The Royal Prerogative

INTRODUCTION & OVERVIEW

- Oxford Dictionary definition of the word ‘Prerogative’:

A right or privilege exclusive to a particular individual or class:

Background to the Royal Prerogative

Historically, the monarch in Britain had vast powers and largely ruled according to his/her
wishes without authority of Parliament. This eventually led to discontent and matters came to a
head in the English Civil War (1642-1651) where a war was fought between the forces of
Charles I and the Westminster Parliament. King Charles believed in the ‘divine right of kings’ to
rule whereas Parliament believed that the King should be accountable to an elected Parliament.
After the defeat of King Charles, a precedent was established whereby the monarch could no
longer rule without Parliament’s consent. This position was crystallized by the Bill of Rights
1689, one of the most important documents in British constitutional history after which the
monarch in the UK has never exercised absolute power.

Therefore, historically the executive power of the State resided in the King alone, whereas
legislative power resided in the King and Parliament. But the line between what the King could
do with the aid of Parliament and without the aid of Parliament was drawn over a period of time
and fluctuated from time to time.

This background is important to understand since some of the individual powers which used to
be exercised by the King/Queen continue to exist today and serve as the legal source of many
executive powers of the government today which are exercised by Ministers. These residual
powers are known as the Royal Prerogative and form part of the common law. They are
exercised by the monarch and the government ministers in the name of the ‘Crown’.

 Crown: refers to the monarch and the executive branch of government. Embodiment of
the State.

Ministry of Justice: the Governance of Britain (2007):

In most modern democracies, the government’s only powers are those which are granted to
by the constitution or by the legislature. A distinguishing feature of the British constitution is
the extent to which government continues to exercise a number of powers which were not
granted to it by a written constitution nor by Parliament, but are rather ancient prerogatives
of the Crown. These powers derive from arrangements which preceded the 1689 Bill of
 Rights and have been accumulated by the government without Parliament or the people
having a say.

Central Issues:

- A fundamental principle of the constitution is that executive action must be based on

legal foundations.

- Most public bodies in the UK today are ‘creatures of statute’.

- However, the Royal Prerogative also serves as the legal source of some of the actions of
the executive, especially with regards to the powers of Ministers.

- This is problematic since it is more difficult to hold the executive to account when it
relies on the RP as authority for its actions rather than an Act of Parliament. This is
because the scope of prerogative powers is often unclear. The RP therefore represents a
challenge to the rule of law and parliamentary sovereignty.

- The RP forms part of the common law and therefore is subject to judicial control.
However, the courts have regarded some types of prerogative powers as being ‘non-
justiciable’ and therefore outside the scope of review. This reflects a constitutional
separation of powers arrangement.

 Sub-topics to cover in this chapter include:

i) Definition of the Royal Prerogative

ii) Categories of prerogative powers
iii) Relationship with Statute
iv) Sources of legal authority for public bodies in the UK
v) Judicial Review of the Prerogative
vi) Reforming the Prerogative (including Pros and Cons of the Prerogative)
vii) Case Study: Deployment of British Armed Forces Abroad

Essential Cases:De Keysers, BBC, GCHQ, Laker Airways, Burmah Oil, Fire Brigades Union,
Northumbria Police Authority
DEFINING THE PREROGATIVE
A common starting point for many discussions of constitutional topics is “what did Dicey say
about it?”.

Dicey’s brief definition of prerogative:

“The residue of discretionary or arbitrary authority which, at any given time, is left in the hands
of the Crown.”

Essentially, he is saying that whatever discretionary powers the Crown (meaning the monarch
and ministers) have left once you exclude those granted and regulated by statute.

However, the problem with Dicey’s definition is that he tells us nothing about what exactly
prerogative powers are. How and why do they differ from powers that are conferred by statute?

Blackstone, writing in the 17th century, has a fuller description:

We usually understand that special pre-eminence which the King hath, over and above all other
persons, and out of the ordinary course of the common law, in right of his regal dignity...It must
be in its nature singular and eccentrical [special]; that it can only be applied to those rights and
capacities which the King enjoys alone, in contradistinction to others, and not to those he enjoys
in common with any of his subjects.(Commentaries on the law of England.)

