Please note that this piece was published on the UK Constitutional Law Association’s blog on 01 December 2015, and is available here. It has been re-published here with the permission of the author.
By Hayley J. Hooper
This post is intended as a follow on to Veronika Fikfak’s recent post on the international law dimensions of armed conflict as they affect the role of the UK Parliament. Recent reports suggest that a parliamentary vote on extending military action against ISIS/ISIL from Iraq into Syrian territory may take place this week. However, the Prime Minister in his statement to Parliament announced that: ‘there will not be a vote in this House unless there is a clear majority for action, because we will not hand a publicity coup to ISIL.’ So, it seems the ‘historic’ democratisation of the war prerogative via the Consultation Convention is already in doubt. But equally, we should caution against the view that any parliamentary involvement, even in the sense of legitimation which Cameron’s statement seems to suggest is the preferred option is an unqualified good. The availability of a vote in the House of Commons does not automatically signal a reduction in the ‘democratic deficit’ which exists in relation to the British control of armed conflict powers. Instead, this blog posits that any such engagement of Parliament must be both informed and principled before it can be worthwhile. Three barriers to such informed and principled engagement currently exist in the British parliamentary constitution which are perhaps under-discussed by constitutional lawyers. The purpose of this piece, then, is to bring them into the open to stimulate further discussion.
1. How intelligence and security information is treated on the floor of the House of Commons
The Prime Minister suggested in his statement before the Commons that the ‘eradication of ISIL is essential for our national security’. Typically, however, issues of intelligence and national security are not discussed on the floor of either House of Parliament on the grounds that this would be damaging to the public interest. Once a Minister has refused to answer a question on national security grounds further questions on the same subject matter can be blocked by the Table Office. An aggrieved parliamentarian cannot challenge a Ministerial refusal to answer a question on public interest grounds. In 2004 the Public Administration Select Committee published a report about the general quality of answers to parliamentary questions in which it noted that ‘since we last reported we have received further correspondence from Members complaining about the answers they have received to some of their questions. Inevitably a number of those relate to the war in Iraq.’
Unsurprisingly, then, the discussion of national security during the 27 November 2015 Commons debate was limited in scope. The majority of references to national security were made by the Prime Minister and seemed to endorse the expansive, internationalised, definition of national security given in the 2010 National Security Strategy. This included international terrorism and an international crisis between states amongst the first tier of threats to the United Kingdom’s national security. The Prime Minister told the House that seven domestic terrorist plots had been thwarted which could be attributed to ISIL propaganda and radicalisation. When pressed to disclose more details, the reply was that: ‘I must be careful in what I say. From time to time, the Home Affairs Committee interviews the director general of our Security Service, and he may be able to give more detail.’ Therefore, it is presently difficult for parliamentarians to engage beyond the Prime Ministerial assertion that ISIL poses a tangible threat on British soil that justifies military intervention overseas.
2. The role of sharing information on Privy Council Terms
But not all parliamentarians are deprived of access to the details of information relating to intelligence and national security issues. At its discretion, the government may share information with certain Members of the House (usually, the leaders of the Opposition parties) on a basis known as ‘Privy Council Terms’. The origin of the Privy Council dates back to the middle ages, whilst the contemporary council comprises all Cabinet Ministers (including the serving and former Prime Ministers), some Junior Ministers, and holders of senior appointments in Parliament, the Anglican Church, and the judiciary. Membership is for life, and all members are bound by an oath of confidentiality to ‘keep secret all matters’ and to defend Her Majesty against ‘all Foreign Princes, Persons, Prelates, States, or Potentates’. The so called ‘Dodgy Dossier’ was shared with Opposition leaders in the approach to the Iraq 2003 vote, and Ed Milliband, then leader of the Labour Party made reference to receiving information on Privy Council terms during the debate on military intervention in Syria in August 2013.
In the context of the recent debate, it appears at first blush, that information was shared amongst all members of the Opposition on Privy Council Terms, and the information disclosed related to matters of detail. For example, it appears that Leaders of the Opposition had advance sight of the Prime Minister’s statement to the House and that they also received a briefing from the government’s National Security Advisor (Mark Lyall Grant). In addition to this, the Prime Minister suggested that, Mr Lyall Grant ‘stands ready to brief them and answer any detailed questions that they might have.’
