The Regulation and Reform of Britain’s War Powers

Introduction

The paradigm of public politics and law has now become the focus of contemporary political studies due to the existing tendency for multidiscipline involvement in the decision-making progress. Thus, according to Aalberts, the newly emerged phenomenon of multilevel governance encompasses the ideas of political decentralisation and interaction within different levels of public competencies and private institutions in order to create a more proactive model of political reasoning.¹. One of the fundamental reasons behind such a shift towards a multilayered governance system is the concept of governmentality and active social participation in the state’s political life.

In the context of the United Kingdom’s political hierarchy, the state has come a long way to its definition of constitutional monarchy, which stands for the type of democratic political structure in which the monarch serves as a non-political head of state. Since its creation, the sovereignty of the state has been secured by the monarch, whereas the executive and legislative branches of the country are headed by the Government and the Parliament, respectively.². Both in the global context and in the example of the UK, sovereignty plays the role of accumulating power in the hands of the government in order to efficiently represent the national interests.³ However, with the growing interest in democracy and public involvement in the decision-making process, the role of the Queen and her right to exercise power unquestioningly has been brought into consideration. Currently, the Queen has the power of royal prerogative that extrapolates into such aspects as justice and foreign affairs. Parliament control and defence⁴. Hence, the primary goal of this paper is to assess the notion of royal prerogative and its potential reforms in the context of national defence and deployment of troops. The fundamental research question is whether, currently, any algorithms would work more efficiently than the royal prerogative itself.

The Notion of Royal Prerogative in the UK

For many years of existence of the UK Constitution, the extent to which royal prerogative regulates the political patterns of the state has been questioned and put into various perspectives. Thus, according to Lorenzo, ‘the ambiguities surrounding the royal prerogative, including its definition, scope, and the roles of both parliament and courts in checking its exercise, maybe aptly described as one of the central problems of the UK Constitution.’⁵. As far as the definition is concerned, there currently exist two major approaches to depicting royal prerogative: Dicey’s and Blackstone’s definitions.

According to Dicey, royal prerogative can be defined as ‘nothing else than the residue of discretionary or arbitrary authority, which is at any given time legally left in the hands of the Crown.’⁶. Blackstone, on the contrary, dwells on the following definition: ‘in its nature singular and eccentrical that it can only be applied to those rights and capacities which the king enjoys alone… and not to those which he enjoys in common with any of his subjects’⁷. Hence, while there is no precise definition of the royal prerogative, it becomes evident that the phenomenon itself implies the Crown’s supremacy in making crucial decisions on behalf of the whole nation. According to Webley and Samuels, the existing examples of the royal prerogative now include the control over summoning, proroguing, and dissolving the Parliament, making decisions about the country’s defence and deployment of British troops abroad, appointing state officers, participating in foreign affairs, and applying emergency measures when it comes to national security.⁸. Thus, such a number of prerogative laws for the national executive branch implies that nowadays, some crucial decisions for the country are made directly by the Prime Minister and the Cabinet without conferring on these aspects with the Members of Parliament. Considering the fact that the MPs represent the UK’s legislative branch that works in the best interests of the nation, it would be reasonable to question the fairness of the system that tends to disregard the public opinion on the matter.

The Problems of Royal Prerogative in the Modern Context

Prior to dwelling on the issues that stem from the existing model of the royal prerogative, it is necessary to elaborate on the ideas that justify the country’s long-term commitment to this governmental body. Thus, according to Lagasseé, the most relevant argument in favour of royal prerogative is the fact that the primary goal of the initiative is to make sure that the country’s executive branch is capable of making crucial decisions immediately.⁹. If the legislative branch were to supervise all the Government’s decisions and discuss the opportunities for further actions, the timeline of taking explicit actions would impede significantly. Hence, the UK Parliament currently does not abandon the relevance of the royal prerogative.

However, there are some undeniable issues related to governmental supremacy. The first and arguably the most significant stance against the royal prerogative is the lack of governmental interaction with the public. Thus, the initial idea of governing across the UK outlines that the legislative system of the country pursues the unanimous goal of serving the people.¹⁰. The principles of this governance are outlined by the Bill of Rights, which emphasises the fact that Parliament has a decisive position when it comes to prerogative, yet the position itself applies only to the aspects not covered by the explicit royal prerogative¹¹. Hence, it becomes evident that despite the rule of democracy within the state, the phenomenon of royal prerogative provides the Government with amnesty when it does not address Parliament prior to issuing executive decisions. As a result, the prerogative can be rightfully perceived as an implicit violation of governmentality.

