Efficiency and Accountability in War Powers Reform

J Conflict Security Law (2009) 14 (1): 145

1 March 2009

Journal of Conflict and Security Law > 2009 > Issue 1, March > Articles

Journal of Conflict and Security Law

David Jenkins1

Assistant Professor of Law, University of Copenhagen; Attorney at Law (W.Va.,

Oh.). E-mail: David.Jenkins@jur.ku.dk.
© Oxford University Press 2009

Abstract This article examines the UK government's Draft Detailed War Powers
Resolution, recently put forward in its White Paper on the Constitutional Renewal
Bill. Responding to calls for reform of the Crown's war prerogative, the
Government has rejected primary legislation that would require parliamentary
approval for its war-making decisions. Instead, the proposed resolution would
preserve the prerogative, while purporting to give Parliament a greater consultative
role. In critically assessing that proposal, this commentary takes a comparative
look at how the US Constitution divides war powers between the President and
Congress. Different interpretative schools in that country suggest that the
structural distribution of war powers ultimately reflects competing preferences
between values of operational efficiency and democratic accountability. Judged by
these values, the British government's proposed resolution is seriously flawed. It
heavily favours the executive branch by giving the Prime Minister the initial
decision to seek authorization, allowing him or her excessive discretion in making
exceptions, and offering little possibility for Parliament to make and enforce
limitations on the government. Accordingly, the proposed resolution might actually
undermine democratic accountability, by allowing the government to shield its
prerogative decisions in future with a shallow and meaningless veneer of
parliamentary approval. Any serious attempt to enhance the democratic
accountability of executive war-making decisions must therefore address a more
fundamental constitutional problem—the strict party system that allows ministers
to control a parliamentary majority and prevent meaningful, independent legislative
scrutiny of government war policy.
1. Introduction
 Efficiency and Accountability in War Powers Reform

Last year, the British government published its White Paper on further
constitutional reform, putting forward a Draft Constitutional Renewal Bill.2 The Bill
proposes several areas of reform, including the future selection process for
judges, Parliament's role in treaty ratification and the administration of the civil
service. What is just as important as the Bill's contents is what it lacks; it
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makes no mention of the Crown's prerogative to commit the nation to war. This
omission is glaring, as Mr. Brown had much earlier made this a plank in his larger
constitutional reform agenda.3 Concerns over the democratic accountability of
prerogative decisions to send Britain to war have driven this spoke of the reform
movement in recent years. War is one of the most momentous decisions that a
government can make, and is one of the most critical events in any nation's
political, economic and social life. The 2003 controversy over the invasion of Iraq
—which perhaps more than anything has motivated calls for reform—
demonstrated just how nationally divisive such decisions can be. Moreover, the
subsequent Iraqi insurgency showed that, even when victorious in the field, a
nation can burden itself with unanticipated, long-term and problematic
commitments. The question of war-making is only further complicated by the
emergence of new, unconventional security threats, such as international
terrorism. Such threats require as much flexibility and breadth in the Crown's war
powers as in the past. However, as demonstrated by criticisms over the Blair
government's handling of the Iraq war, there has emerged a general consensus
across the political spectrum that the Crown's war powers should be subject to
greater parliamentary scrutiny.4

As a result, during the past couple of years there has been a lively and interesting
debate about what direction such reform should go. The House of Commons
Public Administration Committee advised a statutory restriction of the war
prerogative, the House of Lords Constitution Committee recommended a new
convention, while the Government's Green Paper of 2007 went with a convention
formalized by parliamentary resolution (subject to a later option of legislation). 5 In
its most recent White Paper, the government has indeed confirmed that it prefers
Parliament to pass a detailed resolution, requiring some form of legislative
authorization in most cases where the government will commit military forces to
armed conflict.6 This is in keeping with doubts about the suitability of primary
legislation in this area, as, for example, expressed by the Lords Constitution
Committee.7 As yet, however, the government has taken no further action on its
 Efficiency and Accountability in War Powers Reform

proposed resolution. For now, just what exactly (or when) will be the next step
remains uncertain. Therefore, despite the government's preference for
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a resolution, the question as to what form, if any, the reform should take remains
open. Because of the importance of the issue, as recognized by the government
itself, discussion should therefore continue, albeit focusing on the resolution
option. The stakes for 'getting it right' are just as high now as at the outset of the
reform debate, even though the ultimate solution will probably no longer be one of
legislation.

This commentary therefore critically analyzes the government's plans for a

resolution seeking parliamentary approval for its war-making decisions. In doing
so, it seeks guidance in how the US Constitution divides war powers between
Congress and the President. This comparative exercise suggests that a
constitution's structural mechanisms for deciding questions of war ultimately reflect
normative preferences in balancing the dual, but sometimes conflicting, values of
efficiency in military operations with democratic accountability for government war-
making. Judging against these criteria, this commentary argues that the
government's proposed resolution could very well undermine rather than increase
accountability. The prerogative remains, but the government will be able to
manoeuvre Parliament into sanctioning its war policy without sufficiently
meaningful and independently moved legislative debate. In some cases, no
approval will be necessary at all. The resolution option also does not countenance
parliamentary expressions of disapproval of government policy, nor does it seem
to permit Parliament to attach conditions or limitations to the government's military
ventures. A resulting resolution of approval therefore risks lending a false
appearance of democratic accountability to the government's prerogative military
actions, which will only further insulate them from adequate political scrutiny and
challenge.
2. A Comparative Approach to War Powers Reform

Debates about reform of the war prerogative have centred from the start on
concerns about whether it is the most democratic and pragmatic way for the
Crown to commit the United Kingdom to hostilities. Having their focal point in the
controversy over the invasion of Iraq in 2003, these concerns reflect the tensions
that new national security challenges might bring for liberal democracy.8 The issue
of reforming the war prerogative therefore differs from other calls for constitutional
change in two important ways. First, reform in this area must be cautious, so as
 Efficiency and Accountability in War Powers Reform

not to cripple the Crown's ability to secure the state from foreign threats either
existing or unforeseen. Second, and just as importantly, calls for reform confront
head-on the worrisome prospect that government might abuse military power.
Indeed, allegations that the Blair government used unreliable intelligence
information, manipulated legal counsel, and misled Parliament in the run-up to
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the Iraq war has persuaded some MPs, legal scholars, and other members of the
public that a limitation on the war prerogative is now recommendable.9

Of course, such constitutional conundrums are not endemic to Britain. Accordingly,

commentators on reform initiatives have sought guidance in other national
experiences with war-making. The Lords Constitution Committee, for example,
looked at war powers in the United States, Canada, Australia, and other countries,
as did very briefly the Government's White Paper. 10 This commentary agrees that
a comparative exercise can be useful and informative in rethinking the war
prerogative (as with other aspects of constitutional change). However, two
methodological questions present themselves. First, just how useful are such
comparisons between different constitutional systems, especially in light of
Britain's lack of a written constitution and the doctrine of parliamentary
sovereignty? In any case, what lessons (if any) can one hope to learn for purposes
of actually reforming the war prerogative itself? To avoid indulgence in merely
illustrative or anecdotal descriptions of other national practices—interesting though
they might be—there is a need to find a meaningful analytical framework to get the
most out of comparisons and make them useful to the British constitutional
context.

