One of the first actions of the Government of Prime Minister Gordon Brown, who took office on 27 June 2007, was to publish a Green Paper called ‘The Governance of Britain’.Footnote 1 Although the document looks forward to the possibility of a comprehensive, written constitution, this is seen not as an inevitable prospect and, particularly, not an immediate one.Footnote 2 The main concerns at the moment are the formalization and even restriction of certain executive powers and increasing the accountability for the exercise of governmental power, in and out of Parliament.Footnote 3 The importance of the Green Paper to international lawyers is that its substantial focus is on the prerogative powers exercised by ministers, many of which concern the conduct of foreign affairs and are directly relevant to or touch indirectly on matters of international law. The Green Paper sets out a list of seven main areas where the Government exercises prerogative powers. Six of them have direct or consequential relations with international law. They are:
• Deploying and using the Armed Forces overseas;
• Making and ratifying treaties;
• Issuing, refusing, impounding and revoking passports;
• Acquiring and ceding territory;
• Conducting diplomacy; and
• Sending and receiving ambassadors.Footnote 4
As FA Mann indicated in his well-known book, Foreign Affairs in the English Courts,Footnote 5 in the UK foreign affairs are conducted largely by means of prerogative powers. The result is that accountability for the exercise of executive power is more limited than if the powers had a statutory basis. The domination of the House of Commons by the Government, including its control over the Commons timetable, means that political accountability for the use of prerogative powers is limited. As for judicial control, even where there is jurisdiction, it is constrained by considerations of justiciability. This is not to say the old orthodoxies insulating the prerogative have remained unchanged. Statute has occupied some of the ground once within the purview of the prerogative (such as the War Powers Act 1965 and the Immigration Act 1971). Government has said that it would no longer rely on certain prerogative powers (for instance, the power to recognize foreign governments).Footnote 6 After the GCHQ case,Footnote 7 the courts have assumed authority over some exercises of the prerogative (the issuing of passports,Footnote 8 the government of dependent territoriesFootnote 9), though making it clear at the same time that other matters remained beyond their jurisdiction (entering into treaties and other treaty actions, such making reservations).Footnote 10 Practices with respect to the exercise of other prerogative powers have modified the ways in which they have been used, even to the extent that constitutional conventions have been established about what should happen, such as the transmutation of the Ponsonby Rule about the publication of treaties from a statement of one government's policy into a fully fledged convention.Footnote 11 Other practices are less well-established, such as consultations about ratification of treatiesFootnote 12 or about the form of legislation necessary to implement them:Footnote 13 these have been ad hoc initiatives. Prominently (and not without relevance to the political climate in which the Government's proposals are being made, perhaps), the Government put to a vote in the Commons its decision to use force against Iraq in March 2003 and gained the support of the House (even if not of a majority of its own supporters). The then Leader of the House told the Commons in January 2007 that Prime Minister Blair's statement that it was now inconceivable that there would be a future deployment of troops overseas without consultation of the Commons was ‘the convention we have established’;Footnote 14 possibly a premature conclusion.
Although the current of recent concern about the prerogative began to run before the invasion of Iraq,Footnote 15 it is the question of the power to deploy the armed forces overseas which has enjoyed the greatest salience, given the political and legal controversies which accompanied the action and which have persisted since. There have been several unsuccessful attempts to introduce legislation which would submit a government's power to varying degrees of parliamentary control. The House of Lords Committee on the Constitution recommended the development of a convention in the manner of the Ponsonby Rule to assure a measure of parliamentary participation in future.Footnote 16 The response of the Blair Government was a peremptory rejection of the Committee's recommendation,Footnote 17 which in turn received an indignant reply from the Committee.Footnote 18 It now feels itself vindicated by the ‘Governance of Britain’ Green Paper,Footnote 19 because the Green Paper, in one of the two prerogative powers it treats in any detail, accepts more or less the Constitution Committee's proposal on the deployment power (see below).