Blackstone makes a key distinction between these powers which only the monarch or Crown can
exercise and those powers which ordinary members of the public can exercise, for example to
make contracts, employ people etc. The latter forms of powers are not prerogative powers since
they can be exercised by everyone. Prerogative powers on the other hand, are only those powers
which only the monarch or the Crown can exercise, such as the right to make war, dissolve
Parliament or conduct diplomacy.

Summing Up

Royal Prerogative refers to those powers of the Crown that:

i) Have not been abolished by Parliament or placed on a statutory footing

ii) Are exclusive to the Crown
ROYAL PREROGATIVE: A CHALLENGE TO PARLIAMENTARY SUPREMACY AND
RULE OF LAW

CATEGORIES OF PREROGATIVE POWERS

In March 2004, the House of Commons Public Administration Selection Committee published
an influential report, ‘Taming the Prerogative’. This report identified three broad categories of
prerogatives in the UK.

1) The Monarch’s Constitutional Prerogatives

2) The Legal Prerogatives of the Crown
3) Prerogative Executive Powers

The Queen’s Constitutional Prerogatives

Note: The category refers to the Monarch (Queen) and not the Crown, which is a broader term
encapsulating both the monarch and the executive branch of government – essentially reflecting
the State.

The first category of prerogative powers are the personal discretionary powers which are directly
in the Sovereign’s hands (i.e. the Queen’s personal powers as opposed to those exercised by
Ministers in her name). These powers are important for the smooth running of the State; even
though their exercise is regulated tightly by convention.

- Formally appointing government ministers, including the Prime Minister;

- Royal assent to Bills;
- Opening and Dissolving Parliament (even if the speech is written by the PM lol);
- Advise, encourage and warn “her” ministers in private;

The Crown’s Legal Prerogatives

These are legal, rather than constitutional prerogatives and relate to the Crown itself. Some of
these are fairly ridiculous (personal right of the Queen to receive sturgeons, swans and whales).
Others are historical, such as the right of the Crown to impress men into the Navy.
Relevant for Exam:

- The Crown (meaning the State) is not bound by any statute unless it specifically states
that it binds the Crown. The practical effect of this is limited by the widespread inclusion
in many statutes of sections which do specifically bind the Crown.

- The Crown and “emanations of the Crown” (bodies deriving their authority from the
Crown) are immune from criminal prosecution under the doctrine “the Crown can do no
wrong”. This links in with the fact that prosecutions are normally carried out in the name
of the Crown, “R” standing for “Regina” (Latin for “the Queen”) or “Rex” (Latin for “the
King”). However the scope of this power has been reformed and is very narrow now.

Many legal prerogatives have been amended or replaced by statute. Others have become
obsolete.

Prerogative Executive Powers

These are the most important category of prerogative powers and are those powers which have
been delegated to ministers by the Crown (Monarch). Ministers are able to use these powers
without requiring the authority of an Act of Parliament. Parliament has restricted the scope of
these powers by statute over the years but some very important powers remain in this category.

House of Commons Public Administration Select Committee, Taming the Prerogative:

Strengthening Ministerial Accountability to Parliament

Show List of Ministerial executive powers listed in Annex of the Ministry of Justice’s 2009
Review of the Executive Royal Prerogative Powers: Final Report –

THE RELATIONSHIP BETWEEN PREROGATIVE AND STATUTORY POWERS

Problem: Prerogative powers have proved to be problematic for Parliament since
Parliament is not the source of such powers. Therefore Parliament will find it difficult to
keep a check on the exercise of these powers.

This problem has somewhat been solved by judges through common law where they have
established principles catering to conflicts between statutory authorities and prerogatives.

The prerogative and statute law are both sources of legal authority for public bodies in the UK. It
is therefore important to understand what happens when the prerogative comes into conflict with
a statute created by Parliament. This relationship is best understood by studying the reasoning of
judges when faced with such conflicts.
 Basic Rule: No new prerogative powers can be created. This was confirmed by the Court of
Appeal in BBC v Johns [1965] when a claim that the BBC was an “emanation of the Crown”
and thus entitled not to have to pay income tax was rejected. Lord Diplock summed up the
rejection of this argument as follows “It is 350 years and a civil war too late for the Queen’s
courts to broaden the prerogative.”

