Due cause in armed conflict decisions by

Due to the huge significance
to the national security in general and to the State’s overall interest in
particular, the prerogative powers regarding deployment of armed forces
overseas lies with the country’s highest authority/executive globally and UK is
not different as traditionally this decision is a Royal Prerogative; which is
an authorisation requirement from the Prime Minister on behalf of the Monarch.
Therefore, the government does not necessarily need any parliamentary
permission legally, however modern global scenarios of 21st century
like Gulf War, War on Terror in Afghanistan, Iraq and Syria against Al Qaeda
and ISIS stimulate a wide range of concerns increasing immense pressure for a
change/reforms to this tradition.1

Prerogative powers,
being the remaining portion of Crown’s original authority,2
consists of Common Law powers and immunities peculiar to the Crown which go
beyond the power of a private individual,3 for
example going to the war or power to declare war. These residual powers are
arbitrary authority of a monarch, irrespective who exercise them, himself or a
minister on his behalf, enshrined as per the Bills of Rights Act.4  Furthermore, it is crystal clear that these
powers has to remain in the ambit of law and are never ever above the law, as
famously quoted by Sir Edward Coke that, ‘The king hath no prerogative, but
that which the law of the land allows him.’5

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Though legal
powers can be replaced by statutory laws,6  but a prerogative can be explicitly preserve
as well.7  However, in case of conflict the statute will
always be upheld against prerogative powers,8
also evident from the famous Burmah Oil case.9

 

Contrary to its
spirits, the courts traditionally were found reluctant in reviewing these
prerogative powers creating a gap uncharacteristically to its nature but
changes were noticed to this staunch approach when the review were done on
prerogative established bodies.10  However, the powers exercised directly by the
ministers were never reviewed as the courts maintained their stand that the
Crown’s exercise is neither justifiable nor subject to review.11

To counter the
absence of democratic accountability over a huge fundamental decision of troop
deployment abroad that affects nations interest hugely, Parliament’s formal
involvement/rightful intervention was necessarily sought.  This attempt gained momentum especially following
the Iraq War vote in 2003 after which many review committees were formed like
The House of Commons Public Administration Select Committee 2004 and The House
of Lords Constitution Committee 2005-06 which categorically stated strongly
that the army deployment must get prior permission from Parliament ideally, or
if could not then must ensure the permission as quickly as possible afterwards.12 A
Joint Committee formed to scrutinise the Constitutional Renewal Bill 2008, a White
paper, emphasizing that parliament should be given a formal role in army
deployment agrees to strengthen the cause in armed conflict decisions by saying
that it is an effective way of proceeding.13 Soon,
this became an unwritten convention and seeking parliamentary mandate for
actions in Iraq, Libya and Syria was a good evidence of a further strengthening
of the process. Yet, a broader consensus could not be built in general and
subsequently, the military response to Mali situation without parliamentary
approval was a return to the old habit14. Hence,
it can be noticed that the current convention is confusing and all the stake
holders including the government have different opinions and understanding of
this complex issue as it is established that the so-called convention has no
legally established rule.

Among the benefits
of exercising the convention are the legitimacy of the action of troop deployment,
increase in not only accountability but also military morale and improved
decision making. However, it is not without demerits as it has a strong ability
to undermine the operational effectiveness as the timing of the permission is
inadequate and unreasonable for emergency military actions.15 The
parliaments access to sensitive information, intelligence and technical expert
advice like legality is always limited compared to the government.

The global
practice on this highly debatable issue is not identical as Australia and
Canada, two predominant Commonwealth Countries follow UK pattern whereas Germany
consider its troops as a ‘parliamentary army’ but gives the Federation the powers
to deploy in specific conditions though some form of ‘Bundestag’ approval is
needed and comparatively USA strongly practice Congress approvals for the same.16

In conclusion, seeking
to change Royal Prerogative, definite parliament approvals/intervention in
military action or army deployment through legislation or resolution is a positive
step with a strong potential to support and safeguard government for its
action.  However, it has potentially precarious
aspects which can seriously undermine operational activity, morale deficiencies
and military capacity as well. The complex, vast compass this issue envisages, the
more differing opinions from stake holders it faces. This is a huge dilemma
hindering all from reaching a proper solution which requires strong political
will and an integrity to resolve from all quarters of society including
judiciary. In the absence of the written convention, there is a strong need to
try and provide a better, complete solution covering all aspects keeping in
mind the best possible interests of all involved parties including government,
military, judiciary and above all parliament by enhancing the foundation of the
unwritten convention and shaping it to become more tangible and transparent
tool.