Off to war

Men of the Royal Warwickshire Regiment in 1915

The UK government recently launched airstrikes against targets in Syria alongside the US and France. The result was a lot of criticism from people in the UK arguing that the use of force is unlawful because it either breaches international law or because the UK Parliament was not consulted.

Lots of this furore seems to be stoked by Russia who are already upset at having been accused of poisoning one of their former spies in Salisbury recently and who have responded with an upsurge in propaganda aimed at the West in general and the UK in particular, including bizarre claims that the UK staged the chemical attack that triggered the air strikes.

So, what is the law on committing British forces to military action?

I’m going to gloss over international law for two reasons. First, I don’t really understand it and do not feel qualified to comment on it. Secondly, I’m not entirely convinced it exists. Sure, there are rules but they are really just political agreements and there is little that can be done to enforce them. If the UK withdrew from the UN tomorrow it would cause political waves, but would anything change practically or legally? I’m not so sure.

Instead I’ll confine my comments to the domestic legality of war. But first, we need to have a chat about the UK constitution. The US Constitution is a nice simple document that fits into one slim volume, but the UK constitution isn’t so neat. It’s made up of Acts of Parliament, case law, conventions and other works of authority. Before we continue, we better make sure we all know what each part of the constitution is.

My copy of the US Constitution

Acts of Parliament includes not only Acts made by the UK Parliament but also those of its predecessors, for example the Acts of Unions passed by the English and Scottish Parliaments that created the UK Parliament.

Case law is effectively judge-made law, strictly speaking judges interpret Acts of Parliament and other sources of law to explain what the law is. Attorney-General v De Keyser's Royal Hotel Ltd [1920] AC 508 is a good example of a constitutional case. In that, the House of Lords was asked to decide whether the existence of the Defence Act 1842 affected the Government’s ability to use a Royal Prerogative – they said it did.

Conventions are, “the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas.” Says Jennings, 1959a, pp 81-82. The well known jurist and constitutional theorist, AV Dicey, gives us a more practical definition of conventions as being, “understanding, habits or practices, which, though they may regulate the.. conduct of the several members of the sovereign power… are not in reality laws at all since they are not enforce by the courts.” In plain English, a convention is something that is done because it is just the way things are done here. Perhaps not a constitutional convention, but a widely accepted convention is the taking into consideration of other offences at the sentencing of an offender. The TiC’d offences are technically dealt with and it is understood that the defendant will not face proceedings in respect of them, but they are not formally registered as convictions.

Other works of authority really means anything that was written, usually a long time ago, by people who lawyers think ought to know what they were talking about… even though those people often seem to have been making it up as they went along. Don’t believe me? Then I invite you to look at my blog on marital rape over on history.legal which describes the dubious origins of the notion that a wife consents in irrevocably and in perpetuity to sex with her husband, i.e. a husband cannot rape his wife. We’ve already met two classic examples of constitutional works of authority in Jennings and Dicey, but Blackstone is another famous one and there are a few others.

What does all this have to do with the use of force by the UK in Syria in the 21st Century I hear you cry? I’m getting there. First a quick word about the Royal Prerogative. The Crown retains the right to do things for which there is no legal mandate set out by Parliament. Once a statutory power is created by Parliament the Prerogative is in abeyance and cannot be exercised while the statutory power exists (Attorney-General v De Keyser's Royal Hotel Ltd [1920] AC 508). In reality, the Bill of Rights 1689 passed those powers from the monarch to the Prime Minister and it is she who today wields them. The Prerogative is essentially the remnants of the power enjoyed by absolute monarchs.

Albert Venn Dicey

The Prerogative that concerns us is the power to wage war, which is and always has been, a matter entirely for the Crown. War does not just mean things like the Second World War, it encompasses any deployment of British forces in conflict zones and situations. As Parliament has never legislated for the deployment of British forces into conflict or for the declaration of war the Prerogative continues to have force and Parliament has no formal role in the decision.

Confusion arises because of a convention that appeared to form from 2003 onwards that Parliament would be consulted prior to the deployment of the military except in emergency situations.

In March 2003, the Labour government led by Tony Blair announced that Parliament would be given a vote on the deployment of British forces to Iraq. On the 18^th March 2003, Parliament agreed to deploy forces and military operations began two days later.

MPs of both the Labour and Conservative parties have pressed for a stronger role for Parliament in the decision to use military force and both former Conservative leader William Hauge and more recently current Labour leader Jeremy Corbyn have suggested legislation to ensure a role for Parliament in the decision-making process. Thus far nothing has come of these demands.