 Crux: Parliament can abolish or limit the prerogative expressly. It can also decide that the
power should be retained but placed on a statutory footing.

 Difficulties: Problems arise however, when a prerogative power which has not been clearly
abolished comes into conflict with a statute. The question then becomes, can the government
choose to use the prerogative power rather than the statutory power?

Attorney-General v De Keyser’s Royal Hotel [1920]

A hotel had been requisitioned during the First World War (meaning the government had taken
over the use of the hotel). Requisitioning under the prerogative power would not have required
the government to pay compensation but, inconveniently, there was also a statute applying to
this situation which provided that compensation should be provided. The House of Lords held
that the government was obliged to follow the statute and pay compensation. Lord Dunedin
stated:

“It is certain that if the whole ground of something which could be done by the prerogative is
covered by the statute, it is the statute that prevails…What use would there be in imposing
limitations if the Crown could, at its pleasure, disregard them and fall back on prerogative?”

Note: Lord Dunedin referred to the ‘whole ground of something’ in this quote, meaning that if
the prerogative covers an area which is entirely covered by statute, it is the statute which
prevails. But what happens if the overlap is not 100%? The courts may then take a different
approach as illustrated in:

R v Secretary of State for the Home Department, ex parte Northumbria Police Authority
[1989]

Although they may both deal with the same general subject matter, it may not be clear that use of
the prerogative power would be incompatible with the statute. In this case, the prerogative in
question was the power to maintain peace in the realm. The government had established a central
store of rubber bullets and CS gas (controversial riot control equipment) to which chief
constables of police forces would have access without requiring the approval of their police
authorities (local bodies established to hold police forces accountable).

Section 4(4) of the Police Act 1964 stated:

The police authority for any such police area may…provide and maintain such vehicles,
apparatus, clothing and other equipment as may be required for police purposes of the area.

In the Court of Appeal, Croom-Johnson LJ stated that s.4 did not give the police authority a
‘monopoly’ on supplying equipment to the police in their area. Therefore, the government could
use the prerogative power as well. S.4 of the Police Act 1964 did not imply an abolition of the
prerogative power to maintain peace in the realm.

Can a prerogative power be used to prevent an Act of Parliament being brought into force?

This was the main point of contention in R v Secretary of State for the Home Department, ex
parte Fire Brigades Union [1995].

Background: Many sections in statutes are not brought into force (i.e. become effective law)
when the Act receives the royal assent. Instead the Secretary of State is given the significant
power to decide when it will be brought into force. Some sections are never brought into force.
Others are delayed for many years (in 2014 several sections of the Criminal Justice Act 2003
were finally brought into force).

In this case, the government in 1964 had introduced a compensation scheme for criminal injury
under its prerogative powers. In 1988, Parliament enacted the Criminal Justice Act which sought
to put the compensation scheme on a statutory footing (hence abolishing the prerogative). The
compensation scheme under the Act was more generous than the previous 1964 scheme.
However, the Act stated that its provisions would come into effect ‘on such day as the Secretary
of State may appoint’. No such day was appointed and the provisions therefore did not come into
effect.

In 1994, the Home Secretary told Parliament that the government intended to continue to rely on
the 1964 non-statutory scheme (under the prerogative) and would initiate in due course, the
process for repealing the scheme under 1988 Act.

Decision: The House of Lords held that it was an abuse of power for the Secretary of State to
exercise his prerogative power in a way which conflicted with his duty to bring the legislation
into force.

Lord Browne-Wilkinson: “In the absence of express provisions to the contrary in the Act, the
plain intention of Parliament in conferring on the Secretary of State the power to bring certain
sections into force is that such power is to be exercised so as to bring those sections into force
when it is appropriate and unless there is a subsequent change of circumstances which would
render it inappropriate to do so.”
He went on to say “My Lords, it would be most surprising if, at the present day, prerogative
powers could be validly exercised by the executive so as to frustrate the will of Parliament
expressed in a statute...”

