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How we declare warConor Gearty

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LRB cover, Volume 9 Number 11.

This David Gentleman cover for an election issue of the ‘LRB’ in 1987 shows a Britain ‘muted’ by the ‘secretive and repressive Mrs Thatcher’. Fifteen years later, the muting goes on, in a country where, as Conor Gearty is obliged to recognise, the Prime Minister is free, constitutionally, to lead us into a war without being authorised to do so by Parliament – a Parliament which, as we go to press, will be graciously de-muted to discuss the war question, but not to vote on it.

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).

The sovereign emerged from the 17th century having retained the post of Commander-in-Chief of the Armed Forces – a post the monarch occupies to this day. The control, organisation and deployment of the Armed Forces similarly remain the responsibility of the Crown and have been accepted by every Parliament since 1688 as falling within the range of the Royal Prerogative. Much else also continues to be permitted. Under the Prerogative’s vague but generous remit, war can be declared, treaties signed, bits of land grabbed (or given away), territorial waters changed and (perhaps, no one is quite sure) people prevented from leaving the Kingdom. All sorts of things can be done, both at home and abroad, in times of emergency. Even if the Prerogative isn’t mentioned anywhere, it can still apply. When plastic bullets and CS gas were distributed to the police in the 1980s, the courts upheld the action as within the Prerogative, one judge noting that ‘the scarcity of references in the books to the Prerogative of keeping the peace within the realm does not disprove that it exists. Rather it may point to an unspoken assumption that it does.’

Now, a dozen years ago the Queen wasn’t spending a lot of her time making up packages of weapons to send to her loyal constabularies, just as she has not been in the habit of patrolling the streets of Belfast or (more recently) arranging to bomb Iraqi or Serbian territory. Even in 1688, it wasn’t clear who was ultimately responsible for the rambling collection of memoranda, vague practices and ancient usages that made up the English Constitution – Parliament and the Crown are perhaps best viewed as mutually antagonistic co-owners. During the 18th century, however, both gradually agreed on a new management team, and over time it has been this body, the Cabinet, that has slowly but inexorably extended its dominion, to the extent that it now pretty well rules the whole roost, dominating all aspects of the old place, including the Royal Prerogative. The plastic bullets and CS distribution was in reality a Home Office matter. Nor can it be doubted or even viewed as remotely questionable that it is the Secretary of State for Defence who now has the power under the Royal Prerogative to send British Armed Forces abroad to take part in armed conflict, or to participate in a UN mission, or to discharge some other humanitarian purpose independent of the UN. There is no need for any prior authorisation by Parliament, and such consent is rarely sought. When the Cabinet is under the influence of a very powerful chief executive, as is the case at present, the British Constitution is in a sense the Prime Minister’s property to do with what he will. There may be no Empire any more but you can still have a lot of fun with the playthings in the shed.

A Constitution dependent on an oral tradition shared only among the elite is at constant risk from a bout of amnesia. In his recent book on the office of Prime Minister, Peter Hennessy tells the story of how Whitehall forgot how to declare war.* When officials thought it might be useful to know how to do it, just after the invasion of the Falkland Islands by Argentina in 1982, they found that the relevant file was missing. It took 12 years for the advice given by the Foreign Office’s legal adviser Sir Gerald Fitzmaurice to the Foreign Secretary Lord Halifax on the day of the signing of the Molotov-Ribbentrop Pact in August 1939 to surface:

The Secretary of State’s enquiry about how we declare war. The method of procedure is to deliver a declaration of war to the diplomatic representative in London of the enemy Power or Powers at such hour as may be decided upon by the Cabinet and to obtain a receipt recording the time of delivery. The declaration is delivered by a special messenger who should take with him the special passports covering the enemy representative, his family and personal staff and his diplomatic staff and their families. These are now being drafted on the assumption that war would in the first place be only declared on Germany and the Secretary of State would have to sign them.

