Unit 1: Sources of Constitution

Constitution: : ‘the basic principles and laws of a nation, state, or social group that determine the
powers and duties of the government and guarantee certain rights to the people in it.’ (https://
www.merriam-webster.com/dictionary/constitution)
- Essentially the law and customs of the UK that guides the relevant powers and duties of our
Gov

Constitutional Law:

’set of rules which define the institutions of government’ (Peter Hanks)

‘’a set of arrangements that enjoys popular legitimacy, enabling people to be governed in a way
they regard as acceptable. This can be achieved by having a debate about what the constitution
should contain and then holding a referendum on its contents. Constitutions reflect a consen-
sus on how the country should be run’’- Prof. Mark Elliot

Aim is to allocate power in a ‘morally acceptable' way (Prof. David Feldman)- ie for the greater
good. For the majority, not everyone

• Fundamental rights into a constitution- ie right to privacy

• Rights and obligations of non-gov parties- ie protection
• Permanency
• Accountability of government- ie Fixed Term Act
• Popular support of citizens

UK constitution is an ‘uncodified constitution’- ie it is not written in a singular document. Made up

of:
- Statutes
- Constitutional conventions
- Court judgements
- Common law

‘Flat constitution’
• Amendment procedure: UK constitutional law does not have any special procedure for
amendment, it can be changed by a normal act being passed in parliament- ie whereas Irish
constitution requires a referendum for a law to be changed. The premise is that laws should be
permanent enough to secure stability but not too permanent as to not be able to change paral-
lel to changes in society. USA can be considered to be too rigid where it is hard to change
laws, whereas the UK is very flexible. Such is supported by Lord Woolf ‘but flexibility comes at
a price. We have never had the protection that a written constitution can provide..’
• Review procedure: in US, when legislature passes law a higher court considers incompatible
with the constitution, courts can annul the law. Whereas in UK higher courts have no jurisdic-
tion to annul incompatible legislation. The state's power is spread across the executive, judi-
ciary and legislature (separation of powers) so one body cannot deem legislature incompatible.
Courts, however, can issue a Declaration of Incompatibility.

Devolution

Legislative power was concentrated in Westminster Parliament, however the power to legislate is
now divided across Scotland, Wales, NI and some local authoritative. The constitution is made up
of multiple layers. Westminster acts as England’s independent Parliament.

Devolution is a transfer of gov powers central to Westminster to national institutions. It is

not full independence where they are fully autonomous and separate, nor is it federalism like US
where there is central power but each state has its own laws. New labour gov under Tony Blair in
late 90’s introduced devolution to decentralise powers. Meant decisions were made closer to the
people it was affecting.

• The UK is a unitary state with devolved states, yet power remains mainly central to Westmin-
ster. It is a-symmetric where there is an inequality of power in which Westminster bestows
power upon them. It is distributed unevenly as England has most power relative to Scotland
and Wales (who only hold reserved powers).

• Each state has competency to have its own rules in regards to education and public health ser-
vices (ie scottish alcohol tax) but macroeconomic policy remains in Westminster.

• ‘Power to the people’- Blair argues we have an over-centralised constitution and decisions over
health and education should be decided closer to each nation. www.youtube.com/watch?
v=yPdqEpgLFmw        

Scotland:
• Devolution was in aim to appease pushes for Scottish independence.
• Scottish devolution occurred under Scotland Act 1998 on a ‘reserved powers’ basis-ie there
was a Scottish gov and parliament that had its powers, but certain laws such as national arms
are reserved to Westminster. Powers have been gradually extended under Scotland Act 2012
and 2016.
• Sewell Convention- the UK Parliament won’t normally legislate anything within the realm of
Scottish Parliament’s abilities unless it has been consented to
• Idea that devolution will strengthen UK as a ‘flexible structure being stronger than a brit-
tle one’ was put to the test in the Scottish Independence referendum 2014. Mark Elliot
Wales:
• 1997 Welsh devolution referendum was won and there was devolution under Government of
Wales Act 1998. Their Parliament is the National Assembly of Wales, but have less powers on
‘conferred’ not ‘reserved’ basis.
• However, these have gradually increased and have shifted to reserved powers.

