War: Commons’ veto

Back in 2011, it was promised by the current Foreign Secretary that the Commons would be given a vote before any military action and the Cabinet manual was changed to reflect this (with the caveat “except when there was an emergency and such action would not be appropriate”). It is now accepted to be a convention by the government, and more than that they proposed to enforce it by statute.

Now it appears that civil servants are struggling to come up with a bill that would give ministers the flexibility they require along with ensuring ultimate authority is with MPs. Former generals appear to be leading the charge against, with the message from the article being that if the bill is delayed beyond this Spring, it is not certain to become law thanks to tenacious former generals in the Lords who appear to also be lobbying against even an unenforceable convention.

The House of Commons has only recently accrued any kind of power over armed deployments: before 2003’s invasion of Iraq, only the Korean war in 1950 had received a vote of the House of Commons. Since then another intervention, this time in Libya, has received a vote of the Commons. Last Parliament, the Lords’ Constitution Committee published an exhaustive report on the issue of war powers for the Commons. It’s well worth a read whatever side of the argument you lie on, but essentially it proposed a convention should be formed:

(1) Government should seek Parliamentary approval (for example, in the House of Commons, by the laying of a resolution) if it is proposing the deployment of British forces outside the United Kingdom into actual or potential armed conflict;
(2) In seeking approval, the Government should indicate the deployment’s objectives, its legal basis, likely duration and, in general terms, an estimate of its size;
(3) If, for reasons of emergency and security, such prior application is impossible, the Government should provide retrospective information within 7 days of its commencement or as soon as it is feasible, at which point the process in (1) should be followed;
(4) The Government, as a matter of course, should keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly should seek a renewal of the approval.

Whether there will be a bill to enforce this is now looking uncertain.

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14 Responses to War: Commons’ veto

  1. jtlindsey says:

    It’s important that the Government retains the right to act without a vote from the Commons, unless there is some way to significantly speed up the democratic process. I can foresee situations were the Government might need to react swiftly and running through the motions in parliament could endanger national security.

    However, civil servants ought to work good and hard to ensure that the circumstances where the Government can act without a vote in the Commons are few. It is equally scary to think of a situation were the country is taken into a protracted conflict without democratic agreement.

    • pp549 says:

      It’s definitely a difficult balance. One thing about the proposed convention I liked was that it included a provision (3) that lets the government go to war without parliamentary approval but it is forced to come back and explain itself afterwards (preferably within 7 days).

      Of course, the power of war is one of the Crown prerogatives now in the hands of ministers, so unless the bill explicitly repeals that power, it still wouldn’t be enforceable. I still remain on the fence on this whole issue.

      I’m a big fan of recalling parliament when these sorts of things happen though. It ensures scrutiny continues even when (or perhaps especially when) government is involved in such an important issue.

      I don’t envy being the civil servants there, stuck between the generals on one side and parliamentarians on the other. Virtually impossible to please both sides.

      • jtlindsey says:

        A very thoughtful comment. I am also very much on the fence. However, the procedure of forcing ministers to explain themselves is imperative. It’s almost a shame we can’t somehow determine the type of conflict the country would be getting itself into. If the declaration of war is a response to some attack on national soil then the reaction might need to be immediate. Therefore, the Government should not have to go through the Commons. However, if it is a situation like Libya, where there was no clear threat or attack, Commons ought to have the power to Veto.

      • pp549 says:

        To be fair, we haven’t yet seen the bill – the government might go down that route of defining different kinds of conflict (though I sense the generals wouldn’t be satisfied by that) but it is a very sensible compromise.

        It’s strange, the UK seems to be one of the only countries which has the flexibility and range available to question ministers like we do. Even other Commonwealth nations are much less able to question ministers.

  2. I oppose in principle any bill that would extinguish the Crown’s prerogative powers on war and diplomacy and transfer this power to parliamentary statute because it would derogate from the principles of Responsible Government. (Strangely, I find that British scholars rarely use this term).

    In our system of Responsible Government, the Government controls the powers of war and diplomacy for good reason: the Government takes responsibility for all expenditures (royal recommendation) — and wars cost money! As such, a vote on going to war would become an issue of confidence, because it involves spending money.

