Due hath no prerogative, but that which the law

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 There was considerable
pressure since 2003 on the government to include Parliament while deciding on
military deployment and thus the Labour Government in 2008 pushed to reform the
existing exercise especially regarding ‘significant non-routine’ deployment of
armed forces but unfortunately with the exit of the government in 2010, the
efforts faded away.

 

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, 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.3  Furthermore, it is crystal clear that these
powers have 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.’4

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Though legal powers can be replaced
by statutory laws,5
 but a prerogative can be explicitly
preserved as well.6  However, in case of conflict the statute will
always be upheld against prerogative powers,7 also evident from the
famous Burmah Oil case.8

 

The courts play a significant role
while establishing the legality of prerogative powers and defining their canvas
and existence. 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.9  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.10 Also, it is to be noted
that three particular areas/scenarios are not applicable for courts review such
as international law or treaty making, power of royal assent to legislation and
power exercised by sovereign enjoying legal immunity.11 The Crown Proceedings Act
dealing with the claims against the government does not apply to the monarch
personally.12

 

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.13 A Joint Committee formed
to scrutinise the Draft Constitutional Renewal Bill, 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.14 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 habit.15 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.16 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.17

 

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 possible 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.