A centrepiece of Gordon Brown's constitutional reform programme is the introduction of a House of Commons Resolution stipulating that governments must obtain the explicit approval of MPs before committing British troops to war. Previously, governments have had the power to go to war without even consulting Parliament, let alone seeking approval. The draft Constitutional Renewal Bill also places the ratification of treaties by parliament onto a statutory footing (Ministry of Justice, 2008a, 47-56).
These are apparently changes of historic significance. They are intended to contribute to the Prime Minister's stated objectives of making power more accountable, reinvigorating democracy and rebalancing power between Parliament and the government (Ministry of Justice, 2007a). They are also part of what is, in principle at least, an even deeper commitment to democratic oversight of government.
The July 2007 Governance green paper renounces the executive's royal prerogative powers under which ministers exercise authority in the Queen's name without being obliged to consult Parliament or the public and pledges 'to limit its own power by placing the most important of these powers onto a more formal footing, conferring power on Parliament to determine how they are exercised in future' (Ministry of Justice, 2007a, 15).
The power to go to war and to ratify treaties (other than those which necessitate a change in the law) are two of the most significant prerogative powers which the Public Administration Select Committee singled out as priorities for reform in its path-breaking report, Taming the Prerogative (Public Administration Select Committee, 2004). But how far does the principled decision to renounce prerogative powers actually go in practice? What difference will a war powers resolution, the statutory ratification of treaties and the associated reforms on offer make to the democratic legitimacy of decisions over war and peace, and foreign policy in general? And what does the form of these reforms indicate for the government's future intentions and conduct?
Let us begin with the resolution. Had it been in force during the lead up to the invasion of Iraq, then Tony Blair's conduct would have more than met the obligations it imposes. There were two votes on substantive motions before the war in early 2003 (and another on the UN Resolution to force Saddam to cooperate with weapons inspectors late in 2002). The resolution requires only one. Gordon Brown and his successors will retain control over the timing of consultation with MPs and the information that they make available to Parliament and the people. Blair took full advantage of both powers to secure the outcome he wanted, calling a vote long after he had made his personal decision to act with the US; after prolonged political pressure on potential Labour rebels, and after issuing notoriously misleading documents and media briefings about Iraq's possession of weapons of mass destruction.
Gordon Brown's draft Constitutional Renewal white paper proposes that the legal advice given by the Attorney General will remain confidential; and that the Attorney General will remain a political appointment with a seat in the cabinet. Blair withheld Lord Goldsmith's full legal advice on the legality of an invasion of Iraq to convey the impression that the case for military intervention without a further UN Security Council Resolution was firmer than it was; and there must at the very least be doubt about the ability of an Attorney who is a government minister and political appointee to withstand the Prime Minister's need for more supportive advice.
The deployment of the Special Forces, which often marks the undeclared start of a conflict, will not require parliamentary approval, and so the covert initiation of war, as in Iraq during 2002, in advance of a parliamentary vote on full invasion, will remain possible.
Hang on, there is more! The executive will keep even more flexibility under the resolution. A Prime Minister will be able to avoid a vote of approval if he or she decides that an emergency or security requires it. As the resolution will not be set out in statute--it will amount only to a convention--then it will be almost impossible to mount a legal challenge on the grounds that a government has violated proper procedure. Moreover, once troops are deployed, any resolution could become a blank cheque for indefinite engagement, even if the nature of the initial mission is transformed. There are echoes here of President Lyndon Johnson's reliance on the so-called 'Tonkin Gulf Resolution' of 1964 to legitimise the escalation of US involvement in Vietnam. Afghanistan is another example of 'mission creep'.
Informality rules then--and not only in the parliamentary and public arena, but within government too. There is nothing in Brown's proposals that will ensure conduct more appropriate to the norms of 'cabinet government'. Cabinet government, 'one of the permanent gifts conferred by British political genius on the art and science of civilised government', was once held to be a check on executive arrogance since it supposed that decisions and policies would be subject to collective, even deliberative, debate and approval (Weir and Beetham, 1999, 25, 119). It has proved less permanent a 'gift' than Lord Hailsham (for it was he) imagined. Mrs Thatcher and Blair consigned it to the bonfire of conventions.
In the run-up to the Iraq war, not only parliamentarians but cabinet ministers were denied access to important information about Iraq, as the Butler review found. Detailed papers were considered only by an informal group of ministers and officials. Such practices were possible because there are few constraints on prime ministers in the way they conduct cabinet business and government in general. In conjunction with the Cabinet Secretary, it is the Prime Minister who makes and interprets the Ministerial Code, a document which has no independent status or free-standing enforcement mechanisms (Committee of Privy Counsellors, 2004, 146-48; Blick, 2005); and Cabinet Secretaries in the Blair era were not renowned for standing up against the 'Tony wants' imperative. The Brown government has not suggested it intends to change these arrangements.
The ideology of executive power
Public and political controversy around the way the Blair government took the country into war against Iraq largely prompted the very reform programme Brown has...