Introduction

In a recent post on this blog, Veronika Fikfak and Hayley Hooper outlined the implications of the UK’s military intervention in Syria, on 13 April 2018, vis-à-vis the so-called War Powers Convention. For present purposes, it suffices to briefly remind readers that the broad acceptance of this nascent constitutional development was underscored by its codification in the updated Cabinet Manual in 2011, paragraph 5.85 of which 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.

Fikfak and Hooper suggest that, when having explained to MPs why UK armed forces were deployed in Syria without prior parliamentary debate, the reasons given by the Prime Minister ‘broadly sit within the public interest justification for non-consultation of the Commons’, which ‘covers situations where parliamentary consultation would damage the public interest because it would require the disclosure of information prejudicial to national security’. This post offers some brief reflections on the ‘emergency’ exception recognised by the War Powers Convention, particularly as regards the argument that the Government’s actions in respect of Syria reveal the ways in which the vague engagement with the question of ‘emergency’ appears to mask motivations which perhaps more readily imply a concern for political expediency. What is particularly striking is that the Prime Minister appears to have endorsed an expansive interpretation of the ‘emergency’ exception while – as noted in Fikfak and Hooper’s contribution – at the same time presenting the case for narrowing the scope of the circumstances in which the War Powers Convention applies. Taken together, the promise of the War Powers Convention in cultivating the democratisation of domestic use-of-force decision-making appears to have been dealt a significant blow.

The ‘emergency’ exception

The essence of the War Powers Convention is to create the expectation that a parliamentary debate will be held before armed forces are deployed via an exercise of the relevant royal prerogative power, during which the Government will present to MPs the case for military intervention. Whereas Fikfak and Hooper note the existence of a ‘public interest’ exception to this rule, the only explicit exception recognised by the Cabinet Manual is the ‘emergency’ exception: circumstances in which the open and deliberative character of parliamentary debate would impede necessary, urgent military action. In practice, the ‘emergency’ exception has been broadly embraced; it has been suggested that to “act first, consult later” is to act in accordance with the War Powers Convention, not in spite of it:

I think it is important to reserve the right that if there were a critical British national interest at stake or there were the need to act to prevent a humanitarian catastrophe, you could act immediately and explain to the House of Commons afterwards. (David Cameron, HC Deb 26 September 2014, vol 585, col 1265) (emphasis added)

Indeed, no reasonable interpretation of the War Powers Convention would conclude that it embodies a principle of parliamentary absolutism. The need to encompass a degree of flexibility for military expediency is crucial to ensure that urgent military action, where genuinely necessitated, may be taken. But where the flexibility reserved for necessary military expediency appears to have been exploited for reasons of political expediency, questions of accountability, and of good faith, abound.

Insofar as the purpose of the War Powers Convention is to imbue with democratic legitimacy the decision to engage UK armed forces in military action in a foreign country, the decision to invoke the ‘emergency’ exception cannot be taken lightly. For, in such circumstances, Parliament’s role in scrutinising the Government’s decision to deploy armed forces is already circumscribed; the range of democratic options available to elected representatives vis-à-vis the question of armed conflict is significantly diminished. The ability to question the wisdom of a proposed military intervention and, crucially, should it be the will of the Commons, the ability to deter the Government from pursuing such a course of action patently manifests only before the fact. In other words, the aphorism of a bolting horse readily applies to the ex post facto consultation of Parliament.

In circumstances where the Government has taken the decision to “act first, consult later”, then, it is tasked with convincing MPs, retrospectively, that it acted in good faith by establishing: first, obviously, that an ‘emergency’ actually existed in the circumstances, justifying the bypassing of prior parliamentary debate; second, that prior deliberation would have impeded the achievement of military objectives. The Government’s actions in relation to Syria prompt consideration in light of these questions.

Did an ‘emergency’ exist?

The purpose of this post is not to disprove the existence of an ‘emergency’ in respect of the Government’s response to the atrocities in Douma. Rather, it is to highlight two points. First, military action conducted without prior parliamentary debate, per se, gives rise to the prima facie assumption that armed forces were deployed in response to an ‘emergency’ which, in order to preserve the integrity of the War Powers Convention, must be scrutinised after the fact. Second, a lack of engagement with the question as to whether the circumstances constitute an ‘emergency’ for the purposes of the War Powers Convention cultivates an environment in which factors which ostensibly determine the necessity of military action may readily be conflated with factors which serve merely to inhibit avenues for diplomatic action.

In the lead-up to military intervention in Syria, Parliament was in recess. And with Russia customarily unwilling to sanction a UN Security Council-mandated intervention in Syria, diplomacy at the international level was likely to obstruct a swift response. Yet, that military intervention in Syria did not occur until almost one week after news broke of the atrocities in Douma creates reasonable scope for questions to be asked about why Parliament was not, or could not, be recalled during this period. As to why, instead of recalling only Cabinet ministers on two occasions, Parliament was not recalled, the Prime Minister gave the following reason, which speaks directly to the factor of timing:

The speed with which we acted was essential in co-operating with our partners to alleviate further humanitarian suffering and to maintain the vital security of our operations. (HC Deb 16 April 2018, vol 639, col 42)