This commentary proposes such a framework around competing but overarching

values of efficiency and democratic accountability in governmental decision-
making. Normatively, which value should a political society emphasize in war-
making and, structurally, how does it manage the tension between the two in
constitutionally distributing war powers among institutions of government? These
normative choices of efficiency and accountability are therefore closely related—in
any constitutional system—to separation of powers questions and other issues of
constitutional architecture. That is, who decides to send the nation to war, and how
do they go about making that decision? Accordingly, structural arguments in the
end boil down to a preference for either the executive or legislature as the pre-
eminent decision-maker in matters of war, as each branch has attributes
respectively promoting efficiency and accountability. This is the level at which the
 Efficiency and Accountability in War Powers Reform

lessons gleaned from comparative legal study become relevant to the British
debate about reforming the war prerogative.

The American example is particularly instructive for three main reasons. 11 First,
there remain common strands of political theory and constitutional
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principles that still deeply run between the United States and the UK, such as the
acceptance of vigorous executive power in wartime checked in some way by a
separation of powers. Second, and somewhat in opposition to this first reason, the
written and judicially enforceable US Constitution makes for good study precisely
because its formal structural arrangements for war-making are remarkably
different from those in Britain. Under the Constitution, the separation of powers is
formalized and entrenched, while the war powers are divided between Congress
and the President. The Constitution thus offers a strong foil to the British concepts
of parliamentary sovereignty and Crown prerogative, at the same time that its
roots spring from a shared legal and philosophical tradition. Finally, the
Constitution's provisions for war-making have been politically and legally
contested throughout US history, giving some indications about how well (or
poorly) inter-branch 'cooperation' in military affairs might work in practice. For
these reasons, this commentary uses the American experience to illustrate how
efficiency and accountability preferences interact with a constitution's structural
mechanisms for regulating governmental war-making decisions.

However, this commentary's comparative study of American law requires two

initial qualifications. First, reference in this work to 'war powers' is limited to the
decision to go to war, initiate armed conflict or otherwise enter into hostilities.
There can be a broader understanding of 'war powers', as is often the case in the
US, which includes many national security decisions straying from strategic or
battlefield matters to impact domestic, civil affairs. 12 Such presidential power
potentially goes further than the prerogative. Because this broader sense of 'war
powers' raises difficult and complex issues not immediately relevant for examining
the proposed resolution in the UK, this commentary restricts the meaning of 'war
powers' only to the decision to go to war. Second, there are definitional problems
even within these narrower confines of meaning, as has been raised in the British
discussions about reform. For example, what does it mean 'to go to war' or 'initiate
armed conflict'? Do these terms exclude, for example, low-intensity conflicts or
peace-keeping operations? This definitional problem is important, not only
because of the complexity of real-world politics, but because it is the trigger for
 Efficiency and Accountability in War Powers Reform

those constitutional arrangements governing war-making decisions. Although

briefly touched upon in reference to the British government's proposed resolution,
this definitional quandary will not otherwise receive attention in this paper.
Because of space, time and subject-matter limitations, this commentary will only
briefly consider the structural issue of which branch
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of government ultimately decides when a 'war' (however subsequently and

substantively defined) exists for constitutional purposes.
3. Efficiency, Accountability and Constitutional Structure: the American Example

By evaluating the US Constitution's structural mechanisms for war-making by

reference to efficiency and accountability, one can gain a sense of how important
these normative values are for not only shaping initial constitutional design, but
also in influencing constitutional practice over time. In the United States, of course,
the Constitution rejects an executive war prerogative in favour of institutional
cooperation between the President and Congress. The Constitution's text divides
the war powers between the two political branches, which should in theory be
subject to judicial review, as well. However, even a brief inspection of American
law and political practice reveals that the institutional allocation, inter-branch
dynamics and judicial treatment of the war powers remain highly contested and
inconclusively resolved by constitutional text. Despite the terse language of the
Constitution, the scope and operation of congressional and executive war powers
ultimately depend upon whether one interprets them with a view to prioritizing
efficiency or accountability. The American example thus suggests that these
normative preferences for decision-making are ultimately the standards by which
one must assess the possible impact and desirability of the British government's
proposed war resolution (or any other alternative solution, for that matter).

A. War Powers in the United States

If one reads the Constitution, its text divides the war powers between Congress
and the President, but in a way that is unclear and open to multiple interpretations.
Article 1, Section 8 grants Congress the power 'To declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures on Land and
Water…'. Opposed to this is Article 2, Section 2, declaring that 'The President
shall be Commander in Chief of the Army and Navy of the United States, and of
the Militia of the several States, when called into the actual Service of the United
States…'. Alongside it stands Article 2, Section 1, which states that 'The executive
 Efficiency and Accountability in War Powers Reform

Power shall be vested in a President of the United States of America'. Some

promoters of a strong presidency argue that this clause evokes many un-
enumerated powers inherent to the concept of executive authority,13 in substance
not unlike the scope of Royal prerogative; this includes a power to command
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military forces, conduct foreign affairs and conclude (but not ratify) treaties and act
broadly abroad and at home for protection of the national security. This textual
contradiction, or at least its lack of clarity, has led to no end of war powers
controversies throughout US history. This controversy has intensified in recent
years with the so-called 'war against terrorism' and the war in Iraq.

Generally speaking, there are then three major interpretative approaches to the
Constitution's distribution of the war powers. The first two clearly prefer
congressional or presidential initiative in war-making, while the third invites branch
conflict and political resolutions. First, there is the view of 'congressionalists', to
whom the 'declare war' clause means that only Congress can authorize entry into
hostilities (except where the President must repel attacks against the United
States, suppress insurrection or perhaps otherwise act out of immediate necessity
for national self-defence).14 Furthermore, the Constitution's references to letters of
marque and reprisal, as well as rules of capture, suggests that Congress can
authorize the President to conduct limited military actions that somehow fall short
of full-on, conventional war.15 Congressionalists therefore tend to subordinate the
President's powers of military command to legislative authorization and
restrictions, subject to some degree of judicial review for settling separation of
powers disputes.