“It is not for the executive to state as it did that the provisions of the 1988 would be repealed [in
due course]…it is for Parliament, not the executive, to repeal legislation.”

“Under the principle of De Keyser’s Royal Hotel Ltd, if Parliament has conferred on the
executive statutory powers to do a particular act, that act can only thereafter be done under the
statutory powers so conferred; any pre-existing prerogative power to do the same act is pro
tanto[meaning to that extent] excluded.”

Therefore, when the exercise of a prerogative power is carried out in a way which is intended to
prevent an Act of Parliament being brought into force, the courts will strongly disapprove of the
intention of Parliament being frustrated.

IMPORTANT:

JUDICIAL REVIEW OF PREROGATIVE POWERS

The Position before the 1984 GCHQ Case

If the government claimed to exercise a prerogative power and its action was challenged in
judicial review proceedings, the courts would examine whether the claimed prerogative power
existed. If the power was found not to exist then this would invalidate any action taken under
the prerogative power.

 However, if the courts were satisfied that the prerogative power did exist, they would not
review the way in which the power was used.

The Position Today

There is now no doubt that the courts can, in principle, review the use of prerogative powers on
the same grounds as they can review the way in which statutory powers are used.

 Non-justiciability: However, such as is the case for statutory powers, there may be occasions
where the courts will not intervene because the subject matter of the power is regarded by the
court as being ‘non-justiciable’ – i.e. not suitable for judicial determination.

The modern position is shaped by two seminal judgments of the House of Lords.
The GCHQ Case (Council for Civil Service Unions v Minister for the Civil Service (1984)

Crux: The Government has the prerogative power to regulate the civil service through a certain
type of legislative instrument known as an ‘Order in Council’. An Order in Council is a form a
primary legislationretained by the Crown as prerogative power which enables it to make
legislation relating to a few matters, such as regulating the civil service.

In 1982, the government through an Order in Council removed the right of the workers at the
Government Communications Headquarters (GCHQ) to belong to a trade union. The decision
was taken for national security reasons because of the GCHQ’s sensitive role in electronic
intelligence gathering.

Note: The issue in this case was not whether a prerogative power existed. There was no doubt
that it did. The question was whether the exercise of power by the government under that
prerogative could be judicially reviewed. As seen above, historically the courts would not review
the way in which a prerogative power was used, as long as it was shown to exist in the first
place.

The trade unions challenged the decision and claimed that the courts could review the decision
even though it had been taken under prerogative powers. This was because the government had
acted in a procedurally unfair manner by not consulting with the workers before making its
decision. The government claimed this was not possible.

Glidewell J in the High Court: I can see no reason in logic or principle why an exercise by a
Minister of a power conferred by an Order in Council should not be subject to the same scrutiny
and control by the courts as would be appropriate for the exercise of the same power if it had
been granted by statute. – The High Court therefore granted the application for judicial review.

The case ultimately reached the House of Lords. By this time, the government presented a
different argument: that the failure to consult with the workers was justified in the interests of
national security and hence [Link] argument was upheld by both the Court of
Appeal and the House of Lords.

Nonetheless, the key result of the case remains that the courts will, in principle, be prepared to
grant a judicial review of the exercise of prerogative power, provided the matter is justiciable.
GCHQ therefore is a landmark decision in British constitutional law.

The reasoning of GCHQ case was affirmed in Bancoult case.

The Bancoult Case - [R (on the application of Bancoult) v Secretary of State for Foreign
and Commonwealth] Affairs (2001)
Note: In both Bancoult and GCHQ, the courts ultimately held in favour of the government (and
against the claimants). But the cases are important because of the principles they established,
even though those principles did not benefit the claimants in the cases themselves. A
skeptical/pessimistic view of these decisions could be that executive power has not really been
curtailed by the rule of law since at the end of the day, the courts have shown a deference to
government decisions based on national security (GCHQ) and foreign affairs (Bancoult). [Pg.
355 of the book can be referred to for further explanation.]

