Select Committee on Constitution Minutes of Evidence

Memorandum by Professor John McEldowney


  The early history of medieval kingship provides the background for an understanding of prerogative powers. The King's authority rested on feudal rights and at the apex of power the King could not be sued in his own courts and might exercise residual powers to protect the realm and for the public good. Setting limits on royal powers has taken several centuries. First, the courts after the execution of Charles I began to reject some of the more extreme examples of the Crown's claims for unfettered powers. Taxation, if levied without the sanction of Parliament was declared illegal in Darnel's case[19] in 1627, earlier cases included the restriction that the King must act through the courts of law and could not undertake his own judicial process alone and that Parliament was the supreme law maker. [20]The Bill of Rights 1689 further settled the illegal use of certain specific abuses of the prerogative and through the Petition of Right 1628 and 1640 the subject's right to habeas corpus was protected by Parliament and guaranteed by statute.

  In the 19th century, it became accepted that prerogative powers were undertaken under ministerial advice, responsible to parliament. While this settles how prerogative powers must be exercised, it remains a wide discretion on ministers when to rely on prerogative powers and how best such powers may be made accountable in an effective way.

The Prerogative of Declaring War in a Statutory Context

  The absence of a codified constitution with written definitions and explanations gives rise to doubts about how to define the prerogative[21] and explain its application. It is clear that under prerogative powers the Prime Minister may declare war and engage in military operations in the defence of the realm. It is also clear that Parliament has the authority over the supply vote. The formal declaration of war is less common in recent times than in the past. The law has been recently examined[22] by the courts including the question of what constitutes a state of war. Collins J held that war was a technical question which was begun either by a declaration of war or by an act of force which the attacked state treated as creating a state of war. The Government's contention was that there was not a state of war and that the use of force in Iraq was the result of the motion agreed by the House of Commons on 18 March 2003 and UN Security Council Resolutions 678 and 1441. [23]Similarly it was also contended that in the cases of Korea and the Falklands, successive British governments did not consider that in each case a state of war existed. Article 51 of the UN Charter was invoked in terms of the self defence exception to the prohibition against the use of force. In 1999 the use of troops in Yugoslavia was considered to be undertaken without the declaration of war. It is clear that in the absence of a formal declaration of war, the courts would determine this question on the basis of international law, but in cases of doubt this would be determined by the executive. Judicial acceptance of the executive's view, is therefore an implicit acceptance of executive discretion. The question arises as to whether this is appropriate when states do not appear to declare war on each other. The declaration of war also carries ramifications in terms of liabilities, property rights and international treaty obligations over state neutrality.

  While it is ambiguous as to the current use of the formal act of declaring war, it is clear that it would be difficult for the Prime Minister to declare war if there was uncertainty over Parliament's willingness to vote supply. Parliament's authority over supply is unambiguous. The anomaly is that Parliament, as matters stand, does not have to be given formal warning of the decision to go to war and has no apparent control over the formal power of declaring war. While the Sovereign remains by virtue of the prerogative and also statutory powers the commander in chief of the armed forces, the armed forces are regulated by statute and by the vote of Parliament to maintain the defence budget and their maintenance. However, their control, organisation and day to day operational decisions are excluded from oversight by courts and stem from prerogative powers.

  Recent trends are discernible. The prerogative in general is subject to judicial review and increasingly the Ministry of Defence is accountable in the civil courts for its actions. Thus as the Crown has moved with more modern times, for example since 1993 the Queen pays tax on her private income, their still remains vestiges of prerogative immunities.

  The legislative arrangements applicable to the armed forces are indicative of the trend in favour of adopting statutory codification and regulations. The Armed Forces Act 1966-2001 provides a detailed code of discipline and procedures. In contrast, the convention remains that the prior consent of Parliament is not required before the armed forces are committed. This includes the use of the armed forces in aid of the United Nations or when involved in humanitarian purposes. There is however, the need for legislation to introduce conscription. [24]In times of emergency and if Parliament is not sitting then reserve forces may be called up. This is a conditional power as it is subject to Parliamentary control and Parliament must be called within five days under the Reserve Forces Act 1996. [25]In the past few years limited use of the call up power was undertaken in the Gulf war, Afghanistan, and more recently Iraq. This is consistent with the trend in favour of detailed statutory regulation. [26]

  There is also a marked trend in terms of integrating human rights into the basics of military law. This is part of a gradual transition in favour of the codification and integration of human rights into domestic law. This involves the interpretation of the decisions of the European Court of Human Rights, [27]reflecting the realities of the Human Rights Act 1998. It also involves integrating EC law in terms of the application of EC law in employment matters such as the Sex Discrimination Act 1975.

