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Democracy, legitimacy, and UK foreign policy

Andrew Blick, Stuart Weir

'Foreign policy' touches the everyday lives of the population to such an extent that it should no longer be left in the pre-democratic realm of the royal prerogative.

 

A centrepiece of Gordon Brown’s constitutional reform programme is the introduction of a House of Commons Resolution stipulating that governments must obtain the explicit approval of MPs before committing British troops to war. Previously, governments have had the power to go to war without even consulting Parliament, let alone seeking approval. The draft Constitutional Renewal Bill also places the ratification of treaties by parliament onto a statutory footing (Ministry of Justice, 2008a, 47-56).

These are apparently changes of historic significance. They are intended to contribute to the Prime Minister’s stated objectives of making power more accountable, reinvigorating democracy and rebalancing power between Parliament and the government (Ministry of Justice, 2007a). They are also part of what is, in principle at least, an even deeper commitment to democratic oversight of government.

The July 2007 Governance green paper renounces the executive’s royal prerogative powers under which ministers exercise authority in the Queen’s name without being obliged to consult Parliament or the public and pledges ‘to limit its own power by placing the most important of these powers onto a more formal footing, conferring power on Parliament to determine how they are exercised in future’ (Ministry of Justice, 2007a, 15).

The power to go to war and to ratify treaties (other than those which necessitate a change in the law) are two of the most significant prerogative powers which the Public Administration Select Committee singled out as priorities for reform in its path-breaking report, Taming the Prerogative (Public Administration Select Committee, 2004).But how far does the principled decision to renounce prerogative powers actually go in practice? What difference will a war powers resolution, the statutory ratification of treaties and the associated reforms on offer make to the democratic legitimacy of decisions over war and peace, and foreign policy in general? And what does the form of these reforms indicate for the government’s future intentions and conduct?

Let us begin with the resolution. Had it been in force during the lead up to the invasion of Iraq, then Tony Blair’s conduct would have more than met the obligations it imposes. There were two votes on substantive motions before the war in early 2003 (and another on the UN Resolution to force Saddam to cooperate with weapons inspectors late in 2002). The resolution requires only one. Gordon Brown and his successors will retain control over the timing of consultation with MPs and the information that they make available to Parliament and the people. Blair took full advantage of both powers to secure the outcome he wanted, calling a vote long after he had made his personal decision to act with the US; after prolonged political pressure on potential Labour rebels, and after issuing notoriously misleading documents and media briefings about Iraq’s possession of weapons of mass destruction.

Gordon Brown’s draft Constitutional Renewal white paper proposes that the legal advice given by the Attorney General will remain confidential; and that the Attorney General will remain a political appointment with a seat in the cabinet. Blair withheld Lord Goldsmith’s full legal advice on the legality of an invasion of Iraq to convey the impression that the case for military intervention without a further UN Security Council Resolution was firmer than it was; and there must at the very least be doubt about the ability of an Attorney who is a government minister and political appointee to withstand the Prime Minister’s need for more supportive advice.

The deployment of the Special Forces, which often marks the undeclared start of a conflict, will not require parliamentary approval, and so the covert initiation of war, as in Iraq during 2002, in advance of a parliamentary vote on full invasion, will remain possible.

Hang on, there is more! The executive will keep even more flexibility under the resolution. A Prime Minister will be able to avoid a vote of approval if he or she decides that an emergency or security requires it. As the resolution will not be set out in statute – it will amount only to a convention – then it will be almost impossible to mount a legal challenge on the grounds that a government has violated proper procedure. Moreover, once troops are deployed, any resolution could become a blank cheque for indefinite engagement, even if the nature of the initial mission is transformed. There are echoes here of President Lyndon Johnson’s reliance on the so-called ‘Tonkin Gulf Resolution’ of 1964 to legitimise the escalation of US involvement in Vietnam. Afghanistan is another example of ‘mission creep’.

