The Future Role of the British Parliament in Decisions to Enter Armed Conflicts Abroad
June 15, 2005
British news headlines have recently been dominated by the General Election, which took place on 5 May 2005. Predictably, the Iraq war was one of the "hot topics" of the election, and received much air time from politicians of all persuasions. One comment, which sparked a flurry of press attention, may have been confusing both to lay observers in Britain and to watchers abroad. On 30 April 2005, Gordon Brown, the current Chancellor of the Exchequer, stated that, in future, Members of Parliament should be allowed to decide whether Britain goes to war.
One might have expected that Members of Parliament would already be the decision-makers as regards deploying British troops abroad in war and other forms of hostilities. However, currently the power of declaring war is considered part of the "royal prerogative." The royal prerogative is a long-established and complex concept, encompassing the rights accorded to the monarch through the common law by virtue of his/her pre-eminent position. The classic definition of the prerogative is that given by A.V. Dicey, who described it as "the remaining portion of the Crown's original authority, and it is therefore " the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers."
In modern times, most aspects of the royal prerogative are generally not exercised by the sovereign in person, but through the ministers of the government. The power to send armed forces into action abroad, or to declare war, is now considered to belong to the Ministers of Government. In other words, it would be more accurate to name the power "ministerial executive," as opposed to "royal prerogative." The use of this power, as regards hostilities abroad, has not required Parliamentary approval.
The Public Administration Select Committee's Fourth Report of the 2003-2004 Session highlighted the use of the prerogative to go to war as a key area of concern for Members of Parliament. Ironically, attention was drawn to this issue when Parliament was in fact given the chance to vote on the use of force in Iraq. This break with precedent took place on 18 March 2003. The Government entered a motion seeking authority for military action and the use of "all necessary means" to disarm Iraq. Despite much vigorous dissent, this was approved by 412 votes to 149.
Nevertheless, witnesses before the Select Committee expressed frustration that voting should be dependent on governmental good will. Their views reflected what appears to be a growing feeling that there should be greater Parliamentary control of the power to enter into war or other such conflict situations abroad. However, it is unclear what form such control would take. Calls for the introduction of a British version of the U.S. War Powers Act have not resulted in any legislative developments. The Government's response to the Select Committee, "Taming the Prerogative: Strengthening Ministerial Accountability to Parliament," suggested that pragmatism should be the governing factor. The response highlighted the definitional problems that the legislation might create, and suggested that such legislation might delay response times in emergencies. Dealing with issues on a situation-by-situation basis does not, however, answer the charge that elected Members of Parliament are excluded from the decision-making process unless the government decides otherwise.
It thus remains to be seen how (and indeed if) any changes will be made. It seems unlikely that the United Kingdom will go down an American-style road on this front. However, other changes are still possible. Codification of rules could take place, albeit in a manner less comprehensive than the U.S. War Powers Act. Alternatively, voting on entry into conflict abroad might be crystallized into a so-called Parliamentary convention. In other words, although no formal rules would be enacted, such a vote would become standard practice and would be habitually considered a necessary prerequisite to further action, much as longstanding state practice can become custom in international law.
Regardless of any possible reclassification of war powers in the United Kingdom, it is improbable that decisions to enter hostilities would be opened to judicial review. In recent years, the courts have made it clear that, even if some prerogative powers are open to judicial review, the disposal of the armed forces abroad is not apt for judicial consideration. In R v Ministry of Defence, ex p Smith, the Queen's Bench Division held that the use of the prerogative power in defense of the realm was justiciable, except in cases involving national security or where the court lacked the expertise or material to reach a judgment. The court clearly considered that the deployment of troops in conflict abroad would be a non-justiciable issue.
The judicial approach was reiterated in Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and others. In this case, the applicants sought, by way of judicial review, an advisory declaration establishing the "true meaning" of the United Nations Security Council Resolution 1441 (in which the Security Council decided that Iraq was in material breach of its obligations under previous resolutions). In effect, the applicants were seeking a declaration by the court that the United Kingdom would be in breach of international law should it take military action against Iraq without further Security Council resolutions. The Queen's Bench Division dismissed the application on a number of grounds. Foreign policy and the deployment of British troops overseas were considered "non-justiciable." The subject matter, rather than the source of any power, was the determinative factor. Thus, whether the power came from the prerogative was not decisive in precluding judicial review.
It remains to be seen what action, if any, will result from the growing Parliamentary dissatisfaction with the current constitutional position on entering into hostilities abroad. Nevertheless, any changes that are made as regards voting requirements are unlikely, in and of themselves, to allow for judicial reconsideration of any such national defense or armed conflict decisions.
About the author
Angharad Parry, an ASIL member, is a barrister at 20 Essex Street Chambers, London. She has been undertaking a semester's Visiting Scholarship at George Washington University, Washington, DC, but will be returning to commercial practice in August.
 Introduction to the Study of the Law of the Constitution 424 (10th ed. 1959).
 Public Administration Select Committee's Fourth Report of the 2003-2004 Session, available online at www.publications.parliament.uk
 Id., paragraphs 18 to 23.
 Id., paragraphs 19 and 22.
 HC422, July 2004, available online at www.dca.gov.uk
 Council of Civil Services Unions and other v Minister for the Civil Service  3 All ER 935, per Lord Roskill at p955: "The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner"; R v Ministry of Defence, ex p Smith  4 All ER 427.
  4 All ER 427.
  EWHC 2777 (Admin).
 Supra n. 9 at paragraph 50.