ROYAL PREROGATIVE

 Miller v Secretary of State for Exiting the European Union [2017].

Following the referendum decision to leave the EU, the Government was required to initiate the
leaving process. This entails giving Notice to the EU Council under Article 50, which provides
for Notice to be given according to a Member State’s own ‘constitutional arrangements’. It was
the Government’s intention to give notice under the Royal Prerogative.

This intention was challenged in the courts, culminating in the Supreme Court decision in Miller
v Secretary of State for Exiting the European Union [2017].

The Supreme Court ruled that Notice could not be given under the Prerogative, and that
the UK’s ‘constitutional arrangements’ required the authority of an Act of Parliament
before Article 50 could be triggered.

Lord Neuberger SC for the majority, at para.81, stated that: It would be inconsistent with long-
standing and fundamental principle for such a far-reaching change to the UK
constitutional arrangements to be brought about by ministerial decision or ministerial
action alone. All the more so when the source in question [the European Communities Act
1972] was brought into existence by Parliament through primary legislation, which gave that
source an overriding supremacy in the hierarchy of domestic law sources.

REFORMING THE MINISTERIAL PREROGATIVE

Note: As should be evident from the heading, the reform of the prerogative is aimed at reforming
the executive power exercised by Ministers. The other two categories (the Queen’s constitutional
prerogatives and the Crown’s legal prerogative) is not the subject of debate here.

Calls for Reform and Difficulties

Jack Straw, MP: “The royal prerogative has no place in a modern western democracy…it has
been used as a smokescreen by Ministers to obfuscate the use of power for which they are
insufficiently accountable.” (1994)

William Hague, MP: “The prerogative has allowed powers to move from the monarch to
Ministers without Parliament having a say in how they are exercised. This should no longer be
acceptable to Parliament or the people.” (2007)

However, the road to reform has not been an easy one and the progress has not been substantial.
Politicians have been very vocal in their opposition of the prerogative when in opposition, but
very muted when in power (e.g. William Hague, who is now the Foreign Secretary).
The breadth of powers under the prerogative and their vague (yet critical) nature makes any
attempt at reform a very complex matter. Reform was virtually non-existent during the Blair
government (1997-2007) but progress was made under Gordon Brown’s government. This
progress appears once again to have stalled under the present coalition government.

The question of reform of the prerogative goes to the heart of constitutional law since it
represents a clash between the need for executive power on the one hand, and the principles of
democratic accountability on the other.

Approaches to Reform: Pragmatism vs. Principle

The 2004 PASC Report suggested two approaches to reform: reform based on pragmatism and
reform based on principle. The pragmatic approach would be limited, subjecting individual
prerogative powers to parliamentary scrutiny on a case-by-case basis. The principled approach
would be expansive, requiring comprehensive legislation that subjects the prerogative in general
to parliamentary control.

The Case for the Pragmatic Approach

It will not be particularly surprising that the case for a pragmatic and incremental approach was
made to the committee by an experienced ex-minister, Lord Hurd. Lord Hurd served as Secretary
of State for Northern Ireland, Home Secretary and Foreign Secretary.

Lord Hurd’s testimony before the PASC:

- The constitution evolves and is best looked at in the light of particular criticisms,
particular mischiefs, that can be identified and then change made, rather than examining
it on a philosophical basis, which rapidly turns artificial.

- Every now and then, a reform, a change, becomes clearly necessary. An example would
be the Security Services Act 1989 and the Intelligence Services Act 1994 which put
under statutory oversight, the three intelligence services of the UK. Similar proposals are
now being made in relation to the Civil Services as well as the war powers of the
government.

- A comprehensive legislation on the prerogative would overwhelm Parliament by the task

of overseeing such a wide range of actions and decisions. The Act itself would occupy
both Houses of Parliament for a very long time. “I just wonder who in this country,
outside of a fairly narrow but very talented and conscientious range, would feel better off
as a result of that; who would sleep more safely in their beds; and who would think that
the country was better governed.”
General Arguments in favour of the Prerogative laid down by the PASC Report 2004
[Important]

- It offers much needed flexibility to the government and is a well-established part of the
Constitution.