  Is this trend in favour of statutory codifications reversible? It is unlikely that there will be a retreat away from replacing historic prerogatives powers with a more visible use of statutory authority. This leaves unresolved the question of whether to maintain the discretion of the Prime Minister to act on behalf of the Crown and declare war while retaining the convention that Parliament should be informed and kept up to date with developments.

  In recent years the opportunity for debate and discussion after the decision to go to war has been taken. There are many examples which reveal how Parliament in the final analysis relies on the Government to provide sufficient information and allow debate. [28]The lessons of the Iraq war are clear that the Government is largely able to set the agenda, identify the issues and provide its own publicity on the need for military action and its subsequent outcome. This leaves Parliament relatively weakened. The situation may change, if Parliament had the task of prior approval.

  There are also situations where the deployment of military force is confined to peace time operations such as in aid of the civil authorities. This may include times of national emergency where the safety of life and health of the nation required military assistance. [29]This may include instances where the application of military aid is on peacekeeping duties associated with the United Nations or in disaster relief. Common to any military deployment is the requirements of supply and this must be approved by Parliament. [30]It is instructive to follow Treasury Guidance on circumstances where resources need to be committed before the relevant legislation comes into force and safeguards are required. In particular there are strict rules for the use of the Contingencies Fund to provide urgent finance. It is noteworthy that:

    Use of the Contingencies Fund to finance expenditure which, either as a matter of law or constitutional propriety, requires specific legislation is, however, highly exceptional. [31]

  The general rule is that the Contingencies Fund cannot be drawn upon for any purpose for which the statutory authority of Parliament is required until legislation has been given a second reading. There is explicit assumption that parliament should be informed and that covering expenditure is the approval of Parliament. Consistent with the use of public funds is the need for Parliamentary approval. The example of the Contingencies Fund provides a good model of a workable arrangement that fits the requirements of emergency powers while maintaining the cover of parliamentary approval. This includes circumstances where there is the need for prior approval and other instances where retrospective approval is needed. The two circumstances apply to the question of parliamentary approval for the use of military force. Thus, if the Contingencies model was used, the use of military force would either be given prior parliamentary approval, or in exceptional circumstances, retrospective approval, provided that at the time of use of force, it was confidently expected that eventual Parliamentary approval would be given. This would place executive powers under a statutory regime that is likely to be much stricter than current arrangements. It is important that if there is to be a statutory scheme replacing the existing prerogative that its scope is not narrowly defined to only the declaration of war. As noted above the declaration of war is rarely used today, that placing it on a legislative basis would have little practical effect as successive governments have followed the trend of not declaring war.

The Overseas Experience32[32]

  There are some useful points of comparison that emerge from the experience of other countries, not least, is the ability for government's to wage undeclared wars. There are a limited number of countries, whose Parliament's have oversight powers concerning military operations, including peace operations. [33]Even when a declaration of war is to be formally authorised by Parliament, it appears that in many instances the practical effect is limited. France is a good example of this point. Article 35 of the Constitution 1958 provides that a declaration of war is authorised by Parliament. However, in cases of peace keeping activities, and in line with multi-national agreements, the deployment of the military is engaged outside the formal requirements of Parliamentary authority. This leaves the Head of State in many circumstances with overarching authority.

  The United States Constitution has divided powers between the Congress the power to declare war and the President, as Commander in Chief to take action in self-defence and lead the armed forces. The United States appears to follow the current trend of waging undeclared wars. Examples are from the period of the war in Korea, later the war in Vietnam and more recently, wars are waged but not declared. The War Powers Resolution[34] was initiated during the Nixon period and passed both houses of Congress after much controversy. The Resolution stipulates that Congress must be consulted and written notification given within 48 hours of action. This is subject to formal approval of up to 60 days, and if approval is not forthcoming then troops are supposed to be withdrawn within a further 30 days. The aim is to provide a link between President, as Commander in Chief and Congress who has constitutional authority to wage war. The ability of the President to wage war successfully without first declaring war seems not to have been limited in practice by the War Powers Resolution, a Resolution that is claimed by some to be unconstitutional. [35]This leaves the law in an unsatisfactory state.

