Lords Seek Evidence on War Making Powers
This is submitted by Anne Palmer. Address removed Date forwarded 22.8.2005.
As the subject above affects each and every one of us, not only in this Kingdom, but also in other parts of the world, I feel it is my duty to respond. MP’s should be aware that some ordinary people have very little faith left in our Parliamentary system or Members of Parliament at this moment in time, and especially on this particular subject.
I can do no better than quote from the late Lord Williams of Mostyn on the Iraq war (18th March 2003) “The Government are facing their most serious test. Their majority is at risk. We have had the first cabinet resignation on an issue of principle. The main parties stand divided. The country and this Parliament each reflect the other. I think your Lordships will agree that as time has gone by the debate has become less bitter but not less grave. Why does it matter? It matters because the outcome of these issues which we are facing with such imminence will determine more than the fate of the present regime in Iraq and more than the future of the unfortunate people of Iraq. It will actually determine the way that Britain and the world confront the central security threat of the 21st century. It will affect the development of the United Nations. It will affect profoundly the relationship between Europe and the United States of America. It will affect the way the United States is minded to engage with the rest of the world and it will affect the internal dynamic of the European Union”.
First of all there is a need to set down what is meant by “The Royal Prerogative”. Contrary to popular belief, it is Her Majesty’s Government Ministers that sign treaties and makes decisions on going to war. Queen Anne in 1707 became the last Monarch to reject a Bill, while Queen Victoria became the last Monarch to give the Royal Assent in person.
Here I refer to the reply given to Lord Jenkins of Putney by The Lord Privy Seal (Viscount Cranborne) on 1st December 1994, “The Royal Prerogative may be defined as those residual powers, rights, immunities and privileges of the Sovereign and of the Crown which continue to have their legal source in the common law and which the common law recognises as differing from those of private persons“ …”Examples of areas where the Royal Prerogative remains important include the conduct of foreign affairs, the defence of the realm and the regulation of the Civil Service.” “With the exception of powers personal to the Sovereign under the Royal Prerogative are, by convention, exercised by Ministers. The manner in which they are exercised will depend on the power in question. Ministers are accountable to Parliament for the use of powers under the Royal Prerogative, as they are powers derived from statute”.
Having read the above reply, I interpret that statement as follows. Because the Monarch is constitutionally bound to respect the provisions of the common law which are recognised in Magna Carta and declared in the Bill of Rights, such Royal Prerogative has the following restrictions;
The use of Prerogative power may not be subversive of the rights and liberties of the subject (See case of Nichols v. Nichols, “Prerogative is created for the benefit of the people and cannot be exercised to their prejudice”)
The Bill of Rights 1688 is a declaration of Common law. It is also an operative statute and it contains the Oath of Allegiance which is required by Magna Carta to be taken by all Crown servants including members of the Armed Forces, MP’s and the Judiciary. They are required also to “take into consequence anything to the detriment of the subjects liberties.
The Monarch is constitutionally bound to respect the Common Law which were recognised in Magna Carta and declared in the Bill of Rights and so bound by Her Majesty’s Coronation Oath. The Royal Prerogatives of the Crown and Parliament were set by common law and cannot be lawfully infringed by them.
Each British Subject from the moment they are born is bound by an Oath of Allegiance to the Crown and this country, just as if that person has declared so out loud.
The Queen’s constitutional prerogatives are the personal discretionary powers which remain in the Sovereign’s hands. They include the rights to advise, encourage and warn Ministers in private to appoint the Prime Minister and other Ministers, to assent to legislation: to prorogue or to dissolve Parliament; and (in grave constitutional crisis) to act contrary to or without Ministerial advice. In ordinary circumstances The Queen, as a constitutional Monarch accepts Ministerial advice about the use of these powers if it is available, whether she personally agrees with that advice or not. That constitutional position ensures that Ministers take responsibility for the use of the powers. (From Public Administration Select Committee “Taming the Prerogative”)”
From the very recent performances of the Executive, there is a great need to tame THEM, for the ordinary person sees the abuse of power and never more so than at this present time.