- Ministers need executive powers and some of those things have to be done quickly in a
complex and dangerous world. It would therefore, be absurd to suggest that the
prerogative should be abolished.

- Parliamentary scrutiny of the prerogative must not unduly hamper the operation of
government, and indeed Parliament itself.

The Case for the Principled Approach

Lord Lester’s testimony before the PASC:

- We were all brought up in our unwritten constitution to believe that there were two great
principles to our constitution: parliamentary supremacy and the rule of law (i.e. executive
was accountable to Parliament and its powers should be exercised according to the law).
The difficulty about out unwritten, flexible, part monarchical and part parliamentary
constitution is to make sure those principles apply in practice.

[This is important as it sets out that an unconstrained use of the prerogative violates the
two major pillars of English public law].

William Hague testimony before the PASC:

- The problem with the piecemeal approach is that it may not be sufficient. The other
problem with gradualism is that it is not moving at all in some areas.

Professor Rodney Brazier:

- A major argument in favour of the principled approach is that Parliament should have a
right to know what powers are being exercised by Ministers. Ministers should not have
imprecise powers since there can be no effective accountability if Parliament does not
know what Ministers are empowered to do.

Most of the witnesses before the PASC were in favour of considering a comprehensive,
principled approach to reform of the prerogative.

Practical Steps for Reform suggested by the PASC Report

One option would be an Act which provided for a “sunset clause” for out of date prerogative
powers. Any prerogative powers which were not expressly confirmed by subsequent primary
legislation by a set date would be abolished. Several difficulties were identified with this
approach. Ministers might be left without important powers at a point when urgent action was
needed. The effect of a deadline could lead to rushed legislation with dangerous mistakes
causing later complications. This option was therefore not considered appropriate.

Suggested Option:

Appendix 1 of the report contains a draft Bill for reform drafted by Professor Rodney Brazier.

- The Bill would require ministers to list all the ministerial executive powers available to
their departments within six months of the passing of the Act.

- The list would then be considered by a parliamentary committee who would be required
to draft legislation providing for appropriate statutory safeguards where required.

- Such safeguards would not be expected in all areas of the use of the prerogative.

- The Bill provides for specific early legislation in three important areas: the decision to go
to war where lives are at stake, decisions on treaties and the issuing of passports.

- The decision to go to war in particular was highlighted by the PASC as a prerogative

power in urgent need of Parliamentary oversight. Even though a convention has
developed since the 2003 Iraq War for Parliament to be consulted before a decision to go
to war, the PASC felt that a ‘convention was not enough when lives are at stake’.

Note: The Constitutional Reform and Governance Act 2010 have placed the former
prerogative power of regulating the civil service and the process for making treaties on a
statutory footing.

- Previously, the Crown had the prerogative to manage the civil service which included
appointments, code of conduct etc. This is now set out in the 2010 Act under a new
statutory scheme.

- The 2010 Act also regulates the process of making treaties. The government is to place
all treaty proposals before Parliament. If the House of Commons votes against treaty
ratification then the government cannot proceed to enter into the treaty. The House of
Lords will not be able to prevent the Government from ratifying a treaty, but if they
resolve against ratification the Government will have to produce a further explanatory
statement explaining its belief that the agreement should be ratified.
 - Rationale for Reform: The power to make key decisions that affect the whole country,
such as whether to ratify treaties, should not stem solely from the Royal Prerogative, but
rest on a more formal footing, with Parliament playing a key role in determining the
exercise of the power. Similarly, the Government proposed that the governance of the
Civil Service, also based on the Royal Prerogative, and the fundamental values of the
Civil Service – impartiality, integrity, honesty and objectivity – should be set out in
statute.

Conclusion

In conclusion, we have seen how the pragmatic approach has been argued to be more effective
and appropriate. Lord Hurd’s comments do give the impression of a rather patronising view of
the electorate and a core belief that it should be prepared to trust ministers to do the right thing
with little extra scrutiny. Distrust of politicians, including ministers, has grown significantly
since 2004 and this now seems very outdated. The doubts expressed about Parliament’s ability to
scrutinise effectively the range of actions taken under prerogative powers does carry more
weight but, arguably, it should be addressed by improving the calibre and independence of
individual MPs and increasing the resources available to parliamentary committees.