The availability of such information seems, on its face, like constitutional progress. However, there are several issues to note. One parliamentarian, Labour MP Yvette Cooper, was unsatisfied with the level of disclosure. Cooper has consistently campaigned for greater parliamentary involvement in war powers decisions and unsuccessfully tried to introduce the Armed Forces Bill into Parliament, which sought to put the obligation to secure consent on a statutory footing in October 2005. According to BBC Politics Live, Ms Cooper wrote to the Prime Minister after the Privy Council briefing on extending action against ISIL to Syria to raise the following concerns:
I am concerned that very few MPs have been given detailed briefing by the Foreign Office and Ministry of Defence (MoD) on this, and even fewer have had access to full security briefings. That makes it very difficult for MPs to contribute to the government’s consideration of what form any motion should take, as well as to respond to the motion. Despite several inquiries I have been advised that the only briefing on offer is a general one from the MoD next Wednesday. I’m sure you would agree that this is insufficient – especially as there are suggestions the government is considering holding the vote on Wednesday.
Cooper’s letter is representative of several issues with the sharing of information on Privy Council terms. For example, once a Privy Counsellor receives his or her briefing, its contents cannot be discussed openly on the Floor of the House. It has been suggested that such briefings can be used strategically by the government to tacitly remove certain questions or issues from the political agenda.
3. The constitutional need for a free vote in the House of Commons
Finally, the Prime Minister’s concerns about handing ‘a publicity coup to ISIL’ miss the bigger picture in relation to constitutional politics. David Cameron’s claim that joining allied military action against ISIL engaged Kant’s ‘categorical imperative’, namely, that such conduct is required by moral reason. However, Cameron’s use of this concept appears to elide a key step in Kant’s reasoning: subscription to categorical imperative conduct requires an autonomous moral will. In view of this, conditioning parliamentary involvement on the basis of prior agreement sits uneasily with the Kantian perspective. Exercise of such morality requires the opportunity for a free vote in the House of Commons. Constitutional morality is a long game, it is not merely instance-specific, nor should it yield to the perceptions of terrorism.
Generally votes in the Commons are subject to party discipline, or the Party Whip. This term is derived from hunting, as Lord Reed explained in HS2 that ‘a whipper-in is a huntsman’s assistant, who drives straying hounds back to the pack using a whip.’ There is no suggestion which level of ‘whip’ any vote on entering the conflict against ISIL may be subject to, but the strongest form of party-imposed compulsion is the ‘three line whip’. Failure to adhere to this instruction may have severe consequences for a parliamentarian. Again, Lord Reed is instructive:
The failure of Government backbenchers to attend a vote with a three-line whip, or their voting contrary to Government policy on such an occasion, may have disadvantageous consequences for them within their party, including in extreme circumstances the possibility of suspension from the Parliamentary party.
In some circumstances, however, votes are not ‘whipped’ and are instead classified as ‘free votes’ where MPs, regardless of party membership, can vote according to their own conscience. Since 1997 examples of free votes include matters relating to hunting with dogs, human embryology, homosexuality, and termination of pregnancy. Traditionally, free votes or ‘votes of conscience’ are reserved for ‘social questions which have strong moral overtones’ or votes on matters which are ‘value changing issues’ (P. Cowley (1998) 4(2) Jnl of Legislative Studies 70-88, 70). To echo Dr Fikfak’s concerns in Part I, if there is to be a serious role for the House of Commons prior to engaging in armed conflict as a matter of choice, then a free vote is necessary. British and foreign lives are at stake in a tangible sense. Blood will continue to be spilled, whatever the outcome of any vote. Therefore, it is all the more necessary when relevant information appears to be restricted to a select, privileged few that a free vote takes place. This would allow for MPs to consider the broadest possible range of issues to make an informed decision on what the categorical imperative demands.
Dr Hayley J. Hooper is a Lecturer in Law at the University of Cambridge. She is currently co-authoring a monograph on the role of Parliament in relation to war with Dr Veronika Fikfak entitled Parliament’s Secret War (forthcoming 2016 Hart Bloomsbury). The two have recently discussed Parliament’s role in voting on the Syrian conflict as part of the Law in Focus series at the University of Cambridge, a video of which you can watch here.
Cover image taken from Wikipedia, available here.