The Authority to Deploy British Soldiers Overseas - Essay Example

Constitutional and Administrative Law Module Module Number: Academic Year: Seminar Essay Question: Is it law or the mentality of the governed that allows the executive to retain control of the war powers in the U.K.? Student Name/ Number: Introduction The authority to deploy British soldiers overseas is one of the most important Royal Prerogatives remaining in the office and which are subject public mentality. War powers originate from the Crown rather than being subject to parliamentary legislation because no legal reforms have been introduced to transfer the powers to the legislature. As of now, there is no statutory parliamentary process that formally obligates the executive to seek parliamentary consent ahead of military deployment. The Prime Minister and Cabinet have the mandate and the legal right to choose when and where to send the armed forces for combat. However, in practice most of the UK’s administrations in the recent past have normally initiated parliamentary debate as a way of legitimizing military deployments abroad even if parliament is lacking express war powers. The Executive War Powers In 2006, British Prime Minister Tony Blair in reassessing his government-initiated parliamentary approval for the 2003 deployment of troops in Iraq recognized that he could not contemplate a circumstance in which an executive could single-handedly declare war, unless they are dealing with situations where the use of military would be urgently needed to restore or preserve the security of the state1. In such situations, convening parliamentary sittings, debate and approval of military deployments would be belated, hence the need to circumvent parliament. Either way, holding a parliamentary debate on pre-deployment of military forces, the schedule and any eventual resolutions are not legally compelling to the executive and the Prime Minister to act in a certain way2. The vote on the 2003 military deployments in Iraq marked a significant part in the history of exercising war powers. The Tony Blair government donated more of its war powers to Parliament by engaging the people’s representatives to approve of its military agendas3. The need to involve parliament in war declarations has been reinforced by subsequent qualms about whether the Prime Minister, as the individual charged with micromanaging the country’s security apparatus had made the right decision(s), considering the vital trade-off between national security and the potentially high costs that overseas deployments normally attract. A parliamentary approval of military deployments would cushion the executive from “extreme” parliamentary oversight that would follow such deployments, particularly when the military actions exceed the pre-planned budgets limits4. The current Coalition government has sought parliamentary approvals for military deployments abroad twice5. In early 2011, he sought parliament’s resolution before ordering the use of the country’s military assets to impose a no-fly zone in Libya. In addition, parliament’s involvement with the whole issue followed the passing of a United Nations Security Council Resolution over the same Libyan mission. In August 2013, the Cameron government played to the public mentality again by seeking the approval of military deployment in Syria over the alleged use of chemical weapons in the war-torn country. By seeking parliament’s nod before military engagements abroad, the executive was basically ensuring more conformity to the culture that the people through their representatives ought to be involved in the issue6. The Law The legal mandate under which the UK’s military operate is compound. It involves a network of codified powers, which are formally within the ambit of Parliament on the one hand and the sweeping powers of the executive. The executive has the right to act without parliamentary authorization7. Formally, however, the country’s military is accountable to the people through parliament. Each financial year, the legislature must approve the proposed defence budget which the executive relies on to keep the army in effective operation. Parliament must also renew the laws upon which the armed forces activities as based by passing an Armed Forces Bill within the intervals of five years. All of these measures meet the provisions defined by Article Six of the Bill of Rights 1689: that the country’s military should only be legally deployed in overseas missions with a parliamentary approval8. Despite the existence of the statutory provision, the executive enjoys relatively unfettered power over the management of the armed forces by virtue of Prerogatives. Under the war powers Prerogative, the executive is legally mandated to enlist new servicemen and women; appoint generals and award commissions to servicepersons; constitute the Defence Council; and enter into international treaties with foreign allies about basing troops within their borders. As things stand now, there is no legal obligation upon the executive to seek parliament’s involvement in military these commitments9. In addition, even where the executive donates some of its war powers to parliament, the latter institution would still be ill-equipped to compel the executive to act on its resolutions. In light of these technicalities, it is generally an accepted norm that the power of troop deployment is in the real sense vested in the Crown through the Prime Minister. The PM has individual discretion to exercise