The paradigm of public law assumes the existence of a ruling system and the group of people that abides by these rules. According to Cooper et al., ‘for an order of rule, an essential characteristic is the existence of a ‘ruler,’ that is, a permanent, universal, and effective decision-making unit. It does not matter whether this entity of unitary command comes about through a single will or through many wills united in some way into a decision-making unit.’¹² Thus, the central issue of the efficient ruling is defining the extent to which this decision-making unit should cooperate with society in order to make sure that the social order is executed in a manner acceptable for both sides. In the case of the UK, such an idea is presented through the means of governmentality, or gradual power decentralisation and involvement with the public in making decisions.¹³. Currently, the notion of governmentality is pursued by politicians in the form of Parliament Acts. In fact, if the UK Parliament proceeds with a certain Act, its ratification overwrites the royal prerogative and makes the Government abide by the Act in order to make a decision¹⁴.

A prime example of such superiority is demonstrated by the ratification of two Parliamentary Acts in a span of a decade. Originally, the Crown and the Government preserved the right to dissolve the Parliament. However, in 2011, this prerogative was abrogated, as the Act assumed a mandatory five-year interval between the general parliamentary elections in the UK.¹⁵. However, in March of 2022, the Royal Assent approved opposite legislation that eventually repealed the 2011 Act and revived the royal prerogative of Parliament dissolvement¹⁶. Hence, nowadays, instead of having general elections every five years, the Parliament now could be in the House for a maximum of five years.

Such an example demonstrates that currently, the royal prerogative is a dynamic concept that has the tendency of shifting its responsibility focus depending on the parliamentary requests. One of the spheres in which such flexibility is less explicit, however, is the royal prerogative to deploy military troops abroad and claim the country’s declaration of war. One of the potential reasons for this may be a relatively recent interest in the manifestation of governmentality in this sphere. To understand the issue better, it is necessary to dwell on the history of the royal prerogative in war relations.

Royal Prerogative of War Powers

Since the beginning of the 19th century, the UK has undergone a series of significant political changes, including the shift toward democracy by creating a constitutional monarchy. However, the one aspect of Britain’s rule that has not changed since is the existence of royal prerogative and the power of monarch’s rule. However, if previously, the royal prerogative was used in the context of monarchy, today’s prerogative embraces the rule of the Government headed by the Prime Minister (PM) and subsequent Ministers. Thus, nowadays, according to the Public Administration Select Committee, there are three categories of prerogative, namely:

• Sovereign’s Constitutional prerogatives, including the control over the Parliament;
• Legal prerogatives of the Crown;
• Prerogative executive powers, including the power to conduct diplomacy, armed forces deployment, and control over Britain’s territories abroad¹⁷

The latter is rightfully considered to be the most important aspect of the royal prerogative, as it encompasses the control over the national armed forces. Until the 20th century, the UK Parliament had no say in the decision to deploy troops abroad and actively participate in the international armed conflicts. However, since the 1980s, the executive branch of Britain became involved in the discussion on the matter of the state’s participation in the conflicts abroad, creating a precedent to the ’fusion’ of executive and legislative powers.¹⁸ A prime example of such a discussion was during the governance of Margaret Thatcher, who convened an official meeting with the Westminster Palace to discuss Britain’s deployment of troops to the Falkland Islands.¹⁹. With the initial intention to deploy the troops, Margaret Thatcher received support from the House of Lords.

Since then, the UK was repeatedly involved in the military conflicts abroad, namely, in Iraq, Kosovo, Sierra Leone, and Afghanistan²⁰. Hence, the need to reconsider the extent of public involvement gradually increased, as the participation in the international conflict meant the initiation of dialogue with the nation on the matter of socio-economic preparedness for troops’ deployment and the repercussions of war. The major change in the definition of the royal prerogative was marked by the 2003 decision to send the UK armed forces to Iraq. At the time when the US government, headed by George W. Bush, decided to deploy troops in order to participate in Operation Iraqi Freedom, the UK PM Tony Blair was interested in reestablishing its authority in the international arena through various foreign policies. Hence, once the question of deploying UK troops to Iraq was presented to Downing Street, the Government faced a series of issues. The biggest issue was the fact that the UN Security Council did not support the resolution to participate in the Iraqi war due to the fact that Iraq itself breached a series of UN resolutions.²¹. Hence, it seemed unlawful for the country to actively invade in a country that did not align with the obligations presented by the UN.²² However, after the UK Attorney General declared that the UK could participate in the armed conflict without the UN Security Council resolution, Tony Blair explicitly stated his intention to proceed with the war, whereas the Liberal Democrats issued an anti-war motion that refused the idea. Seeing the distinct socio-political division. Tony Blair made the decision to conduct a vote among the Members of Parliament.²³. With 139 votes in favour of the motion, Tony Blair won the vote and issued a resolution to deploy British troops to Iraq the day after. Eventually, the decision itself backfired because of the aftermath and humanitarian catastrophe the Iraq War brought to the world²⁴.

