Parliamentary control of the armed forces: theory and practice
The authority may be nominal in current practice, but Parliament's support for government policy and expenditure is essential and ministers should remember it
[Note: I tweeted yesterday afternoon that the government should announce the contents of the Strategic Defence Review to Parliament before anywhere else, and that in legal and financial terms the armed forces could only exist with the consent of Parliament. It seemed to strike a surprising chord with some X users, so I thought it worth explaining.]
Today the government will publish its long-awaited Strategic Defence Review, the end of a process begun within a fortnight of the Labour Party taking office in July last year. Already we know much of what the review will contain, as it has been brazenly and unapologetically leaked by ministers for several days; in fact, not even leaked but made the centrepiece of official media announcements. Its formal release will be conducted by the Prime Minister, at a dockyard somewhere in the United Kingdom.
This approach of drip-feeding elements of the review before an unveiling before an uncritical and selected audience is outrageous. Wearily cynical and pitying eyebrows will be raised by those who will talk about the 24-hour news cycle and modern media strategies, and suggest that my concerns are out-of-date. I will say quite clearly: I have worked in both Houses of Parliament, on the fringes of communications in the private sector and I exist in the ecosystem of the media. The Strategic Defence Review should have been announced to Parliament by the Prime Minister or the Secretary of State for Defence, there should have been no disclosures of its contents to the media until that announcement and it is a gross discourtesy to the House of Commons as a body to be almost the last to learn, officially, what the document contains. The government has behaved badly, rudely and high-handedly.
When the SDR was launched last year, it was billed as a “root and branch” re-examination of Britain’s defence posture and policy. We were told that “a new era requir[es] a new type of review”, and the Defence Secretary, John Healey, made great play of the fact that, unlike previous defence reviews, this SDR would be conducted by senior external figures: Lord Robertson of Port Ellen, former Defence Secretary and NATO Secretary General, who oversaw the 1998 Strategic Defence Review; General Sir Richard Barrons, former Commander Joint Forces Command; and Dr Fiona Hill, Senior Fellow of the Brookings Institution and former Senior Director for Europe and Russia at the United States National Security Council.
The indications are that the SDR will be less comprehensive and radical than might have been thought when it was launched. We shall see. What we do know is that there are several areas of substantial new expenditure: £1 billion will be spent on a “digital targeting web” to connect various weapons systems in combat zones; £1.5 billion will be spent on improving the condition of service housing; another £1.5 billion is set aside for building at least six new munitions and armaments factories; and £6 billion will be spent replenishing the armed forces’ stocks of munitions. These are substantial sums of money.
Bearing in mind the government’s cavalier attitude to Parliament, I think it is worth reminding ourselves of two factors which Members of Parliament and ministers should bear in mind. These are theoretical in current practice but entrenched in our constitutional procedures, and they are these:
1. It is against the law for the government to maintain a standing army without the explicit and specific authorisation of Parliament.
2. Every penny that the government spends on defence, or indeed on any other form of expenditure, is authorised by Parliament. The government cannot raise revenue on its own initiative or without permission.
Those may now be regarded as technicalities, but they are so only by the choice of Parliament, not through any change in the law or constitutional practice.
The balance of power
It is a commonplace of British politics now, as it is in many countries, that we have an excessively powerful executive with inadequate checks and balances provided by the legislature. This is an issue currently being played out in the United States, where President Donald Trump recognises no restraints on his powers and dismisses the judiciary as illegitimate, unrepresentative, unelected and fundamentally opposed to him. Meanwhile a dismally quiescent Congress, in which the Republican Party controls the Senate and the House of Representatives, is offering virtually no resistance even to the most egregious of Trump’s intrusion on their prerogatives and responsibilities. (George Will, who knows the United States Constitution intimately, shone a light on this state of affairs in a recent column for The Washington Post.)
In the United Kingdom, we have no separation of powers like those enshrined in the American Constitution. Our executive is dependent on the legislature and its members are drawn from it, mostly from the House of Commons and some from the House of Lords, although strictly speaking they need not be; as far as I can think, the last occupant of ministerial office not to be a member of either House for any appreciable length of time was Sir Joseph Maclay, Shipping Controller 1916-17 and Minister of Shipping 1917-21, though he was ennobled as Lord Maclay in 1922.
Parliament, or at least the House of Commons, is also believed to suffer under a brutally conformist whipping system which precludes any displays of independence or autonomy by MPs, though I suspect recent chief whips might not entirely recognise such a characterisation. Rory Stewart in particular has lamented this, but I am not entirely sure how else a parliamentary system like ours would work. I also think Members of Parliament must accept a degree of responsibility for the supposedly supine attitude of the House of Commons; if whips bully, cajole and persuade them to vote against their instincts or beliefs, they at least to some extent allow that to happen or are sufficiently influenced by the positive and negative sanctions which whips can invoke.