Informality rules then – and not only in the parliamentary and public arena, but within government too. There is nothing in Brown’s proposals that will ensure conduct more appropriate to the norms of ‘cabinet government’. Cabinet government, ‘one of the permanent gifts conferred by British political genius on the art and science of civilised government’, was once held to be a check on executive arrogance since it supposed that decisions and policies would be subject to collective, even deliberative, debate and approval (Weir and Beetham, 1999, 25, 119). It has proved less permanent a ‘gift’ than Lord Hailsham (for it was he) imagined. Mrs Thatcher and Blair consigned it to the bonfire of conventions.

In the run-up to the Iraq war, not only parliamentarians but cabinet ministers were denied access to important information about Iraq, as the Butler review found. Detailed papers were considered only by an informal group of ministers and officials. Such practices were possible because there are few constraints on prime ministers in the way they conduct cabinet business and government in general. In conjunction with the Cabinet Secretary, it is the Prime Minister who makes and interprets the Ministerial Code, a document which has no independent status or free-standing enforcement mechanisms (Committee of Privy Counsellors, 2004, 146–48; Blick, 2005); and Cabinet Secretaries in the Blair era were not renowned for standing up against the ‘Tony wants’ imperative. The Brown government has not suggested it intends to change these arrangements.

 

The ideology of executive power

Public and political controversy around the way the Blair government took the country into war against Iraq largely prompted the very reform programme Brown has introduced. But for all that a resolution on war powers has a grander ring than a mere convention, Brown has contrived to retain all the flexibility that disfigured the policy-making that took us into an illegal and destructive war; and many observers were convinced that the Iraq votes and the political convulsion that accompanied them (with hundreds of thousands of people on the march) had already established a convention.

But there is a wider point here. Policy-making in the UK still suffers from the Bagehot syndrome – the idea that a sovereign ‘single determining energy’, free of parliamentary restraint, makes for good government (Bagehot, 1867, 222). It is simply not sufficient to demand one-off consent to a policy from MPs after a set-piece debate, at a time of the government’s choosing and on the basis of information it sees fit to provide. In a modern democracy, oversight must be meaningful and ongoing, taking place before, during and after a decision is made, especially one with such far-reaching consequences for human life.

Reform of the royal prerogative therefore is not merely a matter of statute or form. It has to be accompanied by an ideological change in the country’s governing traditions to embrace openness, deliberative debate and continuing oversight of major policies and decisions. Such qualities are not conspicuous in domestic affairs. They are almost entirely missing in the conduct of foreign and trade affairs that has been, and in essence continues to be, deliberately kept free of parliamentary oversight, public approval and judicial review by the use of prerogative powers; as Geoffrey Howe explained to the Scott inquiry, the public are not to be trusted as debate on, for example, arms sales to Iraq was likely to be too ‘emotional’ and official policy-making was already too inhibited by public opinion (Norton-Taylor, 1995, 61).

Carne Ross, the former diplomat at Britain’s UN Mission in New York, who gave oral and written evidence to the Foreign Affairs Committee (FAC) after giving evidence to the Butler inquiry, argues that Parliament’s scrutiny of foreign policy is ‘negligible’.

Policy-making in the UK government and the FCO in particular remains a ‘closed box’. Ministers are but the tip of the iceberg of decision-making. Officials are anonymous and unaccountable. Foreign policy now touches on more and more issues in our domestic lives (food standards, climate change, terrorism), yet policy is still decided by small groups of officials invisible to the public in whose name they are acting.

Ross dismissed the FAC’s series of reports on the Iraq war ‘as acute evidence of the failure to scrutinise.’ The Foreign Office paid little attention to the committee’s recommendations.

The FCO will politely pretend otherwise, but it is in reality able to carry on its business without fear of significant intrusion. Parliamentary questions, foreign affairs debates and occasional single topic debates, are straightforward for officials and ministers to fob off with stock and bromidic answers, and thus form a kind of theatre – a sham of democratic accountability, when in reality there is none.