The second view of the war powers is that of 'presidentialists', who hold a
declaration of war to be little or no more than a statement of hostilities between
nation-states—itself an outdated and abandoned practice in international relations.
Presidentialists would admit that only Congress can constitutionally make such a
formal declaration. However, they would read the 'declare war' clause to mean
only that and nothing more. They would therefore deny that the clause more
broadly requires express congressional authorization for the executive use of
force, and especially would reject the notion that Congress can place limitations on
the Commander in Chief's command discretion in operational decisions. Some
presidentialists would also argue that the President (as Commander in Chief and
Chief Executive) possesses independent constitutional authority to commit military
forces to armed conflict. They tend to support executive unilateralism in war-
 Efficiency and Accountability in War Powers Reform

making (subject to Congress' spending power, discussed below in the conclusion),

and reject judicial review of this subject-matter.16

The third view is that the constitutional text and the Framers' intent are simply
indeterminate.17 Branch pre-eminence in war-making is politically fluid and
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so left for on-going struggle between Congress and the President. Which branch is
pre-eminent at any point in time will depend on many political factors. For
example, the nadir of presidential power in modern times was probably after the
end of the Vietnam War and the resignation of Nixon. Presidential power since
recovered, but arguably was somewhat shaken with the latter years of Clinton's
administration and his impeachment. Executive prestige was further tarnished at
the end of George W. Bush's second term with the rising unpopularity of the Iraq
war, a declining economy, and record-low public approval ratings. This third view
can therefore accommodate congressionalist or presidentialist preferences
depending on political fortunes, but it denies that the Constitution allocates war
powers in a conclusive way. For these reasons, supporters of this view generally
disfavour judicial review of what are seen to be fundamentally political questions.

In understanding the Constitution's distribution of the war powers, under any of the
viewpoints above, one must distinguish between the 'original or true meaning' of
the Constitution (if there even is one) and actual political practice. The place of
original or true meanings and actual practice in American constitutional theory
remains debatable, while different interpretative methodologies can lead to
conflicting conclusions between scholars, politicians, lawyers, and judges.18
Whatever one concludes about original meanings, however, historical practice
shows that modern Presidents enjoy considerable initiative in war-making since
the beginning of the Cold War, a characteristic of what historian Arthur Schlesinger
famously called the 'imperial Presidency'.19 However, Congress has also usually
cooperated with and only rarely confronted the President. Congress' strongest
assertion of its own war-making powers in modern times was at the end of the
Vietnam War, when it passed the War Powers Act of 197320 over Nixon's veto.

The War Powers Act is an interesting and controversial piece of legislation. It

requires the President to report to Congress within 48 hours of introducing military
forces into hostilities. The President must withdraw those forces within 60 days—
with a possibility of extension to 90 days—if congressional approval is not
forthcoming. Despite its apparent teeth in asserting congressional authority,
 Efficiency and Accountability in War Powers Reform

however, the War Powers Act has been ineffectual. No court has ever judged its
constitutionality. All presidents of both parties have denied the Act's
constitutionality, while Congress itself has never resolutely attempted to enforce it
in restricting presidential military actions. For example, President Clinton
prosecuted an air war against Yugoslavia after the 60-day limit without
congressional approval. Some congressmen sought to enforce the Act in court,
but their suit
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was dismissed for a lack of standing because Congress as a whole had not clearly
confronted the President.21

This hands-off judicial approach is typical. Since the beginning of the Cold War,
courts have consistently deferred to presidential deployments of military forces.
They have usually found controversies to be non-justiciable political questions22 or
struggled to find sometime tenuous evidence of some congressional approval that
might satisfy the 'declare war' clause. Such authorization can take many forms,
from an outright and direct force authorization to indirect support like continuation
of the draft that supplied troops for the Vietnam War. 23 Such judicial deference has
contributed to executive initiative in war-making as a matter of practice. However,
courts generally have been careful to avoid committing themselves to either a
clearly congressionalist or presidentialist theory, preferring an approach to war
powers review that leaves open political rather than judicial resolutions of branch
conflicts.24 Judicial practice, then, seems to fit in with this third interpretation of the
war powers, discussed above, in accommodating—if not even encouraging—
political struggle between the President and Congress.

B. The Relationship between Values and Constitutional Structure

Whichever political branch has primary responsibility for war-making under the US
Constitution, however, both would have to consider similar substantive issues in
acting. Such policy questions include: is military action necessary or in the best
interests of national security? How does the threat of war stand with international
diplomatic efforts? How would war affect the national economy, draw on national
resources or even comport with abstract notions of 'national values'? The decision-
maker must weigh the benefits of war against its costs in human life and
destruction, while considering often conflicting views of different segments of the
public and political factions. All of this combines in a broader view of the national
interest that must be (or ought to be) seen in the short and long terms.
 Efficiency and Accountability in War Powers Reform

As both the executive and legislature must take into account similar substantive
matters in making decisions about war, any analysis of the division of war powers
should focus less on these matters themselves, instead looking at the processes
that more or less promote the over-arching, normative values of efficiency and
accountability. These values provide the starting point from which one can only
then assess the structural distribution of the war powers in the United States—
either as a matter of true meaning or actual practice—and from
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it draw conclusions useful to the British debate over war prerogative reform. For
example, in its Green Paper, the British government recognized a need for greater
democratic accountability in war-making 'without prejudicing the Government's
ability to take swift action to protect our national security, or undermining
operational security or effectiveness'.25 Thus, whether in the United States or the
UK, war-making demands attention to both of these values. Furthermore,
resolution of structural questions in either country depends upon which value one
chooses to emphasize and which branch one considers most institutionally
competent to promote it.

Efficient and accountable decision-making are each marked by certain factors,

which relate these abstract values to the executive and legislative branches, and
so shape a constitution's structural mechanisms for war-making. Efficiency factors
would include things such as quick decision-making, having an identifiable
decision-maker, and flexibly responding to changing circumstances. Efficiency, as
a value, is result rather than process oriented, while it is most associated with
high-level, sometimes secretive, executive decisions. Presidentialists emphasize
these factors, despite whatever methodology of constitutional interpretation used
to justify what is ultimately a normative choice. In Britain, the Crown's wide
discretion to act under the prerogative encapsulates this efficiency value to the
fullest. In contrast stand factors of accountability: moderated and considered
decision-making, debate and resolution of competing social interests and political
factions, and consensus politics. This value is focused on process, rather than
result, and is associated with open parliamentary debate. Congressionalists,
naturally, stress these accountability factors and, like presidentialists, do so
despite their choice of a supporting interpretative methodology. Demand for more
democratic accountability of the Crown's war powers similarly requires that
Parliament has a stronger role in debating, authorizing and perhaps limiting
 Efficiency and Accountability in War Powers Reform

executive action in this regard, to achieve a better balance with efficiency

concerns.