the war powers and is not bound by any statutory provisions to consult others, even though it is unlikely that he could handle a war alone10. Legally, UK’s military forces fall under the Crown and the Monarch is the Commander in Chief. In light of this, the powers over their deployment not only encompasses the sole discretion to deploy forces to combat but for operational issues relating to their formation and equipment11. The majority of people who support the transfer of the war-making powers to Parliament are basically attempting to limit the enforcement of the war powers itself, but not the operational aspect of the military activities. This is especially the case, considering that parliament cannot micromanage the issue of military deployments, especially where an open debate could hamper the mission12. Limitations The discretion to deploy the military is subject to some limitations. The executive is subject to particular constitutional imitations including the overall norm of their responsibility to the national assembly for the enforcement of their military mandate13. The executive may also need the parliamentary resolution for the release of financial assets for a military action, though this was primarily aimed at controlling the powers of the Commander-in-chief of the armed forces. Regardless, any PM who is in office legally could easily pass this hurdle considering that he or she would have a majority in the legislature to pass such budgets14. But even if such additional budgets were not passed, new supplies for support of military actions could still be managed within the normal defence budgets or from the contingency coffers in case of an emergency. Otherwise, the issue is part of the national annual budget and occasionally subject to special budgetary arrangements. For example, following the military deployments in Iraq, the extra expenditures were covered by a special reserve budget created in 2003 and supported by additional budgetary allocations since then. The circumstances alone limit parliament’s war powers, since the House’s capacity to control military deployments by holding the purse strings are no more15. Courts have also attempted to regulate the war powers of the executive through judicial review. Judicial rulings since 1980s have attempted to limit the enforcement of prerogative powers in their raw state and instead emphasizing on the greater role of parliament in the whole issue16. However, the review of what powers should be reserved by the Crown and what needs to be trimmed by courts is still shrouded in ambiguity. Many Prerogatives the Monarch still remain beyond the control of the courts because the country is lacking any legal tests by which their enforcement could be evaluated. These powers are: the authority to sign Conventions and defend the kingdom17. Authorities In the case of Attorney-General v De Keyser’s Royal Hotel Limited [1920] AC 75, the House of Lords sought to determine whether the Royal Prerogative could suffice in an environment where statutory provisions are available and could provide the direction needed regarding an issue. The case witnessed the proprietor of a hotel facility seeking reparation under an 1842 legislation allowing for compensation for victims of military occupation during war. In its submission, the executive argued that it reserved the right to release less compensation to the aggrieved parties under the Royal Prerogatives. But in its decision, the House of Lords refused the government argument, holding that the Prerogatives would stand suspended upon the coming into effect of a statute18. By contrast, R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] 1 QB 26 sought to expand the war powers of the executive over parliament. In the landmark case, the court upheld, for the first time, the express prerogative authority to carry out any action which was necessary to contain a real or a perceived threat to national security. The case was about the decision of the Home Office to keep a stockpile of CS gas and polyethylene baton rounds without informing the police boss, provided the Royal Prerogative had been sought. It was held that the Royal Prerogative empowers the office to maintain law and order. As such, the Home Offices actions were well within the executive’s mandate19. The current state of affairs In line with the Royal Prerogatives, statutory law and common law, war powers technically exist in a vacuum, in which no codified laws or general legal standards could effectively substitute. English courts have been unenthusiastic to cite international bodies of law in their assessment of the validity of executive-engineered military actions20. It is hard to contemplate how statutory laws could be set up, since exact circumstances that call for military actions are largely indefinable21. Different strategic operational decisions may necessarily vary from one case to another: for instance, enforcing a no-fly zone may require jets, unmanned aerial vehicles and very limited ground support. Peacekeeping missions would need more ground troops and massive air support may not be necessary. Yet as the world moves into the future, unpredictable terrorist operations would require the deployment of unconventional military units. In light of the varying conditions, even a resolution to deploy the military might be legally insignificant compared to the practical operational decisions by the commanders who, for example, are pursuing terrorists with a thin team of special