(The term “whip” seems to hold a baleful fascination for some critics. It is either a reference simply to an instrument of chastisement or—and given the history of Parliament I think this is more likely—taken from the role of “whippers-in” who kept stray dogs in the pack when hunting. My own view is if you think it is the term “whip” which is the problem, then perhaps the problem is less acute than you imagined.)
I am enough of a realist to acknowledge that the government of the day will generally carry the House of Commons with it, for the simple reason that it comprises a majority of MPs who are in political alignment with it. That, after all, is how it becomes the government: the King invites whoever can command a majority in the Commons to be Prime Minister, and the moment a Prime Minister loses that confidence, he or she is dead in the water, as Theresa May, Boris Johnson and Liz Truss have found out in the last few years.
In addition, the “payroll vote”—MPs who are expected to support the government in every division because they hold ministerial office or some other kind of official position—has grown substantially over the past decades. Although there is a legal limit on the number of ministers who can receive a salary, there is increasing use of unpaid ministers, and the number of parliamentary private secretaries, unpaid ministerial aides who are nevertheless regarded as part of the payroll vote, has ballooned.
The Ministerial and other Salaries Act 1975 stipulates that only 109 ministers, including the Prime Minister, can be paid, while the House of Commons Disqualification Act 1975 limits the number of paid ministers who can sit in the Commons to 95. Yet there are currently 120 ministers (108 paid, 12 unpaid), 90 in the House of Commons and 30 in the House of Lords. The payroll vote consists of those 90 MPs holding ministerial office, 43 Parliamentary Private Secretaries, 23 MPs who are “mission champions” and 20 who are trade envoys. That makes a total of 176 Members of Parliament more or less required always to vote with the government: almost half of the total of 403 Labour MPs and more than a quarter of the House of Commons. It becomes clear why governments rarely lose.
There is an attitudinal aspect to this. Members of Parliament think of themselves in a number of ways: by party, primarily, and within that by internal party faction, but also as ministers and shadow ministers or backbenchers, as members of select committees, as members of regional groupings and so on. Very rarely, or at least very indistinctly, do they think of themselves as part of the House of Commons as a body in constitutional terms, as part of the legislature not the executive or the supporters or opponents of the executive.
In part, their constitutional role requires them to do this. Our system of government began before the modern concept of a substantial executive existed, with power in the hands of officers of the Royal Household and what emerged first as the King’s Council then the Privy Council. Only six or seven of the 19 members of Henry VIII’s later Council sat as MPs, and the House of Commons only sat periodically, as Parliament was not at that stage an institution which was expected always to be sitting. The executive would of course seek in influence and manipulate Parliament, but did not depend on its support for its existence.
Why does this matter? It matters because there are often-overlooked truths about where authority lies in theory as opposed to practice.
A standing army
The Bill of Rights was one of the fundamental legislative elements of the constitutional settlement reached after the Glorious Revolution, in which King James II of England and VII of Scotland was deposed and his son-in-law and daughter, William, Prince of Orange and Stadtholder of Holland, Zeeland, Utrecht, Gelderland and Overijssel, and the former Princess Mary, were invited to assume the thrones of England, Scotland and Ireland. The King’s Catholic faith, a tendency towards autocracy and, crucially, the birth of a male heir, James, in the summer of 1688 made his continued rule unacceptable to many leading Protestants, but the transition was also seized on as an opportunity to reset the balance of power between the Crown and the two Houses of Parliament and establish a number of fundamental freedoms and rights against absolutism.
The Glorious Revolution was in some ways the coda to the civil wars of the 1640s in which Charles I had faced the majority of Parliamentarians and paid for it with his life. The Coronation Oath Act 1688 secured the position of the Church of England, the Oaths of Allegiance and Supremacy Act 1688 required office-holders to accept the new monarchs and the Toleration Act 1688 relaxed restrictions on non-conformist Protestants (but not Roman Catholics or adherents of other religions); in Scotland, the Articles of Grievance enumerated the ways in which the King had governed unjustly and the Claim of Right Act 1689 strengthened the position of the Parliament of Scotland against the Crown.
The transgressions of the deposed king, the general freedoms to be enjoyed by subjects and the responsibilities resting upon the monarch were compiled in the Declaration of Right which was presented by the Parliament of England and given statutory existence as the Bill of Rights. It remains one of the foundations of our constitutional settlement, along with Magna Carta, the Petition of Right, the Habeas Corpus Act 1679, the Act of Settlement 1700, various Representation of the People Acts and the Parliament Acts 1911 and 1949, among other statutes.