Taking into account these factors, one can draw from the US situation some
general conclusions about the importance of normative choices to constitutional
structure, with hopes of applying them to the British debate on prerogative reform.
First, the open texture of a written constitution (or even a statute) leaves room for
subsequent normative choices by competing institutions, political factions,
scholars and judges. Following from this, the unclear intent of constitutional
framers (or legislative drafters), actual political practices, and the interpretative use
of these can justify competing normative choices. Even so, changing political
circumstances can throw doubt on prior choices and stoke recurring debates about
which value we should prioritize in war-making. Finally, the constitutional
distribution of war powers can be complicated, especially in the United States, by
the possibility of judicial review. Who should resolve inter-branch disputes in war-
making? To what extent are courts even functionally capable of evaluating
politically contested claims about the normative bases and
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structural distribution of the war powers? This is itself a contested question and
one with which even judges can be uncomfortable. Indeed, the reticence of British
judges to exercise judicial review over national security decisions indicates a
pattern of judicial behaviour that, as in the United States, will likely continue even if
the war powers are somehow limited, formally divided and textually expressed.26
Thus, the US example shows that distribution of war powers—either at the
formative point of constitutional design or during subsequent interpretative
controversies—requires a continuing evaluation and balancing of these normative
values of efficiency and accountability. Furthermore, despite the important
differences between the American and British political systems, these values are
equally as important for evaluating proposed reforms of the war prerogative in the
UK, particularly now in regard to the government's proposed resolution.

Finally, the American example shows that consideration of efficiency and

accountability concerns will not necessarily lead to a clear decision as to what is
the best solution for structurally managing government war powers. They can at
best inform careful choices. In a democracy, efficiency and accountability are
necessarily mutual but often conflicting values. As suggested by the US situation,
some branch conflict in war-making might be unavoidable. Moreover, it could be
that such conflict is even healthy in a democratic system that tries somehow to
 Efficiency and Accountability in War Powers Reform

balance both values. This means, seen from another way, that inefficiency and
unaccountability are both incompatible with the practical needs of military decision-
making and the demands of a democratic political system. To over-emphasize one
value can lead to the devaluation of the other, with detrimental results to the
political system as a whole. Decisions about how to allocate and regulate war
powers among government institutions should therefore permit considered and
measured emphasis on a particular value, but without giving that one overriding or
exclusive priority. Both values must be somehow reconciled and together
promoted.

Structurally, this means that whatever the solution for settling war powers, there
ought to be collaboration between the executive and legislative branches, with
effective checks and balances of some kind. This should be so, whichever value is
emphasized and whatever branch is preferred to have the initiative in taking a
nation to war. Otherwise, the best workable arrangement between the branches
and the procedural requirements for war decisions remain open questions. Further
discussion of war prerogative reform in the UK should therefore strike for the right
balance between efficiency and accountability, taking care that the government's
proposed resolution does not unintentionally do more harm than good in this
regard. Unfortunately, however, the resolution (as framed)
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threatens to do just that, paradoxically undermining the very democratic

accountability that it purports to enhance.
4. False Accountability under the Government's Proposed Resolution

As this comparative look at American law has shown, efficiency and accountability
—and how they impact upon and in turn are reflected in constitutional structures—
create an analytical framework by which one can assess the suitability of war
prerogative reforms in the UK. Although the government's earlier Green Paper laid
out several possibilities for reform, including primary legislation, it subsequently
retreated to the far more modest option of a resolution. This proposal would retain
the Crown's prerogative to go to war, while allowing Parliament (in some cases
only) to debate and authorize government military ventures. As stated in the White
Paper:

While not ruling out legislation in the future, the Government believes that a
detailed resolution is the best way forward. This will take the form of a House of
 Efficiency and Accountability in War Powers Reform

Commons resolution which sets out in detail the processes Parliament should
follow in order the approve any commitment of Armed Forces into armed conflict.27

This solution, according to the government, appropriately balances efficiency and

accountability. Accordingly, '[a] resolution will define a clear role for Parliament in
this most important of decisions, while ensuring our national security is not
compromised by the introduction of a less flexible mechanism'.28 Despite this
claim, the provisions of the annexed draft resolution display serious flaws. As
proposed, it neither permits meaningful parliamentary participation in war-making
nor allows for legislative restrictions upon Government decisions under the
prerogative. Instead, the resolution preserves intact the Crown's prerogative,
maintaining maximum convenience for the government and efficiency in its military
decision-making.29 The result (intended or not) is not just a failure to introduce
meaningful accountability before Parliament, but
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is actually a mask over the undemocratic nature of the prerogative. The shallow
veneer of an authorizing resolution risks blunting criticisms of government war
policy and deflecting further debate about the use of the prerogative. If even the
constitutionally entrenched war-making provisions of the US Constitution have
difficulty in holding presidential war-making accountable to either Congress or the
courts, a government-sponsored, unenforceable resolution in the UK holds out
little possibility of adequately redressing accountability concerns. Without giving
Parliament a stronger, more independent role, the resolution gives little further
traction to competing views of the war powers that emphasize accountability.

The proposed House of Commons resolution, as annexed in the White Paper,

takes the form of a non-binding plea to the government, requesting it to abide by
its procedures for seeking parliamentary approval for the commitment of British
armed forces under the prerogative. As such, it would not be legally enforceable
before the courts, as would a statute.30 It would apply whenever the government
would make a 'conflict decision', which it vaguely defines as the authorization of
the use of military forces outside of the UK and regulated by the law of armed
conflict. In this event, the Prime Minister should first seek approval of the
Commons. Although that House may request the views of the House of Lords on
the matter, it remains only within the purview of the Commons to make the
authorization.

