Neil Shastri-Hurst: The fog of war – blurring the lines in the separation of powers

A new report by the Society of Conservative Lawyers argues that prior Parliamentary approval for military action is a dangerous game and has no constitutional law basis.

Neil Shastri-Hurst is a former British Army Officer, doctor, lawyer, and Conservative activist in the West Midlands

With Brexit dominating the political debate and headlines you, would be forgiven if news of the Society of Conservative Lawyers’ upcoming publication, Prior Parliamentary Approval for Military Action, had slipped by unnoticed. But this report, launched today in Committee Room 15 at the Palace of Westminster, addresses an important issue relating to the relationship between the executive and legislature, and the use of prerogative powers.

A V Dicey, the renowned constitutional theorist, defined the royal prerogative as “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”. Traditionally, one such power has enabled the government of the day to take the country into conflict. It allows military operations to be instigated with the required level of stealth to ensure their maximal effectiveness.

Yet, since the invasion of Iraq in 2003, a new convention has developed: seeking parliamentary approval before committing troops to combat operations. Tony Blair went as far as stating, following the 2003 vote, that he could not “conceive of a situation in which a Government…is going to go to war – except in circumstances where militarily for the security of the country in needs to act immediately – without a full parliamentary debate”.

As evidenced by the 2013 vote on Syria, when the Commons defeated the Coalition Government’s motion on military action, Parliament’s approval goes way beyond an indicative vote of support with the executive’s plan. In essence, it usurps the Government’s role in making the decision. This is a dangerous game and has no constitutional law basis. Conventions, by their very nature, must be entrenched in parliamentary procedure. This is not the case here.

The role of the legislature is to provide checks and balances upon the executive. Its role is to hold the Government to account. By making decisions on the latter’s behalf, the lines between the separation of powers are blurred. It would be near on impossible for any Parliament which had voted for military intervention to legitimately hold the Government’s feet to the fire when analysing and critiquing the decision. The responsibility would be shifted to the whole of Parliament.

The UK’s recent experiences in Iraq and Afghanistan have divided opinion. There is a reluctance amongst many politicians to engage in major foreign policy interventions. There is a real risk that we will miss strategically opportune times to strike because of their fear that they may get it wrong. This fear is perpetuated by the sparsity of military intelligence briefings available to the Commons as a whole. The Executive, by contrast, has the full raft of intelligence and legal advice required to make these judgements. In truth, the new convention is setting parliament up to fail by providing only a fraction of the information required to make an informed and fully judged decision.

Lord Houghton summed it up by writing that the new convention had “caused unease within military ranks”. It would be an unwise Parliament that failed to heed the words of a former Chief of the Defence Staff. The general knows that without flexibility, speed, and the element of surprise military operations can rapidly lose their desired impact. For this reason alone, it is imperative that we do not allow our Armed Force’s efficacy to be undermined by our own Parliament.

Jonathan Clark: Brexit has reopened two constitutional conflicts which must be resolved

Does authority reside with Parliament or the People? And are MPs representatives or delegates? Both must be answered.

Jonathan Clark was a Fellow of Peterhouse; at Oxford, he was a Fellow of All Souls College; latterly he has been Visiting Professor at the Committee on Social Thought at Chicago, and Hall Distinguished Professor of British History at the University of Kansas. His latest book is a study of Thomas Paine.

The British have, typically, little interest in constitutional law. Unlike the French, who regularly rewrite their constitution in revolutions or attempts to prevent revolutions, the British tend to assume that little changes and that all is well. Alas, the constitutional problems accumulate nevertheless. Dominic Grieve was right in a recent Commons debate to say that there are areas of the British constitution that need clearer definition. But what exactly are they? Why is the Brexit question so difficult to resolve through the familiar Westminster machinery?

The big issues of constitutional conflict are so fraught because they happen in legal grey areas, in which agreement and definition have never emerged. Today there are two such major areas, though many minor ones.