Government ministers are always likely to be reluctant to limit their powers unless there is strong
political pressure for change. An Act imposing a “sunset clause” on prerogative powers would
have the benefit of forcing reluctant ministers and their civil servants to propose democratically
accountable alternatives within a fixed period but there are too many examples of poorly drafted
and rushed legislation being approved by Parliament to feel confident that the replacement
statutory powers would be an improvement.

On the other hand, forcing ministers to disclose all prerogative powers would reinforce
Parliament’s right to know and it could lead to the detailed and wide-ranging review which the
committee hopes for. Again, the willingness and ability of MPs to challenge and examine
effectively these powers would be crucial.

Finally, there is surely a good case for specific legislation on decisions on military conflict in
particular – trust in government to make the right decisions in relation to war has been
undermined, particularly by the Iraq War, and simply relying on a new convention requiring a
parliamentary debate is not sufficient.

Case study: deployment of British armed forces abroad

(right to make war)
Important: the following discussion relates to the debate that whether the
power to declare war which is solely a prerogative power of executive should
be reformed and requires parliamentary involvement or not. Also whether
this should be abolished and covered by a statutory authority.

This relates to one of the most important decisions any government can be required
to make: the decision to go to war. As well as the cost in human lives, there are
huge financial implications and risks arising from such decisions. Nonetheless,
successive British governments have been very willing to use British armed
forces in a variety of overseas missions including, of course, Iraq and
Afghanistan.

The traditional ‘declaration of war’ seems to be redundant, given

developments in international law, particularly the UN Charter. International
law permits the use of force for self-defence; if authorised by the UN Security
Council; or, arguably, to prevent an overwhelming humanitarian disaster.

The role of the courts

A common concern among the armed forces and their supporters is that litigation
in relation to war powers would undermine morale and operational effectiveness.
These concerns may be overstated given that the courts have generally held
that such decisions are ‘non-justiciable’.

In Chandler v Directory of Public Prosecutions (1964) the appellants had been

convicted under s.1 of the Official Secrets Act 1911 following a protest against
nuclear weapons at a US air force base. Lord Reid summarised the generally
deferential approach taken by the courts in relation to the armed forces:

“It is in my opinion clear that the disposition and armament of the armed forces
are and for centuries have been within the exclusive discretion of the Crown and
that no one can seek a legal remedy on the ground that such discretion has been
wrongly exercised.”

In R v Jones and others (2006) protesters against the Iraq War were prosecuted
for breaking into military bases. They used, as a defence, the argument that they
were legally justified in their actions because they were attempting to prevent the
crime of aggression under international law. Their appeals were rejected by the
House of Lords.
Lord Hoffmann emphasized the discretionary nature of the prerogative power to
make war and deploy troops abroad:

It is of course open to the court to say that the act in question falls wholly outside
the ambit of the discretionary power. But that is not the case here. The decision to
go to war, whether one thinks it was right or wrong, fell squarely within the
discretionary powers of the Crown to defend the realm and conduct its foreign
affairs.

_________________________

 Key questions which must be considered in relation to reform are:

1. What are the advantages and disadvantages of parliamentary involvement in

the decision to deploy?

2. What are the advantages and disadvantages of relying on statute rather than
convention in governing the decision to deploy?

7.7.2 The convention requiring Parliament to be involved

The decision to invade Iraq was politically very controversial and was discussed in
a number of debates in Parliament beforehand. Consider the following comments
about the status of these debates by Jack Straw, the Leader of the House, after the
war in 2007 (Hansard 15 May 2007):

Three debates were on substantive motions: in November 2002; in February 2003;

and then, of course, in the crucial determining debate in March 2003, which
confirmed the decision for military action by a majority of 263. That set of debates
on substantive motions established a clear precedent for the future from which I
do not believe there will be, or could ever be, a departure.
(so basically he is saying that the fact that executive allowed the HOC to debate on
this matter shows that it has created a precedent and from this point onwards
parliament will always be involved in declaration of war)
Advantages and disadvantages of parliamentary involvement

Although many lawyers and politicians have supported greater parliamentary

involvement in the decision to deploy armed forces abroad, some members of the
armed forces and government have opposed it.