From the start, the resolution is open to criticism that it does little to alter the
 Efficiency and Accountability in War Powers Reform

arguably undemocratic nature of the Crown's war prerogative. Numerous

exceptions to the approval process bear out these concerns. Section 2 of the draft
resolution, setting out the 'process for approvals', makes clear that it falls to the
Prime Minister—not Parliament—to start the approval process. In doing so, the
Prime Minister lays a report in the House containing information that he or she
thinks necessary, along with the terms of the force approval. The House would
then 'approve' the Prime Minister's terms. The Prime Minister thus not only
decides when and how debate will proceed, but sets the terms of the approval
itself.31 The resolution does not clarify what end an opinion of the House of Lords
serves, if requested by the Commons, or what would be the effect of any
independent resolution of the upperHouse.32 Finally, the draft proposal makes no
mention of what
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the consequences should be in the event of the Common's refusal to approve the
Prime Minister's terms, let alone how the House might attach reservations,
conditions, or limitations to approval terms.

This highly constrained approval process is riddled with exceptions, all invoked at
the discretion of the Prime Minister. The regular approval process is required only
for a poorly defined 'conflict decision'.33 Presumably, as the Prime Minister must
initiate the approval process, it is within his sole discretion as to when a 'conflict
decision' is at hand. Parliamentary approval is not required at all where an
'emergency' or 'security' condition exists. These conditions, again determined by
the Prime Minister, include circumstances not admitting of time for pre-approval,
as well as when the disclosure of information could inhibit the effectiveness of
military operations or threaten the safety of British or allied forces. Under such
conditions, the Government is requested to lay a report in the Commons after
deployment of the armed forces, but without any need for retrospective approval
by the House. In the event of a security condition, the Prime Minister may decide
that it is inappropriate to give such a report, while the deployment of British special
forces requires no approval or reporting at all.

This wide discretion and availability of exceptions give the Prime Minister ample
opportunity to manipulate or outright avoid the approval process whenever it might
suit the Government.34 The resolution therefore preserves maximum efficiency
under the prerogative, with only a modicum of enhanced accountability. Ironically,
therefore, this process and any resulting resolution will likely undermine the very
accountability they purport to promote. At first glance, some parliamentary scrutiny
 Efficiency and Accountability in War Powers Reform

of the prerogative might appear better than none at all, even if under the tutelage
of the Prime Minister. However, by leveraging control of the majority party in the
Commons and setting the legislative agenda, the government can likely secure
parliamentary 'approval' that is, in fact, not independently instigated, freely
debated and sufficiently free of executive influence. The government can also
most probably prevent force authorizations attached to conditions, along with
resolutions of censure, should the House be so disposed.

As seen in the American example, continuing normative re-evaluations and

shifting value preferences between efficiency and accountability manifest
themselves in institutional power struggles between the legislative and executive
branches. Because these two branches remain institutionally independent in the
United States, however, courts can justify their usual abstention from
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reviewing war matters in preference of relying upon political checks and balances.
In contrast, the British government's draft resolution continues to prioritize the high
efficiency associated with the war prerogative, but with a flawed structural
mechanism for ensuring its adequate accountability to Parliament. It would instead
allow the executive branch to manipulate the approval process in a way that might
distort the democratic credentials of any resulting parliamentary 'approval'.
Moreover, the courts would likely be unable to review executive refusal to seek
approval or any other action contrary to some kind of parliamentary conditions or
disapproval (as unlikely as that possibility might be).

Perhaps with similar concerns in mind, both the House of Commons Public
Administration Select Committee and the Joint Committee on the Draft
Constitutional Renewal Bill have questioned the discretion left to the Government
by the proposed resolution, and its nature as yet another piecemeal constitutional
reform. Nevertheless, both committees have endorsed the resolution as a way
forward.35 This ambivalence, however, is counter-productive as it will permit the
government to move ahead with a reform alternative that threatens to further
undercut—not enhance—democratic accountability. In this instance, the cure is
perhaps worse than the disease. With yet more irony, when the government
instead relies solely on the prerogative to commit the nation to war without
legislative approval, one can argue that the very undemocratic essence of that
awesome power (1) usually makes the government reflect more carefully before
exercising it, and (2) stokes criticisms by both the parliamentary opposition and
perhaps even members of the government's own party. Again with reference to
 Efficiency and Accountability in War Powers Reform

the American example, this counter-intuitive view is based on the premise that the
balancing of efficiency and accountability concerns can best be achieved and
flexibly contested over time, where they are somehow structurally accommodated
through a division of war powers between branches institutionally capable of
checking and balancing one another. In Britain's parliamentary system, exercise of
the Crown's independent prerogative power, while not democratic in its ultimate
source or character, by that very fact might arguably provoke attention and invite
legislative challenge through the usual channels of ministerial accountability. It
also lays the government open to the risk that it will be judged to have abused the
war prerogative, as the political responsibility for its exercise will fall squarely on
the shoulders of the Prime Minister alone. This all assumes, of course, that
Parliament can freely exercise substantial oversight over ministers and, at its own
initiative, pass resolutions or statutes limiting government war policies. In reality,
however, Parliament's ability to call ministers to account and control the legislative
process is rather weak in the face of ministerial influence. The government's
proposed resolution, within this context, arrives at the worst of all possible
solutions; it allows the continued exercise of undemocratic prerogative war
powers, 'rubber-stamped' by the Commons through an executively
Page 160

dominated and controlled legislative process, giving only a pretence of meaningful

accountability.
5. Conclusion: Reform beyond War Powers

One final look at American law suggests the importance of institutional checks and
balances in the range of structural choices available for regulating war powers.
These go beyond direct legislative authorizations for executive war-making
decisions. An illustration is Congress' legislative 'ace-in-the-hole'—the power of
the purse, as well as the power to raise and support an army. Assuming (but not
conceding) for sake of argument that the President can unilaterally commit armed
forces or initiate armed conflict without prior legislative approval, it is clear that
Congress (under its Article I, section 8 powers) can cut off military spending or
deprive the President of the military forces at his disposal. This legislative power of
the purse, pitted against an executive prerogative of command, is an old conflict
that harkens back to the civil wars in Great Britain and was very much on the
minds of the framers of the US Constitution. It is perhaps an extreme power, yet it
is a potent one that can stop cold presidential military adventurism. In Britain, this
ace is ultimately parliamentary sovereignty, a concept of legislative power that
encompasses far more than control over finances. Indeed, parliamentary
 Efficiency and Accountability in War Powers Reform

sovereignty is the ultimate force looming behind the convention of responsible

government, ensuring that high ministers of the Crown sit in Parliament and
remain accountable to the people's elected representatives for their actions. This
accountability extends, in principle, to those decisions taken under the prerogative
war powers. The point is that both Congress' power of the purse and Parliament's
sovereignty demonstrate that how a constitution structurally manages the
normative choices of efficiency and accountability, through institutional
cooperation or tension, can take varied forms beyond the narrower question of
who does or does not authorize war at the outset.