However, while Blair’s intentions for the international image of an ethical state were destroyed, the precedent became crucial to the overall further stance on governmentality and the notion of royal prerogative. According to Forster, ‘the decision of the Blair government to seek a vote in Parliament on the invasion of Iraq undid a long-standing constitutional settlement of the executive use of prerogative powers.’²⁵. The word ‘undid’ in this scenario stands for the precedent that presents an example of suppressing executive powers in favour of the Parliament and public interest. When analysing the 2003 Iraq scenario, Lord Hurd of Westwell noted that the precedent emphasised the relevance of the public vote in the situations when the whole country’s reputation and the international image were at stake.²⁶ Indeed, he mentioned that ‘obviously lots of people who normally go along with this did not, and there was a strong body of public opinion which was also against it. Therefore, it seemed to me that in that case, it was essential that your House should have a debate and vote.’²⁷ When putting these words into perspective, it becomes evident that the system of the open parliamentary vote as a part of the decision-making process can reestablish the connection between the Government and the public, ensuring the gradual development of governmentality. For instance, if the decision to invade Iraq despite the Security Council resolution were made exclusively by the Government, the response to the failure would have been put entirely on the executive office, increasing the tension within the state, as no responsibility would have been taking by the legislature and.

Since then, the process of securing parliamentary conventions for the royal prerogative has been introduced. UK Parliament defines convention as ‘an unwritten understanding about how something in Parliament should be done which, although not legally enforceable, is almost universally observed.’²⁸. The key phrase in this definition addresses the absence of legal enforceability of the convention. The debate around the existing conventions dwells on the extent to which the UK Government accepts the public responsibility to seek parliamentary counselling when it comes to conflicts.

Currently, according to the House of Commons, ‘conventions can be friable and fragile. They can crumble at the touch of a powerful, insensitive and determined Executive, especially in circumstances where one’s country and its allies are living and breathing in the shadow of potential armed conflict.’²⁹. Thus, willing for the PM to embrace more decisive steps to include the Parliament in the discussion, the House of Commons made a publication that elaborated on the topic of the relevance of the parliamentary approval for the deployment of armed forces. The publication primarily included the following arguments:

• Parliament plays a significant role in holding the executive branch accountable to the public. Essentially, in order to make sure that the political environment of the Government is relevant, it is necessary for the PM to address preliminary counselling with the Parliament.
• Parliamentary approval eventually makes service deployments more legitimate in the face of both local and international communities, as the decision is made explicitly by both legislative and executive branches.
• The approval boosts the morale of service personnel. In the social context of the UK, the Parliament is closely associated with the opinion of the British nation. Hence, including Parliament in the discussion makes people believe that their homeland roots for them and is ready to provide all the help required to come back alive.³⁰

Undeniably, in these scenarios, the Parliament recognises that, since the PM is the one primarily responsible for the national welfare, the legislative branch is physically incapable of being a part of every decision-making process. For this reason, in order to define the scope of influence for the Parliament, the legislative outlined three ways of securing approval, including primary legislation such as the Act of Parliament and a House of Commons resolution on the armed forces commitment approval,³¹or a constitutional convention³². The latter, while similar to a parliamentary one, holds the executive branch more accountable for following the approval and counselling procedure. Currently, neither of these proposals has been adopted by the Government, as the PM relies heavily on parliamentary conventions. However, if previously, they had little impact on the Government’s actions, today’s parliamentary resolution plays a crucial role in royal prerogative. According to Lorenzo, ‘it now appears unlikely that a PM would authorise the deployment of UK-armed personnel to dangerous, prolonged or controversial missions without previous parliamentary approval.’³³.