Questions of speed and of maintaining confidentiality in respect of military strategy are undoubtedly important considerations as to whether Parliament can or should be included in the domestic use-of-force decision-making process; the deliberative and open nature of parliamentary debate is anathema to both speed and confidentiality. But the fact remains that humanitarian suffering in Syria has occurred since the outset of the civil war, some seven years ago. The Assad regime’s capability and willingness to use chemical weapons in the ongoing conflict has been demonstrated on many occasions in recent years. Indeed, their use prompted, in 2013, a parliamentary vote on the question of military intervention which the previous Government lost. This begs the question: what is qualitatively different about the atrocities in Douma that demands an urgent military intervention, to the detriment of a prior parliamentary debate? The MP for Birmingham, Northfield alluded to this point:

If consulting Parliament in advance of this military action against the Syrian regime would inevitably have compromised operational details and intelligence in the way the Prime Minister suggests, what was it about the debate that took place in 2013 on possible military action in Syria that would have compromised the same details had the vote gone the other way? (HC Deb 17 April 2018, vol 639, col 208)

To which the PM responded, without elaboration:

There was a rather different set of circumstances in 2013, when that vote was taken by the House. (HC Deb 17 April 2018, vol 639, col 208)

A full comparison between the circumstances surrounding the vote on military intervention in Syria in 2013 and the circumstances of recent events is beyond the scope of this post. Suffice it to say that there is undoubtedly a compelling moral case to be made for action to be taken to prevent further use of chemical weapons. The opportunity for it to be made in Parliament was permitted in 2013, but ultimately failed to convince a Commons majority. But in the dispassionate context of constitutional procedure for domestic use-of-force decision-making, the Prime Minister failed to establish that which distinguished the circumstances in 2013 which warranted prior parliamentary deliberation and the current circumstances which ostensibly supported the constitutional case for proceeding with ‘emergency’ military action.

The ‘emergency’ exception has hitherto been interpreted as facilitating only preventative action; the ability to “act first, consult later” does not extend to the ability to “react first, consult later”. A fine line thus separates a situation which demands urgent action to, as the former Prime Minister noted, ‘prevent a humanitarian catastrophe’ and one in which the apparent lack of diplomatic avenues narrows the scope for a political solution. The more expansive the interpretation of the ‘emergency’ exception, the finer this line appears. It may be mere speculation to cite as the underlying motivations for the UK’s intervention in Syria the recent thawing of the West’s relations with Russia – a notable backer of the Assad regime – and the political advantages to be gained from a domestic rallying cry for a robust military response to death and suffering in a foreign country. But the argument that military intervention in Syria was punitive (that is, motivated by political differences) rather than preventative is a convincing one, particularly in the light of the Prime Minister’s comments:

The action was targeted very carefully on chemical weapons capabilities. It was designed to degrade those capabilities and also to deter the willingness of the regime to use those chemical weapons and to give a message to others about the resolve of the international community to return to a situation in which it is accepted that the use of chemical weapons is prohibited. (HC Deb 16 April 2018, vol 639, col 82)

Ultimately, this argument is strengthened by the lack of any meaningful engagement with the question of ‘emergency’ which, as the only explicitly acknowledged exception to the War Powers Convention, is at risk of being deprived of all meaning.

Would prior deliberation in Parliament have negatively impacted the achievement of military objectives?

Suffice it to say that that the Government clearly followed the line of argument which answers this question in the affirmative. The Prime Minister keenly invoked the language of ‘national interest’ (HC Deb 16 April 2016, vol 639, col 42) as a justification for bypassing prior parliamentary debate, the effect of which is twofold. First, it remains consistent with the language employed in her predecessor’s explanation of the circumstances in which the “act first, consult later” option is deemed to be implied by the Convention, as noted above. Second, and perhaps more importantly, such language appeals directly to the constitutionally uncontroversial principle that what is or is not in the ‘national interest’ is a matter for the executive to decide. As such, notwithstanding the ostensible shift engendered by the War Powers Convention towards democratising domestic use-of-force decision-making, the latest episode serves as a stark reminder that the executive remains, as a matter of legal and constitutional reality, largely unencumbered as the primary decision-maker in the context of deploying armed forces overseas.

Concluding remarks

For those who regard the War Powers Convention as signifying the democratisation of domestic use-of-force decision-making, this, the latest in a growing list of examples in which Parliament’s role has been relegated to the ex post facto assessment of the propriety of military intervention, will no doubt come as a disappointing development. The effectiveness of a constitutional convention rests on the extent to which those to whom it applies consider themselves to be bound by it. It is therefore a damning indictment of the effectiveness of the War Powers Convention in organising domestic accountability relations vis-à-vis use-of-force decision-making processes that those to whom it applies seek to significantly expand the scope of its exceptions whilst purporting to honour the principles that underpin it. This perhaps serves as a further vindication of Fikfak and Hooper’s view in the timely (and excellent) Parliament’s Secret War, that the War Powers Convention is ‘an inappropriate and ineffective tool to deliver on what it promised’ (p 103).

I am grateful to Ben Murphy for comments on a draft of this post.

Mark Bennett is a Ph.D. Candidate at the University of Liverpool.

(Suggested citation: M. Bennett, ‘The Ever-Expanding “Emergency” Exception: Syria, the War Powers Convention, and the Bypassing of Prior Parliamentary Debate’, U.K. Const. L. Blog (25th Apr. 2018) (available at https://ukconstitutionallaw.org/))