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The power to go to war

Image: David Cameron responds to losing the August 2013 vote on military action in Syria. 
See the full debate at Parliamentlive.tv or read the record of the debate in Hansard.

On 9 September 2019, Sir Bernard Jenkin MP, Chair of the Public Administration and Constitutional Affairs Committee of the House of Commons, spoke at an event organised by the Conservative Middle East Council. Sir Bernard talked on a recent report by his committee, The Role of Parliament in the UK Constitution: Authorising the Use of Military Force, a topic with particular relevance for UK policy on Syria.

The event was held in one of the committee rooms of the Palace of Westminster, and was on the record. The following transcript includes Sir Bernard’s main remarks and responses to the first couple of questions only. The event was chaired by Charlotte Leslie, CMEC Director.

This is one of several events attended by the Syria Notes team in Autumn 2019. For more, see the main article, Syria Notes’ Diary.


Sir Bernard Jenkin MP:

This is an area in which the relationship between Parliament and Government has been developing. And we set out in our report the very long history of the sovereign exercise of unwritten powers to do things. And the development of the United Kingdom constitution has been a progressive limitation of what the Sovereign can do. And of course these days the sovereign powers, the residuary powers, known as the royal prerogative, are generally exercised by the Sovereign on advice or more obviously by others acting on behalf of the Sovereign, notably the Prime Minister and the Government, the Secretaries of State. And of course when we appoint a new Prime Minister, the Prime Minister receives the seals of office, it has been axiomatic that the Government is taking on responsibility for her role as Commander in Chief of the Armed Forces.

The discretion to use military force even now is unimpaired by any statutory limitation. There are legal considerations to take into account about the use of military force, the deployment of military forces, but it is intrinsic to holding office as Prime Minister that that responsibility rests solely in the hands of the government of the day.

However there has been a growing expectation that Parliament has a right to be consulted. And particularly since the Second World War, Parliament has taken that view. And it is by no means unique in this, in the time around the Crimean War for example, and Parliament was consulted in the Napoleonic wars. But the idea that Parliament simply looks retrospectively at how things are going, and has no interest in how decisions are made, that is long past, probably because of one or two watersheds—the Suez Crisis shook people’s confidence that Government would always act in the right way.

And it reflected on the deployment of forces to Northern Ireland, although that was more domestic, that was more what we call MACP, Military Aid to a Civil Power. But the deployment of British military forces outside the NATO area was very rare after Suez until the Falklands War. Now there was a big debate about the deployment of military force at the beginning of the Falklands War, but there was no vote. And it was quite usual for military forces to be deployed without a vote.

To deploy armed forces to the Balkans to deal with the crisis there, Parliament was consulted, there was a debate in Parliament, Parliament was actually recalled for the occasion if I recall correctly, but there was no vote. Parliament did not take a decision. And in fact when Tony Blair deployed to Sierra Leone, again there was quite a lot of debate in Parliament, but there was no vote.

The watershed was 2003, because there was a very, very controversial question as to whether the United Kingdom should effectively go to war with Iraq. War was never actually declared. It’s another feature of modern conflict that nobody declares war anymore, we just get into a conflict. But the decision to support the American invasion of Iraq was very controversial, and the Prime Minister of the day perhaps was trying to use Parliament to validate a very, very controversial decision, and of course succeeded in obtaining the consent of Parliament, something which many members of Parliament subsequently lived to regret.

And it’s ironic that this precedent is seen as a watershed changing the nature of the relationship between the Commons and the Government in relation to the exercise of war powers, when it itself provides such a terrible example of how mere validation of military action by Parliament does not necessarily mean that everyone gets a better decision, or a decision with which people are happy about.

But nevertheless, it has created what we describe in the report as a convention, an emerging convention, that Parliament has a right to be consulted before the Government deploys military force into conflicts overseas. That is obviously laced with exceptions. And in the aftermath of the Iraq War, two people in particular were very keen on creating legislation, a statutory framework, which would prescribe what powers the Government had.

