The Prime Minister’s prerogative: Iraq, Syria – and war with Spain

The UK Parliament’s Syria vote offered (and lost) by David Cameron in 2013 suggests that former Prime Minister Tony Blair may have left a remarkable constitutional legacy as a result of the Iraq war – one that affects the United States and possibly even France as well as Britain. Even though British Prime Ministers can declare war and deploy troops abroad under Royal prerogative without any Parliamentary approval, in 2003 Blair sought the backing of Parliament for the Iraq venture. For the first time since the 1950 Korean conflict Parliament had a say (albeit “consultative”) prior to the engagement.

So what is the history of the prerogative power to make war, and has Britain now created a new constitutional precedent that amounts to a new convention?

The prerogative power to make war is one of a number of monarchical powers retained by the Crown as the medieval representative parliamentary system (which began as a means of legitimising tax-raising beyond the Crown’s traditional levies, particularly for wars) grew into a qualified democracy. Those prerogative powers that remain (including appointing governments and the dissolution of Parliament – until the change in the Coalition agreement in 2010) are mostly held by the Prime Minister in the name of the Crown and the relevant Secretaries of State: the Defence Secretary for war-making, the Foreign Secretary for treaty-making and regulating foreign relations (though treaties often have a parliamentary passage of some sort; see below). The Executive (Government) decides on military deployments, not the Legislature (Parliament).

The US President is Commander in Chief of the Armed Forces; the UK Prime Minister derives his/her powers from the Queen who is also Commander in Chief. The fiction is that the Queen’s powers are not exercised by the Prime Minister and Secretaries of State as such but that she is likely to be bound by their advice on such matters so they in effect hold the power.

‘Methinks it’s a very strange thing for a king to consult with his subjects what war he means to undertake. This were the means for his enemies to know what he intends to do’ – Commons Speaker, 1621

Since the settlement enshrined in the Bill of Rights 1689, the prerogative power in Britain can at any time be abolished or modified by Parliament and in 2004 the Select Committee on Public Administration recommended “legislation to provide greater parliamentary control over all the executive powers enjoyed by Ministers under the royal prerogative” including specifically “decisions on armed conflict” and “the conclusion and ratification of treaties”.

The Government was “unpersuaded” by the arguments and no such legislation was produced except a few Private Members’ Bills that did not proceed to law.

Some history
The idea of the prerogative was not uncontroversial even early in England’s Parliamentary period. For example. the House of Commons was demanding its say in foreign affairs and war during the 1621 Parliament and had to be told by the Speaker: “Methinks it’s a very strange thing for a king to consult with his subjects what war he means to undertake. This were [would be] the means for his enemies to know what he intends to do.” War should come as something of a surprise to the enemy, not be a matter bruited about via Parliament beforehand.

On this occasion it was actually Parliament that wanted to go to war – against Spain to restore King James I’s Protestant son-in-law Frederick as Elector of Palatine (and to relive the glory days of the Elizabethan period). James preferred the more pacific approach of marrying his son, Charles, to the King of Spain’s daughter and sorting matters out that way.

The House of Commons issued a Protestation insisting all matters regarding “king, state and defence of the realm and of the Church of England [all prerogative matters] … are proper subjects and matter of counsel and debate in Parliament; and that in handling and proceeding of those businesses every member of the House of Parliament hath and of right ought to have freedom of speech to propound, treat, reason and bring to conclusion the same”.

This was quite out of line and had no constitutional authority whatsoever. Parliament was saying it had the right to debate everything including foreign policy. James called for the journals of the House to be taken to him in Privy Council whereupon he tore out the offending page and destroyed it (it has nevertheless come down to us, hence the quotation above). A few members of the Commons were sent to the Tower of London for good measure and Parliament was dissolved for its temerity on this and other matters.

The Commons did ultimately get their say in the matter of war with Spain but only as a result of dark and cynical politicking, not because of any new constitutional thinking. A new parliament was called in February 1624 and the very issue that brought about the dissolution of the previous parliament became the rationale for the new one. By now Prince Charles (with his friend the Duke of Buckingham) was in the driving seat of power in England since James was ailing. Charles had been humiliated by the Spanish in his suit for the Infanta Maria Anna and now favoured war.

Charles (though nominally James) asked for Parliament’s advice on this matter of foreign affairs, normally an issue of prerogative. As Sir Edwin Sandys told the Commons: “That which the king requires is to advise him whether it be fit to continue either or neither of the treaties” – the treaties being those with Spain regarding the Spanish marriage and the Palatinate.

Having received that advice, James officially declared war in March 1924. After his death, war was pursued by Charles and lasted from 1925-30.

Consultation with Parliament on this occasion was not, however, deemed a precedent for later events.