Pros and cons of parliamentary involvement were considered by the House of

Lords Constitution Committee, Waging War 15th report.

BENEFITS:

1. Parliament should be the source of government’s powers and not the crown,
so legitimacy must come from parliament.
2. If parliament involvement is allowed then it will ensure increased
accountability of decision making by the government.
3. Involving parliament will result in better decision making.
4. The involvement will also increase the morale of the armed forces.

DISADVANTAGES:

1. Parliamentary involvement will undermine the effectiveness of operations

especially in emergency situations.
2. The decision to go to war is a purely executive function so parliament should
not interfere in it.
3. It is necessary to restrict some information in a deployment situation which
is confidential. Discussing these in Parliament may be disadvantageous.
4. If parliament is involved then Parliament will define what is lawful and
unlawful through legislation. This would mean that the decision to go to war
may then be challenged in courts.
5. Involvement may undermine the morale of armed forces if restrictions are
introduced by parliament.

RECOMMENDATIONS OF THE COMMIITTEE:

Committee made 2 recommendations.

 Firstly Parliament should be involved as a matter of right (parliamentary
supremacy). Secondly this should be achieved by way of a convention rather
than using legislation. (bcoz even if convention not followed , no enforcement
by courts, no sanction).

The committee recommended that the convention should encompass the

following characteristics:

The government should seek parliamentary approval before deployment of armed

forces outside the United Kingdom into actual or potential conflict.

The government should indicate the objectives, legal basis, likely duration and size
of the deployment.
If,because of emergency and security, such prior information cannot be provided,
the government should provide it retrospectively within seven days of the
commencement or as soon as possible.

Parliament should be kept informed of the progress of the deployments and, if

their nature changes, should be asked to renew its approval.

Fighting (and debating) the next war?

It was probably inevitable that the report of the House of Lords Constitution
Committee discussed above would be heavily influenced by the controversies of
the Iraq War. Although the House of Commons and the government have not,
to date, formally accepted the proposals of the Committee, it is interesting to
review the behaviour of the coalition government in relation to the
deployment of British forces in March 2011 in assisting the overthrow of
Colonel Gaddafi.

BBC report ‘MPs back United Nations action against Col Gaddafi’ (22 March
2011) on the parliamentary debate on 22 March 2011

MPs voted overwhelmingly to support UN-backed action in Libya, after

David Cameron told them it had helped avert a "bloody massacre".
Approval was sought a few days after the bombing of Libya had begun. A
particular effort was made to show the legal justification for the war. The Prime
Minister highlighted the objectives of suppressing Libyan air defences and
protecting civilians, particularly in the rebel city of Benghazi, by enforcing the ‘no-
fly zone’. The deployment of RAF Typhoon jets had been revealed prior to the
debate but there was no indication as to the numbers of jets involved. Importantly,
there was no indication as to the likely duration of the UK involvement – David
Cameron’s comment that Libya would not become ‘another Iraq’ did not give even
an approximate estimate.

WHAT IS THE CURRENT SITUATION?

 The Cabinet Manual now includes the following statement:
More recently, on 29 August 2013, there was a debate on a motion on
military action in Syria in the House of Commons and the resounding ‘no’
vote, which was listened to 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.

More recently, on 29 August 2013, there was a debate on a motion on military

action in Syria in the House of Commons and the resounding ‘no’ vote, which
was listened to and acted upon by the current Prime Minister, David Cameron,
appears to confirm the existence of a new convention that Parliament should have
the opportunity to debate decisions to commit troops to armed conflict, and that the
debate should take place before the troops are committed, except in emergency
situations.

Recently in December 2015, The British parliament has approved authorisation to

use military force against the Islamic State of Iraq and the Levant (ISIL) group in
Syria. This further confirms that a convention has developed.