Nevertheless, some would say that even Congress' power of the purse is subject
to a presidential veto, overridden only by a two-thirds majority in both houses.
Some might also say that the political prestige of the 'imperial presidency' can
dissuade congressional action, especially when the public might perceive
opposition to war as undermining military forces in the field. The imposing position
of the executive branch, along with the pressures of party loyalties, can often
make Congress reluctant to leverage its financial control against a President's
military policies. In the UK, by comparison, the party system is especially strict, the
executive exercises a good degree of influence over a parliamentary majority, and
the courts ultimately have little power in law to review war powers cases.36
Page 161

Despite the theory of responsible government, in practice the executive tightly

manages the legislative process, especially in the House of Commons. This
means that, although the government certainly does not always get its way on
controversial issues, statutes and resolutions often reflect the will of Crown
ministers rather than independent choices and cross-party compromises among
the whole body of MPs.37 Where the government would voluntarily allow a
Commons vote on a prerogative war decision, as Mr. Blair did in 2003, any lack of
truly independent legislative scrutiny could threaten to become even more acute. It
is unlikely that the government would allow a vote if not confident of victory.
Moreover, the Prime Minister's confrontation with even considerable dissent by
MPs could be a wise political strategy, expending political capital and defusing
opposition 'at one go' in exchange for a 'democratic mandate' for war. The
government's proposed resolution could compound this problem even further. On
the other hand, as the Labour back-bench rebellion demonstrated on the Iraq war
vote, the right kind of parliamentary approval process might potentially hold the
government accountable, so long as it is not in a position to deny or manipulate
that process to its political advantage (as would be the case under the proposed
 Efficiency and Accountability in War Powers Reform

resolution).38 However, if one takes seriously the charge that Parliament has
become increasingly supine before the executive branch or effectively unable to
challenge the government on its own initiative and in its own way, then there is a
more pressing and widespread need for assessing the mechanisms of democratic
accountability beyond the context of war powers alone. The question of who
decides on war and peace for the United Kingdom, accordingly, ought not to be
considered narrowly or in isolation, but should be re-evaluated as one aspect of
the larger project of constitutional reform.

From this perspective, the entire debate over reform of the war prerogative has
been flawed from the start by the government's piecemeal approach and
reluctance to conceptualize constitutional reform more holistically. This
shortcoming
Page 162

is apparent, for example, in the government's curious and short-sighted failure to

complete reforms to the House of Lords before structurally re-adjusting
Parliament's role in war-making. As the contentious American experience
indicates, the problem of balancing efficiency with accountability values in war-
making is closely bound up with just such larger questions of constitutional
structure. This is seen in the competing interpretative models of congressionalists,
presidentialists and those who would leave the resolution of war powers disputes
to the vicissitudes of politics. Consequently, an intellectually honest approach to
war prerogative reform in the UK requires that politicians and other commentators
openly confront the 'elephant in the room'; that is, that the system of responsible
government—as it has evolved under the strict party system—arguably now allows
the government to control Parliament rather than the other way around. For the
reasons explained in this commentary, the proposed resolution compounds, rather
than alleviates, a potentially profound constitutional problem of executive influence
over the legislature, the House of Commons in particular. Instead of the
government's proposed resolution, democratic accountability of the war powers
can thus be better achieved and appropriately balanced with the efficiency of even
the undemocratic prerogative, by somehow confronting the more fundamental
problems of the party system and the resulting ministerial influence over MPs.
Whether war-making decisions are ultimately sourced in resolution, primary
legislation, or prerogative, successful reform in this area is unlikely unless
Parliament can confidently and independently assert itself against the Crown and
its Ministers.
Appendix
 Efficiency and Accountability in War Powers Reform

Draft Detailed War Powers Resolution

In UK Ministry of Justice, The Governance of Britain—Draft Constitutional

Renewal Bill, Command Paper 7342 (March 2008) ['White Paper'], vol. 1, Annex
A.

That an humble Address be presented to Her Majesty praying that decisions of

Her Majesty's Government relating to the use of force by Her forces outside the
United Kingdom be made subject to the following provisions.
1. Approval required

(1) The approval of this House should be obtained for a conflict decision
made after [insert appropriate date]

(2) A conflict decision is a decision of Her Majesty's Government to

authorise the use of force by UK forces if the use of force:-

(a) would be outside the United Kingdom, and

(b) would be regulated by the law of armed conflict.

Page 163

(3) Approval for a conflict decision has been given if the decision is
covered by an approval given in the way set out in paragraph 2 below.

(4) In these provisions 'UK forces' means forces from the regular forces or
the reserve forces as defined in Section 374 of the Armed Forces Act 2006.

2. Process for approvals

(1) Sub-paragraphs (2) to (7) below are about the process by which this
House will give approvals covering conflict decisions.

(2) It is for the Prime Minister to start the process in relation to a proposed
approval.
 Efficiency and Accountability in War Powers Reform

(3) The Prime Minister does that by laying before this House a report
setting out:-

(a) the terms of the proposed approval, and

(b) the information about objectives, locations and legal matters that the
Prime Minister thinks appropriate in the circumstances.

(4) This House gives the approval by resolving to approve the terms set
out in the Prime Minister's report.

(5) This House may send a message to the Lords asking for its opinion on
whether this House should resolve to approve those terms.

(6) If a message is sent, no approval will be given less than [] sitting days
after the day on which the Lords receives the message.

(7) 'Sitting day' means a day on which the Lords sits.

3. Exceptions to requirement for approval: emergencies and security

issues

(1) Approval is not required for a conflict decision if the emergency

condition or the security condition is met.

(2) The emergency condition is that:-

(a) the conflict decision is necessary for dealing with an emergency, and

(b) for that reason, there is not sufficient time for an approval covering the
decision to be given before the decision is made.

(3) The security condition is that:-

 Efficiency and Accountability in War Powers Reform

(a) the public disclosure of information about the conflict decision could
prejudice [one or both] of the matters mentioned in sub-paragraph (4) below,
and

(b) for that reason, it is not appropriate for an approval covering the
decision to be sought before the decision is made.

(4) The matters are:-

Page 164

(a) the effectiveness of [activities which result from the decision or with
which the decision is otherwise connected];

(b) the [security/safety] of:-

(i) members of UK forces;

(ii) members of other forces assisting (directly or indirectly) UK forces;

(iii) other persons assisting (directly or indirectly) UK forces or other

forces within sub-paragraph (ii).