Palmerston’s view
In 1857 Viscount Palmesrton, Prime Minister, felt it necessary to challenge any notion that “the Crown has no  right either to make war or to make peace without previous communication with, and without the previous concurrence of, Parliament”. The occasion was the Anglo-Persian war and the radical MP John Arthur Roebuck had protested at Parliament’s not having been informed of the declaration of war on 16 December 1856. He accepted the prerogative right for the Crown (ie the Government) to declare war “when it pleases”, but “the moment it comes to this House to ask us for money to enable it to maintain that war, then the whole war and everything connected with it become subjects of consideration for the House of Commons”. He said: “My complaint is, that the House of Commons, upon this occasion, has been entirely passed over; that the House of Commons, exercising the privilege of providing for the expenses of an expedition, has an undoubted right to inquire into the principles upon which the expedition is undertaken and the expenses are incurred.” His motion to the Commons said:

“That it is the opinion of this House that such conduct tends to weaken its [the Commons’] just authority, and to dispense with its constitutional control over the finances of the country, and renders it requisite for this House to express its strong reprobation of such a course of proceeding.” Hansard 16 July 1857 Col 1583

To all of which Palmerston had this to say:

“I contend … that our constitution wisely and properly vests in the Crown the prerogative and the discretion of declaring war and of making peace, with this reserve, however, which I readily admit, that when the advisers of the Sovereign have deemed it their duty to counsel the Crown either to engage in or to put an end to war, it is incumbent on them to lay before Parliament, if it is sitting, the grounds upon which the one course or the other has been adopted; or, if Parliament is not sitting, when the interests of the country are deemed to be such as to require recourse to be had to war, I frankly and freely admit it to be their duty to take the earliest opportunity of calling Parliament together in order to submit to it their reasons for resorting to hostilities.” Hansard CXLVI 1638.   

So Parliament must be informed of the reasons for going to war, according to Palmerston, but not be given a say in the matter. And even this right for Parliament need not immediately apply, he implies, if it is a rather obscure war in a far off place. The Persian issue had been bubbling up since September 1856 but blew up ahead of Christmas period. The Commons were not due to sit again until early February. Palmerston said:

“If the war had been one with a European Power, involving great and serious consequences, and likely to require the immediate cooperation of this House, I admit that even that brief delay ought to have been avoided. But, considering the remoteness of the scene of action – considering that no immediate requisition was necessary to be made to Parliament for the purposes of the war, we thought it would be attaching more importance to the matter than it intrinsically deserved to anticipate the period for which Parliament stood convoked, and to issue a proclamation calling it together a fortnight sooner for the purpose of announcing to it that operations were going on in Persia.”

The Commons did not vote directly on the Roebuck motion, but a motion to move to other business was passed 352 to 38.

The modern position
The last true declaration of war by Britain was against Siam (Thailand) in 1942. Changes in international law make the old legalistic concept of “war” somewhat redundant even though we refer to the Falklands War or the Iraq War. Arguably, declaring war is illegal now in the sense that there is no international sanction for war (except in self-defence). Whether bombing for humanitarian purpose is illegal is, of course, a moot point – it is covered in Chapter VII of the UN Charter (see below: Articles 41 and 42). The UN Security Council can authorise military action when other diplomacy and sanctions have failed.

The issue at stake, then, is a national one: the prerogative to order troops into armed conflict and to regulate foreign relations.

Constitutional conventions can change without legislation simply by atrophy, the force of custom and practice or modern democratic logic. The prerogative power to press men into the navy was never explicitly abolished but it has gone and nobody would seriously think otherwise.

So it is difficult to believe the Executive in Britain could now deploy troops in a new and major engagement, or even a minor strike (as apparently intended in Syria) where there are potentially huge political implications, without a vote of Parliament.

Does this leave the position of the Falklands (or, heaven forefend, Gibraltar) weakened, reliant on the calling of Parliament back in Westminster and at risk of the parliamentary numbers game or low politics? No, not really, since the prerogative to make war (in the loose sense of institute armed conflict/response) has not been abolished.

Direct threats to British interests and people can be dealt with by the Prime Minister and a suitable emergency committee for the speediest reaction – along the lines of the 1621 speaker, so as not to give “the means for his enemies to know what he intends to do”. These might be categorised as “wars of necessity” or self defence and would include the Falklands conflict – sanctioned by Parliament but only after the decision was made.

‘The Security Council …  may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations’ Article 42

But “wars of choice” are perhaps a different matter. What seems to have changed is less the war-making powers than the prerogative to regulate foreign relations as that intermeshes with decisions on armed conflict.