Northern Ireland:
• Peace talks led to the Good Friday Agreement 1998. Unionist/Protestant side prefers NI to
have ties to the UK whereas the catholic/nationalists side (minority) the contrary where Ireland
(n and s) is unified. UK abolished powers granted to NI, but in mid-late 90’s lead to Northern
Ireland Act 1998 for the Elected Assembly in Belfast where powers are granted on a ‘re-
served’ basis.
• There is an almost enforced coalition of the first minister of the majority party (usually demo-
cratic unionist) and second minister from second party. Both leaders share power and work
together, if one resigns so does the other.
• Issue: Power sharing can be problematic- Stormont (NI assembly) collapsed in Jan 2017 when
DUP and Sinn Féin split in row over an energy scandal and Sinn Féin refused to rejoin the
power sharing agreement. The assembly remained suspended until 2020, where civil servants
took on the role of decision making (but were reluctant to do so). DUP and Sinn Féin accepted
a deal for power sharing to be resolved, especially as this would prevent Wesminster’s direct
rule of NI and a British gov ruling NI. https://www.bbc.co.uk/news/uk-northern-ireland-politics-
50822912

• Demand and supply theory: where states have required more powers it has been granted
(Scotland and Wales) which reflects our Union being fundamentally flexible. Where more de-
volved power is needed, it is granted. For NI: ‘The 2022 Act made new provisions for Ministers
in Departments that are not the Executive Office to remain in office for up to 24 weeks after an
election, and for up to 48 weeks if the First or deputy First Ministers stop holding office due to
resignation.The act also allows for up to four six-week periods for appointing Northern Ireland
Ministers before another election would need to be called.’ Mark Elliott

England:
Is there a gap in English representation?
• Westminster acts as our Parliament, yet the MP’s who sit in commons are from all over UK; we
have no individual England MP’s only Parliament.

• West Lothian Question- is it legitimate for scottish and welsh MP’s in Westminster to vote on
issues regarding England only (as Westminster also represents England’s devolved state)
when English MP’s don’t sit in Scottish and Welsh assemblies and their devolved matters-?
- ie Higher Education Act 2004 where Scottish MP’s could vote on the issues of raising uni
fees that concerned welsh and English students only. The law was only passed due to sup-
port of Scottish MP’s, labour alone did not have the backing
Potential Solutions
• Regional gov’s
• English assembly
• English only votes for English laws (Common’s standing orders)

Tensions in Devolution

• Brexit- Referendum results showed England and Wales in leave majority but NI and Scotland
remain majority. Supreme Court decided whether the devolved assemblies needed to be con-
sulted by UK gov and Parliament. In R v Miller, supreme court found ministers did not need to
consult devolved states as Sewell Convention was not legally binding. Therefore whilst the de-
volved states have some power, Westminster remains elite and central to power.

• Covid-19- each nation had its own rules and lockdowns. Scotland put Greece on its list of des-
tinations needing quarantine. Wales consulted Westminster, who remained adamant quarantin-
ing individual regions and Greece on the destination list was unnecessary. There was no offi-
cial response so they did so anyway.
https://www.ft.com/content/05bcdeed-ce2d-4009-a3bc-cf9bb71c43d5:

Sources of constitution:

Statute- acts of parliament and legislation (‘ordinary law’)- can be changed or amended easily un-
der our flexible Constitution. Statues are the most supreme form of law.
• Statutes are passed through Commons, Lords then given royal assent by the Crown.