(5) It is for the Prime Minister to determine if the emergency condition or

the security condition is met.

(6) In coming to a determination, the Prime Minister should, if feasible,

consult the chair of any committee the Prime Minister thinks appropriate.

(7) Sub-paragraphs (8) to (11) below apply if the Prime Minister

determines that the emergency condition or the security condition is met.

(8) The Prime Minister should, as soon as feasible, inform the chair of any
committee the Prime Minister thinks appropriate.

(9) The Prime Minister should lay before this House a report:-
 Efficiency and Accountability in War Powers Reform

(a) giving reasons why the Prime Minister made the determination about
the emergency condition or the security condition, and

(b) setting out, in relation to the conflict decision in question, the

information about objectives, locations and legal matters that the Prime
Minister thinks appropriate in the circumstances.

(10) The report should be laid within [ ] days after the day on which the
conflict decision is made.

(11) But, in a case involving the security condition, the report does not
have to be laid so long as the Prime Minister is satisfied:-

(a) that the circumstances set out in sub-paragraph (3)(a) above continue
to exist or that the laying of the report could prejudice national security or the
United Kingdom's international relations, and

(b) that for that reason, it is not appropriate to lay the report.

4. Exceptions to requirement for approval: special forces

(1) Approval is not required for a conflict decision if the decision covers
one or both of the following only:-

(a) members of special forces;

(b) other members of UK forces for the purpose only of their assisting
(directly or indirectly) activities of special forces.

Page 165

(2) 'Special forces' means any forces the maintenance of whose

capabilities is the responsibility of the Director of Special Forces or which
are for the time being subject to the operational command of that Director.

5. Exceptions to requirement for approval: Parliament dissolved

 Efficiency and Accountability in War Powers Reform

(1) Approval is not required for a conflict decision if the decision is made
at a time when Parliament is dissolved.

(2) The Prime Minister should lay before the new House of Commons a
report setting out, in relation to the conflict decision, the information about
objectives, locations and legal matters that the Prime Minister thinks
appropriate in the circumstances.

(3) The Prime Minister should lay the report:-

(a) within [ ] days after the day of the first meeting of the new Parliament,
or

(b) if that time frame is not feasible, as soon as it is feasible to lay the
report.

1
This piece is an extended and revised version of a presentation given at the Royal United Services Institute,
London, in 2008, while the author was a Lecturer at the University of Aberdeen School of Law.
2
Draft Constitutional Renewal Bill, in UK Ministry of Justice, The Governance of Britain—Draft Constitutional
Renewal Bill, Command Paper 7342 (March 2008) ['White Paper'], vol. 2.
3
See 'Brown Sets Out Reform Proposals', BBC News, 3 July 2007, online: BBC News <http://news.bbc.co.uk/2/hi/uk
news/politics/6258794.stm >.
4
See J. Glover, 'Queen's Powers Should Be Removed, says Cameron', The Guardian, 6 February 2007, online: The
Guardian <http://www.guardian.co.uk/politics/2006/feb/06/uk.conservatives > and A. Grice, 'MPs Should Be
Awarded Queen's Historic Powers, says Campbell', The Independent, 11 June 2007, online: The Independent
<http://www.independent.co.uk/news/uk/politics/mps-should-be-awarded-queenshistoric-powers-says-campbell-
452649.html >.
5
House of Commons, Public Administration Select Committee, Fourth Report, Taming the Prerogative:
Strengthening Ministerial Accountability to Parliament, (2003–04 HC 422); House of Lords, Select Committee on the
Constitution, Fifteenth Report, Waging War: Parliament's Role and Responsibility (2005–06 HL 236); UK Ministry of
Justice, The Governance of Britain, Command Paper 7170 (July 2007) ['Green Paper'].
6
'White Paper', op. cit. note 1, vol. 1 at paras 215, 226 and Annex A.
7
Select Committee on the Constitution, Fifteenth Report, op. cit., n. 4.
8
See op. cit., notes 2 and 3; See also M. Tempest, 'Government Kills Short's War Bill', The Guardian, 21 October
2005, online: The Guardian <http://www.guardian.co.uk/politics/2005/oct/21/iraq.iraq >.
9
See M. Smith, 'Blair Planned Iraq War from the Start', Sunday Times, 1 May 2005, online: The Times
<http://www.timesonline.co.uk/tol/news/uk/article387237.ece >; A. Sparrow, 'Attorney General “had doubts on Iraq
only days before war”', The Telegraph, 24 March 2005, online: The Telegraph
 Efficiency and Accountability in War Powers Reform

<http://www.telegraph.co.uk/news/uknews/1486314/Attorney-General-had-doubts-on-Iraq-only-days-before-war.html
>; 'Serious Flaws in Iraq intelligence', BBC News, 14 July 2004, online: BBC News <http://news.bbc.co.uk/2/hi/uk