The first is the question of sovereignty: where does ultimate authority reside? It is many centuries since any significant number of people claimed that it resided with the person of the monarch alone. But the decline of that image was followed by the growing popularity of another, ‘the Crown in Parliament’, that is, the monarch, the Lords and the Commons acting together. This image never went away, but was upstaged by the doctrine of the lawyer A. V. Dicey (1835-1922) that ‘Parliament’ (meaning, increasingly, the House of Commons) was sovereign. Yet from the Reform Bill of 1832 into the 20th century, successive rounds of franchise extension strengthened another old idea, that the ultimate authority lay with ‘the People’, however defined.

From 1973, when the UK joined the EEC, it slowly became evident that the answer was ‘none of the above’: ultimate authority lay with Brussels. Parliament rubber-stamped increasing amounts of secondary legislation from an evolving super-state. In 2019, departure from the EU would remove that layer of command. This prospect inevitably reopens an old debate, which had never really been settled: was Parliament or the People finally supreme? Its re-emergence reminds us that Dicey’s doctrine of parliamentary sovereignty was the opinion of one commentator only. That opinion partly corresponded to contemporary practice, partly not.

Today, the tide is everywhere running in the opposite direction. Deference and duty daily fade; the key word everywhere is ‘choice’, and this means the choices of the many, not just the few. The transformation of communications places steadily more power in the hands of a steadily more educated, better informed ‘People’. But this trend has been matched by another, seen across the West in recent decades and at all levels: in increasingly complex societies, the executive has everywhere grown more powerful vis-a-vis the legislature. Political scientists have largely ignored this tide, but it has swept forwards nevertheless. It means that two powerful social forces now collide. Across western democracies, ‘ordinary people’ find means of complaining that they are ignored by elites who ‘just don’t get it’; elites decry ‘populism’ and exalt the opinion of ‘experts’, expressed to within one decimal point in forecasts of outcomes 15 years hence.

This collision reopens a second, equally old, question. What is a Member of Parliament: a delegate, or a representative? Edmund Burke famously outlined the case for the second: MPs, once elected, represent the nation as a whole; they owe the nation their best judgment; they are in nobody’s pocket. But another idea is just as old, and equally honourable: MPs are sent to Westminster by their electors to redress the electors’ grievances, and are accountable to them. Against Burke, we can set another intellectual, Andrew Marvell, MP for Hull in 1659-78, who was paid by his constituents and regularly reported back to them. Understandably, Burke’s high-sounding doctrine proved the more popular among MPs. But after he framed it, his constituents in Bristol threw him out for favouring Irish commercial interests over theirs, and he represented thereafter only his patron’s pocket borough.

Both ideas in their pure form are unacceptable. But how the balance between the two is to be struck can never be quantified or defined, and a crisis like the present makes the impossibility of a definition clear. ‘The People’ voted by 52 to 48 for Leave, and a larger percentage now says ‘just get on with it’; but about five-sixths of the House of Commons are for Remain.

Among Conservative MPs, something under 100 are evidently for Leave; of the other 200 or so, about half are on the Government payroll in one capacity or another, and more would like to be. So profound a dissociation between elite and popular opinion is rare. Worse still, public opinion polls and the growing practice of referenda quantify the problem as never before; the issue is easily expressed in binary terms (Leave or Remain); and the arguments have been fully rehearsed. Other countries show similar problems of relations between the many and the few, but in the UK these are brought to a focus. Since the constitution has failed to resolve them, public debate is full of expressions of elite contempt for the ignorant, prejudiced, xenophobic, racialist populace on the one hand; of popular contempt for the self-serving, condescending, out-of-touch Establishment on the other.

Before 1914, Conservative peers making technical points over a budget were manoeuvred by Lloyd George into a constitutional confrontation that could be memorably summed up as ‘Peers versus the People’. In this clash, the peers could only lose. Now, the Remainers have been manoeuvred into a constitutional confrontation that, if it goes much further, will be labelled ‘Parliament versus the People’. In such a conflict it can only be Parliament that will lose. In that event, the damage would be considerable.

These great questions of constitutional definition are seldom solved; rather, the issues are defused by building next to them a new practice. The present challenge is to accommodate that new arrival in the political arena, the referendum, and to turn it into a clearly specified, moderate, and constructive institution, as it is in Switzerland. Those concerned about daily policy should think again about a subject, once salient in university History departments but now everywhere disparaged: constitutional history.