Statutes constitutionally important (ie big impact on how constitute works)

- Magna Carta 1215- limited king’s powers- peace treaty then given statutory power
- Bill of Rights 1689- decreased monarchic power and placed Parliament over king
- Act of Union 1706- union of Scotland and England
- Reform Acts 1832, 1867, 1884- path of British state to universal suffrage, extended voting rights
slightly
- HRA 1998
- Devolution of states
- European Communities Act 1972
Should these ‘constitutional statutes’ place above in a hierarchy over ‘ordinary statutes’;
either impliedly or explicitly?
• Steven Thoburn v Sunderland City Council [2003] EWHC 195 (Admin) . Appellant was prose-
cuted over selling goods in pounds and ounces, instead of metric as ruled by EU. Appellant ar-
gued UK’s WEIGHTS AND MEASURES ACT 1985 would impliedly repeal EU’s ECA 1972, so
takes precedent and allows him to continue to sell in imperial unit. High Court dismissed ap-
peal on basis of ‘constitutional’ statutes and ‘ordinary’ statutes. Implied repeal can only
be applied to ‘ordinary’ statutes. ‘Constitutional’ statutes must be repealed expressly
through an Act passed by Parliament.
- Essentially here it was said implied repeal could only be applied to ‘ordinary statutes’. Con-
stitutional statutes such as the HRA and devolution of states can only be repealed by Acts of
Parliament. Therefore there is some separation between ‘constitutional statutes’ and ‘ordi-
nary statutes’

HRA 1998:
• Pre-HRA: public were bound by common law. Rights were negative in the sense people were
free to do anything the law did not forbid (Megarry VC in Malone v Metropolitan Police Com-
missioner [1979] Ch 344.
• Labour gov passed HRA 1998 in aim to protect the rights of individuals, especially ‘unpopu-
lar minorities’ (following ww2). It provides a set of binding rules of human rights to follow.
Therefore rights became positive. These could then be claimed/ enforced in UK courts.
• Courts should interpret law as far as possible to comply with convention rights and public au-
thorities should act in accordance with convention rights
• Courts cannot repeal or amend incompatible legislation but issue ‘declarations of incompatibil-
ity’

Article 8
Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in ac-
cordance with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others.

• Article 8(1) was arguably breached under Covid-19 regulations as police bodies were able
to question people and issue fines to people in their homes when they were breaching regula-
tions (ie how many people could gather in an inside venue).
• However, the wording of (2) explains how there is an exception when ‘in the interests of…
public safety… for the protection of health…’ which would allow public authorities to interfere.

• Abortion laws during the Stormont Assembly collapse. In Feb 2016 bids to legalise abor-
tions or permit abortions on cases of sexual crime were voted down. Following the collapse of
 the Assembly, the British Gov announces abortions would be legalised following a recent
Supreme Court case. Belfast’s Court of Appeal ruled NI’s abortion lies were subject to the Stor-
mont Assembly, contradicting the 2015 High Court Ruling the NI breached ECHR. NI Human
Rights Commission take the case to the Supreme Court. UN releases a report that NI was
breaching rights of women. NIHRC lose appeal over legality, but majority agree it was incom-
patible with Human Rights. But judges ‘required the case to have been brought by a woman
who was pregnant as a result of sexual crime or who was carrying a fetus with a fatal abnor-
mality.’ Sarah Ewart begins a High Court challenge which is ruled in her favour. Due to devolu-
tion not having been restored in time, Westminster passes Bill to decriminalise abortion. (BBC)

Case law:
• In resolving disputes in courts judgments and their reasoning are written down as to become
the law. Therefore there is some form of written constitution.
• We have ‘judge-made law’ in how judges interpret and apply statutes in common law (prece-
dence)

Issues:
- Do judges apply rules to facts to gain specific outcomes?
- Do they create new laws in deciding cases or ‘discover’ law that already existed

4th edition Public Law by Mark Elliott and Robert Thomas

3.1: Terrorism and Acts of Parliament:

• In response to 9/11, the UK Gov wanted to introduce new measures to prevent terrorism as
they believe foreign Islamic extremists posed a significant threat to national security. The Gov
could not issue criminal proceedings on individuals as the evidence would compromise secret
intelligence in court, nor could they expel the victims under the ECHR that prohibits deportation
if there is a real risk the person will be tortured or ill-treated on return to their country (Chahal v
UK (1996) 1 BHRC 405) as under the HRA ‘No one shall be subjected to torture or to inhuman
or degrading treatment or punishment.’
•
• p30: They put forward the Anti-Terrorism, Crime and Security Act 2001 that meant suspects
could be imprisoned for an indefinite period with absence of any criminal charge or trial.
This gained support in Commons from not only the Gov (who are typically expected to back
motions), but also the opposition who wanted to be seen to be toughening up on terrorism.
There was also an easy route through Lords, who even though were more reluctant to, passed
the Act so that it only needed Royal Assent. Lords typical don’t have much power to reject Acts
when passed through Commons, they tend to just delay Acts or seek amendments. They have
a lot less power than Commons and do not wish to be seen as an ‘undemocratic institution’
that prevents the overall supported aims of the Commons (who represent the people).
• The Executive has a great degree of power.
The Belmarsh Case:

• There is the constitutional doctrine of Parliamentary sovereignty where the Judiciary cannot
strike down an Act of Parliament. They can only issue a Doctrine of Incompatibility where an
Act is incompatible with a Convention right. This, however, can be ignored as there is no legal
obligation for the Gov to respond.

• The detainees of Belmarsh prison asked the courts to determine whether the 2001 Act
breached their rights to liberty, which would be incompatible with their rights under the HRA.

• Whilst it would seem so, as they had been denied liberty without criminal trial or charge which
most would deny most prisoners their liberty, there was a derogation clause in the ECHR. Arti-
cle 15 says ‘1. In time of war or other public emergency threatening the life of the nation
any High Contracting Party may take measures derogating from its obligations under [the]
Convention to the extent strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with its other obligations under international law.’
Therefore, it was to be decided whether the conditions of the Article were satisfied in the 2001
Act as to deem it incompatible.

• The court decided the conditions of Article 15 were not satisfied in the 2001 Act. Whilst
the majority agreed that the risk of terrorism threatened the life of the nation, the Gov had not
shown it was necessary to detain foreign suspects without trial or charge and that the Gov had
made no efforts to detain British suspects, only foreign. ‘if it is not necessary to lock up the na-
tionals it cannot be necessary to lock up the foreigners.’ (A at [231], per Baroness Hale). - ie
there was no validation to suspend the rights of foreign suspects. The court issued the relevant
provisions of the 2001 Act were incompatible.

• The appellants argued

• that the UK was the only EU state to derogate post 9/11
• there was no immediate intelligence pointing to a specific threat
• there was no evidence to show a near permanent emergency (JCHR)

• AG argued
• UK could act pre-emptively
• The prolonged N.Ireland deoragtion was accepted
• Whether other EU states had derogated or not is irrelevant
• UK is a close ally of US

Lord Hoffman:
• Held a more liberal approach: it went against an ‘ancient liberty’ of freedom from arbi-
trary arrest and detention. There is a difference between suspected of being a supporter
and proof of actually doing wrong. Whilst there was a real threat of similar atrocities to
9/11 and 2004 Madrid bombing, the threat was not necessarily a threat to the life of the
nation.
 • The threat to life of the nations derives from laws created such as these, not terrorism
• ‘If we survived Hitler, we can survive this’

Lord Bingham:
• Held a practical approach. It was discriminatory on the grounds of nationality or immi-
gration status as there was a disproportionate detention of non-nationals.