One of the factors which generated the most strenuous differences immediately before the invasion of Iraq, differences which have continued to be aired since, was concerns about the information which was revealed to the House of Commons before the vote. There were two questions—what was the Commons to know and what was the quality of the information which was provided to it. Of the many matters canvassed—intelligence, strategic and tactical assessments, the objectives of the deployment—I shall deal here with only one matter, that is the legal justification for the conflict. Because of the nature of the prerogative, the legality of the Iraq operation could be measured only against the standards of international law. Although it does not loom large (or even at all) in the specifications of the Attorney-General's responsibilities, in his role as the Government's chief legal adviser, he is the source of its international legal advice (except, as in Suez, when he isn't).Footnote 20 The complication of the Attorney-General's status and duties is not restricted to questions of international law and it has raised political interest comparable to that about the exercise of the deployment power.Footnote 21 It is not a surprise that consideration of the Attorney-General's functions features in the ‘Governance of Britain’ Green PaperFootnote 22 and that a consultation paper has already been circulated by the Ministry of Justice.Footnote 23 The deep divisions which have persisted about the legitimacy of the Iraq operation indicate that concerns about government decision-making go further than considerations about the formal basis of its powers, so that if the reforms are to meet objections, attention will have to be given to the substantive matters as well. The Green Paper acknowledges this for intelligence informationFootnote 24 but not, explicitly, for its legal advice.
A. Prerogative Powers
It is not too far-fetched to suggest that there seems to have arisen in Parliament about accountability for the exercise of prerogative powers something not dissimilar to the reasons which prompted reconsideration of the reviewability of prerogative powers undertaken by the courts in the GCHQ case. It is a recognition that it is the substance or effects of these great but ancient and arbitrary powers which should determine how their use is controlled. In any event, the absence of real accountability is itself a defect for the governing of a modern State, even if any discrete use of a power was beyond criticism. The courts could see no substantive difference between powers based on statute (and therefore subject to judicial review) and some of those finding their source in the prerogative (and, apparently, beyond judicial supervision). Some of the Parliamentary activity about prerogative powers is based on similar concerns about mechanisms of accountability. It would be unrealistic not to recognize that it is anticipated by reformers that some decisions would come out differently if taken under transparent and accountable conditions, than they would if the Government was able to rely on the existing dispensations which regulate the prerogative. Once the courts took on the task of supervising the prerogative, they found it necessary to accept some limits to their authority, but these were functional and prudential rather than formal. The limits which the courts saw on their powers with respect to the prerogative were based on various considerations of justiciability—that some matters were ‘political’, ‘without manageable judicial standards’, and so beyond the competence of the courts.Footnote 25 It is the exercise of these powers where attention on the defects of political accountability has been most marked. However, some of these powers, most notably the power to deploy armed forces overseas, are subject to the constraints of international law, where the non-justiciability claim of the national courts has a different flavour. The UK courts sometimes will take international law into account, even without express statutory authority to do so.Footnote 26 Indeed, it has been said that that the protection of the rule of law requires judges to do so.Footnote 27 That the judicial writ appears not to run all the way against the GovernmentFootnote 28 goes against present trends about the courts' access to international law and increases the responsibility of Parliament to assert itself, even against the considerable (and necessary) power of the Executive. If the domestic forum for some matters of international law is the political sphere, it will be the case that international law will be one of many factors conditioning decision-making, not having the same weight as it would in the courts.
