On Wednesday night, I was shocked to hear the audience of The World Tonight informed that ‘there is no constitutional requirement for the Government to seek parliamentary approval [for UK military action in Syria], there is nothing in the constitution…’ This (fallacious) observation concluded a day of political manoeuvring and frenzied commentary provoked by US President Trump’s priapic tweet about missiles ‘coming nice and new and “smart”’. And perhaps, in that initial hysteria, without time to explore the constitutional complexities of the issue, the BBC could have been forgiven for presenting an ill-informed and superficial overview. But a few days later it is alarming that such a position continues to be repeated across news outlets, when it is categorically untrue.
Such reports uncritically accept the line promoted by No.10 that the absence of a statutory requirement to consult parliament on military action equates to the absence of a constitutional requirement to do so. But our uniquely intricate (and, yes, sometimes impenetrable) uncodified constitution cannot be reduced to statute alone. Instead comprises a curious miscellany of Acts of Parliaments, court judgements and constitutional conventions.
The last of these - constitutional conventions - are often slippery, perhaps slightly old-fashioned, but nevertheless vital political customs that have evolved over time to provide a framework for the actions and operations of government. While many have been codified by Acts of Parliament, some remain ‘off the record’, such as the existence of the office of Prime Minister, and the customs that the Queen acts on the advice of her ministers and doesn’t overturn laws passed by Parliament. Such conventions often represent some of the most subtle, yet central, elements of the constitution. And while they may mature over time, they are rarely challenged or overturned. Instead, they are often fiercely defended, as demonstrated in 2015 by the Conservative Government’s bellicose insistence on the so-called Salisbury convention (that the House of Lords should not obstruct manifesto policies) in the aftermath of its defeat over tax credits.
Importantly, the The Cabinet Manual - described by gov.uk as ‘the ultimate user’s guide to government’ - recognises that such a constitutional convention exists in relation to consulting parliament on military action. It states that: ‘In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter.’ Since this statement, many a government minister and senior official have repeated a commitment to the convention (including the then Defence Secretary Michael Fallon and the Cabinet Secretary Jeremy Heywood). And it was widely thought to have been consolidated in 2013 by David Cameron’s decision to respect the House of Commons vote against military action in response to a previous chemical attack in Syria. Indeed - in 2014 the current Business Secretary Greg Clark, and then Constitution Minister, told Parliament that the Cabinet Manual ‘should be updated to reinforce the importance and value of that convention by reference to the events of 29 August ’.
As noted in the Cabinet Manual, the current state of play is that Parliament has been consulted on all significant military deployments since Tony Blair sought approval for the UK’s military intervention in Iraq in 2003 - setting quite a precedent in constitutional terms.
So why is the Government so keen to disown and disarm the convention now? From a constitutional perspective, it’s important to note that the the convention allows the government a great deal of flexibility, providing exemptions from parliamentary consultation for emergency situations or where the need for urgent or secret action precludes advance parliamentary consultation. Given the grim seven year history of the conflict, however, it seems difficult to argue that the action being considered is strategically urgent. Nor, in the context of Trump’s prematurely ejaculated tweets, could one argue that any deployments might be secret.
Thus the convention points to a parliamentary vote, but in doing so acts as an uncomfortable reminder of the defeat that David Cameron suffered over Syria four years ago. With an already restless and increasingly assertive Parliament, Theresa May is understandably keen to avoid her own parliamentary embarrassment over Syria. But it’s important in that context to recognise the Government’s position on the convention for what it is - one of convenience and political expediency, rather than constitutional integrity.
And that exposes the constitutional danger of allowing the narrative that has dominated press coverage and political debate in the past few days to go unchallenged. The beauty and the beastliness of constitutional conventions is that they are dynamic, malleable creatures, shaped by political words and deeds. The repeated referrals to Parliament on conflict decisions, the consistent commitments of government ministers, and the associated legitimate expectations of MPs have resulted in a nuanced and negotiated convention that upholds Parliamentary sovereignty while remaining pragmatic about national security.
My concern is that if the current campaign of constitutional engineering continues unchallenged, this delicate constitutional settlement might be eroded by cheap, ill-informed talk and politically-motivated soundbites.
Katy Budge is a doctoral researcher in politics at the University of Sussex, and a former head of constitutional policy at the Cabinet Office