For those that may say we have no Constitution, I would point to the flurry of Private Member’s Bills, put forward by those that would repeal certain common laws or article from them. Most common laws are listed in the Civil Contingencies Bill.
We are told that European Union law is “supreme” and have read for ourselves that the European Court of Justice may overrule our Government. What would be the position of the United Kingdom Government if the EU attempted to impose its will on British citizens (Her majesty’s subjects) by force in the circumstances as described in Article 224 of the Treaty establishing the European Community Rome 25th March 1975? Especially “in case of war or serious international tension constituting a threat of war, or in order to carry out undertakings into which it has entered for the purpose of maintaining peace and international security”?
Under no circumstances should any Government of this Country transfer to others, even through “Treaties”, the Royal Prerogative of Treaty Making or War Making Powers, or sending our Forces into battle. (I say this for I am mindful of the requirement by the European Union for complete Legal Personality in Clause 1-7 “The Union shall have Legal Personality” in the Treaty Establishing a Constitution for Europe. Even if we had derogation from this Clause, we have found, through experience, that the position would soon change, and we would never have the ability to control our own forces again.
There are different types of war, and after considerable thought, I believe a separation of these different types should at least be considered.
A) An unexpected attack from another State requires immediate action. This should be the only time when the Royal Prerogative should come into action similar to activation as at present. However, the Crown should also be presented with the same information, from the known source, and the Attorney Generals legal advice to the Prime Minister. Guidance should be forthcoming from the Crown or Heir to the Throne in Her Majesty’s absence. Parliament should be informed but because of the possible need for immediate action, debates in Parliament should be retrospective.
B) An incident simmering for a while, yet has not attacked our Country (such as the situation in Iraq) should be debated fully by both Houses before any action is taken. The legality issue must be clear and precise. The Crown must be well informed and particular note must be made available to Parliament. It should also be recognised that it is preferable to bring the people with Government.
C) A war or action involving more than one Country such as through the United Nations or Nato. As above. If Parliament is against action, this should be stated clearly to the Crown and the people, more so and especially if the Government is determined to go ahead.
D) War on Terrorism. War can only be against another State or Country; war on terrorism is dealt with under other legislation. If British nationals are involved in acts of Terrorism, treason laws must be used, and should have been used in the past. Where the Act of Treason 1795 was repealed in the Crime And Disorder Act 1998 (in error I understand-for the whole was repealed when it was only the death penalty that should have been replaced with life imprisonment?) this act should be re-instated. There is no such person as a good terrorist.1) What alternatives are there to the use of royal prerogative powers in the deployment of armed forces?
There are no alternatives to the Royal Prerogative for it is embedded in our Constitution.
No one Minister should have the sole use of “The Royal Prerogative” any more. Her Majesty Queen Elizabeth II (the Crown) should be advised/kept informed before announcement and she should give advice and consent or rejection. It is up to the Minister to put his/her case effectively to convince the Crown that the only course of action to take is sending Her Majesty’s troops into battle. The Ministers should only action the Royal Prerogative when sure they have the Country with them. She may take advice from her ministers, but that advice must be within the constraints of our Constitution. Members of Her Majesty’s Forces must be recruited as per Act of Settlement and their allegiance must be without doubt to the Crown and this Country.2) Can models, drawn from the practice of other democratic States, provide useful comparisons?
Other “Democratic States” have looked to us, (this Country) and, had we been guided by our own role model, its rules and guidance from our unique history, we would have still been a ‘role model’ for other states. We must look to our own history once more, and the short answer is “look and learn” but do not copy others, just simply use the guidelines of those that have gone before and learn from our own history. It is this country that has won the battles aided and abetted by our true friends. Why draw from second best? Why would we want to draw from other states that have lost wars? If the Government have to start looking to other States for guidance, if they feel so undecided, insecure or unable to make decisions for themselves, they should resign forthwith. There is no place in Government for the weak and undecided. These are not leaders, they are ‘followers’.3) Should Parliament have a role in the decision to deploy armed forces?
