A. Introduction and Background

On Friday 13 April 2018 the Royal Air Force participated in air strikes (together with the United States and France) to degrade the Syrian regime’s chemical weapons capability and to deter further chemical attacks. This intervention in Syria was not authorised by the UN Security Council, nor was the involvement of British troops approved by the House of Commons. Instead, the decision to send British forces to Syria was made by The Prime Minister Theresa in conjunction with the Cabinet. Readers can view her public statement from 14 April 2018 here. Events unfolded this way despite governmental acknowledgement of a War Powers Convention in the 2011 Cabinet Manual. It describes the Convention in the following terms:

‘before troops were committed the House of Commons should have an opportunity to debate the matter … except when there was an emergency and such action would not be appropriate’.

After increasing political pressure from all parties, two debates were held in the House of Commons. The first followed a statement by Theresa May on Monday 16 April 2018, and the second came on Tuesday 17 April as a result of an emergency Standing Order No. 24 Debate, granted at the discretion of the Speaker of the Commons pursuant to a motion moved by Leader of the Opposition Jeremy Corbyn. A substantive motion was moved in the following terms:

‘That this House has considered Parliament’s rights in relation to the approval of military action by British Forces overseas.’

Corbyn encouraged Labour to vote against the motion so as to send a signal that the Commons was inadequately consulted on the airstrikes. However, the motion carried by a 317 to 256 vote.

B. Exceptions to the Convention

On its face, the War Powers Convention is thought to create two exceptions to the prior consultation of the House of Commons. The first is where an emergency occurs making the timely consultation of politicians either inexpedient or impossible. The second is a public interest exception, which covers situations where parliamentary consultation would damage the public interest because it would require the disclosure of information prejudicial to national security. In our research, we have also found a further two exceptions related to types of military activity. Neither the deployment of Special Forces, nor strikes by Unmanned Aerial Vehicles (Drones) fall within the scope of the War Powers Convention.

In her statement to the Commons, the Prime Minister clarified the current Government’s interpretation of the convention, and put forward ‘four fundamental reasons’ for the British government’s view that the airstrikes in Syria constituted an exception to the convention. First, that debating the air strikes would have compromised the effectiveness of operations. Secondly, that a debate would have disclosed secret intelligence, compromising British national security. Thirdly, a debate would have required the disclosure of plans of allied forces, which may compromise both the security of the allied forces, and the expediency of operations. Fourthly, the British government argued that the intervention was legal as a matter of international law and that ‘the legal basis for UK action has previously been agreed by Parliament.’ (HC Deb 17 April 2018 vol 639 col 208).

These reasons, taken at face value, broadly sit within the public interest justification for non-consultation of the Commons. However, in her statement to the Commons on 17 April the Prime Minister went further and presented these arguments as effectively creating a third category of exception which does not currently exist on the text of the convention – that of exempting air strikes from prior parliamentary scrutiny. In reaffirming commitment to the Convention, Mrs May argued that:

[I]n a parliamentary democracy, elected representatives in this House should be able to debate the deployment of British military forces into combat. As I said yesterday, I am deeply conscious of the gravity of these decisions and the way in which they affect all Members of the House. There are situations—not least major deployments like the Iraq war—when the scale of the military build-up requires the movement of military assets over weeks, and when it is absolutely right and appropriate for Parliament to debate military action in advance, but that does not mean that that is always appropriate. This therefore cannot and should not be codified into a parliamentary right to debate every possible overseas mission in advance. (HC Deb 17 April 2018 vol 639 col 203)

This new exception, appears to relate to the nature and scale of the conflict. In this post we consider what the government’s threefold case for denying prior democratic scrutiny (based on legality, national security, and the nature and scope of the deployment) means for the status of and utility of the War Powers Convention.

The Weakness of the Legality Argument

In her statement to explain Saturday’s action, Mrs May argued that the intervention was legal and correct in order to alleviate further humanitarian suffering. She argued that previous British governments had invoked the same reasons for intervening in Kosovo and elsewhere. Under international law, which is the sole body of law to regulate the use of force, military action is only legal if it is used in self-defence or if authorised by the Security Council. The argument that the legal basis for the use of force is humanitarian intervention ‘is not an accurate reflection of international law as it currently stands’ (Akande). Since 1999 when humanitarian intervention was argued in relation to Kosovo, only a handful of states appeared to accept a right of humanitarian intervention. In contrast, in the past 20 years more than 130 states have explicitly rejected this legal position. Even if the Government was seeking to exercise its responsibility to protect the victims of chemical attacks, such action should have taken place through the Security Council, i.e. with an authorisation from the United Nations. For most international lawyers, air strikes in Syria were clearly not legal, and in light of overwhelming rejection by countries of such an argument, previous practice by the UK or other countries does not make them so. Since 2003 the UK Parliament has been strategically used to provide ratification of military action in cases where no Security Council authorisation was provided. This occurred in relation to Iraq and to Syria. Nevertheless, such parliamentary approval cannot fill the legal vacuum left by the lack of Security Council authorisation.

