Why Britain needs the Armed Forces Deployment Act

The UK needs a law that governs the role of parliament in deciding on the deployment of armed forces. The current situation, in which the Prime Minister has full prerogative to go to war but choses to consult parliament is no longer fit for purpose.

The recent publication of the Chilcot Inquiry report into the Iraq war lays bare the problems that we currently face with regard to how military deployments are decided. The report goes into painstaking detail about how the country was misled with regard to the 2003 intervention, by a combination of faulty intelligence and political spin. Former PM Tony Blair may have taken ‘full responsibility’ for the decision to go to war but his half-hearted expressions of regret over the consequences this has had have done little to restore public trust in the political establishment. The 179 members of the armed forces that lost their lives in Iraq as well as their families deserve better.

We cannot undo the events of the past but it is within our powers to change the way the country decides on future matters of war and peace. On 8 July 2016 I moved a bill that would formalize the role of the House of Commons in authorizing the government to commit the armed forces to military action. We already have an unwritten convention, first introduced by Tony Blair, that Parliament should be involved in taking such decisions. Parliament has since been consulted on deployment in Libya and against so-called Islamic State in Iraq/Syria, but not in other cases where considerable loss of life has occurred (e.g. expansion of mission in Afghanistan to Helmand). However, it remains the constitutional position that the Prime Minister acts under royal prerogative and that the involvement of parliament remains at his or her discretion, without any formal rules governing decision-making.

Several political leaders and experts have now called for the formalization of this process. At the time of the Libya intervention the then Foreign Secretary William Hague made his commitment in March 2011 that the Government would move to ‘enshrine in law for the future the necessity of consulting Parliament on military action’ [Official Report, Commons, 21/3/11; col. 799]. In evidence to various parliamentary committees, many expert witnesses supported the principle of legally defining the authority of parliament in this area. It is time that we acted on this advice.

Several questions have been raised about the proposed Armed Forces Deployment Bill. None of them represent serious objections, however:

  • Would we be able to define when we face a situation of ‘armed conflict’? New technological advances such as unmanned or autonomous weapons systems are said to blur the line between war and other forms of conflict. However, as Professor Michael Clarke (RUSI) have stated, ‘death and destruction’ are usually good indicators of military conflict. In the numerous legislative acts that have been passed on counter-terrorism measures, the same question of how to define ‘terrorism’ has arisen, and yet we have been able to come up with workable definitions. We should be able to do the same in the case of war.
  • Would the act lead to tie up the military in increased legal action, thereby constraining the ability to act on the ground? As witnesses to the House of Commons Political and Constitutional Reform Committee argued, courts themselves do not support an expansive interpretation of the legal constraints on military operation. Similarly, in two recent court cases concerning military operations judges considered that such matters were non-justiciable.
  • Would the act lead to interference with military’s operational decisions? I don’t think so. In the past, Parliament has questioned the government about lack of adequate support for the troops but has never concerned itself with questions of operational decision-making. In fact, Clause 3 of the proposed Act clearly defines emergency situations in which the PM would not need to seek the approval of Parliament and where the public disclosure of information would not jeopardize military operations.

The time has clearly come for the authority to go to war to be defined in a legislative act that establishes the principle of the need for Parliament’s approval except in exceptional circumstances. If there is one lesson from the Chilcot Inquiry, then it is this: when it comes to committing British soldiers to military operations abroad, and thus putting their lives at risk, full deliberation and formal decision-making powers involving Parliament are needed.