The decision to send our troops into war must be the most serious action any Government can contemplate. I accept that the more people that are involved in the decision-making, the more difficult the decision-making can become. We see this happening in the European Union at this time. It also happens in the United Nations. More people may die when there is delay in matters of this nature. Our forces are bound by their Oaths of Allegiance as are our Government and MP’s, and this is how it must remain for all time coming. I am mindful that Parliament ‘had its say’ on sending our troops into war with Iraq, and I believe that it is right for them to continue to ‘have a say’, and as they have already ‘set a precedent’ on the decision making on ‘going to war’ they believe this should continue’. I hope it does, although I see no point at all in asking Members of Parliament, if they have to be ‘whipped’ or pressured into voting a way that their own heart or conscience tells them otherwise.
I ask the Members of the Committee a question at this point, and I ask it with the greatest of respect, “In hindsight”, do you think that Members of Parliament gave the right answer as far as going to battle with Iraq was concerned? That leads me on to the next point which is, in order to make a decision, the person (people, MP’s) have to be given the true facts of the matter. The question then has to be, “where do the MP’s get their facts from”? Direct from the Attorney General? The Prime Minister? The Foreign Secretary? Our Security or Secret Service? This has to be the most important issue. How can we rely on ’facts’, if we (or Government Ministers) no longer ‘trust’ the source, from where the alleged ‘facts’ came?
We listened in horror when the Prime Minister told the House of Commons that Saddam had weapons of mass destruction and that he could use them within 45 minutes and that it was a threat to us in the West. Those words spoken by the Prime Minister sent a chill down the spines of many of the people watching that programme.
Britain however, should always be ‘at the ready’ for battle. Unfortunately, we are allowing ourselves to be left “at grave risk” by following the European Defence Policy. It is like a re-run of the 1930’s. It is this Government’s duty to ensure that this Country is able to protect itself at all times. It is no use relying on other states. We see the Government ordering defence equipment that is incompatible with the US tried and tested systems. Will they be compatible with NATO? Will they be compatible with The United Nations?4) If Parliament should have a role, what form should this take?
I do believe that Parliament should have a role, but as above. Parliament cannot have a “true” role however, if it does not have access to the full Legal Advice of the Attorney General, and the full advice from the security service that CAN come into the public’s domain. Many people are aware and accept the need for secrecy and confidentiality. However I am also aware that the countries of the EU know our financial position, armaments and manpower, most if not all the statistics of our military position and the availability of our Army, Navy and Air-force, they know also of our oil and gas reserves, economy, strength of our forces and equipment.
I therefore find it difficult to accept that certain secrets should be kept from the people of THIS country.5) Is there a need for different approaches regarding deployment of UK armed forces:
Even in today’s world our approaches regarding deployment of UK armed forces have been tried and tested again and again. Our UK Armed forces do however, need the backing of the Members of Parliament, they need equipment that they can rely on, now, today, not in 2009 or 2012 or 2020. Shoes that melt? Sharing protective clothing? I despair at equipment being aliened to the European Union’s Future Rapid Reaction System (FRES) and ask is it compatible with NATO? The United Nations? Or the United States of America? (See the EU’s Green paper on Defence Procurement and it soon becomes obvious that we, as an independent and sovereign nation, are no longer compatible with the EU at all) We do indeed need different approaches; we need independence and complete authority (sovereignty) over our defence and its equipment for the true defence of our Realm.a) required under existing international treaties;
No Treaty should be entered into or even contemplated that removes or restricts the movement of our Forces, equipment, or decision-making powers away from this Country. Full backing be given in particular to Nato and to the United Nations. However, I do see problems arising because the latter as with the EU is getting far too big to work, as it should. There has been the suggestion of the need (urgency) to “modernise” the United Nations. Experience has shown that “modernisation” in modern terms means “to make things easier for the ones with the loudest voices and the most votes”. (The ‘modernisation’ of the House of Lords as an example)
I am greatly concerned, in view of the European Union’s desire to have a European Union Army of which the Rapid Reaction Force is the beginning, that we are slipping into a situation that we cannot get out of. This present Government wants to be at the heart of “Europe” but the next Prime Minister, or the people may not want to be. I refer to “Whereas it was established in 1932 that “No Parliament may bind its successors” (Vauxhall Estates v Liverpool Corporation 1, KB 733). I refer to the words in “Aspects of the EU’s Constitutional Treaty dated 23rd March page 19, “However, if Parliament were to pass legislation which was clearly expressed to be inconsistent with EU laws, it would amount to a constitutional and legal revolution for any court in the UK to assert that the principle that Parliament cannot bind its successors no longer applied, and we consider it inconceivable that any court in the UK would in the foreseeable circumstances, behave that way”. The Committee’s conclusion believed that the constitutional treaty would maintain the existing situation; I maintain emphatically that it would not. I place here in this consultation paper, that no one should take risks with this great country of ours in guessing whose interpretation is right.