Previously courts had been deferential to Gov matters concerning national security. It was the
presence of the HRA 1998 that began the change in attitudes. Courts should examine Govern-
ment decisions and Acts of Parliament to be in line with human rights standards. Lord Bingham:
the HRA “gives the courts a very specific, wholly democratic, mandate” to uphold human rights.
Mark Elliott ‘Belmarsh and the UK constitution #2: The House of Lords’ judgment’

• Whilst there was no legal obligation for the Gov to amend such Act, there are ‘political not le-
gal’ (A at [142]) impacts of a declaration of incompatibility; the Gov would receive public and
media backlash. In light of the pressure from the Belmarsh case, the Home Sec told Commons
he ‘accept[ed] the declaration of incompatibility’ and new legislature should reflect the criticism
of the courts.
• Conclusion: whilst the judiciary can’t hold the Gov’s states to any legal account, they can pro-
duce the idea of ‘legal constitutionalism’ and ‘political constitutionalism’- ie in this consti-
tution the Gov would have no legal considerations, but they would have political ones.

(See seminar for more info)

Prerogative

Prerogative: certain powers, rights, privileges, and immunities to the monarch or Crown.

• Prerogative power flows from the crown (as they used to be exercised by monarchy). By defini-
tion in law, it is still the case they are exercised by the Queen. In political reality however, they
are exercised by elected gov ministers and then officially passed by monarchy. So despite be-
ing of monarchic origin, when referencing prerogative powers we are more referring to gov and
gov ministers.
• Usually an Executive decision- by direct exercise (Prime Minister) or Order in Council (Privy
Council)- ie the decision to prorogue Parliament was decided Order in Council.

• Statute is superior to prerogative, and prerogative can be subject to legal restrictions via judi-
cial review
Blackstone’s narrow view
• Essentially the powers are unique to the monarch, they’re not possessed by anyone else.
‘that special pre-eminence, which the king hath, over and above all other persons, and out of the
ordinary course of the common law, in right of his regal dignity’

A.V. Dicey’s wide view

• Prerogative power is an afterthought- where statues are a superior form of power, prerogative
power can only behave in accordance with the rule of law (ie those with prerogative power can
only act under and in accordance with current statues)
‘the prerogative appears to be both historically and as a matter of fact nothing else than the
residue pf discretionary of arbitrary authority, which at any time is legally left in the hands of the
Crown. Every Act which the executive government can lawfully do without the authority of an Act
of Parliament is done in virtue of this prerogative’

AG v de Keyser’s Royal Hotel [1920] AC 508 (HL)- prerogative must be exercised along the
rule of law (ie subject to common law). Ie over centuries prerogative powers (monarchy powers)
have diminished where their power must act within our law. The statute in this case dictated the
gov had to pay compensation to hotel for using their premises. Gov argued they had prerogative
powers to protect the realm of the state so did not need to pay compensation. Court held gov
should follow statute and are subject to pay, the crown can only act under and in accordance
statute. Statutes are superior form of law and can replace or change so that prerogative power
no longer exists. Therefore limitations were placed upon their prerogative powers

New prerogative powers cannot be created (they’re residual) but existing prerogative powers can
apply to new examples. Historically, the prerogative power to protect the realm where there was
a threat to the country could only come into play when an enemy landed on British shores- how-
ever this can change to adapt to new circumstances from evolvement of technology and society
(ie now threat of nuclear warfare could lead to prerogative power to defend the realm despite there
has been no physical invasion).
Examples:
• Making and ratification of treaties
• Conduct of diplomacy- e.g. the recognition of states and relations between UK and particular
Governments
• The deployment and use of armed forces overseas; including involvement in armed conflict or
the declaration of war. e.g. deployment of armed forces overseas in Iraqi war (READ UP ON
THIS)
• PM’s ability to appoint and remove ministers

Miller No.1- R (on the application of Miller) v Secretary of State for Exiting the European
Union [2017] UKSC 5
Was the Crown (acting through the executive- the gov) entitled to use prerogative powers
to give notice under Article 50 for the UK to cease to be a member of the EU? The Gov trig-
gered article 50 arguing it had Royal Prerogative to do so. Claimants sought judicial review against
Secretary of the State that notice ‘could not lawfully be made without authorisation from an Act of
Parliament’ as the effect of withdrawal from the UK would amend rights currently held by the pub-
lic.The prerogative in question could not change domestic law, therefore they had no prerogative
to trigger Article 50, as this would be changing domestic law.

