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The paramount anxieties that emerge from attempts to statutorising Parliament’s role in making decisions on whether to commit military action abroad has not just been to do with deferring power from the executive to the Commons, but also with the potential justiciability of such decisions. While frequent attempts to table such bills are often accompanied with assurances that these fears are misplaced, this post argues that putting Parliament’s role in deployment decisions, considered a matter of high policy, on a statutory footing could pierce the seemingly impermeable veil of non-justiciability that attend them and subject these decisions to common law review – a development that ought to be welcome.
Military deployments form part of the broader ‘war prerogative’, the scope of which encompasses the declaration of war, the deployment of armed forces, their armament, their military objectives, their conduct during hostilities and the determination of when such deployment takes place. Military deployments have recently garnered attention when, on the 14th April 2018, following a chemical weapons attack on Douma, alleged to have been committed by the Assad administration, the UK Government launched air strikes on Syrian Government targets in order to ‘alleviate the extreme humanitarian suffering of the Syrian people’ – without a vote by Parliament. Thus, despite the incremental development of a convention of deference to the Commons to vote on military intervention in a non-binding resolution, the 2018 strikes substantially undermined it – and though many commentators claimed this was illegal under international law, absence of an ex ante parliamentary vote was entirely constitutional and appeared to herald a return, to quote Lord Reid in Chandler (Terence Norman) v. DPP  ac 791, to armament of the forces being ‘within the exclusive discretion of the Crown’.
The constitutional convention to consult Parliament does not impose a legal obligation on the government in its deployment decisions, nor are such decisions reviewable in the High Court. There have been frequent calls for a Bill to place Parliament’s role in deployment decisions on a statutory footing (i.e. legislation which would require parliamentary debate and approval before troops are deployed). Indeed, from 1999-2016 eight Private Members Bills have attempted to place deployment decisions on a statutory footing. Generally, all the Bills have shared the objective to statutorise Parliament’s role in deployment decisions with a few largely cosmetic differences – primarily in nomenclature, whether approval is sought from both or one of the Houses, how the exceptions to parliamentary approval are framed (‘urgency’, ‘security’, ‘emergency’), and the time-sensitive nature of retrospective approval. The same critical examination therefore, that can be made of the most recent attempt, The Armed Forces Deployment (Royal Prerogative) Bill (HL) 2016-2017 can be similarly applied to the previous reform Bills; and though the recent 2016–2017 Bill made no further progress as Parliament was prorogued, it is reasonable to suggest that future Bills are likely to follow a similar trajectory.
The 2016-2017 bill consisted of five short clauses, the first of which outlined the requirement for Commons approval for troop deployments for the use of force so long as:
(a) this deployment was outside the UK; and
(b) such deployment would be regulated by the law of armed conflict
This is what the Bill referred to as a ‘conflict decision’. The second clause described the ‘process of approval’ which would have obligated the Prime Minister to present a report outlining the ‘objectives, locations and legal matters’, though the details of this would have been contingent on certain exigencies. For example, omissions in the deployment report could be warranted for strategic or security reasons. A simple majority vote by the Commons to approve the content of the PM’s report would have authorised the use of force, though the Commons would also have been entitled to consult the Lords. Clause three identified exceptions to seeking Commons approval which could be circumvented if either an ‘emergency condition’ or a ‘security condition’ obtained. The former referred to a conflict decision that was ‘necessary for dealing with an emergency’ in which the imminent nature of it would render Parliamentary approval inappropriate. A security condition described a conflict situation in which ‘public disclosure of information about the conflict decision could prejudice … the effectiveness of activities which result from the decision or with which the decision is otherwise connected’ or endanger the security or safety of UK forces, allied forces or those assisting allied forces. Importantly, the Prime Minister retained the exclusive power to determine whether or not to invoke either of these exceptions. If either the emergency or security condition were invoked, the Prime Minister would have been required to ‘inform the chair of any committee the PM thinks appropriate’ and to publish a report citing why such an invocation had been made, with information about the conflict decision (‘objectives, location and legal matters’ as in clause 2 above). A caveat, however, would have been reserved for a ‘security condition report’, if the Prime Minister felt that the same circumstances continued to exist which warranted the initial invocation of the security condition, such that publication of a report would compromise national security. Under other circumstances, however, (ie if it was an emergency condition or, for the purposes of the security condition, if the circumstances had since changed) a report would have to have been presented to the Commons within 30 days of when the conflict decision was made.