A joint research project investigating parliamentary oversight of foreign policy, conducted by Democratic Audit with the Federal Trust and One World Trust (Burall et al, 2006; Weir, 2007), came to similar conclusions. Like Ross, the two reports emphasised that foreign policy, more accurately rendered as ‘external policies’, is of huge domestic significance, because it affects the everyday lives of British people on everything from food prices to terrorism, from equal pay to drugs and crime, from energy and migration to the weather. Britain’s negotiations within the European Union in particular have a bearing on the greater part of legislation and regulation in the UK.

Moreover, the British people have strong views on Britain’s role abroad; if nothing else, the invasion and occupation of Iraq has made that plain. They want Parliament to set the direction of international policies and to play a part in decisions about going to war, or selling arms, or giving aid, or making trade fairer (see box). The poll also shows that people think policies ought to reflect a sense of moral purpose in the world. But in fact the public and Parliament too are mere spectators in policy-making.

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Public opinion and foreign policy

An ICM opinion poll*, commissioned by Democratic Audit, the Federal Trust and One World Trust in 2006, to assess the public opinion on the reforms that were advocated in Not in Our Name (Burall et al, 2006), indicated that the British people believe overwhelmingly in a democratic foreign policy, in which Parliament as a whole – not just the Prime Minister and the cabinet – should set the direction of Britain’s international policies. The poll results also revealed a major consensus around key elements of an ‘ethical’ foreign policy and a strong wish to pursue policies that are more independent of the United States.

Key findings of the poll are as follows:

  • Asked who should decide Britain’s main foreign policy objectives in pursuing British interests abroad, 85 per cent said ‘Parliament as whole’ as against 13 per cent for ‘the Prime Minister, ministers and their advisers’
  • 86 per cent of respondents agreed that parliamentary committees should fix ‘soft mandates’ for the Prime Minister and ministers in advance of negotiations with the EU and other international bodies
  • 89 per cent of respondents said that Britain should seek agreement through the UN for action to deal with states that endangered British and western interests and should seek to comply with international law. Only 8 per cent favoured the use of armed force by Britain acting on her own or with allies
  • 83 per cent were against arms and military exports to countries which violated their citizens’ human rights (though being reminded that exports were important to the UK economy and jobs)
  • 85 per cent believed that Britain should ‘argue vigorously’ within the EU for reforms of EU trading practices to make them fairer for developing countries;

Two thirds of respondents also wanted Britain to adopt a more independent position within the Special Relationship with the United States. Half of the people asked (49 per cent) said that Britain’s foreign policy should be based on a close and equal association with both the European Union and the United States; 22 per cent said it should be on a close association with the EU and only 7 per cent on such an association with the US.

* ICM Research interviewed a random sample of 1007 adults aged 18+ by telephone between 13–15 January 2006. Interviews were conducted across the country and the results have been weighted to the profile of all adults. ICM is a member of the British Polling Council and abides by its rules. Further information at www.icmresearch.co.uk

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However, the ‘royal prerogative’, a pre-democratic relic of monarchical rule, gives the Prime Minister, ministers, officials, diplomats and special advisers the capacity to enter into international negotiations and commitments and to make ‘foreign policy’ in the widest sense without ever being required to seek parliamentary or popular approval.

Indeed, its scope is not confined to members of the government and civil servants. In 1999, Tony Blair made Lord (Michael) Levy, his tennis-playing chum and fund-raiser, the ‘Prime Minister’s Personal Envoy for the Middle East’ with a brief to enter into negotiations with (among others) the Syrian President and senior Israelis. Levy’s memoir (Levy, 2008) suggests that Blair owed Levy some sort of role in government. Whether or not one accepts Sir Christopher Meyer’s characterisation of Levy as ‘a vain diplomatic lightweight’ (Levy’s words), or takes Levy at his own (and he says, Robin Cook’s) more positive valuation, is beside the point. Thanks to the royal prerogative, a Prime Minister can appoint an individual to play a significant part in foreign policy outside proper accountability structures. The very idea of a Prime Minister’s ‘personal’ envoy is an affront to constitutionality. The appointment was not subject to open competition, as a regular Civil Service post would be. Levy was not accountable to Parliament, as a minister would be, nor even to the Foreign Secretary who is responsible in Parliament for the conduct of foreign policy. Not being a regular civil servant, he was not subject in full to the Civil Service Code.

