How far should our courts venture onto the battlefield? | Joshua Rozenberg

If you think there are clear rules governing the UK’s use of armed force, you would be wrong

A decision to use armed force overseas is one of the most momentous a government can make, the House of Lords constitution committee observes in a new report.

Indeed it is: immediate military action may be essential to defend us from attack. On the other hand, a decision to fight the wrong battle or back the wrong side may increase the risk faced by the nation — not least because it encourages support for the misguided view that military intervention can never be justified.

That being so, you would expect there to be clear rules governing the government’s use of armed force. You might think that legislation would be required, except in cases of extreme urgency. At the very least, you would expect the law to demand an affirmative vote in both houses of parliament before the troops go in.

You would be wrong. More to the point, the Lords committee takes the view that the absence of any binding legal rules is a good thing. The last thing its members want is the judges poking their noses into military operations. As they say, “we share the concerns expressed to us about the negative effect on the morale and operational independence of the armed forces of courts scrutinising operational decisions”.

Really? Do we want our armed forces to be above the law? Do the armed forces themselves? Of course, military commanders must be free to make operational decisions. But officers should not be granted the freedom to do whatever they wish by simply describing a decision as operational.

Her Majesty’s armed forces are recruited and deployed under the royal prerogative, which is exercised by the prime minister and the cabinet. That means the decision to engage in armed conflict is one for the government alone. Parliament has no legal role in authorising or approving the use of armed force overseas, although ministerial decisions may be scrutinised through questions and debates.

There is, however, a constitutional convention that deployment decisions will be debated in parliament. That much is accepted by the government. Ministers therefore accept that this convention is binding on them — but only politically, not legally.

And what exactly does it say? The committee believes the convention gives the House of Commons an opportunity to debate and vote on the deployment of armed forces overseas, save in exceptional circumstances. But nobody can be entirely sure of this, since a convention is not written down. Indeed, the committee regards its flexibility as one of its advantages: “the existing convention is capable of adapting to reflect new circumstances”.

So should there be greater parliamentary control over the use of armed force? Should there be a legal requirement for MPs and peers to approve any military deployment in advance, except in an emergency?

Introducing something along those lines may have been the government’s intention in the past; but it is no longer the coalition’s position. The committee tells us that …read more