One area of particular contention addressed by the Bill of Rights was the control over military forces, with the civil wars still within living memory. The Militia Act 1661 and the City of London Militia Act 1662 had placed the militia under the control of the monarch, and one of the grievances listed in the Bill of Rights was that James II and VII had gone beyond the limits of acceptable conduct “by raising and keeping a Standing Army within this Kingdome in time of Peace without Consent of Parlyament and Quartering Soldiers contrary to Law”. The remedy was simple: the statute declared “that the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law”.
This provision remains law: unless the country is at war, it is illegal to maintain a standing army without Parliament’s consent. Yet, manifestly, the government does maintain a standing army (and navy and air force). In order to so, however, it needs to regular consent of Parliament. Until the 1950s, Parliament passed an annual Army Act (from 1920, an Army and Air Force Act) which was the mechanism by which this consent was granted. After the passage of the Army and Air Force (Annual) Act 1954, in an attempt to reduce the bureaucratic burden of yearly legislation, the Revision of the Army and Air Force Acts (Transitional Provisions) Act 1955 changed the schedule of renewal and the next primary legislation was the Army and Air Force Act 1961, which extended the provisions of the Army Act 1955 and the Air Force Act 1955, allowing yearly renewal by Order in Council for up to five years. The Armed Forces Act 1966 repeated the procedure of primary legislation which then allowed yearly extension for a five-year period by Order in Council. The Armed Forces Act 1971 also encompassed renewal of the Naval Discipline Act 1957 on the same basis.
In 2005, the Labour government revised the service acts and introduced a single system of service law to apply to all personnel wherever they were stationed, and effected these changes in the Armed Forces Act 2006. However, as required by the Bill of Rights, the new act was still subject to yearly renewal by Order in Council for a maximum period of five years, after which new primary legislation would be required. This has been provided by the Armed Forces Acts 2011, 2016 and 2021, and a new act must be passed next year.
Partly in recognition of the routine nature of the legislation, the Armed Forces Bill, as it begins life every five years, does not go through the standard parliamentary process for government bills, but after Second Reading is committed to an ad hoc select committee, the Armed Forces Bill Committee, which sits only for the time it takes to consider and approve the bill. The committee can take evidence, make visits, conduct line-by-line scrutiny, amend the bill and submit a special report on its findings, though this last is not a requirement: reports were published in 2006 and 2011, but the Armed Forces Bill Committee which sat in 2016 did not produce a report.
The mechanism of an ad hoc select committee is a hangover of the time before public bill committees were created. Before 2006, legislation was considered by standing committees, which could not generally do anything beyond line-by-line scrutiny of the bill itself. Taking oral and written evidence before that was a function which could only be performed by what were called “special standing committees”, established in 1980, initially on an experimental basis, and not frequently used. Public bill committees, introduced in 2006, essentially adopted the special standing committee model; however, ad hoc select committees like that which considers the Armed Forces Bill have the additional option of producing reports, unlike public bill committees.
If this all appears impenetrably procedural and formulaic, in some ways it is. But the important point is very simple: every five years at the most, Parliament must explicitly agree in statute that the government may maintain armed forces. In 2011, introducing that year’s Armed Forces Bill to the House of Commons for its Second Reading, the then-Defence Secretary, Dr Liam Fox, emphasised the importance of the legislation.
It… is an important piece of legislation. It continues a series of armed forces Bills that stretch back to the Bill of Rights of 1689, which enacted that the keeping of an Army in time of peace shall be against the law “unless it be with consent of Parliament”. So one of the Bill’s most important functions is providing the legal basis for the armed forces to continue to exist.
Service personnel do not have contracts of employment, but instead owe allegiance to the sovereign, expressed by obedience to lawful orders. If the Armed Forces Bill were not passed and its provisions were to lapse, commanding officers would have no power of punishment for disciplinary or criminal misconduct, and therefore no mechanism to ensure that service personnel obeyed orders. While they would still owe allegiance to the monarch, the chain of command in practical terms would simply cease to exist. That mechanism which allows the armed forces to function on any level is in the gift of Parliament, and ministers cannot be without it. It is the distillation of the principle underlying the Bill of Rights: that Parliament, not the Crown through the executive, which has the ultimate authority over military forces.
Holding the purse strings
The second point, that of expenditure, is more fundamental still, and applies much more broadly than just to the armed forces. I often repeat the mantra, which is important and true, that there is no such thing as “government money”, only money which the government has extracted from taxpayers through various duties and levies. But it is true in another sense too, and here there are obvious analogies with the requirement of the Bill of Rights in terms of a standing army. Government taxation and spending can only be authorised by the House of Commons: if a bill contains provisions to impose taxation, it must be accompanied by a Ways and Means Resolution agreed by the Commons, while expenditure requires the authorisation of a Money Resolution.