news/politics/3890961.stm >.
10
Select Committee on the Constitution, Fifteenth Report, op. cit., n. 4, App. 4; 'White Paper', op. cit., n. 1, vol. 2,
Annex B.
11
See D. Jenkins, 'Constitutional Reform Goes to War: Some Lessons from the United States', (2007) PL 258, for an
extended comparative analysis of war powers in the US and UK.
12
See US Department of Justice, Legal Authority Supporting the Activities of the National Security Agency Described
by the President (19 January 2006) [arguing that the Commander in Chief has inherent constitutional authority to order
surveillance of international communications into and out of the US]; Ex parte Quirin, 317 US 1 (1942) [President had
statutory authority to try Nazi saboteurs by special military commission]; But compare Youngstown Sheet and Tube Co
v Sawyer, 343 US 579 [denying President power to nationalize the steel industry during the Korean War without
congressional authorization].
13
See S. B. Prakash and M. D. Ramsey, 'The Executive Powers over Foreign Affairs', (2001) 111 Yale LJ 231;
United States v Curtiss-Wright Export Corp., 299 US 304 (1936).
14
The Prize Cases, 67 US (2 Black) 635 (1863).
15
Some very early federal case law supports this view. See Bas v Tingy, 4 Dallas (4 US) 37 (1800) and Little v
Barreme, 2 Cranch (6 US) 170 (1804); See D. J. Barron and M. S. Lederman, 'The Commander in Chief at the Lowest
Ebb—Framing the Problem, Doctrine, and Original Understanding', (2008) 121 Harv. L Rev. 689.
16
See J. Nzelibe and J. Yoo, 'Rational War and Constitutional Design', (2006) 115 Yale LJ 2512, proposing one of
the more extreme versions of this interpretive model.
17
Edward Corwin, The President: Office and Powers, 1787–1984 (1984), 5th rev. ed. by R. W. Bland, T. T. Hindson,
and J.W. Peltason (eds) sets out the classic formulation of this position.
18
See S. Prakash, 'Imperial and Imperiled: The Curious State of the Executive', (2008) 50 Wm. and Mary L Rev
1021; J. E. Stromseth, 'Understanding Constitutional War Powers Today: Why Methodology Matters', (1996) 106 Yale
LJ 845.
19
A. M. Schlesinger, The Imperial Presidency (1973).
20
War Powers Act of 1973, Pub. L. No. 93–148, 87 Stat. 555 (7 Nov. 1973), codified at 50 USC. § 1541 et seq.
(2000).
21
Campbell v Clinton, 752 F.Supp. 1141 (D. D.C. 1990).
22
See Baker v Carr, p. 369 US 186 (1962) [setting out criteria for political questions].
23
See Orlando v Laird, p. 443 F.2d 1039 (2nd Cir. 1971).
24
Compare, for example, Dellums v Bush, 752 F.Supp. 1141 (D. D.C. 1990) with Doe v Bush, 323 F.3d 133 (1st Cir.
2003).
25
'Green Paper,' op. cit., n. 4 at para. 26.
26
An established pattern of judicial deference and abstention can be seen, for instance, in R. (on the application of
Gentle) v The Prime Minister (2008) UKHL 20, R v Jones (2006) UKHL 16, Secretary of State for the Home Department
v Rehman (2003) 1 AC p. 153 (H.L.), and R (on application of Campaign for Nuclear Disarmament) v The Prime
Minister (2002) All ER (D) 245 (Q.B.).
27
'White Paper', op. cit., n. 1, vol. 1 at para. 215. See also ibid., vol. 2 at para. 108. Before settling on the resolution
option, the Government considered the four alternatives of (i) a detailed House of Commons resolution, (ii) full
legislative provision, (iii) a general House of Commons resolution, and (iv) a 'hybrid' option creating a statutory
obligation of parliamentary approval, but leaving the details of such approval to resolution. Ibid., vol. 2 at paras 96–110,
and Annex A; See House of Lords and House of Commons, Joint Committee on the Draft Constitutional Renewal Bill,
Draft Constitutional Renewal Bill (2007–08 HL 166, HC 551) ('Joint Committee Report'), vol. 1 at paras 351–52,
summarizing concerns of witness about retention of the prerogative war powers.
 Efficiency and Accountability in War Powers Reform
28
'White Paper', ibid., vol. 1 at para. 215.
29
Ibid., vol. 2 at para. 92; See 'Joint Committee Report', op. cit., n. 26, vol. 1 at para. 311.
30
'White Paper', ibid., vol. 2 at paras 76–77, 91–95; 'Joint Committee Report', ibid., vol. 1 at paras 314–18, 355–57,
480; House of Commons, Public Administration Select Committee, Tenth Report, Constitutional Renewal: Draft Bill and
White Paper (2007–08 HC 499) at paras 79, 94; For a nuanced discussion of how a statute might (or might not) invite
judicial review of war powers disputes, see A. McHarg, 'Reforming the United Kingdom Constitution: Law, Convention,
Soft Law', (2008) 71 Modern L Rev 853, 870–73.
31
'White Paper', ibid., vol. 1 at paras 221, 223 and vol. 2 at para. 97.
32
In the 'White Paper', ibid., vol. 1at para. 225 and vol. 2 at paras 83–84, the government suggests some possibilities
about the role of the House of Lords in rendering advice to the Commons, but these are speculative and not addressed
in the proposed resolution. See also 'Joint Committee Report', op. cit. note 26 at paras 344, 476.
33
For criticisms on this point, see 'Joint Committee Report', ibid., vol. 1 at paras 319– 321, 471; the government
suggests that this should be determined with reference to the meaning of 'armed conflict' under the Geneva
Conventions and their Protocols. 'White Paper', ibid., vol. 2 at para. 97.
34
The 'Joint Committee Report', ibid., vol. 1 at paras 322–332, 472, broached concerns about overly broad executive
discretion in this regard, but ultimately dismissed them, finding such discretion appropriate. See also ibid., vol. 1 at
paras 359–60. However, the Public Administration Select Committee, Tenth Report, op. cit., n. 29 at paras 72–78, 93–
94, as well as at Conclusion and Recommendation nos. 24–25, 36–41, was highly critical in this regard.
35
'Joint Committee Report', ibid., vol. 1 at paras 347, 354, 376–81, 470, 478, 487; Public Administration Select
Committee, Tenth Report, ibid. at paras 79, 95, as well as Conclusion and Recommendation no. 29; See McHarg, loc.
cit., n. 29 at pp. 875–76.
36
See op. cit., n. 25; Nonetheless, the theoretical possibility for review of the war prerogative exists in the unlikely
event that the matter might be justiciable. Council of Civil Service Unions v Minister for the Civil Service, [1984] 3 All
E.R. 935, [1985] A.C. 374 (H.L.).
37
But see P. Davis, 'The Significance of Parliamentary Procedures in Control of the Executive—A Case Study: The
Passage of Part I of the Legislative and Regulatory Reform Act 2006' [2007] PL 677, arguing that legislative processes
within and between both houses of Parliament effectively restrain the executive on matters of constitutional importance.
Indeed, the Government has suffered several notable defeats in recent times. See 'Blair defeated over terror laws',
BBC News, 9 November 2005, online: BBC News <http://news.bbc.co.uk/2/hi/uknews/politics/4422086.stm >; D.
Charter, 'Religious Hate Bill Lost after Blair Fails to Vote', The Times, 1 February 2006, online: The Times
<http://www.timesonline.co.uk/tol/news/politics/article724179.ece >; M. Tempest, 'Lords Defeat Blair over Terror Bill',
The Guardian, 28 February 2006, online: The Guardian
<http://www.guardian.co.uk/politics/2006/feb/28/uksecurity.terrorism >; N. Watt, 'Brown Abandons 42-Day Detention
after Lords Defeat', The Guardian, 13 October 2008, online: The Guardian
<http://www.guardian.co.uk/politics/2008/oct/13/terrorism-uksecurity1 >.
38
See G. Jones, 'Blair Wins Historic Vote for War', The Telegraph, 19 March 2003, online: The Telegraph
<http://www.telegraph.co.uk/news/worldnews/middleeast/iraq/1425017/Blair-wins-historic-vote-for-war.html >
[detailing the extent of dissent among Labour MPs].

End of Document