    I am so thankful that in Canada, s.41(a) of the Constitution Act, 1982 protects all prerogative powers of the Crown from statutory encroachment and requires a constitutional amendment to limit or extinguish them.

    • pp549 says:

      It is strange about how British scholars don’t use the term. From what I’ve read, the emphasis has always been on parliament much more than any responsible executive.

      It’s interesting you conflate war with a confidence vote because it incurs money – in the UK, even defeats on the Finance Bill haven’t been interpreted as confidence issues. I must read more about how confidence votes are treated across the Commonwealth…

      • Really? In that case, this is an interesting difference between the Commonwealth Realms.

        In Canada, if the Commons votes against any a supply bill, it is regarded as an immediate withdrawal of confidence in the government. The Clark government in 1979 lost a budget vote, and Clark immediately sought dissolution, having lost the confidence of the Commons.

      • pp549 says:

        http://www.election.demon.co.uk/defeats.html has a list of government defeats since the first world war – it’s quite a varied range of issues – finance bills, ways and means resolutions. The debate on the fixed-term parliaments bill raised the possibility that after a vote on finance, the government should then immediately put down a motion of confidence and the House would then decide whether it should defeat the government or not. For all I know, something like that happened immediately after those votes, but I don’t know. Might check when I get a chance actually.

  3. If you’re interested, I did write a blog entry on this subject on Parliamentum under my headings “Crown (Powers and Office)” subheading “Cabinet’s Powers.”

    • pp549 says:

      I think I will have to! I’m still forming my views on this matter, so a good blog post to read on it would do me some good.

      • Unlike in Canada, the Westminster Parliament *could* pass such a bill, since the UK doesn’t benefit from a codified constitution that protects the powers of the Crown — but Parliament *should not* put the Crown’s prerogative of declaring war into abeyance!

        That said, I just remembered that the Fixed-Term Parliaments Act abolished the old system of confidence voting and replaced with the Continental model of “constructive non-confidence”, so perhaps this bill would not violate the *new* principles of the Responsible Government in the UK. But it would still present problems.

      • pp549 says:

        I thought confidence votes were still a simple majority, and it was only a vote for an early dissolution of parliament that required a two-thirds majority?

        But you’re right – the UK’s system of an uncodified constitution is certainly a mixed blessing.

  4. I had written about the Fixed-Term Parliaments Act in my latest article. I was mistaken; the UK would not use a pure constructive non-confidence, which simply means that the motion of non-confidence would include reference to which alternative government the Commons would support.

    You’re right: the Commons can still withdraw confidence in the Government through a *simple* majority vote, but the Commons can only effect an early dissolution through a super-majority of two-thirds. However, I would characterize the new British system as similar to constructive non-confidence in that it allows for early dissolution only as an extraordinary last resort, and because it requires that a new government be formed, or the old government be reaffirmed, within 14 days.

    “If the government loses the confidence of the House of Commons “on a motion that ‘this House has no confidence in Her Maj-esty’s Government’, the House of Commons can either propose an alternative government within fourteen days, or the government can try to regain the confidence of the House. [80] If parliament fails to fulfill either of those options, then it dissolves automatically in order to break the impasse. 81 In addition, two-thirds of MPs can effect an early dissolution by passing a motion ‘that there shall be an early Parliamentary general election.’ [82]”

    Then I contrasted the Fixed-Term Parliaments Act to the Canadian method:

    “This revolutionary law has eliminated the Crown prerogative on dissolution and ensured that either the effluxion of time dissolves parliament, or that parliament dissolves itself. In Canada, only an amendment to Section 41 (a) of the Constitution Act, 1982, which requires the unanimous consent of the federal parliament and all provincial legislatures, could eliminate the Crown
    prerogatives on prorogation and dissolution and vest them in the House of Commons.”

    • pp549 says:

      The set up in general is very continental, I admit – perhaps unsuprisingly because Nick Clegg, the prime mover behind this, moved in European circles for a long while now.

      I don’t really like that Act. Seems like it wouldn’t achieve anything really – if any premier really wanted to have an election he could simply order his MPs to vote against and he’d probably win.

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