So, legislation: If you legislate into an area of royal prerogative, you’re effectively taking away that discretionary power from Government and putting it into a statutory framework, which means it’s much more vulnerable to direct action from the courts, because if military action arising from that didn’t comply with the legislation, that would be very difficult.

But two people in particular, Jack Straw and William Hague, became very committed to this principle, and in the Conservative Manifesto in 2010, it was promised that the Government would implement legislation to limit what the Government could do, to put it in a statutory framework. Funnily enough, that legislation never emerged. I was not at all surprised. I was always opposed to this.

And you’ll find in the report, one of the things we say is, and I quote: ‘Nothing should compromise the ability of governments to use military force when our national or global security is threatened…’ We did say there could be a clearer understanding of what the role of Parliament is in respect of this, to underline the legitimacy of military action, and to engage Parliament and indeed the public in an understanding of why military force is being deployed if it is at all possible.

So there’s been a shift in expectations about the role of Parliament in the use of military force. And we looked at different countries, and different countries have very different settlements. If you look at France, the United States, and the United Kingdom, we have a much more forward defence posture, we are the only three major democratic countries in the world which have the capability of deploying military force which is battle capable away from the home base.

Not even China can really operate away from the home base in the way that we can. That may be changing very rapidly, by the way. Russia certainly can, as she demonstrated in Georgia, Crimea, Eastern Ukraine, but even then I suspect that Russia’s capability is much more limited in terms of its agility compared to the United Kingdom, France, and the United States.

Other democratic countries have different traditions. At the furthest extreme there is modern Germany which, for very understandable historical reasons, has created very severe constraints on how the Bundestag and the Bundesrat can control deployment of German military forces abroad. They’re beginning to get more flexible, but the minute a German soldier sets foot outside Germany is still a very big deal for Germany culturally. Maybe that’s one of the reasons that Germany wants to create a European military force which has that capability rather than a military force which is visibly controlled by Germany.

There are many complications in this. The basic proposal we come up with is a compromise between legislation and doing nothing, which is that the Government should set down a resolution which would maybe cement something into the Standing Orders of the House, which explains what the expectation should be without being legally bound by it. We are still waiting the Government’s response to this report, but I would expect the Government to be wary about doing this because it doesn’t want to reduce its flexibility. And there are many complications, as I say.

We make very general statements about military force, but we don’t mention special forces. Call me old-fashioned, I don’t think we should discuss what our special forces do. I think we should leave that to the discretion of ministers, and it wouldn’t help Government at all, it wouldn’t help them and it wouldn’t help our role as a peacekeeper in the world if our special forces became more publicly scrutinised.

Having said that, we do think that the Government should be able to use committees of the House to undertake scrutiny on behalf of Parliament. In particular the National Security Committee is not elected by Parliament, it’s selected by the executive to scrutinise the security services on behalf of Parliament, and is in theory tested with some of the most sensitive intelligence information.

Part of the problem that we had for example in 2013, when the Government decided to retaliate against the Syrian government for their use of chemical weapons in Syria, was that the decision, or the quality of the decision, very much depended upon the quality of the intelligence that was being assessed to inform the decision. And of course following the Iraq War, there’s a great deal of cynicism about how intelligence is assessed and then used to make a case. In fact I think the Chilcot Report described a pressure at which point the use of intelligence becomes a propaganda weapon in the hands of the Government, and it was clearly in that case grossly ill used.

So there’s been a breakdown of trust between Parliament and the Government about making the case for foreign interventions, as some people would call them. It was highly unsatisfactory in that debate that Members of Parliament got up and gave their opinion about the quality of intelligence when one thing was absolutely certain, those Members of Parliament cannot possibly have known who was responsible. Some people were saying that Israel had deployed the weapons, some people said that people outside the control of the regime had deployed the weapons. My understanding from my own amateur contacts with people in the intelligence community, at the edge of the intelligence community, is that there was no doubt that the regime itself was responsible for the deployment of those weapons.

