Roger Smith outlines the options available to Gordon Brown to restrict the prerogative power to deploy armed forces


Back when Gordon Brown first became prime minister, he set out his spanking new agenda for the ‘governance of Britain’. In the second phase came bright and interesting ideas like a Bill of Rights. The first wave saw the settling of a number of issues on which he could subtly, or otherwise, distinguish himself from his predecessor. Thus, a consultation having now closed, we may soon get proposals for parliament to vote on going to war.



History is likely to be unkind to the legacy both of the current President Bush and Tony Blair. A new regime in the White House – be it Obama, Clinton or even McCain – will have every incentive to portray the previous administration as negatively as it can. Domestically, Brown cannot wipe the slate as clean. He remains a member of the same government that led us into a disastrous military adventure.



The prime minister must find a way of signalling a distance from a policy that, at the time, he supported. This is no doubt the attraction for him of the proposal to restrict the prerogative power to deploy armed forces. Parliament has, of course, usually debated and often effectively voted on the use of force. The form of the debate has sometimes not been clear. Tony Benn protested about sending the army into Kosovo by way of an adjournment debate where government defeat would technically have meant only that no one went home that night. He consistently argued for a US-style War Powers Act that requires the executive to get authorisation for the use of force from the legislature.



Nevertheless, it is true that parliament has debated all recent significant operations and was given an opportunity for dissent. The Falklands invasion in 1982 was approved in another adjournment debate. The first Gulf War was specifically approved in 1992, though four days after the commencement of hostilities. The second Gulf War was approved in a debate in March 2003 on a resolution that had none of the ambiguity inherent in the underlying UN resolution – a clarity unfortunately mired by the presence of more than one ‘dodgy dossier’.



There are, of course, problems for parliamentarians in the ex post facto approval of the deployment of troops. Michael Foot felt strongly that, whatever he thought about the merits of Margaret Thatcher’s war, he should represent Her Majesty’s loyal opposition when British troops had actually embarked.



There have been a number of attempts to formalise parliamentary accountability. Clare Short produced a draft bill after her resignation. The redoubtable Lord Lester has had a go; so too has Michael Meacher. Both the House of Commons Public Affairs Select Committee and the House of Lords Constitution Committee have weighed in with different models.



The main options are either to replace the prerogative right to deploy the armed forces by statute, or to limit its use by a convention that requires an authorising resolution. The House of Commons committee preferred the former; the House of Lords committee the latter. The commons committee was forthright on the principle: ‘This is unfinished constitutional business. The prerogative has allowed powers to move from monarch to ministers without parliament having a say in how they are exercised. This should no longer be acceptable to parliament or the people.’



There are difficulties with any formal requirement of parliamentary approval. It is difficult to define the threshold for authorisation – particularly in relation to ‘peacekeeping’ missions. Any legal liability for unauthorised force must be considered, both in relation to the military and the government. The role of the House of Lords is difficult if the defining vote must be democratically valid. There must be circumstances in which retrospective authorisation is acceptable, and there is the issue of whether authorisation should be time-limited.



Nevertheless, there are three reasons why Gordon Brown should proceed to abolish the prerogative – and why the principle of statutory regulation by parliament is crucial. First, retention of the powers of a feudal Crown is just not acceptable in a modern democracy. Secondly, the military deserves the democratic accountability of parliamentarians. It was General Sir Mike Jackson who famously demanded that his legal authority was clear to invade Iraq and that Lord Goldsmith should come off the fence. Cases like Al-Skeini and Al Jeddah have encouraged much tougher judicial consideration of the military’s conduct of hostilities, once commenced. Parliament must be explicitly accountable for the commencement of wars ‘of choice’, such as the second Iraq invasion and Kosovo, however much retrospective approval may be applicable in an emergency.



But, fundamentally, the prime minister needs to be bold to recapture political support. His constitutional agenda retains the potential to re-engage a wide swathe of opinion – particularly if he can unite a rights and democratic agenda. Parliamentary authority for the use of force provides him with a useful first step down a complex but rewarding road towards a more democratic constitution, of a kind that did not greatly appeal to his predecessor.



Roger Smith is director of human rights organisation Justice