• UK constitutional law outlines that prerogative powers are the ‘residue of legal authority left
in the hands of the Crown’ (ie its an afterthought). Primary legislation cannot be overruled by
prerogative powers, and prerogative powers are limited within given boundaries of common
law, outside such boundaries and in statutes it has no power.
- ‘the King by his proclamation or other ways cannot change any part of the common law, or
statute law, or the customs of the realm’ and that ‘the King hath no prerogative, but that which
the law of the land allows him’ (Sir Edward Coke, Case of Proclamations (1610) 12 Co Rep 74,
76)

• Privy Council in The Zamora [1916] 2 AC 77, 90: ‘The idea that the King in Council, or indeed
any branch of the Executive, has power to prescribe or alter the law to be administered by
Courts of law in this country is out of harmony with the principles of our Constitution. It is
true that, under a number of modern statutes, various branches of the Executive have power to
make rules having the force of statutes, but all such rules derive their validity from the statute
which creates the power, and not from the executive body by which they are made. No one
would contend that the prerogative involves any power to prescribe or alter the law adminis-
tered in Courts of Common Law or Equity.’
- essentially the Crown (or gov) has no power to change the common law; some branches of
the Executive have power to amend statutes, but this is because the particular statute gives
them the power to do so not because the Executive has power to change statutes generally.

• Overall judgement was majority of the Supreme Court that the treaty-making prerogative could
not be used to trigger Article 50. The UK’s withdrawal would need to be instigated by an Act of
Parliament as the withdrawal of the UK from the EU would effectively repeal a major domestic
statute, (the European Communities Act 1972). Such a big action could not be achieved via
prerogative, but only by another statute.
• Lord Reed dissented from majority as he did not accept that the withdrawal from the EU would
alter the UK law

Constitutional Convention:

‘Constitutional morality’ (Dicey)

• Constitutional conventions are non-legal and mostly unwritten rules. They serve as a form of
regulation and whilst they are not enforced by courts, we still aim to follow it. Acts as a means
to provide political accountability, regulate relationships between constitutional actors (ie gov
and parliament), so contributes to overall system of checks and balances.
• No organised systematic framework- almost adhoc basis (ie we refer to Conventions when sit-
uations arise that might question constitutional morality)
• Conventions vary from precise, strong or vague and weak. They are usually flexible as to
evolve over time.

Dicey: ‘rules consist[ing] of conventions, understanding, habits or practises which, though they
may regulate the conduct of… officials, are not in reality laws at all since they are not enforced by
the courts’

Jennings’s three requirements to a convention: precedents (what’s happened in past), did actors
in the precedents believe they were bound by a rule , is there a reason for the rule
e.g- a convention where we assume a government will resign if it loses a vote of confidence in the
Commons: has there been an issue in the past with a weak gov? was the PM aware he/she
should resign if losing such vote? which means we require such convention to regulate the gov?

Key features:
• Some form of constitutional rule, not a custom or habit or practise, it sets out what should
happen not what generally happens (some compulsive force)
• Binding quality, should be recognised as political obligations to act in accordance with the con-
vention- morally or politically binding but not legally
• Some ethical or moral dimension- must be a moral or politically purpose as to why this con-
vention needs to exist
• NOT law as not enforceable in courts, no legal consequences to disdaining from
• Miller v Brexit Secretary (Miller No 1) [2017] UKSC 5 [146] was looking at a Convention

If no legal consequences why are they obeyed?