But how is that case to be made if the Government cannot share that intelligence? So, if there were approved Members of Parliament such as the National Security Committee who could see the Joint Intelligence Community assessment in meetings, and that they could testify that they are satisfied, that might strengthen the understanding of these issues.

The other thing that arose in our evidence was how scornful particularly former military commanders were of the understanding of MPs of the complexity and subtlety of military tasking, and the complexity of making assessments of choosing targets for an aerial bombardment, or consequences of putting troops into a certain situation.

And we observed that one of the things that has been lost in recent years—the Government has handed over quite a lot of the time of the House of Commons to the Backbench Business Committee—we used to have five regular debates every year on defence issues, and two or three foreign policy debates, and a debate about the civil service, but all these kinds of issues would be aired by people, and the level of understanding would go up as a result of having such a debate. The fact that those debates hardly ever happen now means there are far fewer people in the House of Commons who are directly engaged in these matters, and the level of education is falling. We need to use the committee structure, the Defence Committee, the Foreign Affairs Committee, and the Intelligence and Security Committee, to try and strengthen that.

There is also—having established that scrutiny should lead to better decisions—the question of what are we scrutinising? And the nature of warfare is changing. What we call hybrid warfare, the shadowlands between ordinary interstate military warfare and terrorism, there are some states, Russia for example, or the Iranian Revolutionary Guard for example, that basically undertake a form of state-sponsored terrorism. They use people that don’t wear uniforms, or they use military forces which are not properly accountable even to the state authorities, and they use techniques, they use the civilian population, they foment revolt in the civilian population, or they threaten civilians, or they use civilian assets, or they attack civilian infrastructure, as part of the warfare we call hybrid warfare.

And then of course there’s the use of drones, the use of cyber warfare. These are all realms of conflict for which the traditional understanding of warfare is very ill suited. And we need to adapt our scrutiny of what the Government does. I mean the Government apparently has an offensive cyber capability. How do we scrutinise the use of it, when a cyber attack is something you only know about after it’s happened? And what the Government does in response to that, who only knows? But we need mechanisms to scrutinise these rather complicated areas.

Overall, I would just summarise by saying one last thing: That Clausewitz always had in mind a kind of triangle of decision-making. And we have our own version of the Clausewitz triangle in our report, which at the apex it has the Government, which deals with policy and politics, and in a modern democracy Government accountability, and it has recourse to armed force [the second point in the triangle] which is about capability and effectiveness, and there is also at the [third point] of the triangle, there is legitimacy, and the engagement of people sufficient for accountability.

And unless all these three things are engaged, you probably haven’t got a sustainable conflict. The Government and the armed forces might have the capability, but if the people aren’t engaged then it will not be sustained. We saw that in Basra [in Iraq], we saw that for all kinds of reasons, legitimate reasons perhaps, in Helmand [in Afghanistan]. Incidentally we went to Helmand without a vote. We got involved in the longest conflict we’ve been involved in since the Second World War without a vote.

And if you can’t maintain people’s enthusiasm for what your armed forces are doing, then your government will be driven out of that conflict, and that’s largely what we’ve seen to date in Iraq and Afghanistan in the latter parts of those conflicts, and what we’re seeing with President Trump as we speak. So bearing in mind that, the question is how do you maintain this engagement, so you can sustain the activity and the credibility of your deterrence, because in the end defence and security is about deterring aggression before it occurs.

Actually, every time we get our armed forces involved directly in conflict, we should reflect on how our deterrent capabilities have failed. And that depends also on people understanding why we have a deterrent capability both in the conventional and the nuclear sphere. Incidentally I think British people well understand why we have a nuclear deterrence, and that’s why we keep voting for it even though it’s quite an expensive bit of kit. They are much more wary about these foreign adventures, because they can’t see what they’re deterring to get involved in them, and they’re not successful enough to generate confidence in the next one also being successful.