The Public Interest Exception: Secret Intelligence

In respect of the role of secret intelligence, the government departed from David Cameron’s policy of offering public summaries of the positon of the Joint Intelligence Committee to all MPs during the Commons’ debate. This is to be welcomed, as de-contextualising such information often leads to its misunderstanding. Instead, Mrs May continued the longstanding practice of offering confidential briefings (this time after the airstrikes) regarding secret intelligence to leaders of the Opposition parties on ‘Privy Council Terms.’ These briefings are confidential, and their content cannot be discussed in public debate. Their effect is that two classes of parliamentarians are created, and an information asymmetry persists not only between government and MPs, but among classes of MPs. The result is that parliamentary scrutiny is not significantly advanced.

Concerns about the use or misuse of the government’s intelligence case came from across the political spectrum in the Commons, but the strongest challenge came from Kenneth Clarke MP, a member of the Prime Ministers’ own party:

We all accept that the sources of intelligence should never be disclosed to the House of Commons, but surely these are essentially political and foreign policy judgments about whether to use force to defend the national interest. These arguments could be applied to health, education and lots of other areas. The concept that the gentlemen in Whitehall know best has never been allowed to overrule Parliament in any other area of policy, certainly not in modern times. (HC Deb 17 April 2018 vol 639 col 232)

The inherent danger in the exception to the Convention meant to protect intelligence information is that it risks being over-claimed. This is the force of Clarke’s objection. Although the Standing Orders of the House of Commons contain the power to sit in private (no. 163) such a power has not been used to consider sensitive information since World War II. Members of the House of Commons are at a significant disadvantage vis-à-vis their counterparts in the United States’ Congress, and the EU Parliament when it comes to having sight of such information related to key decisions. Although the sources of intelligence could never be revealed to parliamentarians, they could be allowed to consider the reports of the Joint Intelligence Committee in secure premises, and if thought necessary, spend part of an otherwise open debate forcing the government to justify its reading of the intelligence case for armed conflict. In the wake of Iraq, the position that ‘Whitehall knows best’ is constitutionally untenable.

Narrowing the Scope: Nature and Scale

In addition to labelling Syria as an exception on loosely defined existing grounds within the Convention’s agreed text, the Prime Minister yesterday qualified its field of application. Compared to the 2011 Manual, which contains the phrase ‘before troops were committed’ the qualification appears in the following statement: ‘In a parliamentary democracy, the elected representatives in this House should be able to debate the deployment of British military forces into combat’ (emphasis added). The key distinction between the two readings is that the Government now clearly understands the convention as applying exclusively to combat situations. Moreover, during the course of the emergency debate, Mrs May referred to ‘not least major deployments like the Iraq war’. Whilst the nature of conventions makes them dynamic as opposed to static, and therefore difficult to accurately capture in written rules, this twofold narrowing of the field of application significantly circumscribes the situations in which the Commons may be consulted. In addition to the non-application of the convention to Special Forces deployments, the embedding of British forces in foreign countries’ armies, and the use of drones (noted above) there is now room for significant doubt as to whether the War Powers Convention applies to air strikes. Moreover, the Prime Minister clarified that Parliament should be involved only when the decision concerned ‘major deployments like Iraq’ when the engagement of troops would be long-term. This redefinition (undertaken unilaterally) by Mrs May affords future governments considerable latitude.

The flexibility of constitutional conventions is in principle a great strength. However, in the context of the War Powers Convention such flexibility represents a major weakness. Allowing extensive discretion to the Executive – including the option to exclude consultation in cases of emergencies, drones, special forces, air strikes – ‘limits the effectiveness of a formalised process in enhancing Parliament’s control over deployment decisions.’ As the Constitution Committee concluded, ‘there comes a point at which the number of exceptions is so great that it effectively negates the purpose of formalizing Parliament’s role.’ (House of Lords Constitution Committee, 2nd Report 2013 [58]).

For the War Powers Convention to retain relevance the notion of a combat deployment must be construed broadly by the Government and the Commons. Given the recent debates, this now seems unlikely. The nature of warfare has changed. All-out wars are rare and usually limited to some type of self-defence situations, where the Government can plead that it is fighting a war of necessity rather than a war of choice. But for the most part, today military action is limited to air strikes and targeted actions conducted remotely. Most interventions take place without one single British soldier being sent into combat abroad. To exclude the majority of such military interventions from parliamentary scrutiny is to effectively exclude the Commons from discussion on these questions. As things stand it will be for the government of the day to define terms such as ‘major deployments’, and there is a risk that new exception will be used to shield future governments from adequate constitutional scrutiny in cases where deploying the armed forces proves politically controversial. In 2003 around 40,000 troops were deployed to the Gulf Region to await deployment. However, the government did not officially declare ‘war’. The last such declaration of war was made against Thailand (formerly Siam) in 1942. Although the government did not suggest limiting the Convention to situations of ‘war’, there are a great many military interventions short of the deployment of 40,000 troops which may go constitutionally unchecked because of yesterday’s developments. If the War Powers Convention continues to exist, we question whether it exists in any meaningful sense.

Veronika Fikfak is Fellow in Law at Homerton College, Cambridge.

Hayley J Hooper is Pennington’s Student (Fellow) in Law at Christ Church, Oxford.

They are the authors of Parliament’s Secret War (Hart, 2018).

(Suggested citation: V. Fikfak and H.J. Hooper, ‘Whither the War Powers Convention? What Next for Parliamentary Control of Armed Conflict after Syria?’, U.K. Const. L. Blog (20th Apr. 2018) (available at https://ukconstitutionallaw.org/))