  In Germany there is no explicit requirement that the Bundestag should authorise the deployment of troops, and there is considerable support for legislation requiring that this should be the case. It would appear that the problems faced in bringing in such legislation are similar to the United Kingdom's situation. These are, the difficulty of providing adequate parliamentary oversight, the problem of ensuring that urgent deployment of military force is met while maintaining the authority of Parliament to give approval and the difficulty of monitoring military operations consistent with security. In Italy there is no constitutional provision requiring Parliamentary authorisation. The Executive has responsibility for military action and international policy making. However, in January 2001 there was a resolution of the Chamber of Deputies concerning parliamentary procedure for taking decisions. This is in the context of Italy's Article 11, a repudiation of war clause in the Constitution similar to Article 9 of the Constitution of Japan 1946.

  It may be concluded that any proposal to bring prerogative powers to declare and wage war under a statutory framework should be designed to be realistic so that Parliament's accountability, role and function is practical and effective.

  The position of Spain is interesting because Article 63 of the Spanish Constitution (1978) gives authority to the king to declare war and make peace. In practical terms this is a decision which is taken by the Prime Minister without the prior approval of Parliament. This was used to allow Spanish troops to be used to support the US in Iraq. Since then the Government has agreed that through a resolution that in future prior approval will be sought for the use of troops abroad. It remains to be seen to what extent future Government's will honour this commitment.


  Placing the prerogative powers associated with declaring war and using military force under statutory control is an important step in the direction of improved accountability and improving the role and standing of Parliament. There are different levels of parliamentary participation including general debate and oversight through select committees. The formal constitutional position that the government can go to war without specific parliamentary authority remains anomalous when technically the supply necessary requires parliamentary approval. Linking the principle of parliamentary authority over supply to the declaration of war suggests that in terms of consistency there should be parliamentary approval of the use of the military in connection with armed conflict. It is opportune to settle arrangements that assert Parliament's authority over the prerogative. It is also important that the declaration of war is itself subject to clarification as to when it may be used and when not. The commitment of military force, whether for peace-keeping or in self defence should require prior parliamentary approval. Using the model of the Contingencies Fund, it would be possible to include prior approval and in certain circumstances retrospective approval. This would cover those circumstances where there is the need to deploy rapid response forces. The government would be entitled to take proactive action provided they are assured that parliamentary approval is likely at the earliest possible opportunity.

24 October 2005

19   (1627 ) s St Tr 1 or otherwise known as The Five Knights Case. Back

20   Prohibitions del Roy (1607) 12 Co Rep 63, The Case of Proclamations (1611) 12 Co Rep 74. Back

21   See Public Administration, Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament HC 422 Session 2003-4. The report includes a draft bill setting our proposed codified powers over the Military. Back

22   Amin v Brown [2005] EWHC 1670, [2005] All ER D 380. Back

23   House of Commons, Standard Note, SN/1A/1218 Parliament and the participation of British Forces in armed conflictBack

24   See the National Service Act 1948. Back

25   Sections 52-4 under the Reserve Forces Act 1996. Back

26   The Reserve Forces (Safeguarding of Employment) Act 1985. Back

27   R. v Ministry of Defence ex p Smith [1996] QB 517 Lustig-Prean v UK (1999) 29 EHRR 548. Back

28   Claire Taylor, The Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill 16 of 2005-6 House of Commons Research Paper 05/56 (8th August 2005)pps. 8-12. Back

29   Examples in recent years include the foot and mouth outbreak, fire coverage during the fireman's strike, the use of troops at Heathrow airport. Back

30   See HM Treasury, Government Accounting 2000 with amendments to 2004-5, London, 2000. Back

31   Ibid; para 2.310-11, 16. Back

32   There is a useful survey and analysis in: Standard Note SN/PC/3776 Richard Kelly, Parliamentary approval for participation in armed conflict- some international comparisons. House of Commons, Library, 13 October 2005, hereinafter Kelly's paper. Back

33   The countries that have such powers include the Czech Republic, Denmark, Germany, Hungary , Italy, the Netherlands, Norway and Sweden. Countries which do not have such powers include the United Kingdom, USA, Belgium, France, Canada, Poland, Portugal, and Spain (see Kelly's paper op. cit.) Back

34   First vetoed by President Nixon in 1973, but its constitutionality has been questioned by successive Presidents. The War Powers Resolution 50 USC 1541-1548 (1994). Back

35   Eugene V Rostow, "Great Cases Make Bad Law: The War Powers Act" 50 Tex LRe. 833. I am very grateful for the advice of my colleague Dan Joyner on the US situation. Back

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