It is not possible to state definitely at present what the terms of the declaration of war itself would be as these must depend upon circumstances. It is quite likely that our declaration of war might be preceded by an ultimatum which would be delivered in Berlin. This might e.g. take the form that if by a certain time the German Government had not given an assurance that they would proceed no further with their violation of Polish territory the Ambassador had been instructed to ask for his passports and that His Majesty’s Government would have to take such steps as might seem good to them. In such a case our actual declaration of war on the expiry of the time limit would take the form of notifying the German Embassy that no satisfactory reply having been received from the German Government, His Majesty’s Government considered that a state of war between the two countries existed as from a certain time.

I understand that the declaration would be drafted in consultation with the Dominions Office.

Once a declaration has been delivered a lot of consequential results follow, such as informing the other Government Departments that war has been declared and giving the same information to the diplomatic representatives in London of non-enemy Powers and so forth. Standing drafts for all these purposes exist.

Nothing here about Parliament, still less about the electorate that was going to be required to fight the war declared with such bureaucratic precision some ten days later. As it turned out, Margaret Thatcher didn’t bother to declare war in 1982 so Sir Gerald’s advice wasn’t required. Nor was war declared against Iraq in 1991 or 1998 or even in the Balkans in 1999. This is not because the executive has any anxieties about the Royal Prerogative as a method of declaring war; on the contrary, as the Cabinet Secretary Sir Norman Brook remarked in 1951 (in another document unearthed by Hennessy), legislative involvement was inappropriate because ‘to endeavour to change this fundamental basis to a conception related in the main, not to the defence of the realm, but to some supra-national idea of universal peace, might well raise legal doubts and complications the extent of which it is difficult to foresee.’ Rather, it is the protean nature of the Prerogative that makes such a declaration unnecessary: the executive can do what it wants without such a declaration, and thereby avoid all the potentially inconvenient international law obligations and annoying domestic legal requirements that such a statement might bring in its wake. If you poke around in the section marked ‘War’ in Britain’s constitutional junk shop, you can never be sure what you might find – it’s best to avoid the spot altogether.

Was Brook right that a different method of making decisions about the use of military force, one more focused on Parliament, would make such a difference, negative or otherwise? Britain’s leading constitutional textbook unequivocally argues that ministers are responsible to Parliament in exercising the Prerogative, just as they are in the use of statutory powers: ‘Thus questions may be asked of ministers about the exercise of Prerogative power. Where a matter does not fall within the province of a departmental minister, questions may be addressed to the Prime Minister.’ Not only questions, but debates, exchanges of letters, votes, attempted votes, interviews on the Today programme – all the paraphernalia of democratic decision-making remains intact even if the decision itself is made under these antediluvian Prerogative procedures. It’s true that, in law, all this need not take place; no court will grant an injunction requiring the Prime Minister to answer questions, or the Foreign Secretary to participate in a Commons debate. But then again no law stops the Queen from taking over the negotiations about Iraq with President Bush, or indeed from sacking Blair altogether and replacing him with a timeserver of her choice. No law stopped the Lords vetoing Lloyd George’s People’s Budget of 1909 – until they did it, and were duly (after a political rather than a legal crisis) punished. The British Constitution has never been about law in the way that written constitutions usually are: it is what John Griffith calls ‘a political constitution’, so that what counts is not what long dead founding fathers or living dead lawyers say you can do but what the electorate will, in your judgment, allow you to get away with (perhaps eventually thanking you for the risks you have taken on their behalf, or more likely forgetting about them altogether).

The shift to a more involved role for Parliament in deciding to go to war would not necessarily eliminate the capacity of the Prime Minister to have his way. The drift to Cabinet (and then to Prime Ministerial) government that has taken hold of the modern British Constitution involves not just monopoly by the executive of the Royal Prerogative, but control of the Parliamentary process as well. In theory the Commons could remove the Blair Administration tomorrow; in practice, however, the Prime Minister’s control of the Commons through his huge majority is unmatched in any other democracy. In November 1990, the House of Commons even gave Thatcher a vote of confidence after she had declared no confidence in herself and decided to resign.