B. The Prerogative Power to Deploy Armed Force Overseas
Of the ministerial prerogative powers identified in the Green Paper, two are referred to in more detail—the power to deploy the armed forces and the power to make and ratify treaties. The formal position is that the decision to use the armed forces overseas may be taken by the Government without any need for authorization or endorsement by Parliament. Such decisions appear to be beyond the reach of judicial review, even if the case sought to be made is that the deployment would be contrary to international law. There have been attempts to put this power on a statutory footing but they have failed.Footnote 29 The House of Lords Constitution Committee recommended the development of a convention which would require the House of Commons to vote in favour of non-emergency deployments.Footnote 30 With emergency operations excluded (which really means national self-defence measures), internationally lawful operations involve an element of choice by the Government and, usually, there would be sufficient time for consideration to be given to any British participation in the action. There may be an invitation from a foreign government to provide assistance; there may be a Security Council resolution authorizing action as necessary pre-conditions—neither would oblige a response by the UK. Accordingly, the political sentiment has been growing that operations of this kind need a democratic endorsement for both reasons of legitimacy and for assuring the troops themselves that there is support for them. That, of course, is what the Government said did happen about Iraq and would always happen in the future, the implication being that the Commons would be required to vote on the deployment, with the implication that if the vote were not in favour of sending the armed forces, they would not go.Footnote 31 There are reasons for scepticism about this conclusion. Coincidentally, while this view was being put to the Constitution Committee, the Government was engaged in strengthening its military commitment in Afghanistan (a deployment which it seems likely the Committee would have envisaged falling within those which should need authorization) but was confining itself to making statements to Parliament about its intentions without providing the opportunity for a full-scale debate. More to the point was that the decision about Iraq was clouded by uncertainty about the adequacy of the intelligence information and its use by the Government about the situation in Iraq, and by doubts about the way in which the Attorney-General's opinion about the international legality of the attack had been arrived at.Footnote 32 What was wanted was not merely information on these questions but better assurances about its weight and authority—by proposing the development of convention, the Constitution Committee thought that these matters of detail could be filled out—both what the informational pre-conditions should be and what degree of accountability for the information provided was appropriate. The Green Paper now says:
The Government will propose that the House of Commons develop a parliamentary convention that could be formalised by resolution. In parallel, it [the Government] will give further consideration to the option of legislation, taking account of the need to preserve flexibility and security of the Armed Forces. It will be important to strike a balance between providing Parliament with enough information to make an informed decision while restricting the disclosure of information to maintain operational security.Footnote 33
There is no mention of access to the legal advice on the position in international law on which the Government founds its right to take action. This is important because, in the absence of legislation, international law provides the only legal yardstick to measure the legality of a proposed action. If the House of Commons is to be properly informed, any opinion should be sufficiently detailed and presented in a timely manner which would allow for its considered assessment. It appears that the question of legality is one which matters increasingly to senior military commanders.Footnote 34 As more information has become available about the way in which the Attorney-General reached his view on the legality of the Iraq operation, which he put to the House of Lords on 17 March 2003, the less convincing it has become.Footnote 35 In controversial cases in future, it might well be that the House of Commons would be inclined to obtain its own legal advice, however handicapped any adviser might be by his limited access to information. One matter which remains unaddressed is the continuing role of the Attorney-General in supervising continued compliance with the terms of his advice, where that advice admits only a specifically limited right to use force. Here, the distinction which the Constitution Committee tried to stick to between the decision to deploy force and operational decisions about how it is used would become harder to maintain.Footnote 36 One might like to think if Parliament goes as far as it can, any gap left about the international legality of a military action would be regarded as a matter which the courts could take on, but the indications are all against it.Footnote 37
The Consultation Document on the Attorney-General asks whether the proposals in the Green Paper to put some prerogative powers on a statutory footing should involve any reconsideration of the Attorney-General's role and where Parliament is given a scrutiny function, whether or not it should have access to any germane legal advice from the Attorney.Footnote 38 Although some previous Attorneys have described their position by the homely (but quite inappropriate) simile of the family solicitorFootnote 39—an analogy from which Lord Goldsmith quite properly distanced himselfFootnote 40—there is a significant difference between ordinary practitioners and the Law Officers on the matter of confidentiality of their opinions. The Law Officers' opinions are protected by professional privilege but the present ministerial code goes further, saying that even whether or not the Attorney General has been consulted, as well as any opinion which he gives may not be revealed without his consent.Footnote 41 It is a protection which has come under challenge.Footnote 42 If, as a result of the consultation, the Attorney-General's position were fundamentally changed, doubtless access to his advice would change too. As things stand, there may be reasons why confidentiality should be maintained but surely better ones can be found than that prayed in aid by Lord Goldsmith before the Constitution Committee, that advice might be different if the advisor knew that it might be revealed.Footnote 43
