War Powers and Treaties green paper

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Our View In a Democracy, decision-making should be scrutinised and be accountable to the elected representatives and ultimately to the people. The decision to send troops into armed conflict is one of the most serious that any state can make. That this decision-making process is unaccountable and cannot be effectively scrutinised, is quite simply unacceptable. The question of parliamentary approval for going to war became a major issue in the context of the decision to go to war with Iraq. Some believe that better parliamentary scrutiny would have led to a different decision. This is probably not the case as there was, for the first time, a vote in parliament, on a substantive issue related to the proposed military action. Parliamentary scrutiny is not just about influencing the decision of the Executive but is also about the constitutional principle of accountability both to Parliament and the people and ensuring that all issues are debated and scrutinised. Clearly the deployment of armed forces is a sensitive issue and information should not be made public that would endanger the lives of service personnel. However this does not mean that only the executive can ever be involved in making these decisions; as demonstrated in our briefing on war making powers there are ways of enabling Parliament to approve the deployment of troops, without endangering national security.

The Consultation Paper War powers and treaties: Limiting Executive Powers is part of the governments proposals for constitutional renewal set out in the Governance of Britain Green Paper. The paper War Powers and Treatiesfollows on from this and is concerned with the executives prerogative powers to a) commit armed forces to armed conflict abroad and b) the power to commit the nation to international obligation through the ratification of treaties.

War Powers

A number of key considerations or goals are outlined which any mechanism will have to take note of:

• The need to ensure that the UK can continue to be able to fulfil its international obligations.

• That we do not undermine our reputation as a helpful and willing participant in multi-national operations.

• The need to respect the views of coalition partners.

• Maintain operation flexibility and freedom of the commanders in the field.

• The need to maintain the morale of the armed forces.

• The need to ensure that if the government, for whatever reason, cannot respect the mechanism there are no consequences for individual soldiers i.e. being accused of acting illegally.

Key questions of the consultation paper are:

• What should Parliament have control over? How should armed conflict be defined. The government argues that a general definition with some exclusions is the best approach.

• What is the position of the reserve forces and the Special Forces? The government favours including reserve forces.

• Should there be a procedure for allowing deployments without the prior approval of Parliament in exceptional circumstances? The government favours this in two areas: in emergency and secretive situations. It is suggested that these have to be broadly defined owing to their inherent unpredictability.

• Should the government have to seek retrospective approval or is it enough simply to inform Parliament. The Paper tentatively suggests that the Government, in this situation, should only be required to inform Parliament.

• What kind of information should be given to Parliament? And who should decide what information is disclosed? The government recommends limiting the information to the objectives and location of a deployment and the legal basis for the operation. It is also recommended that the Prime Minister have a degree of discretion over the level of information released.

• Should the exact timing be left to the discretion of the Prime Minister? The alternative is a role for Parliament in deciding the best timing? The former is the position of the government.

• How should Parliamentary support be maintained throughout a deployment? The Government suggests that the deployment should not be subject to constant renewal, but is willing to look at mechanisms that require it to report at regular intervals back to Parliament.

• What is the role of the House of Lords? The Government argues that the House of Lords should be consulted preferably before the House of Commons so that that the opinion of the Lords can be taken into account. Ultimately, however, it should be the decision of the House of Commons.

• Would a new Parliamentary committee need to be established and what would its relationship be between existing parts of the system, e.g. the Defence and Foreign Affairs Select Committees and the Intelligence and Security Committee.

• Should the mechanism be a Parliamentary convention or made statutory? This is something the Government is consulting about. A possible alternative is offered in the form of a ‘hybrid’ approach combining the convention and legislation approach. It would take the form of a short Act, which would require Parliamentary approval for deployment but leave the detail of Resolution arrangements to procedures that would be determined later.

International Treaties

The second element of the report concerns Parliaments power over the ratification of international treaties. International treaties are scrutinised under the ‘Ponsonby Rule’ in which a treaty is published as a Command Paper and put before both Houses for at least 21 sitting days. The consultation covers:

• there a need to replace this as a statue?

• How should alternative procedures and flexibility be provided for?

• Are any changes required to the Parliamentary procedures in either House for triggering a debate on a treaty?

• Should there be provision for extending the 21 sitting-day period if, during those 21 days Parliament indicates that it wishes further time to scrutinise or debate the treaty?