In light of comments by the Foreign Secretary, Tanzil Chowdhury considers the force of the constitutional convention requiring the Government to consult Parliament on the deployment of the armed forces.
The Foreign Secretary, Boris Johnson, recently informed BBC Radio 4 of the possibility of UK military action against Syrian Government forces if the US invited its support. Furthermore, he added that taking such action without seeking Parliamentary approval ‘needs to be tested’. Labour has also come under criticism for Corbyn’s alleged-pacifism
The UK government currently have parliamentary approval for airstrikes against so-called ‘Islamic state’ in both Syria and Iraq. Military action against the Syrian Government would warrant new parliamentary approval. The current constitutional position governing military action (more generally described as the ‘War Prerogative’) is a hybrid of executive-legal and parliamentary-conventional power. Though not obligatory therefore, without Parliamentary consultation, conduct such as that proposed by the Foreign Secretary may undermine the already tenuous control that the legislature has in limiting excessive and potentially illegal (for the purposes of international law) military action by the British Government.
Constitutional conventions, such as the convention to consult Parliament prior to military deployments, are defined as the ‘understandings, habits, or practices’ that ‘regulate the conduct of the several members of the sovereign power, of the Ministry, or of officials.’ In other words, they are rules of constitutional practice considered binding upon those operating the constitution. One of the important elements of conventions therefore, is that though they lack legal robustness, actors for whom conventions are aimed at, consider themselves bound by them. Additionally, that they are ‘habits or practices’ means they are not created, but crystallise over a period of time. Conventions also often embrace a ‘morality’ or principle of the constitution- for example, taking the Queen’s role in inviting the leader of the Party that commands the majority in the Commons to be Prime Minister is predicated on democratic principles. The determination of whether such a convention exists can be metered out by the Jennings Test– a) what are the precedents, b) did actors in the precedents believe that they were bound by a rule, c) is there a reason for the rule.
Though conventions are not legally enforceable, (recognition by an Act of Parliament does not automatically make it so- this was recently articulated in Miller concerning the Sewel Convention, despite its recognition by the Scotland Act 2016), because they are seen to embody a principle of ‘constitutional morality’, actors feel bound by them. However, conventions may be breached without any major consequences, perhaps pertaining to the insignificance of the convention (and the ‘moral principle’ underlying it) or by the actor identifying unanticipated situations which warrant exceptions to the normative force of the convention.
The constitutional position regarding committing military action has had a rich immediate past; prior to 2003, and barring a few exceptions (Atlee went to the Commons to vote on the Korean War and there was a brief period during the civil war where Parliament maintained the war prerogative), the power to deploy troops was firmly placed under the Royal Prerogative.
‘It is my clear opinion that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown.’ Chandler (Terence Norman) v. DPP  AC 791 per Lord Reid
However, that critically changed in 2003 with the emergence of what is now generally accepted to be a convention where the UK government will consult the House of Commons for approval before any military action is undertaken. The convention can be traced to the decision of Tony Blair, somewhat reluctantly, inviting Parliament to vote on whether to invade Iraq (the UK government’s third Iraq bombing campaign in less than 13 years- 1991, 1998, and then 2003). This precedent was then applied in 2011 when Parliament voted on British forces (as part of NATO) creating a no-fly zone over Libya and was finally established when Parliament refused to permit air strikes in Syria in 2013 following claims that the Assad regime had used chemical weapons. Importantly, the then Prime Minister, David Cameron, honoured Parliament’s vote despite not being legally obliged to do so. Subsequent votes to conduct airstrikes in Iraq in 2014 on invitation by the Iraqi government, and in Syria in 2015 (though importantly, only against so-called ‘Islamic State’ targets) have arguably consolidated the convention. Despite the genesis of Parliament’s consultative role in 2003 therefore, only from 2013 did a consistent practice materialise that crystallised the practice (especially as non-combative military interventions had taken place elsewhere such as Mali in 2013). This is a particularly important point pertaining to the precariousness of conventions to which I return below.
The UK’s current constitutional position over deployment decisions therefore, seeks Commons’ approval pertaining to the possibility of premeditated action in which military forces are to be deployed in a combative capacity. Presumably, initially non-combative deployments which then turn combative (known as ‘mission creep’) would warrant subsequent Parliamentary approval. The current constitutional position can however be looked at in terms of its limitations – i.e. by what it cannot do. Parliamentary consultation and approval is of course not a legal requirement. Parliament also has no power of initiative or involvement in military deployments. Further, there are also no standards for the types of information Parliament would be privy to. Despite this however, the strength of the convention is enough to suggest that ‘Parliament now decides when Britain goes to war’.
Though leading commentators have reasonably interpreted the strength of the convention to consult Parliament as strong – particularly following David Cameron’s obedience to the vote of the Commons in 2013- the precariousness of conventions as legally non-binding and non-justiciable (actionable by the UK High Court) is apparent in the Foreign Secretary’s recent comments. The contingency of a conventions establishment- upon consistent practice- would mean that a departure undermining its careful and tentative development. If Boris Johnson and the UK government were to circumvent Parliamentary involvement, it is not clear the convention to consult Parliament would survive. Conversely, ignoring the convention to consult Parliament may not entirely disrupt or destroy the convention in future military action. Instead, it may attenuate it by identifying a further exception to the current constitutional arrangement. As of now, Parliamentary approval may be circumvented to protect critical national interests, prevent humanitarian catastrophe or self-defence. We would have to wait and see whether the Foreign Security would render nascent military action on the Syrian Government under one of these 3 exceptions, or increase the class of exceptions.
However, though Parliamentary involvement in military decisions is arguably a tenuous check on what would otherwise be unbridled executive power, it is at least some preventative measure against unilateral government military action (evidenced by interventions in Kosovo, Afghanistan, Iraq, Libya and Syria). The Foreign Secretary’s intervention to circumvent Parliament therefore is a very worrying step. However, the Prime Minister recently contradicted Boris Johnson by stating that new strikes would be voted upon and the Labour Shadow Minister for Peace and Disarmament, Fabian Hamilton, wants to enshrine Parliament’s role in law. Perhaps such a move will render the calls for finally statutorising Parliament’s role a reality and, relatedly, entertain the possibility of allowing the courts to review such decisions.
Dr Tanzil Chowdhury is a teaching assistant at the School of Law, University of Manchester.
You can see more of his work at: http://manchester.academia.edu/TanzilChowdhury
Or follow him on Twitter: @tchowdhury 88