On page 7 of the Quarter 4 Report to HM Treasury, as at 31st March 04, and things have moved on at a pace since then, ”an EU operation with recourse to NATO assets under Berlin Plus arrangements, or an autonomous EU operation.
The decision in sending our troops to war is constitutionally bound and has to abide by the common laws of this country, and it must remain our Government and Parliament’s decision including and embracing the Crown. We cannot put the defence of our Country at risk. We cannot, or should not put too much trust in other countries, and we must be accountable and responsible for ourselves as a sovereign independent Country. Some friends are false friends; we lose them when business profit gets in the way, when contracts with other bodies take preference to friendship. Warnings however, go unheeded and caution is thrown to the wind and history will then repeat itself over and over again. Nation States are dead, say it loud and long enough and some might even believe it. Nation States can work together, they do not have to give up sovereignty over national laws, economy, defence, airspace, ports, fishing, sea, agriculture, trade etc at all. To meld into a one State of Europe would be a disaster for this Country and the people.b) Taken in pursuance of UN Security Council authorisation;
Full backing should be authorised by the United Nations Security Council before committing our troops into battle, and especially when attacking a sovereign nation state that has not attacked our (or any other) country. There should be no question as to the legality of the action to be taken. To place our troops, Officers, Generals and Commanders under the fear of being charged under International Criminal Court or, as we have incorporated the ICC’s rules into our Law, expect our Forces to go into battle and fear, that on their return they may find that they could be charged under criminal law for alleged criminal actions by the service personnel under them. This to me, places them in an impossible position, it may also affect their decision making at a critical time on the ‘war scene’ which might even result in losing a battle or the un-necessary deaths of men under their command.c) As part of UN peace-keeping action;
I see no reason to change our role in the United Nations as regards part of the UN Peace keeping action or particularly our role in UN Security Council. No one must speak “for” us, we must speak for ourselves. Should our Government be inclined to give up its role on the Security Council (particularly as our PM has said that he would not) I would see it as a betrayal of trust. I am aware that he will have a role this year in any case as (Temporary) President of European Union.d) Placed under the operational control of the UN or a third State?
This question intrigues me. Do you mean the coming third State of the European Union? NATO is a “body” of different States as is the United Nations. When one mission is finished our troops return home and back under the control of our Army Commanders, our Navy Commanders etc. Our army is the “British” Army made up of four elements in what used to be four Countries and four nations, but now bound together by treaties and have been since 1707. The position has not changed from that time until 1997 and devolution. The European Union continues (in spite of the rejection of the EU Constitution) to work its way through to becoming a state and it wants its own Army, but we know from the United Kingdom’s union, that a country without an army is no longer a free country. It can no longer defend itself. Our Troops should only be used in those already tested organisations. We cannot keep spreading them around as we are doing at the moment.
We do not (to the best of my knowledge) hire out our Army to “third states”. They are not mercenaries. Their loyalty is to our Country only.6) Should the Government be required, or expected, to explain the legal justification for any decision to deploy UK armed forces to use force outside the UK, including providing the evidence upon which the legal justification is based?