The Coalition Government led by David Cameron, did suggest that the events of 2003 had formed a new convention that Parliament should always be consulted prior to military action being taken except in emergency situations. In that vein, the government tabled a debate on the deployment of British forces in Syria following a chemical weapons attack by President Assad’s military forces. Parliament was given a vote and they rejected military action. Further votes were given to Parliament on the use of force against ISIS in both 2014 and 2015 and on both occasions, Parliament voted in favour of action. These votes have been seized upon both by those who wish to see a strengthening of parliamentary powers and by those who do not wish to see the UK intervene in Syria and who remember the 2013 vote and expect a repeat. However, that is not the whole story because between 2003 and 2011 British forces were deployed without a Parliamentary vote, most notably in 2006 when a significant number of British troops were deployed to Helmand. Even in 2011 as the Coalition was suggesting that a convention now existed they were deploying British forces to Libya without allowing Parliament a vote. A few months before the Libya deployment and the Coalition’s suggestion that a convention to consult now existed the Prime Minister exercised the Royal Prerogative to deploy troops to Mali in support of French soldiers already fighting there, again this happened without a debate in Parliament much less a vote.

If a convention already existed, then it is difficult to see why the Coalition government chose not to follow it in either Libya or Mali. A cynic might say that the potential deployments in 2013 against Syria and against ISIS in 2014/15 were far more controversial than those in Libya or Mali and perhaps the Prime Minister chose to hide behind Parliament rather than place himself in the, metaphorical, firing line should it all go wrong. Of course, you might also say that in the birth of any new convention there will always be splutterings of observance and non-observance as the rule is formed.

We can now see that if there was no convention, as seems likely to me, then the Prime Minister retained the right to exercise the Royal Prerogative to deploy British forces. But, what if the convention had been formed and does now exist?

First, we saw earlier that Jennings saw conventions as things that change over time to suit the ideas of the day so, if a convention can be brought into existence at the whim of a Prime Minister then you must seriously question why it cannot be destroyed at the whim of the next Prime Minister if the ideas of the day have moved on. But, let’s look again at that definition by Dicey who says conventions are, “understanding, habits or practices, which, though they may regulate the.. conduct of the several members of the sovereign power… are not in reality laws at all since they are not enforced by the courts.” I would suggest that for our purposes the most important part of that definition is “they are not enforced by the courts.” Something that cannot be enforced cannot be said to have any real legal standing and so if a government chooses to ignore them then how can they be held to account by a court? If a government cannot be held to account, then can you really say their actions are unlawful in the legal sense rather than the moral one?

Okay, okay, I’m fudging the question in that last paragraph so let us assume the convention exists and then think about what it means. Does it mean that the government must come to Parliament every time it contemplates the use of force? No, it doesn’t. That was expressly excluded in the Coalition’s own suggestion when they said that Parliament should be consulted except in an emergency. So, we know that there are exceptions to the convention but do they apply only to emergency situations or are there more?

In Mali, the government committed troops, but they were sent to assist in the training of the Mali military. In Libya, the government committed troops to train rebels fighting against Colonel Gaddafi, although British forces also carried out around 1,600 air strikes as well. Parliament was consulted over the use of offensive air strikes against ISIS in 2014 (in Iraq) and 2015 (extended the authorisation to include ISIS targets in Syria). None of these situations could, in my reading and remembrance of them, be described as an emergency urgent enough to bypass the consultation convention. Then perhaps we can say that the convention requires Parliamentary consultation except in an emergency or when a deployment does not involve offensive actions. However, consultation is required when considering offensive actions, although there is some confusion between the lack of consultation over airstrikes in Libya and those in Iraq/Syria that is difficult to resolve neatly.

My personal opinion, is that this convention is too vague, even by British constitutional standards, to be capable of existing at present. It is quite possible that future events will serve to shape the convention one way or another, but presently I cannot see how anybody can adequately resolve the question of what exceptions exist and when they may be utilised.

In our system of government, Parliament does have a role to play in military actions in scrutinising executive decisions and holding the executive to account. It can also choose to effectively halt major military actions by withholding funds to enable them – obviously that won’t work for actions that can be funded without recourse to additional funds. If Parliament really opposes a decision to deploy troops they always have the option of tabling a vote of no confidence in the government, which would trigger another use of the Royal Prerogative, this one exercised personally by the Queen, to dissolve Parliament. Is there a role for MPs to play in deciding whether to commit troops to conflict and war zones? I’m quite sure there is but if they want it then they need to grasp the bull by the horns and create it with a well-thought out Act of Parliament rather than relying on vague, shapeless conventions to do the job for them.