If we set aside for a moment, waging war and ratifying treaties, then, the Prime Minister, ministers, officials, diplomats, special advisers and occasional crony frame policies and take decisions – and will continue to do so – in a host of spheres under the royal prerogative and thus outside effective democratic control:

  • negotiating with other EU member states over the EU budget and the UK contribution and a variety of other issues
  • deploying the armed forces
  • choosing allies, making deals with other nations, partnering the United States
  • playing a role in peace and other negotiations around the world
  • playing a role in international decisions on trade and climate change
  • contributing to the policies of the World Bank, IMF and other international bodies
  • playing a military role in NATO and agreeing political and military aims and projects
  • representing the UK on the UN Security Council and on all UN bodies.

In other words, the two ‘headline’ commitments on war powers and treaties in the government’s Governance programme simply scratch the surface of a mass of decision-making under the prerogative. Moreover, it is not only prerogative powers that protect the secrecy of this decision-making. The Freedom of Information (FOI) regime is especially weighted against disclosure on matters of external policy-making. The original FOI Act contains 23 clauses specifying 36 distinct exemptions to disclosure; over half – 19 in all – of which relate to external policies, from actually framing them to intelligence, legal advice, trade and commercial confidentiality, certain EU matters, defence and international relations (Burall et all, 1996, Appendix A).

Parliamentary oversight is further made harder and more complex by the nature of foreign policy in modern times. Foreign policy now is a wide-ranging and disparate set of processes, far removed from the exercise in previous eras of autonomous diplomacy under the royal prerogative. Most foreign policy is pursued through multilateral organisations, like the EU, the International Monetary Fund and the World Bank, and through multilateral agreements negotiated though bodies like the World Trade Organisation. Much of Britain’s ‘domestic’ legislation derives from legislation originating in Brussels or Strasbourg; the EU conducts international trade negotiations on behalf of the UK and other member states and spends much of the UK development aid budget. The UK also cedes authority to NATO.

 

Going with the flow of prerogative power

British ministers, senior civil servants and diplomats take part in the decision-making in such organisations under the royal prerogative. (Even the translation of EU decisions into UK law is subject only to an ineffective parliamentary procedure). This decision-making is as opaque and secretive within these organisations as it is in Whitehall. The most that MPs and peers can usually expect is a statement in Parliament, and that will be after the event.

Our researches for A World of Difference turned up an almost farcical example of Parliament’s inability to gain any information in advance of negotiations, let alone to share in framing a government’s position, as happens for example in Denmark and Finland. The then Foreign Secretary, Margaret Beckett, appeared before the Commons European Scrutiny Committee on 7 June 2007 to give evidence at their request on the forthcoming meeting of heads of state and government later in June that was to address the question of institutional reform in the wake of the failed Constitutional Treaty. Committee members wanted ‘to elicit the government’s position on key issues’. Their chairman, Michael Connarty MP, expressed their concerns about ‘the way in which, despite an avowed welcome for “parliamentary contributions to the debate”, the government has resisted every request from the committee for a statement of its views on what sort of changes there should be to the present [EU] institutional arrangements’. Mrs Beckett was unmoved; she stone-walled every question and eventually said,

One of the conclusions that I have come to is that the less I say about what we might in principle accept and what we might not, the more I preserve the maximum amount of negotiating space to resist anything that I think is not in Britain’s national interest. I appreciate that is unsatisfactory for the committee … [T]he more I say … the more I am giving away my negotiating room, which I am always deeply reluctant to do.