The main anxieties that the Lords had when discussing the bill were the potential definitional ambiguities with defining ‘conflict decisions’ and, the focus of this post, the potential justiciability of such decisions.
As it currently stands, deployment decisions are not justiciable and thus amenable for judicial review. The determination of justiciability in common law review is primarily based on: (a) the institutional competence and legitimacy of the courts to review a decision; (b) the courts’ general deference to the executive on issues of national security; and (c) general judicial reticence over ‘polycentric matters’. Rather than adopting a rigid approach on determining justiciability however, the courts in R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1698 have instead opted for a pragmatic one, on the basis of subject matter and suitability in each particular case. Given this, in the spirt of the common law’s incrementalism, it’s not entirely impossible to entertain the prospect that, on these three criteria, the courts could develop such competence (see also Smith v Ministry of Defence  UKSC 41), that they would not automatically defer to the executive on issues of national security (as see also Secretary of State for the Home Department v Rehman  UKHL 4) and that the pervasiveness of polycentric adjudication in public law litigation appears to betray the claim that the court avoids it.
However, it could be argued that such a Bill would have pierced the veil of non-justiciability around deployment decisions, not just because of the incremental loosening of these three apparent limitations mentioned above, but also because it would appear to have provided an objective yardstick for scrutiny. One example (of several) relate to the principles of natural justice. Procedurally, there are several aspects of a deployment decision that one can speculate would have been reviewable if the Bill had passed. The ‘deployment report’, for example, is meant to provide reasons for the Prime Minister’s decision to deploy troops abroad. The absence of such reasons in such a report, therefore, could give rise to a lack of procedural fairness. The common law requirement for providing reasons is only necessary if the decision appears to be ‘aberrant’ (see also R v Higher Education Funding Council, ex p Institute of Dental Surgery  1 WLR 242; see also Oakley v South Cambridgeshire District Council  EWCA Civ 71). The requirement however, is weakened with administrative decisions such as this one (see also R (on the application of Hasan) v Secretary of State for Trade and Industry  EWHC 2630 (Admin)). This Bill would therefore have provided a statutory-based obligation to provide reasons for such deployments which would otherwise have been amenable to circumvention. Another pressing example; say the Prime Minister had too readily engaged the emergency condition exception when a threat to the UK was in fact not deemed imminent for the purposes of the Act – in other words, there was sufficient time to seek Commons approval – what may the courts have said? Lord Bingham stated in A v Secretary of State for the Home Department  UKHL 56 that there should be strong deference to the Government’s assessment of the nature of threats posed to national security because the executive are ‘called on to exercise a pre-eminently political judgment’. However, whilst previously the courts would have been happy with legal assurances by senior civil servants affirming the nature of threats, recent case law, as in R (on the application of Mohamed) v Foreign Secretary (No 2)  EWCA Civ 65, has suggested that the courts are now more willing to avoid the deference that national security claims invite. What the Bill might have added in such judicial assessments of national security therefore, was their determination of ‘emergency’ and ‘imminence’ (or ‘not sufficient time’ as it was couched in the Bill). Arguably, this would have compelled the courts to determine the nature of a threat that would require a normative assessment of whether the use of force was legal or not for the purposes of UK law.
The anxieties with placing Parliament’s role- to debate and vote on deployment decisions, save for some exceptions- on a statutory footing are arguably correct. However, this should be welcome, particularly in light of the UK’s readiness to engage in military actions and more so within the context of a litany of administrative and institutional shortcomings outlined by the Iraq Inquiry. However, there is a further claim, addressed elsewhere, that even with democratising deployment decisions, and a more general effort to ‘tame the prerogative’, that this could actually increase the number of military deployments by circumventing UN-Charter based justifications under the guise of ‘democratic legitimacy’- a case in point being the 2003 war in Iraq. Nevertheless, a statute that generally mandates Parliament’s role in deployment decisions could be nothing short of a critical juncture in constitutional law.
Tanzil Chowdhury is a Lecturer in Public Law at Queen Mary University of London.
(Suggested citation: T. Chowdhury, ‘Statutorising UK Military Deployments and Assessing Anxieties of Their Justiciability’, U.K. Const. L. Blog (17th Sept. 2018) (available at https://ukconstitutionallaw.org/))