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Published online by Cambridge University Press: 19 July 2018
This paper assesses the current state of the war prerogative, specifically focusing on deployment decisions. It outlines the constitutional position over troop deployments, scrutinises recent reform efforts and problematises the rationale underpinning those reforms. The paper proceeds along one simple normative claim: that against the backdrop of frequent interventions, the publication of the Iraq Inquiry and a series of Bills that have sought to statutorise deployment decisions, less use-of-force is better than more use-of-force, and constitutional arrangements ought to reflect this. The paper begins with an exegesis of the most recent attempt to bring deployment decisions onto a statutory footing, focusing on: (a) the difficulties and concomitant problems in defining ‘conflict decisions’; and (b) whether it could make deployment decisions reviewable. The paper then seeks to examine the rationale for reform, arguing that the main impetus behind the series of efforts has been to democratise the process of troop deployments when instead they should focus on use-of-force reduction.
1 Part of this sentiment stems from a scepticism of the broadening of the exceptions to the prohibitions of the use of force. These arguments at the international law level translate to justifications at the domestic level for the use of force. One example was the controversial deployment of the ‘revivalist theory’ that was used as a justification for the 2003 invasion of Iraq. See Woo, J ‘International law and the war in Iraq’ (2002) 97 American Journal of International Law 63Google Scholar. International lawyers have also engaged with the claim that interpretations of the exceptions to the general proscription of the use of force are effectively covers for colonial endeavours, and that there are structural continuities between modern day use of force and force previously justified under imperial pursuits. See also Berman, N ‘In the wake of empire’ (1999) 14 American University International Law Review 1521Google Scholar; Orford, A Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge: CUP, 2009) 18Google Scholar; ‘The, G Gozzi “discourse” of international law and humanitarian intervention’ (2017) 30(2) Ratio Juris 186Google Scholar.
2 Unless, of course, such a configuration of the liberal international order is transformed. For a critique of a liberal world order, see Mishra, P Age of Anger: A History of the Present (New York: Farrar, Straus and Giroux, 2017)Google Scholar. For a defence of a liberal world order, see Ikenberry, J ‘The end of liberal international order?’ (2018) 94(1) International Affairs 7CrossRefGoogle Scholar.
3 Institute for Economics and Peace Global Peace Index: Measuring Peace, its Causes and its Economic Values (2015) p 3.
4 Foreign Affairs Committee Libya: Examination of Intervention and Collapse and the UK's Future Policy Options (HC 2016–17).
5 Blackstone, W Commentaries on the Laws of England, in Four Books, vol 1 (Christian, E (ed), 13th edn, Strahan 1800) 252Google Scholar; for an alternative view which examines the state's use of force (or violence more generally) in the production of the homo sacer (the ‘bare life’) see Munster, R Van ‘The war on terrorism: when the exception becomes the rule’ (2004) 17(2) International Journal for the Semiotics of Law 141CrossRefGoogle Scholar.
6 China Navigation v AG [1932] 2 KB 197. I will focus on one aspect of the ‘war prerogative’, specifically the deployment of troops abroad. For a discussion on the scope of the war prerogative see also Joseph, R The War Prerogative: History, Reform and Constitutional Design (Oxford: OUP, 2013)CrossRefGoogle Scholar.
7 R ( on the application of Gentle) v The Prime Minister [2006] UKHL 20.
8 CND v Prime Minister of the United Kingdom [2002] EWHC 2777 (Admin).
9 See Public Administration Select Committee Taming the Prerogative: Strengthening Ministerial Accountability (HC 2003–04).
10 See Foreign Affairs Committee, above n 4.
11 Murray, C and O'Donoghue, A ‘Towards unilateralism? House of Commons oversight of the use of force’ (2016) 65(2) International and Comparative Law Quarterly 305CrossRefGoogle Scholar.
12 Joseph, above n 6, p 2.
13 Joseph, above n 6, pp 96–106.
14 Hansard HC Deb, vol 477, col 485, 5 July 1950.
15 The Bill was defeated prior to its second reading as it sought to affect the prerogative: Military Action against Iraq (Parliamentary Approval) Bill 1999, available at https://www.publications.parliament.uk/pa/cm199899/cmbills/035/1999035.htm.
16 There was a period from 1642–1649 in which the powers of government, including the war prerogative, were assumed by the Parliament: Joseph, above n 6, pp 45–47.