C. The Prerogative Power to Negotiate and Ratify Treaties
The prerogative power to negotiate and conclude treaties puts the Government in a powerful position. It does not need to seek a negotiating mandate from Parliament and can keep its positions confidential until the conclusion of negotiations. There are significant, indirect limitations on the power (and, exceptionally, there may be legislative conditions attached). Where the implementation of a treaty requires action in domestic law, implementing legislation is required in order to do this. The Government's control in Parliament and the likelihood that a treaty would have to be accepted in its totality by Parliament as legislator diminishes the actual bite of this constraint but, nonetheless, the practice is not to ratify any treaty which will require implementing legislation until it has been obtained. The Ponsonby Rule which requires that treaties which come into force on ratification must first be laid before both Houses of Parliament has been supplemented by an undertaking that time for a debate would be provided where major political issues would be raised by ratification and by the practice of governments to append explanatory memoranda to treaties so laid before Parliament.Footnote 44 However, as the Green Paper acknowledges, debates have been rare. The controversy about the UK–US extradition treaty has focused attention on the domestic effects of treaties but it is not clear that it was the use of the prerogative that was responsible for what are claimed to be its defects—these occur because of the drafting of the Extradition Act, which allowed for unilateral implementation of the treaty (and which provided the power of extending the ‘no prima facie case’ option to States like the United States).Footnote 45 It should be noted that the prerogative power extends to the details of treaty arrangements—making and withdrawing reservations, accepting and altering optional provisions and withdrawing from treaties altogether lie in the hands of the Government.Footnote 46 In the past, the political nature of treaty-making and the need for confidentiality in the negotiating process has underpinned governments' objections to changes in the legal basis governing treaty participation. Now, in the Green Paper, this Government says:
[It] believes that the procedure for allowing Parliament to scrutinise treaties should be formalised. The Government is of the view that Parliament may wish to hold a debate and vote on some treaties and, with a view to its doing so, will therefore consult on an appropriate means to put the Ponsonby Rule on a statutory footing.Footnote 47
This is a limited concession but it draws the line between conclusion of a treaty text (for the Government) and participation by the UK in the treaty (in some cases requiring Parliamentary approval). Pre-ratification scrutiny on an intermittent basis goes on already. In addition to the examples above,Footnote 48 beginning with consideration of the 14th Protocol to the European Convention on Human Rights,Footnote 49 the Joint Committee on Human Rights (JCHR) has included pre-ratification scrutiny of treaties with human rights implications in its work programme.Footnote 50 In addition, the House of Lords Committee engages in scrutiny of EC treaties. This practice suggests that there is no reason why other select committees should not do the same for treaties which fall within their mandates. Whether such developments, which go much further than what is proposed in the Green Paper, would be welcomed by Departments is not certain. The recourse to Memoranda of Understanding, where that is a constitutional possibility,Footnote 51 would provide a way round any obstacles Departments find uncongenial. It, though, might be thought that there is too ready a recourse to MOUs as it is. The JCHR sees an enhancement of the legitimacy of human rights treaties coming from their pre-ratification scrutiny, a position perhaps influenced by the stance of its legal adviser, Murray Hunt, who takes an expansive view of the domestic legal effects of human rights treaties, implemented by legislation or not.Footnote 52
The legitimacy argument is an important one, all the same, even if it does not carry quite the same weight for treaties in general. All attempts to secure greater accountability for the exercise of prerogative powers encounter objections that the costs of doing so will be to undermine the effectiveness of government decision-making and action. It is a theme of the Green Paper that this is sometimes a price which will be worth paying—sometimes, but not always, the Green Paper says that none of its proposals concern the ‘uses of the royal prerogative in countries and British Overseas Territories other than the UK of which The Queen is the Monarch.’Footnote 53 However, for the UK, the Green Paper is only a beginning. It deals with ‘some specific concerns’ but the Government says that it intends to begin ‘a modern, systematic reform of the scope and nature of the prerogative powers’.Footnote 54 One thing the Government may do is to clear away obsolete powers—of course, it gives the example of impressment to the navy—at least, it ‘will consider options for ending them’.Footnote 55 This is a rejection of any doctrine of obsolescence of prerogative powers and, if it be legally sound, the repeal of some of these ancient doctrines is most desirable: disinterring them for proper burial might be tricky, though. However, we may be sure that one item in the list of powers set out above, the conduct of diplomacy,Footnote 56 is not among them and that the conduct of foreign policy will be in the future largely on a government's terms.
The Government published a further Green Paper, ‘The Governance of Britain—War, Powers and Treaties: Limiting Executive Powers’ (cm 7239), inviting replies to a number of detailed questions on possible reforms by early in 2008.