troops22. Nowadays, British military is rarely sent for actions overseas by unilateral executive orders. In the past three decades, the government has unilaterally sent wholly British military forces without external requests to commit the troops. The Falklands War in 1982 and civil war in Sierra Leone in 2000 are evident enough of such decisions. In some cases, the deployments of British troops are guided by international treaties and are enforced as part of a joint action bringing in British allies together under Nato, for example. In other cases, such overseas actions have been achieved without formal resolution by the UN Security Council23. Yet, the UN Security Council may set up a UN military unit to which the UK as part of the member countries might donate her troops for peace-keeping missions. Alternatively, the UN may mandate the UK or several countries employ military force to achieve a military mission such as in Kuwait in the early 1990s. These multilateral missions might require the deployment of several thousands of officers, from all the units, down to tens of Special Forces. As such, the codifying military deployments under unpredictable conditions would really present serious challenges to the policy-makers in the executive down to military commanders in their cause of action. Nonetheless, certain reforms can still be necessary24. Reform proposals Following the 2013 Parliamentary Debate and the subsequent vote on the commitment of UK soldiers to Syria, which resulted in parliament’s refusal of the motion, it is important to seize the opportunity to legislate on the war powers by transferring some of the executive powers to the legislature. Specifically, parliament should enact a legislation specifying that before commencing any deployments of military for combat, legislators should be provided with the opportunity to discuss and vote on the issue. However, a limited exception should be provided for military action where it is absolutely necessary and the situation calls for an urgent response by the executive25. The reform agenda should focus on reforming the formality status of parliament in war declaration. First, the Royal Prerogative of war declaration could be scrapped and replaced with an Act, which spells out the legal parameters within which the executive may use military assets. This way, parliament would authorize a war only under certain circumstances. Secondly, the Royal Prerogative could be upheld, but framed in such a way that compels the PM to consult the legislature on the deployment of military forces26. The last option supports the establishment of stronger laws that empower the House of Commons to pass war resolutions, which a comprehensive enough to be implemented by the executive. This way, parliament would spell out when and where to deploy ordinary soldiers and Special Forces and the amount of assets they would need in order to accomplish specific missions with limited room to check for creeps27. The strengthened role of Parliament, where motions for military deployments must be tabled on the floor the House beforehand is the best position and can be more effective without any further formalization processes28. At the height of reform is the need to reform the Royal Prerogative on the grounds that it is an archaic source of power and that arguably undermines the democratic political developments in the United Kingdom since the contemporary era29. There is an urgent need to return the power back to the people for exercising by democratically elected representatives. However, with a democratically-elected PM as an influential figure within the executive ranks, the monarchy is relatively meaningless30. By doing away with the Prerogatives, the country could find itself in a fix. A situation where some essential military actions would be deemed as illegal, yet very important could complicate the whole issue of military action. Defining ‘military action’ is definitely prone to problems, especially when intelligence gathering and support, proxy conflicts and cyber warfare are involved. Guaranteeing commanders operational manoeuvrability or controlling media coverage that would impair the effectiveness of any mission might prove extremely difficult31. Conclusion Generally, war powers fall under the Royal Prerogatives, meaning that the executive has unfettered access to and use of the military assets in overseas missions. Parliament lacks any formal powers to approve military involvement abroad. Regardless, the past decade has witnessed the executive being courteous enough to keep legislators abreast with the state’s commitment of troops to overseas missions and the developments in the battlefields as the campaigns rage on. While the military forces are practically subject to written laws because the Crown needs parliament to effectively maintain the military, the executive reserves the right to use the army whichever way it deems fit. The founded fear that unfettered war powers could be prone to abuse has raised the necessity to regulate the use of military forces, especially on overseas missions. The best option would be to enact a piece of legislation that compels the executive to present before parliament, a war motion for approval before any planned military deployments. A leeway should be left for limited emergency responses lasting for a maximum of four weeks, within which parliament shall have authorised the extension of military deployments or de-escalation. 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