17 For a detailed outline of legislative history, parliamentary and government reports on the war prerogative, see Lagassé, P ‘Parliament and the war prerogative in the United Kingdom and Canada: explaining variations in institutional change and legislative control’ (2017) 70 Parliamentary Affairs 285Google Scholar.
18 Strong, J ‘Why parliament now decides on war: tracing the growth of the parliamentary prerogative through Syria, Libya and Iraq’ (2015) 17(4) The British Journal of Politics and International Relations 608CrossRefGoogle Scholar; Murray and O'Donoghue contest that the Commons vote on Iraq created a convention: see Murray and O'Donoghue, above n 11, at 325.
19 Strong, above n 18, at 612.
20 Strong, above n 18, at 614.
21 C Mills ‘Parliamentary approval for military action’ (Briefing Paper, 7166) (2015) 32–33.
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23 Strong, above n 18, at 605.
24 Office, Cabinet The Cabinet Manual (London: 1st edn, 2011) p 44Google Scholar.
25 For a detailed outline of parliamentary and government reports on the war prerogative see also Lagassé, above n 17, at 285–290.
26 Hansard HC Deb, vol 608, col 11, 18 April 2016.
27 J Landale ‘Johnson: Difficult to say “no” to Syria strike’ (BBC News, 27 May 2017), available at http://www.bbc.co.uk/news/uk-politics-39730685 (last accessed 27 May 2017).
28 28 Policy Paper Syria Action – UK Government Legal Position (14 April 2018), available at https://www.gov.uk/government/publications/syria-action-uk-government-legal-position/syria-action-uk-government-legal-position (last accessed 10 July 2018).
29 29 D Akande The Legality of the UK's Air Strikes on the Assad Government in Syria (16 April 2018), available at https://d3n8a8pro7vhmx.cloudfront.net/campaigncountdown/pages/2243/attachments/original/1523875290/Akande_Opinion_UK_Government%27s_Legal_Position_on_Syria_Strike_April_2018.pdf?1523875290 (last accessed 10 July 2018).
30 Tanzil Chowdhury How the recent strikes on Syria undermine UK constitutional controls on military action (The Law of Nations Blog, 23 April 2018) <https://lawofnationsblog.com/2018/04/23/recent-strikes-syria-undermine-uk-constitutional-controls-military-action/> (last accessed 23 April 2018); Victoria Fikfak & Hayley Hooper Whither the War Powers Convention? What Next for Parliamentary Control of Armed Conflict After Syria (UK Constitutional Law Blog, 20 April 2018) <https://ukconstitutionallaw.org/2018/04/20/veronika-fikfak-and-hayley-j-hooper-whither-the-war-powers-convention-what-next-for-parliamentary-control-of-armed-conflict-after-syria/> (last accessed 20 April 2018)).
31 House of Lords Select Constitution Committee, Constitutional arrangements for the use of armed force (HL 2013–14); House of Lords Select Committee on the Constitution, Waging War: Parliament's role and responsibility (HL 2005–06).
32 Strong, above n 18, at 611.
33 Military Action against Iraq (Parliamentary Approval) Bill 1999, available at https://www.publications.parliament.uk/pa/cm199899/cmbills/035/1999035.htm; three Private Members Bills from the Commons: Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill 2004–2005, Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill 2005–2006, available at https://www.publications.parliament.uk/pa/cm200506/cmbills/016/06016.i-i.html, Waging War (Parliament's Role and Responsibility) Bill 2006–2007, available at https://www.publications.parliament.uk/pa/cm200607/cmbills/034/2007034.pdf, Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill 2005–2006, available at https://www.publications.parliament.uk/pa/cm200506/cmbills/222/2006222.pdf; and three further Lords Bills, Armed Forces Deployment (Royal Prerogative) Bill 2014–2015, available at https://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0017/15017.pdf, Armed Forces Deployment (Royal Prerogative) Bill 2015–2016, available at https://www.publications.parliament.uk/pa/bills/lbill/2015-2016/0034/16034.pdf and Armed Forces Deployment (Royal Prerogative) Bill 2016–2017 , available at https://www.publications.parliament.uk/pa/bills/lbill/2016-2017/0010/17010.pdf.
34 [1920] AC 508; for a more recent restatement of this, see also R (Munir and Another) v Secretary of State for the Home Department [2012] UKSC 32.
35 Hansard HL Deb, vol 773, col 2257, 8 July 2016.
36 Hansard HL Deb, vol 773, col 2272, 8 July 2016.
37 Armed Forces Deployment (Royal Prerogative) Bill [HL] 2016–17 <http://www.publications.parliament.uk/pa/bills/lbill/2016-2017/0010/17010.pdf>.