The government subsequently agreed a mandate for the creation of an EU Reform Treaty in June 2007 without any serious attempt to consult Parliament.

Parliament has generally become more effective recently, as Vernon Bogdanor noted at the first evidence session of the Joint Committee on the Draft Constitutional Renewal Bill. Much of the improvement stems from the reforms introduced by Robin Cook in his 2001–03 term as Leader of the House of Commons. However, when we analysed the role of Parliament in foreign affairs during the 2006–07 Parliamentary Session (Weir, 2007), we found that all the major policies and decisions passed Parliament by: for example, the continuing military operations in Iraq and Afghanistan; the UK’s relationship with the United States; consistency in the approach to human rights abuses (where, for global strategic reasons, the UK has proved reluctant to criticise or take measures against states such as Saudi Arabia, Uzbekistan and Israel).

Even on more particular issues where the Commons is supposed to be more effective its influence was generally negligible. It was a non-parliamentary body, the Intelligence and Security Committee (which is appointed by and reports to the Prime Minister) that carried out the formal investigation of alleged UK collusion in extraordinary rendition by the US. The committee failed to acquire sufficient information to draw definitive conclusions.

There were limited successes. Most notably, coordinated action by the Commons Foreign Affairs and Quadripartite committees contributed to a partial ban on cluster munitions in the UK armed forces; and Britain broke with the US to sign the Oslo Declaration against their use (now taken further in the Dublin Declaration.)

So what difference will the two decisions on making war and ratifying treaties make? It is perhaps helpful to imagine both measures as isolated rocks in a fast-flowing river. There they stand while under prerogative powers ministers and officials continue to make policies and take decisions that swirl past Parliament, often altogether unseen. There will be reports back from ministers, but not necessarily on all matters and too late for MPs or peers to exert influence. Even on the two reforms, the government has to date retained substantial executive discretion, as we have shown above in the case of war powers.

The government’s proposals on ratifying treaties also give ministers considerable ‘wriggle room’. Basically, the government will set the ‘Ponsonby Rule’, a convention governing parliamentary scrutiny of treaties, out in statute (Ministry of Justice, 2008b). The UK enters into more than thirty treaties a year so this is an important issue. But Ponsonby merely provides for the texts to be tabled for twenty-one sitting days before being ratified. It does not in practice lead to debates, let alone votes, taking place (Ministry of Justice, 2007b, 82–3). The institutional and procedural mechanisms to trigger this kind of deliberation do not exist, though the government states it is open to suggestions.

There is one important addition to the Ponsonby Rule: assuming one is ever held, a negative vote in the Commons would prevent the ratification of a treaty. At the same time, the decision to ratify (or reject) a treaty is the end point of a process of negotiation. Parliament will usually be excluded from any negotiations, or even possibly knowledge of them, and would then be presented with a ‘take it or leave it’ ultimatum – the possibility for amendment will not exist.

Ministers even have the option to bypass this process altogether if in their opinion such a course of action is necessary. And the Ponsonby Rule and the draft legislation define treaties formally and so very narrowly. In the stream of prerogative initiatives that will flow past Parliament are Memoranda of Understanding (MOUs) and other informal or non-binding instruments such as non-binding arrangements, understandings and declarations (Ministry of Justice, 2007b, 69-70). Whatever Tony Blair agreed on Iraq with George Bush at Crawford, Texas, in April 2002 was probably not written down at all and would not have qualified for scrutiny under Ponsonby or the new system. No more was the telephone call in which Blair confirmed his commitment to the invasion.

From an earlier era, the Sevres Protocol of 1956, which set out the collusion between Israel, France and the UK for the invasion of Egypt to stop Colonel Nasser from nationalising the Suez Canal, would also fail the Ponsonby test. And in this era, the most binding alliance to which the UK is partner – the ‘Special Relationship’ and the commitments it entails – have never and do not qualify for Ponsonby scrutiny.

