Would a UK War Powers Act work?

21 Apr 2018

 

Speaking on the Andrew Marr show last Sunday, Jeremy Corbyn called for a War Powers Act following Theresa May’s decision to launch airstrikes against the Assad regime without consulting Parliament beforehand. The Labour leader said such an act would ensure “governments do get held to account by Parliament for what they do in our name.”

 

Earlier this week, my Backbench colleague Samuel Evans echoed Corbyn’s words, arguing we should enshrine what has become a constitutional convention into British law. The big issue with such conventions as they exist now is that, as the events of the past week have shown, they can be reversed.

 

Dr Catherine Haddon from the Institute for Government noted in 2013 that although “governments in modern times have usually ensured parliamentary debate”, “there is no codified parliamentary procedure that formally requires the Government to seek approval before taking military action”.

 

Evans therefore sees such an act as “the perfect way to make the constitutional convention legally enforceable”. The aim of this piece is not to assess the merits of such an act, but to ask what a prospective War Powers Act could look like, and whether it would work.

 

In terms of looking at what a UK War Powers Act could look like, it is instructive to look at the War Powers Resolution passed by the US Congress in the aftermath of the Vietnam War in 1973.

 

The resolution requires the President of the United States, in circumstances in which the US armed forces are involved either “in hostilities” or in “the territory, airspace or waters of a foreign nation, while equipped for combat”, to consult Congress within 48 hours. Moreover, those forces would only be able to remain engaged for a maximum of 90 days without Congressional approval.

 

This appears a fairly cut-and-dried piece of law; in the UK’s case Theresa May would have to set out her rationale for any use of military action to Parliament within 48 hours, and that action would require authorisation by both houses within a maximum of 90 days.

 

However, one recent case serves as an example of the pitfalls and potential loopholes surrounding this particular resolution.

 

On 19 March 2011, the United States Navy and allies fired over 110 tomahawk cruise missiles at Libyan anti-air defences to help implement a no-fly zone authorised by the United Nations Security Council two days earlier. However, while the UN may have sanctioned the United States’ intervention in the Libyan Civil War, the Obama administration had, in fact, acted entirely without Congressional consent.

 

Under the US Constitution and the War Powers Resolution, this appeared unlawful. In the aptly titled ‘Presidents who Initiate Wars’, constitutional scholar Louis Fisher wrote that “the US Constitution does not permit transferring congressional powers to outside bodies, including the UN and NATO.”

 

The initial 60-day clock, the time limit by which the president should seek Congressional authorisation, had begun to tick. And continued to tick, as the Obama administration showed little interest in obtaining any such consent.

 

Indeed, by the time Obama reported to House Speaker John Boehner in response to a House of Representatives resolution in June 2011 that required him to explain why he “did not seek authorisation by Congress for the use of military force in Libya”, Obama had become the first sitting president to exceed the 90-day limit of the 1973 War Powers Resolution.

 

And the administration’s response to this inglorious record? On June 15, it held that the 60-day clock of the 1973 Resolution began only with the existence of “hostilities”, and that no hostilities existed in Libya because “US operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of US ground troops, US casualties or a serious threat thereof”.

 

Fisher responds by writing that “if the US conducted military operations by dropping bombs at thirty-thousand feet, launching Tomahawk missiles from ships in the Mediterranean, and using unmanned armed drones, there would be no hostilities in Libya under the War Powers Resolution, provided US casualties were minimal or non-existent.”

 

Regardless of the fact the US shifted into a primarily logistical role while other NATO nations took the lead, President Obama had launched a military strike on a foreign sovereign country with no prior or subsequent domestic authorisation for it. This bottom line was emphasised by two separate resolutions voted down by the House of Representatives on June 24, that amounted to a solid rejection of authorisation and funding of the war.

 

This of course is just one possible model and one example, although there are others, but US military action against Libya serves as a useful parallel to the UK’s intervention in Syria last week for a number of reasons. It involved a quick, limited use of missile strikes on military targets with no involvement in ground troops, and ostensibly on humanitarian grounds.

 

It also serves to demonstrate the potential pitfalls if the UK decided to follow a similar model to the United States’ War Powers Resolution. Draw the requirements too tightly; say full parliamentary consent for any use of military action, and you risk having to recall Parliament and engage in protracted debates before even the smallest-scale application of military force. Give the executive branch too long a leash and you risk giving them free rein that amounts to little more than the codification of a convention that can still be ignored with the right legal wording.

 

If its hurdles can be evaded so easily, as the lack of repercussions over Obama’s intervention in Libya demonstrated, it’s worth questioning if the UK’s own version of such an act is the silver bullet that Corbyn hopes it is.

 

 

 

 

 

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