Some reasons for scepticism about a new War Powers Act

November 28, 2019

The Labour Party manifesto, published last week, promises that the first year of a Labour government would see the introduction of “a War Powers Act to ensure that no prime minister can bypass Parliament to commit to conventional military action”.  Enacting legislation of this kind would be a major change in our constitutional arrangements.  The risk is that it would distort decision-making about the use of force and would undermine political responsibility for its use.

The proposal is framed as part of “A New Internationalism”, in which a Labour government would “use our global influence to end the ‘bomb first, talk later’ approach to security”, noting that “ailed military interventions in countries like Libya have worsened security across North Africa, accelerating the refugee crisis.” This framing is dubious. To speak of a “bomb first, talk later” approach seems removed from the strategic and political reality of recent years, which have been characterised by a reluctance on the part of the West to use military force, most notably in Syria.

Alongside the War Powers Act, the Labour Party manifesto proposes “an audit of the impact of Britain’s colonial legacy to understand our contribution to the dynamics of violence and insecurity across regions previously under British colonial rule.” It is not clear what useful purpose in terms of defence and security this audit would serve, and why it should be a proper function of government to embark upon historical investigations of events now over 60 years old. Such an audit would risk having the same effect on our defence and security establishment as the inquiries on historical allegations of sex abuse have had on the police: a significant diversion of limited resources, the pursuit of ideology through other means, demoralisation, and no policy benefit or practical gain.

Enacting a War Powers Act would be an important change and warrants close attention.  It is not quite right to say that in the absence of such legislation prime ministers bypass Parliament to commit to military action.  The constitutional position is clear: the government is responsible for foreign policy and the defence of the realm, which includes authority to deploy UK forces in military action.  However, the government only remains in office for so long as it retains the confidence of the House of Commons and must answer for its actions to Parliament and in due course to the electorate.  Anticipation of parliamentary scrutiny and challenge is an important control on misuse of the government’s authority to deploy military force and is a reason why governments now often invite Parliament to indicate support in advance.  But as matters stand it is for the government to decide whether force should be deployed and to answer to Parliament for that decision.

What the Labour Party manifesto proposes is legislation to require formal parliamentary approval in advance of military action.  It remains to be seen how tightly this would bind.  Would it permit military action without parliamentary support in urgent circumstances? Would military action cover targeted strikes or be limited to large-scale deployments? Would the legislation in particular apply to the missions of special forces?  How far, if at all, would it require the government to disclose intelligence in support of military action?  This last question is particularly critical: the decision to use military force will be preceded by vast amounts of intelligence as well as political assessments. Is the idea that all these materials, from the intelligence services and the Foreign and Commonwealth Office, be made available to 650 MPs so that they can make an informed decision? The policy refers to “conventional military action”, which suggests that it would not extend to the nuclear deterrent.

Last week’s  announcement is not the first time that legislation has been mooted to control the government’s freedom to deploy military action.  There is a serious question to be asked about how a mature parliamentary democracy should make provision for the defence of the realm.  The government held a vote before committing to military action in Iraq and governments since have done likewise in relation to some, but not all, deployments, and never in relation to special forces operations or targeted strikes (such as the drone strike that killed Reyaad Khan, a British member of ISIS).  Ministers in the last Labour government and the Coalition government considered introducing legislation, but generally concluded, in the end, that it would be better to avoid legislation and instead to increase parliamentary involvement by way of resolutions of the House. 

Past work on this point, including the report of the Public Administration and Constitutional Affairs Committee earlier this year, have sought to reconcile the government’s responsibility to act decisively to defend the realm with increased parliamentary involvement.  The point has not been to minimise the UK’s capacity to use military force, even if of course a requirement to secure parliamentary support might sometimes prevent action, as proved to be the case in 2013, when Parliament declined the government’s invitation to support military action in response to the use of chemical weapons by the Syrian government. 

The manifesto’s stress on failed military interventions and avoiding a “bomb first, talk later” approach suggests that the point of introducing a War Powers Act might not be first and foremost constitutional propriety but rather would be to create new political inhibitions on, or barriers to, military action.  Whether future UK governments should deploy military force is not a question that can be answered in advance.  Everything turns on the context at the time, as well as on the UK’s capacities and priorities.  Future governments should of course be prudent and responsible.  But it would be dangerous indeed to introduce legislation in order to prevent them being able to act.  The UK has often used military force to uphold international order and to prevent, or to address, the commission of mass atrocities.  Consider for example the long list of British interventions since the end of the Napoleonic wars, which is set out in a 2017 Policy Exchange paper, The Cost of Doing Nothing, based on the work of Tom Tugendhat MP and the late Jo Cox MP.  

Much would turn, of course, on the detail of any proposed legislation.  It would be particularly important to consider (a) the extent to which the government was free to act urgently in response to emergencies and (b) the types of military action to which the legislation would apply.  The example of the War Powers Act in the United States is not entirely encouraging.  For obvious reasons, the Act provides extensive freedom to the President to order military action.

There is a time and a place to enact legislation that displaces long-standing prerogative powers or replaces constitutional conventions with hard-edged legal rules.  However, legislating in the domain of military action would have to preserve considerable government discretion if it is not to imperil the UK’s national security or cooperation with allied forces. Moreover, the enactment of legislation in this area would almost inevitably increase the risk of litigation, with courts being drawn into a sphere that has traditionally, and with good reason, been viewed as the domain of the executive and as not suitable for judicial intervention. “Juridification” would reach new heights.

There are therefore reasons to be very cautious about the proposed legislation.  The Fixed-term Parliaments Act is another recent example of legislation to overtake the prerogative, in that case to seek the dissolution of Parliament.  It is a cautionary tale.  There is a major risk, in legislating about the prerogative to use military force, that legislation may distort the deliberation and action that is necessary to defend the realm.  The risk is heightened if part of the point of the legislation, as may be the case with Labour’s proposal, is to stack the deck against future action. And greater parliamentary involvement in decisions about the use of force may perversely encourage irresponsibility on the part of both government and parliament. Government will be able to place responsibility for the use (or failure to use) force on Parliament rather than itself having to answer– to Parliament and then the electorate – for its actions. As for Parliament, one of its principal constitutional and political responsibilities is to remove a government if it has no confidence in its leadership. The War Powers Act might create a perverse incentive to keep in office a government in which Parliament has no confidence on the basis that Parliament will be effectively in charge. We have seen the damaging consequences of this conflation of executive and legislative functions resulting from the Fixed-term Parliaments Act. A new War Powers Act might beget similar damaging confusion.

The next Parliament should be sceptical about the need for legislation in this domain.  While it should consider making further changes to parliamentary practice, including in relation to approval of funding – changes which might ensure greater parliamentary involvement without sacrificing government initiative or responsibility – it should be slow to legislate. 

Richard Ekins, Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford

Guglielmo Verdirame QC, 20 Essex Street Chambers and Professor of International Law, King’s College London

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