Again, the kind of thing Parliament might ‘choose’ to do under the ‘guidance’ of the executive might not be what those now calling for closer legislative involvement would want. In 1918, Parliament gave the ‘King in Council’ – that is, the Government – the discretionary power to declare when the war had come to an end; as a result, ‘wartime’ emergency powers were still being used in 1920 in Ireland, even after peace with Germany had been formally signed. By a quirk of history, the Reserves are not covered by the Royal Prerogative, so their involvement in any military dispositions that the executive might choose to make does require Parliamentary authority. In the Reserve Forces Act 1996, MPs gave the Secretary of State for Defence power to recall the Reserve Forces by order of the Sovereign ‘a) if it appears to Her [sic] that national danger is imminent or that a great emergency has arisen; or b) in the event of an actual or apprehended attack on the United Kingdom’. The key word here is ‘appears’, a formula that leaves the matter in the hands of the executive branch without the need for any objective or publicly verifiable evidence.

Do ministers intent on war have anything to fear from the courts? What the American scholar Alexander Bickel called ‘the least dangerous branch’ of the state is at its most innocuous in the field of national security. As long ago as 1856, Mr Justice Willes observed that a declaration of war was made ‘by virtue of the Prerogative exclusively belonging to the Crown’ and as such enjoyed a legal authority ‘equal to that of an Act of Parliament’. In a case in 1946 the Court of Appeal in effect accepted that a Government statement that a state of war existed could not be challenged in any court, and it was just such a compliant attitude that had allowed the authorities to get away with pretending that the First World War was still going on in Ireland as late as 1920. Judicial decisions before and since display similar degrees of deference. While it is the case that the Human Rights Act suggests that the control of the Royal Prerogative lies within its potentially all-embracing remit, and that it could perhaps reasonably be argued that executive decisions within the jurisdiction affecting the lives and property of unidentifiable persons in faraway places should be made in a way that is consistent with the potential victims’ human rights, a motley collection of lawyers from the Strand is as unlikely as the Queen to barge into the Prime Minister’s war room and take operational responsibility for running a military campaign.

If Parliament was properly involved in deciding in the formal sense whether or not now to engage in hostilities against Iraq, there would still be the delays, the spins, the subterfuges, the publication of dramatic ‘new evidence’, the sudden revelations by long departed Iraqi nuclear scientists and so on, that we have witnessed under the current dispensation. But the Prime Minister would need to be far more careful, and the debate would be far more open. For all its faults, the Reserve Forces Act does at least require that Parliament meet within five days of any call-up. Eleven years ago the Institute for Public Policy Research produced a draft written constitution for the UK which addressed the issue in the following way:

Art 122.1 Declarations of a State of War and declarations of a State of Peace shall be made by the Head of State by Order in Council.

Art 122. 2 No such Order in Council shall be made unless a draft of the Order has been approved, by resolution, by a two-thirds majority of those voting in each House of Parliament.

The next article of the draft removed the deployment of the Armed Forces from the scope of the Royal Prerogative and placed it within a democratic framework centred on Parliament but with an explicit exposure to judicial review.

Excellent though many would regard such reforms to be, they are hardly likely in the current climate: there are only two true engines of radical constitutional change – revolution and national disaster – and neither pertains here, at least not yet. As things stand the British electorate has entrusted the nation’s political leadership with great power and with enormous responsibilities in the field of national security and (to use the old-fashioned phrase) the ‘defence of the realm’. Under the country’s present system of government, a decision on whether to withdraw that trust is not a matter of judicial intervention, of constitutional law or of Parliamentary decision. Were each elector separately to withdraw their trust, the Government would be destroyed by the collective anger that would result. Each such individual decision need not be rational and can be retrospective; it can await events and decide then what (with the benefit of hindsight) would have been the right thing to have thought in the first place. The Government, on the other hand, is not allowed any hindsight. Omnipotent in law and unchallengeable in its constitutional palace, it must await events and hope that it has guessed right, watching all the time for calamities far away and the noise of ‘I told you so’ (even from those who didn’t) on the streets at home.

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