How we declare war
In Britain, the rule of law and democratic accountability work best when they are not urgently needed. Every five years or so a new Armed Forces Act comes before Parliament, the most recent having passed into law in May 2001. These Bills are minutely examined in both the Commons and the Lords: such legislation is invariably scrutinised by a select committee specially appointed for the purpose, and the 39 clauses and seven schedules of the 2001 Bill were also the subject of debate in both chambers.
What was this paradigm of democratic government concerned with? The 2001 Act supplies the legal basis for the maintenance of discipline in the Armed Forces, and covers such offences as disobedience to orders, desertion, absence without leave, malingering and doing anything to ‘the prejudice of good order and military discipline’. An extensive structure of courts-martial is also set out in detail. The Act makes legal the power of service policemen to stop and search, the power to test for alcohol or drugs after a serious incident, and provides for regulations governing marriages in service chapels. But what are these Armed Forces supposed to be doing when they are not prosecuting their own members or marrying one another? On this issue of substance, the 2001 Act, like all the measures before it, is resolutely silent.
Invading countries, bombing from the air, destroying property, attacking people on enemy ground, killing, maiming and so on, are covered by a different law altogether. So are less traditional (and less morbid) military tasks, such as peace-keeping and humanitarian intervention. Not only is this law nowhere to be found in the Armed Forces Act, it is not in any Act of Parliament of any sort. In fact it is nowhere to be found at all. We know it exists because the executive has for hundreds of years asserted that it does, Parliament has not denied the fact, and the courts have been acquiescent. But the trail in search of it leads to no document, merely to the Crown, which, as the legal historian F.W. Maitland famously wrote in 1908, ‘does nothing but lie in the Tower of London to be gazed at by sightseers’. Tucked underneath it is an old idea, not a piece of paper: the Royal Prerogative.
The British Constitution resembles the shed of an inveterate hoarder. New items come in from time to time, certainly, but next to nothing ever leaves: you can never be sure when something might come in useful. Even England’s 17th-century revolution was backward-looking, the main impetus for change being nostalgia for a Tudor past rather than excitement about any kind of democratic, or at least monarch-free, future. When, in 1688-89, Parliament had a real chance to kick the Crown off the island for good, all the Bill of Rights Act managed to do was waffle on in the most general terms about the abuse of the Royal Prerogative, thereby avoiding any declaration that it was wrong in principle. Only two Prerogative powers were abolished, one of which was the power to maintain a standing army within the Kingdom in time of peace without the consent of Parliament (hence the need for regular Armed Forces legislation).
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[†] Constitutional and Administrative Law by A.W. Bradley and K.D. Ewing, 13th edition (Longman, 880 pp., £29.99, 30 September, 0 58243 8071).