War powers: Parliament can't always be the first to know

It may not be practical to inform Parliament of military action before the fact, much less seek approval, but the executive should be regarded as having some freedom

Stephen Flynn, the glowering, perpetually angry leader of the SNP group at Westminster, told BBC Scotland yesterday that it was “farcical” that the House of Commons had not been consulted before the prime minister authorised air strikes on Yemen on Thursday night.

“Farcical” is a very SNP word. It is haughty and sneering, unable to believe that its interlocutor cannot see the force of the argument. I have a counter-proposition: it would have been truly farcical to have put the Houthi militants in Yemen on high alert by holding a debate and a division in the House of Commons, signalling that the UK—and of course the United States, the major player in any Western military coalition—was on the verge of taking military action against them. It may be polite to knock, but it is tactically witless to call ahead.

Let’s look at the constitutional situation first. Committing the armed forces to military action is a power exercised by the government under the Royal Prerogative, essentially those non-statutory powers which belong to the Crown rather than to Parliament. The King is head of the armed forces, exercising that command through the secretary of state for defence and through the Defence Council. There is therefore no locus for Parliament in determining whether or not British sailors, soldiers and airmen are sent into combat.

That is the strict constitutional status quo. However, a partial convention has developed, particularly over the last 25 years, that Parliament will be informed of and, on occasion, given a formal vote on, the deployment of British forces. In 2003, the Labour government voluntarily gave the House of Commons the opportunity to vote on the potential intervention in Iraq. On 18 March 2003, the prime minister, Tony Blair, opened a debate on a substantive motion which:

supports the decision of Her Majesty’s Government that the United Kingdom should use all means necessary to ensure the disarmament of Iraq’s weapons of mass destruction; offers wholehearted support to the men and women of Her Majesty’s Armed Forces now on duty in the Middle East.

It was absolutely explicit. The House was voting to give its approval (its permission was not necessary) for the armed forces to use “all means necessary” to disarm Iraq. Blair made it clear that this was a genuine choice, and told the House that “to retreat now, I believe, would put at hazard all that we hold dearest”. More, and making it clear how high the stakes were, he argued it would be “to tell our allies that at the very moment of action, at the very moment when they need our determination, Britain faltered: I will not be party to such a course.”

At 10.14 pm that evening, the House divided, and the decision to undertake a military intervention was emphatically endorsed, by 412 to 149. However unpopular the war in Iraq was and is—I have made my views clear in the past—Blair’s decision to allow the Commons an effectively binding vote, when it was not clear that he would win it, was a gamble but one which strengthened the government’s position immeasurably.

Although there was never a division on a substantive motion to approve the deployment of UK forces to Afghanistan, the precedent of the vote on Iraq was felt to be powerful. In March 2011, the then-cabinet secretary, Sir Gus O’Donnell, told the House of Commons Political and Constitutional Reform Committee that:

the Government believes that it is apparent that since the events leading up to the deployment of troops in Iraq, a convention exists that parliament will be given the opportunity to debate the decision to commit troops to armed conflict and, except in emergency situations, that debate would take place before they are committed.

This convention was reiterated in the House of Commons on 10 March 2011 by the leader of the House, Sir George Young.

A motion giving retrospective approval to military action against Libya was debated on 21 March 2011, and was overwhelmingly approved (557 to 13). On 29 August 2013, a motion to approve action against Syria was defeated by 285 to 272, and the government abided by the non-binding decision. UK forces did not participate in air strikes. On 26 September 2014, a debate was held on using force against ISIS in Iraq, and the motion was carried by 524 to 43. On 2 December, extending that military action was approved 397 to 223.

There were deployments for which the approval of the House of Commons was not sought, for example in Mali in January 2013 and in Syria in April 2018. As I have said, there was no consideration of a substantive motion on Operation HERRICK, the commitment to Afghanistan. What emerges is a picture in which the government will err on the side of seeking the approval of Parliament, but with the important provisos that it will not always be possible to do so, and that it has no obligation or requirement to do so.

One distil some kind of convention for this, as Theresa May tried to explain on 17 April 2018.

The assumption that the convention means that no decision can be taken without parliamentary approval is incorrect—it is the wrong interpretation of the convention… this therefore cannot and should not be codified into a parliamentary right to debate every possible overseas mission in advance… there are also situations when coming to Parliament in advance would undermine the security of our operations or constrain our armed forces’ ability to act quickly and decisively. In these situations, it is right for the Prime Minister to take the decision and then to be held accountable to Parliament for it.