• Political consequences- ie unpopular gov, calls for resignation, strong backlash

• They are breached: Collective Cabinet responsibility- cabinet discussion should remain confi-
dential but this was regularly breached during Theresa May’s Brexit Cabinet
• Actors may change the interpretation of the convention so they can argue they aren’t breaching
it

Examples:
• Ministerial Advice Convention- The Monarch will exercise their prerogative powers (in law)
upon the advice of elected ministers
• The Monarch must give Royal Assent to a bill
Is there a constitutional convention that there should be Parliamentary approval of war-
fare? The Gov has a prerogative power to protect the realm, so has the power to deploy and use
armed forces overseas; including involvement in armed conflict or a declaration of war.

• In August 2013 PM Cameron sought Parliamentary approval for British military intervention in
Syria. The House was asked to vote on a motion on ‘possible intervention in Syria’ where the
no’s won. Ed Miliband asks the PM if he would use the Royal Prerogative to intervene, to which
he responded he would not in order reflect the view of the House, which in turn reflects the view
of the people. www.youtube.com/watch?v=Jtrsy89YAHo  

• In April 2018, PM May argued it was ‘morally’ and ‘legally’ right to take military action in
airstrikes in Syria alongside US and France. www.youtube.com/watch?v=_L86w5VAurI . It was
not authorised by the UN nor was the use of British troops backed by a vote in Commons as
Cameron put forward. The War Powers Convention in the 2011 Cabinet manual outline the Con-
vention ‘before troops were committed the House of Commons should have an opportunity to
debate the matter … except when there was an emergency and such action would not be ap-
propriate’. Corbyn proposed a motion ‘That this House has considered Parliament’s rights in re-
lation to the approval of military action by British Forces overseas.’ Ie to suggest the Commons
was not sufficiently consulted regarding Syria and there should have been official approval. The
motion was supported so Corbyn’s message was not backed.

• There is an exception in the Convention where there is an emergency that would make
politician consultancy unsuitable, or where it would damage public interest as it would mean the
disclosure of information that threatens national security. May argued in regards to the latter,
where debating the airstrikes would have disclosed secret intelligence and threaten national se-
curity.
• She argued ‘There are situations—not least major deployments like the Iraq war—when the
scale of the military build-up requires the movement of military assets over weeks, and when it
is absolutely right and appropriate for Parliament to debate military action in advance, but that
does not mean that that is always appropriate. This therefore cannot and should not be
codified into a parliamentary right to debate every possible overseas mission in advance.’
(HC Deb 17 April 2018 vol 639 col 203)
- Her statement essentially outlines whilst there are some circumstances where military action
should be debated and approved, there should not be a Convention that rules it necessary
to do so

Legal issues: under international law, military action is only legal if used in self-defence of if
authorised by the Security Council. May argued it was legal and correct in order to prevent hu-
manitarian suffering, similar to the Kosovo intervention. However, this argument has since re-
ceived explicit rejection as being a legal position. It is commonly accepted that such action should
receive authorisation through the UN Security Council. And, since 2003 Parliament has been seen
to typically seek support from Commons e.g. Iraq and Syria.
Kenneth Clarke MP: ‘We all accept that the sources of intelligence should never be disclosed to
the House of Commons, but surely these are essentially political and foreign policy judgments
about whether to use force to defend the national interest. These arguments could be applied to
health, education and lots of other areas.’ (HC Deb 17 April 2018 vol 639 col 232)
• Essentially downplays May’s justification it was to protect the disclosure of intelligence that
would compromise national security, as the same could be argued in all debates of all natures.
Therefore such excuse is redundant.

Flexibility of Conventions: May gives a loose interpretation of when the War Powers Convention
should and should not be implemented- ie by saying in should happen in some situations like the
Iraq war but not all.
• This allows the Gov to be protected to some degree and not be constrained to a Convention.
With a change in the nature of warfare, arguably such flexibility is beneficial as to suit changes
in technology and society. However, in this case we could see it more as a sound example of
when Conventions are not followed.