When required, these are usually agreed without debate or division after the bill has been given a Second Reading, and the control of the Commons over them is described as the House’s “financial privilege”. This is an enormously long-standing prerogative: a Resolution was agreed on 3 July 1678:
That all aids and supplies, and aids to his Majesty in Parliament, are the sole gift of the Commons; and all bills for the granting of any such aids and supplies ought to begin with the Commons; and that it is the undoubted and sole right of the Commons to direct, limit, and appoint in such bills the ends, purposes, considerations, conditions, limitations, and qualifications of such grants, which ought not to be changed or altered by the House of Lords.
This built on the terms of a Resolution of 1671 “that in all aids given to the King by the Commons, the rate or tax ought not to be altered by the Lords”. In addition, the Crown is held to have “financial initiative”, in that only government bills can make proposals for taxation and expenditure.
Later this month, the Chancellor of the Exchequer, Rachel Reeves, will present the results of her Spending Review to Parliament, the allocation of money among the budgets of individual departments. Politically, this is a crucial process which will tell us a great deal about the priorities of the government over the next few years, but in strict terms there is a part of the process missing and being ignored.
The government has to ask Parliament for the public money it wants to spend across all departments. This is done through the presentation of Estimates, documents in which each department sets out the money it requires and seeks the approval of Parliament. They are formally approved on Estimates Days, which are now in practice opportunities for select committees to have reports debated on the floor of the House, but that is not technically the main purpose of the day’s business; rather, strictly speaking, it is an opportunity for the House of examine the money requested and approve or reject the request.
The Estimates process has three main components:
In February, departments will submit Votes on Account, essentially a request for an advance on their budgets before the financial year begins in April. These will usually be considered and approved in March, and can represents as much as 45 per cent of a department’s annual budget.
In April, the Main Estimates are published but will not generally be considered until July (hence the need for the Votes on Account). The approval of the Main Estimates is set out in a Supply and Appropriation Bill (here is an example) which authorises the government to access money from the Consolidated Fund, the government’s bank account at the Bank of England set up in 1787, and sets out the purposes for which the money is to be spent.
The following February, departments submit their Supplementary Estimates which are considered that month or in March, and make provision for any unexpected expenditure which is necessary.
There are two Supply and Appropriation Bills each year, one covering the Main Estimates and the other the Votes on Account and Supplementary Estimates. In addition, the Ministry of Defence also presents Defence Votes A in February, which sets out the maximum number of personnel in each of the three services. This is considered in February or March then incorporated into the Supply and Appropriation (Main Estimates) Bill in the summer.
As an example, these are the Main Supply Estimates for 2024-25 with all departmental spending consolidated into one (very long) document. Each department also provides a memorandum explaining the detail of their own Estimate, and this is the Ministry of Defence’s memorandum for the Main Supply Estimates.
The scrutiny of these bills is a formality: they are presented to the House for their First Reading (a formality for any bill) the day following the debate on the Estimates, and Second Reading is taken the day after that, but without debate. There is no Committee Stage for Supply and Appropriation Bills, so they proceed directly the Third Reading, which is also taken without debate or division. The House of Lords, because of the financial privilege of the House of Commons, passes the bills without debate. The system of financial scrutiny by Parliament has therefore all but atrophied in practical terms, but that is a matter of practice and precedent rather than procedure.
How does this relate to the Strategic Defence Review? Quite simply, all of the spending commitments the government has been trumpeting over the last few days are in theory contingent on the approval of Parliament, not just in a general sense of the government being held to account and being answerable to Parliament but in that expenditure cannot happen until Estimates have been presented and approved and a Supply and Appropriation Act has been passed. This process is in the hands of Parliament, not the government.
Conclusion: theory v. practice
There is no question of the House of Commons refusing to pass a Supply and Appropriation Bill, certainly at the present time when the government has an historically large majority of 174. Indeed, such a bill has only once been defeated, early in 1784 in the first months of William Pitt the Younger’s administration. It led to the fall of the government and the dissolution of Parliament, and the consequences would be the same today. We refer to de minimis allegiances to keep a government in office as “confidence and supply” arrangements, because they guarantee support in votes of confidence and the backing for supply bills so that the government has access to money. Those are the essentials of governing.
Members of Parliament do have a identity as part of the House of Commons as an institution. That group identity maybe almost ritualistic but it does not harm to remember it from time to time. As members of that institution, and in no other capacity, their approval is required as the sole authority over public taxation, expenditure and the maintenance of military forces. That is a reflection of a critical part of our constitutional settlement and the development of parliamentary sovereignty. MPs are the masters of the executive, not its servants—and at the very least have earned the right to hear major policy announcements like this first and scrutinise ministers about them.