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Neil Shastri-Hurst is a former British Army Officer, doctor, lawyer, and Conservative activist in the West Midlands

With Brexit dominating the political debate and headlines you, would be forgiven if news of the Society of Conservative Lawyers’ upcoming publication, Prior Parliamentary Approval for Military Action, had slipped by unnoticed. But this report, launched today in Committee Room 15 at the Palace of Westminster, addresses an important issue relating to the relationship between the executive and legislature, and the use of prerogative powers.

A V Dicey, the renowned constitutional theorist, defined the royal prerogative as “the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers”. Traditionally, one such power has enabled the government of the day to take the country into conflict. It allows military operations to be instigated with the required level of stealth to ensure their maximal effectiveness.

Yet, since the invasion of Iraq in 2003, a new convention has developed: seeking parliamentary approval before committing troops to combat operations. Tony Blair went as far as stating, following the 2003 vote, that he could not “conceive of a situation in which a Government…is going to go to war – except in circumstances where militarily for the security of the country in needs to act immediately – without a full parliamentary debate”.

As evidenced by the 2013 vote on Syria, when the Commons defeated the Coalition Government’s motion on military action, Parliament’s approval goes way beyond an indicative vote of support with the executive’s plan. In essence, it usurps the Government’s role in making the decision. This is a dangerous game and has no constitutional law basis. Conventions, by their very nature, must be entrenched in parliamentary procedure. This is not the case here.

The role of the legislature is to provide checks and balances upon the executive. Its role is to hold the Government to account. By making decisions on the latter’s behalf, the lines between the separation of powers are blurred. It would be near on impossible for any Parliament which had voted for military intervention to legitimately hold the Government’s feet to the fire when analysing and critiquing the decision. The responsibility would be shifted to the whole of Parliament.

The UK’s recent experiences in Iraq and Afghanistan have divided opinion. There is a reluctance amongst many politicians to engage in major foreign policy interventions. There is a real risk that we will miss strategically opportune times to strike because of their fear that they may get it wrong. This fear is perpetuated by the sparsity of military intelligence briefings available to the Commons as a whole. The Executive, by contrast, has the full raft of intelligence and legal advice required to make these judgements. In truth, the new convention is setting parliament up to fail by providing only a fraction of the information required to make an informed and fully judged decision.

Lord Houghton summed it up by writing that the new convention had “caused unease within military ranks”. It would be an unwise Parliament that failed to heed the words of a former Chief of the Defence Staff. The general knows that without flexibility, speed, and the element of surprise military operations can rapidly lose their desired impact. For this reason alone, it is imperative that we do not allow our Armed Force’s efficacy to be undermined by our own Parliament.

21 comments for: Neil Shastri-Hurst: The fog of war – blurring the lines in the separation of powers

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