Upholding the UK’s constitution should not be a partisan issue. However, that appears to be the case today. On Saturday, Theresa May used the prerogative power to launch air strikes in Syria, however she did so unconstitutionally by not seeking Parliament’s approval. Take note that May’s actions were not illegal under UK law, but that does not mean she was constitutionally correct.
There has been debate over whether May’s bombing of Syria, alongside France and the US was the right thing to do. There is also conflict over whether she should have given Parliament a say. Seeking Parliamentary approval before using the prerogative power of war is a constitutional convention. As previously mentioned it is not illegal to bypass Parliament in this case, but breaching a convention is a constitutional violation.
Since Tony Blair sought Parliamentary approval for the Iraq war in 2003, and David Cameron followed in his footsteps with Syria in 2013, the convention has become constitutionally binding. May should have followed in previous Prime Ministers footsteps by allowing Parliament to hold a vote before any military action was taken. The argument that it would be burdensome for Parliament to be recalled early from its Easter recess is a particularly weak one, when we are discussing enforcing the UK’s constitution.
Courts cannot enforce these conventions as they are not law, but lawyers and political enthusiasts may remember courts preventing a breach of the constitutional convention of collective ministerial responsibility in Attorney General v Johnathan Cape.
Jeremy Corbyn has called for the UK to enact a War Powers Act. This is the perfect way to make the constitutional convention legally enforceable, and to restrict the powers of the executive. Enshrining the convention in law would help to uphold values that UK politicians are meant to respect, the rule of law, democracy and the constitution.
It is unknown what will be included in a War Powers Act, however, it would codify this convention and set out the powers the Prime Minister has when it comes to enacting powers of war.