Without doubt, every time. WE are not yet under a dictatorship. If there is no evidence there is no legal base for committing our forces. It is far better to give that evidence openly rather than having it “leaked” out, as in today’s world, as seems to happen. I also believe (rightly or wrongly) that it is only through lack of trust in the government of the day, that evidence is leaked. I also realise that certain evidence can be deliberately leaked to the government’s advantage as well as against. There are certain rules of engagement that have to be followed before any “attack” on another sovereign Country. All the requirements thus laid down should be followed.7) Should the courts have jurisdiction to rule upon the decision to use force and/or the legality of the manner in which force is used. If so, should that jurisdiction be limited by considerations of justiciability of any of the issues involved?
As the Attorney General is the most important senior person to give the legal basis, or his interpretation of the required legal base, I doubt very much that it would be deemed ‘correct’ for the Courts to have jurisdiction to rule upon or over the decision to use force. However, I have to question, which “Courts” are you suggesting? Our British Courts, the European Union Court of Justice? The European Court of Human Rights or the International Courts?
It is the unique separation of powers that makes our Country great and that separation of powers must be protected at all costs. Government (Parliament consisting of both Houses) make the laws. The Courts apply (interpret) the laws.
The question is however, which “Rule of Law” would the judges, whose oath of allegiance is to the Crown and this Country, look to? Will it be to this Country’s Constitution or to the European Treaties this country has entered into?
Many people now believe that entry into the European Community was, right from the beginning, illegal/unlawful, particularly as they feel they were, (to put it politely) also deliberately misled during the only referendum on the European Community they have ever had. Anything that prevents the people from enjoying their rights as laid down in Magna Carta and Bill of Rights is illegal/unlawful.
Would the proposed “Supreme Court” have jurisdiction? Even that sadly would/could be overruled by the European Court of Justice
I have mentioned the Oath of Allegiance more than once in this report because it is important and there appears to be a sense that MP’s have lost sight of that solemn oath, some openly dislike saying that oath. The people have a duty to protect the Crown, their laws that the Monarch solemnly declared in Her Coronation Oath. It is time that the Crown was brought closer to the people. It is time that she is seen to take part more often. The Crown is the glue that holds this country together. They are Her Majesty’s forces that governments of the day send here there and everywhere.
Having more or less completed this paper, I have just come across others that spell out just how much this Government want these powers. What price loyalty? What price the RESPECT they wanted. I have decided therefore to include one more paragraph.
I have watched over recent years the humiliation metered out to our Queen, even when debating ID cards the message went out that Her Majesty would not need to have fingerprints, etc taken etc other Members of the Royal Family would have to. This would mean that the next KING’s intimate details could be flashed round the world for anyone to read. We have watched while the Royal Yacht was removed, etc. I have read the words that they (Royals) have managed through birth to be where they are and is this right in a democratic society? Do you really think we have a “democratic” society? In this politically correct world where the people are beginning to be afraid of saying the ‘wrong thing’ for fear of being prosecuted is a democratic society? Where English people that declare themselves so, are ridiculed, denigrated as Little Englanders, yet Scots, Welsh and Irish can rejoice at being so, is that democratic? Why do I want to include the Queen more? Or to ensure Parliament too has a role? The answer is because I have lost trust in this Government. The Removal of the Royal Prerogative for signing Treaties, sending our troops into battle, bringing what it contained ALL under the control of Government? And what will the Government do with that power? The Prime Minister’s signature is already on the EU Constitution. That signature signalled that he is ready to hand the legal authority for all those duties that are under the Royal Prerogative, to the European Union, Article 1-7 (1-6) “The Union shall have legal authority”. Will the Committee endorse the proposals? Will both Houses? I hope the Committee understand that the people will not have any loyalty to the European Union and they never will have.My final type of war, not placed above or mentioned as yet, not even thought about until I had completed this paper, is of course, Civil War.
By e-mail to email@example.com And a written paper to
The Clerk to the Constitution Committee, House of Lords, London, SW1A OPW