Conclusion and Recommendations

Since the initial introduction of the royal prerogative to the political context of the UK, much effort has been put to investigate the implications of the hierarchical superiority of the executive branch. It has been known that even despite the attempts to decentralise executive power, the royal prerogative still revolves around the Government and its ability to make the definitive decision on behalf of the state. However, the researchers claim that ‘it is not the change in terms of shifting power relations between different levels of government or between different categories of actors which is of interest, but changes in the practice of governing and the understanding of what governance is about.’³⁴. For the UK, this understanding should ultimately shift towards embracing governmentality and parliamentary involvement in the decision critical for the public lives of separate individuals. In order to do so, it is highly recommended for the Government to resort to the previously outlined proposal of constitutional conventions. Whereas currently, the parliamentary conventions gain more attention, their use remains discretionary, and such an allocation of political power undermines the authority of the public in the decision-making process.

References

Aalberts TJ ‘The Future of Sovereignty in Multilevel Governance Europe – A Constructivist Reading’ (2004) 42(1) JCMS 24

‘Parliament and the Government’ (UK Parliament, n.d.) Web.

Jackson, J H, ‘Sovereignty – Modern: A New Approach to an Outdated Concept’ (2003) 97(4) AJIL 782

Cox N, The Royal Prerogative and Constitutional Law: A Search for the Quintessence of Executive Power (Routledge 2020)

Lorenzo C, ‘Damned If You Do and Damned If You Don’t: The Use of Prime Ministerial Discretion and the Royal Prerogative’ (2022) 75(1) PA 177

Dicey AV, The Law of the Constitution (10th edn, Macmillan 1959) 424-5

Blackstone W, Commentaries on the Laws of England (8th edn, Clarendon Press 1778) 232

Webley L and Samuels H, Public Law: Texts, Cases, and Materials (2nd edn, Oxford University Press 2012) 143

Lagasseé P, ‘Parliament and the War Prerogative in the United Kingdom and Canada: Explaining Variations in Institutional Change and Legislative Control’ (2017) 70(2) PA 290

Act of Settlement 1770

Bill of Rights 1668 C 2, Arts 1-4

Cooper B, Dyzenhaus D, Heller H, Sovereignty: A Contribution To The Theory Of Public And International Law (Oxford University Press 2019) 80

Smandych R, Governable Places (Routledge 2019) 337

Fixed-term Parliaments Act 2011

Dissolution and Calling of Parliament Act 2022

Bartlett G and Everett M ‘The Royal Prerogative’ (House of Commons Library) Web.

Payne S, ‘The War Prerogative and Constitutional Change’ (2008) 153(3) RUSI 29

Takacs S, The Modern World: Civilisations of Africa, Civilisations of Europe, Civilisations of the Americas, Civilizations of the Middle East and Southwest Asia, Civilisations of Asia and the Pacific (Routledge 2008) 702

Forster A, ‘The Military, War and the State: Testing Authority, Jurisdiction, Allegiance and Obedience (2011) 27(1) DSA 55

Smith S, Hadfield A, Dunne T, Foreign policy: Theories, Actors, Cases (2nd edn, Oxford University Press 2012) 419

Bennoune K, ‘’Sovereignty Vs. Suffering? Re-Examining Sovereignty and Human Rights Through the Lens of Iraq’ (2002) 13(1) EJIL 249

Tyrie A, ‘Mr Blair’s Poodle goes to War – The House of Commons, Congress and Iraq’ (Centre for Policy Studies) Web.

Jones B, Failing Intelligence: The True Story of How We Were Fooled into Going to War in Iraq (Biteback Publishing 2011) 154

Public Administration Select Committee ‘Taming the Prerogative: Strengthening Ministerial Accountability to Parliament’ (House of Commons 2003-04) Web.

‘Conventions’ (UK Parliament n.d.) Web.

Armed Force: Constitution Committee Report’ (House of Commons 2013) Web.

‘Constitutional Arrangements for the Use of Armed Force’ (House of Commons 2013) Web.

Ministry of Justice ‘The Governance of Britain – Constitutional Renewal’ (Ministry of Justice) Web.

Select Committee on the Constitution ‘Waging War: Parliament’s Role and Responsibility’ (House of Lords) Web.

