Governance of Britain – War Powers and Treaties

Response to consultation on behalf of the Religious Society of Friends

We welcome the opportunity to respond to this consultation. In particular we welcome any steps to be taken to make remaining prerogative powers democratically accountable to Parliament. Set out below are answers to specific questions in the questionnaire.

1.Scope of the new powers

Any circumstance in which the forces of the Crown are deployed outside the UK, even on peace-keeping missions, unless with the express consent of the government of the State in which they are deployed should be subject to Parliamentary approval.

2. Definition of armed forces

The armed forces should include: the Royal Navy, the Army, the RAF and the Royal Marines – but not the civil police services. They should be defined in statute – to cite a parallel problem, one of the principal problems of civil service management in the last twenty years has been that there is no Civil Service Act and no statutory definition. The armed forces should include the territorial army and reserve forces.

3. Urgent Secret operations

All operations should be subject to the approval of Parliament. If necessary, Parliament can be summoned at a day’s notice in an emergency. We doubt that any deployment is so quick as to make approval possible.

4. Consequences for acting without prior approval

Retrospective approval and full explanation should always take place. If approval is withheld, or there are no adequate reasons for failing to seek prior approval then the ministers responsible should resign.

5. Recall of Parliament

Parliament should always be recalled within 48 hours. If Parliament has been prorogued, a procedure exists for recalling it (see Erskine May 23rd edn pp 276-77).

However this is constitutionally impossible once it has been dissolved. In these circumstances the Government should seek the approval of the new Supreme Court.

6. Information

Parliament should be given as much information as possible. This should include full legal advice and details of advice sought, including preliminary advice from independent counsel. Parliament could, if necessary, go into secret session as during the Second World War.

7. Timetable

Approval should always and invariably be sought before troops are deployed.

8. Maintenance of Parliamentary approval

Parliamentary approval should be regularly sought and subject to mandatory annual approval as a minimum.

9. House of Lords

The approval of prerogative powers should be a matter for the democratically elected House. There may be a case for including the House of Lords were it to become a democratically elected body.

10. New Committee

We are not convinced of the need for a new committee.

11. Procedure for introducing new procedures

We consider this should be by way of an Act of Parliament. Conventions can be disregarded and even Resolutions of the House are not always watertight in their application. For example, the rules about Parliamentary approval for calling out reserves were occasionally ignored during the Falklands conflict.

12. Ratification of Treaties

We see no reason why the arrangements for laying Treaties before Parliament should not also be placed in statute.

13. Alternative procedures

We are unclear as to what procedures would be necessary but these too should be set out in primary legislation.

14. Types of Treaties not subject to Parliamentary approval

Clearly there are certain kinds of treaties that are qualitatively different. Double Taxation Treaties are an obvious example because they become affirmative orders which have to be debated. No-one would suggest that all treaties should be debated, but there should be a robust (ie Executive-proof) means of ensuring that the Commons should be able to debate anything that Members think is important.

15. Changes to Parliamentary procedure consequent on putting Ponsonby rule on statutory footing

A procedure for a motion that a treaty be annulled or not ratified should trigger an automatic debate (even if only in a delegated legislation committee).

16. Should there be an extended 21 sitting day period if Parliament requests further time or should there be a longer minimum period for scrutiny?

That is a decision for Parliament.

17. Should votes be legally binding

Yes that is the nub of the issue and goes to the heart of Parliamentary sovereignty. Treaties should not merely be a matter for the exercise of the Prerogative. If the American system can provide for the consent of the Senate there can be no reason why the UK system cannot provide for the consent of the Commons.

18. Procedures for ratifying treaties at a later date

Under the present procedures treaties would not be re-presented until the following session. New procedures need to be on all fours with the rule against not being able to re-present substantially the same bill in the same session if it was defeated on the earlier occasion.

19. Practice of including explanatory memoranda

Almost inevitably the quality of these vary.