It is clear that David Cameron’s original decision towards a Syrian intervention was influenced as much by relations with the United States as any concerns about Syria’s use of chemical weapons (as was Blair’s with regard to Iraq, and possibly Theresa May’s in 2018 – also complicated by the Skripal poisoning). When Cameron recalled Parliament early he seems to have originally intended to get a decision to support President Obama in a strike on the weekend of 31 August-1 September 2013. It was a matter of foreign relations regarding the US, not merely of armed conflict with Syria. Such wars of choice are only ever likely to occur within some sort of foreign relations background, whether in terms of relations with the United Nations and the Security Council or some ad-hoc “coalition of the willing” – nations who unite in believing they have some responsibility for a Syria or a Bosnia.

A BBC poll suggests that British people (72%) don’t think US-UK relations will be damaged by the [2013] political debacle/assertion of democracy over Syria – and even if they were damaged, most British people (about 66%) aren’t that bothered.

So the blow to the prerogative, the new convention, if that is what it is, seems to be a blast of reality for future British Governments. Many people would regard it as indefensible for British people and British resources (a Cruise missile costs about £1m a pop) to be put to work to aid the initiatives of a foreign Government on the basis of a “special relationship”.

A consultation document on the issue insisted, among other things, that if Parliament were to get a say in war-making this must be in the context of “the need to ensure that we do not undermine our reputation as a helpful and willing participant in multinational operations”. (The Governance of Britain: War powers and treaties: limiting executive powers pdf)

Yet this, on the face of it, is exactly what happened in the first test of the new principle that “on the grave issue of peace and war it is ultimately this House of Commons that will make the decision” (Gordon Brown 3 July 2007).

Twitter: alrich0660

This considers the legality of drone strikes and such military action: Are drone killings lawful?

On the link between foreign relations and decisions about attacks, noted above, Andrew Adonis said this (re Theresa May’s refusal to seek parliamentary permission for the April 2018  attack on Syria:

“It is a vital British and European interest to demonstrate to Putin that Trump is on our side, not his. Our security and defence services are rightly concerned that Putin may not understand this and might thereby seriously miscalculate, perhaps by invading the vulnerable Baltic states in a widening of his Ukrainian enterprise and quest for nationalistic glory.
The problem for Mrs May is that she can hardly say any of this in Parliament. She has to make humanitarian and strategic arguments about the need for the Trump action in order to help Syria itself and eradicate chemical weapons. But these arguments do not exist​.”

In other words the decision to attack is as much to do with keeping Trump on side generally – and distancing him from Putin – as it is about use of chemical agents in the civil war. Keeping the vote from Parliament is as much about maintaining a hold on policy regarding foreign relations as on the right to wage war.

Note: Michael Fallon has (April 2016) given a Written Answer to Parliament on this issue. It can be found here. It puts the new parliamentary role in some doubt saying: “We cannot predict the situations that the UK and its Armed Forces may face in future. If we were to attempt to clarify more precisely circumstances in which we would consult Parliament before taking military action, we would constrain the operational flexibility of the Armed Forces and prejudice the capability, effectiveness or security of those forces.”

It suggests there is a new convention that requires a parliamentary vote “before troops are committed” (does this mean “boots on the ground” rather than a situation where airforce or naval personnel are firing off missiles as in the April 2018 attack?). It adds: “The Convention [ie Parliament’s say] does not apply to British military personnel embedded in the Armed Forces of other nations as they operate as if they were the host nation’s personnel, under that nation’s chain of command, while remaining subject to UK domestic, international and Host Nation law.”

Such deployments are often rather secretive anyway, so it would be unsurprising for the Government to wish to keep control over them. In 2015 it was revealed that “embedded” pilots (working with US and Canadian forces) took part in bombing Syria.

Resources
House of Lords Constitution Committee 15th Report

Parliamentary role in treaties, protocols, conventions and agreements
• Treaties with direct financial implications require the assent of Parliament because they affect revenue. The most common type are bilateral agreements to avoid double taxation. The texts are laid in the form of draft Orders in Council and are occasionally debated.

• Many treaties require a change to domestic legislation which will be subject to the usual parliamentary procedures.

• Treaties which stipulate Parliamentary approval – where an agreement is of a political nature and is known to be controversial, one or both of the governments involved may wish to safeguard its position by writing an express requirement for parliamentary approval into the text.

• Treaties which require ratification are subject to the Ponsonby procedure – being laid before Parliament for 21 days

• Other treaties and international agreements may be subject to some degree of parliamentary scrutiny if a Member raises the issue through a Parliamentary Question or early Day Motion, for example.

• Departmental select committees (ie of ordinary parliamentarians) now have a role in examining treaties.

From: Procedure Committee Second report of 1999-2000, Parliamentary Scrutiny of Treaties, HC 210.

The United Nations Charter
This states that “all Members shall settle their international disputes by peaceful means” (Article 2(3)), and that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State” (Article 2(4)). Article 51 allows for “the inherent right of individual or collective self-defence”.

Chapter VII
Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

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