Kohler-Koch B, ‘Catching Up with Change: The Transformation of Governance in the European Union’ (1995) 3(3) JEPP 359

Footnotes

1. Tanjia J. Aalberts, ‘The Future of Sovereignty in Multilevel Governance Europe – A Constructivist Reading’ (2004) 42(1) Journal of Common Market Studies 24
2. ‘Parliament and the Government’ (UK Parliament, n.d.) Web.
3. John H. Jackson, ‘Sovereignty – Modern: A New Approach to an Outdated Concept’ (2003) 97(4) The American Journal of International Law 782
4. Noel Cox, The Royal Prerogative and Constitutional Law: A Search for the Quintessence of Executive Power (Routledge 2020)
5. Cladi Lorenzo, ‘Damned If You Do and Damned If You Don’t: The Use of Prime Ministerial Discretion and the Royal Prerogative’ (2022) 75(1) Parliamentary Affairs 177
6. Albert Venn Dicey, The Law of the Constitution (10th edn, Macmillan 1959) 424-5
7. William Blackstone, Commentaries on the Laws of England (8th edn, Clarendon Press 1778) 232
8. Lisa Webley and Harriet Samuels, Public Law: Texts, Cases, and Materials (2nd edn, Oxford University Press 2012) 143
9. Phillippe Lagasseé, ‘Parliament and the War Prerogative in the United Kingdom and Canada: Explaining Variations in Institutional Change and Legislative Control’ (2017) 70(2) Parliamentary Affairs 290
10. Act of Settlement 1770
11. Bill of Rights 1668 C 2, Arts 1-4
12. Belinda Cooper, David Dyzenhaus, Hermann Heller, Sovereignty: A Contribution To The Theory Of Public And International Law (Oxford University Press 2019) 80
13. Russell Smandych Governable Places (Routledge 2019) 337
14. Lisa Webley and Harriet Samuels, Public Law: Texts, Cases, and Materials (2nd edn, Oxford University Press 2012) 151
15. Fixed-term Parliaments Act 2011
16. Dissolution and Calling of Parliament Act 2022
17. Gail Bartlett and Michael Everett ‘The Royal Prerogative’ (House of Commons Library) Web.
18. Sebastian Payne, ‘The War Prerogative and Constitutional Change’ (2008) 153(3) The RUSI Journal 29
19. Sarolta Takacs The Modern World: Civilisations of Africa, Civilisations of Europe, Civilisations of the Americas, Civilizations of the Middle East and Southwest Asia, Civilisations of Asia and the Pacific (Routledge 2008) 702
20. Anthony Forster, ‘The Military, War and the State: Testing Authority, Jurisdiction, Allegiance and Obedience (2011) 27(1) Defense and Security Analysis 55
21. Steve Smith, Amelia Hadfield, Timothy Dunne Foreign policy: Theories, Actors, Cases (2nd edn, Oxford University Press 2012) 419
22. Karima Bennoune, ‘’Sovereignty Vs. Suffering? Re-Examining Sovereignty and Human Rights Through the Lens Of Iraq’ (2002) 13(1) EJIL 249
23. Andrew Tyrie ‘Mr Blair’s Poodle goes to War – The House of Commons, Congress and Iraq’ (Centre for Policy Studies) Web.
24. Brian Jones Failing Intelligence: The True Story of How We Were Fooled into Going to War in Iraq (Biteback Publishing 2011) 154
25. Anthony Forster, ‘The Military, War and the State: Testing Authority, Jurisdiction, Allegiance and Obedience (2011) 27(1) Defense and Security Analysis 56
26. Public Administration Select Committee ‘Taming the Prerogative: Strengthening Ministerial Accountability to Parliament’ (House of Commons 2003-04) Web.
27. Ibid 9
28. ‘Conventions’ (UK Parliament n.d.) Web.
29. ‘Armed Force: Constitution Committee Report’ (House of Commons 2013) Web.
30. ‘Constitutional Arrangements for the Use of Armed Force’ (House of Commons 2013) Web.
31. Ministry of Justice ‘The Governance of Britain – Constitutional Renewal’ (Ministry of Justice) Web.
32. Select Committee on the Constitution ‘Waging War: Parliament’s Role and Responsibility’ (House of Lords) Web.
33. Cladi Lorenzo, ‘Damned If You Do and Damned If You Don’t: The Use of Prime Ministerial Discretion and the Royal Prerogative’ (2022) 75(1) Parliamentary Affairs 187
34. Beate Kohler-Koch, ‘Catching Up with Change: The Transformation of Governance in the European Union’ (1995) 3(3) Journal of European Public Policy 359