence of the Consultation Convention and certainly does not undermine it.

Gavin Phillipson is a Professor of Law at Durham University.

(Suggested citation: G. Phillipson, ‘Voting on Military Action in Syria: A Reply’ U.K. Const. L. Blog (2nd Dec 2015) (available at https://ukconstitutionallaw.org/))