That is the general convention which prevails today, and under which Rishi Sunak agreed that UK assets should participate alongside the United States in strikes against the Houthi militants in Yemen. The prime minister acted properly and in an orderly fashion, and it would have been quite wrong to have held a debate on Thursday (or whenever) to signal to the Houthis that military action was imminent. The prime minister will likely give a statement to the House on the military action on Monday afternoon; it is not clear if there will be the opportunity for a division.

Flynn made another preposterous assertion. Still brandishing his constitutional outrage, he said that “It’s a bit farcical that they waited until the moment parliament had shut its doors to make an announcement that this was what they were intending to do”. He is not quite right: the House rose at 5.18 pm last Thursday, the cabinet met in person and remotely at 7.45 pm and after that the leader of the opposition, Sir Keir Starmer, and the shadow defence secretary, John Healey, as well as the speaker of the House of Commons, Sir Lindsay Hoyle, were all briefed on the planned operation on Privy Council terms. The air strikes began around 11.30 pm.

In any event, it is obvious that the decisions on targets and schedule will have been made by the United States. The UK’s contribution was two Typhoon FGR4 attack aircraft and a Voyager KC.Mk 2 air-to-air refueller from RAF Akrotiri in Cyprus. The government will not have been given a choice of times: rather, the Pentagon will have decided what is happening and asked if we wish to participate. Rightly, in my view, we did so.

There is a plethora of proposals for giving Parliament more control over the deployment of armed forces, and this House of Commons Library briefing paper is a good guide. Starmer finds himself mildly embarrassed because, although he was briefed on the strikes against Yemen and supports them, he had pledged in the campaign for the Labour leadership in 2020 that he would introduce a mechanism guaranteeing Parliament a say on military action under the following circumstances:

Military action could be taken if first the lawful case for it was made, secondly there was a viable objective and thirdly you got the consent of the Commons.

He could argue that introducing such a requirement remains an aspiration for government but that he must deal with the current situation as he finds it. However, he has talked himself into something of a corner, saying there is “no inconsistency” in his position, and that he was referring to “boots on the ground” when he proposed a measure for authorisation, not a limited strike like the one we carried out on Thursday. Splitting hairs in that way may come back to haunt him.

To be fair to Stephen Flynn, he did make one reasonable point. He said that “We need to understand what it is the government is hoping to achieve here… what comes next and how does this fit in to the wider regional picture at this time, which we know is extremely volatile?” That is a perfectly reasonably question; indeed, it is one which must be asked and asked rigorously. However, it can be asked on Monday without any loss of topicality and without being overtaken by events.

It seems to me that any convention or resolution would have to have exemptions for taking emergency action or being able to undertake military operations without alerting your opponents. Clearly such an exemption would have applied on Thursday.

Enthusiasts for codification often point to the United States Constitution, in which the US Congress has the authority to declare war. It is true that Article I, Section 8 of the constitution grants the legislature extensive powers (see below).

However, it is also true that these general principals have many exceptions. Article II, Section 2, stipulates that the president of the United States is the commander-in-chief, and as such has relatively broad powers to repel attacks against the US and act in self-defence. Congress therefore passed the War Powers Resolution of 1973, which states that the president may only deploy US forces overseas pursuant to a declaration of war by Congress, under statutory authorisation or in the case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces”. If forces are committed, Congress must be informed within 48 hours, and they may only be deployed for 60 days, with an additional 30-day withdrawal period, unless an authorisation of the use of force or a declaration of war is granted.

All of this means that the ability of the executive to act swiftly, suddenly and effectively with military force is relatively unfettered. And that is as it should be. While the UK does not have formal separation of powers in the same way as the US, the direction of the armed forces must clearly fall to the executive, and the legislature can realistically only have very general oversight. In any event, the prime minister and the government are still accountable to Parliament, and could be removed very swiftly if they were felt to have behaved egregiously.

I have written before that we should not expect Parliament to do too much. It has very specific constitutional roles, and a broader function as the representative body of the nation, but there are some things it is not suited to do. Making decisions quickly and in secret is one of them, which is why there will always be occasions on which it is impossible to consult, let alone obtain the approval of, Parliament before committing the armed forces to military action. There must be an extent to which the government, having been appointed by the sovereign on the basis that it commands the confidence of the House of Commons, is deemed to have certain freedoms of action derived from the prerogative powers.

There will be a lot of handwringing in the House this afternoon and very high-sounding principles of accountability and authority. Some, perhaps, will be earnest and well-meaning, but most, I fear, will be performative. It would not be impossible to create a “war powers” mechanism, and many have sketched out designs. I would merely suggest that any measure which was not excessively onerous or obstructive would be so flexible as to be almost pointless. The reality is that no government which defied the obvious will of the House on military action, or indeed any other matter, could long survive. Either the prime minister has the votes, or he does not. If he does not, he will soon be gone. It is brutal but effective. And we should trust to it now.