38 Defined in the Armed Forces Act 2006, s 374.
39 Hansard HL Deb, vol 773, col 2275, 8 July 2016.
40 C Greenwood ‘The concept of war in modern international law’ (1987) 36 ICLQ 283. See also Rowe, P Legal Accountability and Britain's War 2000–2015 (London: Routledge, 2016) p 3Google Scholar.
41 Mills, above n 21, at 4.
42 Joint Committee on the Draft Constitutional Renewal Bill Draft Constitutional Renewal Bill Volume 1 (HC 2007–08).
43 Mills, above n 21, at 39–40.
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46 Hansard HL Deb, vol 773, col 2258, 8 July 2016.
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49 Hansard HL Deb, vol 773, col 2273, 8 July 2016.
50 Hansard HL Deb, vol 773, col 2261, 8 July 2016.
51 Mills, above n 21, at 4.
52 The basis for this was the Caroline Incident.
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54 Ibid, pp 160–166.
55 J Wright ‘Attorney general's speech at the International Institute for Strategic Studies’ (Institute for Strategic Studies, London 11 January 2017), available at https://www.gov.uk/government/speeches/attorney-generals-speech-at-the-international-institute-for-strategic-studies (last accessed 28 June 2018).
56 Murray and O'Donoghue, above n 11.
57 Murray and O'Donoghue, above n 11, at 315–320.
58 Iraqi Civilian Litigation v Ministry of Defence [2017] EWHC 3289 (QB) at [60].
59 See also Rahmatullah (No 2) v Ministry of Defence and Another; Mohammed and Others v Ministry of Defence and Another [2017] UKSC 1 at [8].
60 R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1698.
61 Joseph, above n 6, p 111.
62 [2002] EWHC 2777 (Admin) at [60].
63 [2006] UKHL 16 at [30].
64 [2013] UKSC 41.
65 Council of Civil Service Unions and Others v Minister for Civil Service [1983] UKHL 6.
66 Joseph, above n 6, pp 139–142.
67 R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61.
68 Secretary of State for the Home Department v Rehman [2001] UKHL 47.
69 Fuller, L ‘The forms and limits of adjudication’ (1978) 92 Harvard Law Review 353CrossRefGoogle Scholar.
70 Council of Civil Service Unions and Others v Minister for Civil Service, above n 65, at [411].
71 J King ‘The pervasiveness of polycentricty’ (2008) Public Law 101.
72 Rosara Joseph speculates as to the practicability of reviewing the power and the probability of each of the potential grounds of review, though this was based on the treatment of deployment decisions being justiciable rather than on the power being statutorised; see also Joseph, above n 6, pp 144–159.
73 Council of Civil Service Unions and Others v Minister for Civil Service, above n 65.
74 R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242; see also Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71.
75 R (on the application of Hasan) v Secretary of State for Trade and Industry [2007] EWHC 2630 (Admin).
76 Barnard v National Dock Labour Board [1953] 1 All ER 1113Google Scholar.
77 Clause 3(2)(b).
78 A v Secretary of State for the Home Department, above n 48.
79 Council of Civil Service Unions and Others v Minister for Civil Service, above n 65.
80 A v Secretary of State for the Home Department, above n 48; R (on the application of Mohamed) v Foreign Secretary (No 2) [2010] EWCA Civ 65.
81 Public Administration Select Committee, above n 9, at 13–18.
82 The Report of the Iraq Inquiry: Executive Summary (2016) HC 264.
83 Geneva Centre for the Democratic Control of Armed Forces, website at http://dcaf.ch/ (last accessed 28 June 2018).
84 Rosato, S ‘The flawed logic of democratic peace theory’ (2003) 97(4) American Political Science Review 585Google Scholar.
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87 Rosato, above n 84.
88 Murray and O'Donoghue, above n 11.
89 Murray and O'Donoghue, above n 11, at 307.
90 Murray and O'Donoghue, above n 11, at 309.
91 Murray and O'Donoghue, above n 11, at 311.
92 Murray and O'Donoghue, above n 11, at 324.
93 This was the case with the 2003 vote during Tony Blair's premiership. See Strong, above n 18, at 614.
94 Strong, above n 22, at 1136.
95 Murray and O'Donoghue, above n 11, at 325.
96 The Report of the Iraq Inquiry, above n 82.
97 Woo, above n 1.
98 See also Public Administration Select Committee, above n 9.