So that’s the dilemma we’re in. Thank you very much.

Charlotte Leslie:

Thank you so much Sir Bernard. I’ll be taking questions from the floor… And I’d like to use my chair’s prerogative to kick off. One of the recommendations your report makes is about parliamentarians and the House of Commons being more aware of situations, so the information, the learning doesn’t necessarily happen at the critical point… How can we enable MPs to take an interest in foreign affairs, when they may not have it at the top of their agenda, and when they all have… very large constituency inboxes with very immediate very domestic local things?

How do we do that? How do we enable MPs to take an interest before we reach a critical point, and before a vote comes to the House?

Sir Bernard Jenkin MP:

Well, as I say, the Government used to hold regular debates, and it used to be an obligation on the Government if there was a big issue arising. Well, when did the Government last hold a day’s debate on Iraq? And the Government says, oh that’s not our job anymore, we’ve given that to the Backbench Business Committee. Well then the Government has itself to blame if very few colleagues have gone to the Library and got a brief and worked out what’s happening in Iraq and are capable of contributing to a debate. Because when you have those debates, there will be a few experts, and other colleagues will go and listen to those experts, and gauge them, and Government will get an opportunity to set out in a proper debate, and it’s an opportunity for whips to say, we need some people to speak in this debate because it’s an important part of Government policy.

Those opportunities to raise that kind of awareness are gone, and I think actually that’s the most important thing. I think the Government needs to take responsibility for making sure the House of Commons is engaged in these decisions long before we get into a a conflict.

Question:

… You briefly mentioned 2013, the Syrian conflict. Actually the second biggest city in Jordan now is the [Zaatari] refugee camp. And it was David Cameron who decided not to go to war, if you remember, with Barack Obama, before taking it to the House of Commons for a vote. Do you think that was a mistake, or was it the right course of action, and do you think it would have changed the course of the Syrian conflict had he gone to war without going to the House of Commons?

Sir Bernard Jenkin MP:

Well, I think it’s a very good question, because in that debate I actually stood up several times and said, look, if you don’t trust the Government to make this decision, you should vote against the Government in a motion of confidence, because it means you don’t trust them to carry out their duty.

But there’s a big change gone on in the relationship between Parliament and Government, and we’re seeing the results of that now. The tenure of the Government’s office used to rest far more obviously on the confidence principle, but that has been blunted by the Fixed Term Parliaments Act, and by changing public attitudes.

So that when the Government lost that vote—And I went into David Cameron’s office shortly the vote, and I said, well how is it going, and he said I think we are still under the water, and I wish I’d said to him, well then don’t have the vote! For goodness’ sake don’t lose the vote! And the Government lost the vote… And then he stood up, and I sat there thinking, the Government’s main foreign policy issue has been blown out of the water by this vote—how can the Government carry on? And he just got up and said, don’t worry, I get it. And that was the end of that. I was staggered.

It was a very, very big change in the relationship between Parliament and Government. I thought the Government was giving up responsibility to the House of Commons when it shouldn’t have done so. Now when it came to Theresa May [five years later], faced with very similar circumstance, she just went. And I rang her up, and I said you’ve done the right thing, because you’ve exercised your responsibility, and if Parliament doesn’t like it they can deal with it afterwards. And of course they accepted the fait accompli.

That’s why we put into our report these very important words, to repeat them, ‘Nothing should compromise the ability of governments to use military force when our national or global security is threatened,’ and that’s why we shouldn’t have statute. And I think that 2013, the loss of that vote, might also be a watershed, because it affected his authority as Prime Minister,  and I think it reflected very badly on our standing in the world as an agile and forward-looking power. Because I take the view… that unless we have a forward attitude to global security, there are very, very few other friendly countries that are going to do that on our behalf.