And so for example the MOU, signed by the then Defence Secretary Geoff Hoon and Donald Rumsfeld in Brussels on 12 June 2003, committing the UK to cooperating with the US on missile defence (i.e., Son of Star Wars, which the Fylingdales upgrade serves), was not tabled under Ponsonby and so would seemingly not be covered by present plans for treaties. Parliament did not even see the document, let alone debate or vote on it. Hoon made a written statement to Parliament on 12 June, announcing that he had signed the joint MOU and adding, ‘The details of these bilateral arrangements are confidential between the respective governments at this stage’. Two weeks later he refused a Conservative request to place a copy of the MOU in House of Commons Library, citing Exemption 1 of the Code of Practice on Access to Government Information.

In fact, the MOU doesn’t give much more detail than Geoff Hoon gave in his parliamentary statement. Why keep it secret? Because the government has plans to build the framework of trans-Atlantic military and industrial cooperation that are not to be hampered by awkward questions about the advisability of the whole project. There was to have been consultation on the missile defence project and a glossy document was accordingly published in December 2002. Geoff Hoon buried that reckless commitment with a bland announcement in February 2003 that the government had agreed to the US request to upgrade Fylingdales radar station.

 

Gaining democratic control

As we have shown, ‘foreign policy’ touches the everyday lives of the population to such an extent that it should no longer be left in the pre-democratic realm of the royal prerogative. Even important-seeming reforms on war powers and treaties are less than they seem. They will have only a negligible impact on the conduct of foreign policy, even on the government’s ability to make war or enter into international agreements.

First, the government has embellished them with numerous ‘get out of jail’ cards. Secondly, royal prerogative powers need to be replaced on a systematic basis with clear statutory rules if these two small and ambiguous measures are to have any effect, or if Parliament is really to exert any effect on the broad sweep of foreign policies. Thirdly, there has to be an explicit agreement that the government will give Parliament a recognised participatory and scrutiny role that gives MPs and peers a share in the framing of policies and decision-making rather than the power of a mere retrospective check on what has been done. In such a case, government’s foreign dealings would have to become transparent and open to public influence. Otherwise the pledge to rebalance power between government and Parliament is a fraud.

What if Brown has a change of heart? In the first place, we recommend that the government should agree practices with MPs and peers that enable them to engage more effectively with the conduct of foreign policy under statutory rules. Parliaments and their committees in countries such as Denmark, Sweden and Finland practice mandating. The committees meet with ministers ahead of meetings of the European Council of Ministers and bind them to specific negotiating positions.

In a 2005 report the Commons Modernisation Committee, having investigated the Finnish system, argued that differences between Finland and the UK meant that mandating was not directly transferable. Nevertheless the committee expressed admiration for ‘the close co-operation between Members and Ministers as national positions are prepared’. The report went on to note,

It can be immensely valuable to any Minister negotiating with his or her counterparts from other Member States to be able to assert that the great majority of the national parliament supports his or her approach’ (Select Committee on the Modernisation of the House of Commons, 2005, para. 40).

The UK Parliament could and should demand a share in policy-making through ‘soft mandating’ whereby ministers attend meetings of the appropriate specialist select committee prior to significant EU or other international negotiations and explain what their broad approach will be. If they depart significantly from their stated general intentions the committee could require them to attend another session to explain the outcome.

Such a change would also necessitate a shift in responsibilities. The major select committees would have to ‘mainstream’ European and relevant foreign policy matters so that they could fulfil this wider role. To make a reality of scrutiny of war powers and treaties joint committees would probably have to be set up to monitor the disposition of the armed forces, diplomacy and the negotiation of foreign treaties and agreements. Finally, the role of the Attorney General should be de-politicised and her or his advice on substantial issues such as war should be made public; and the FOI regime should be made more open on matters of foreign and defence policy.

A change of heart hardly seems likely. So Parliament must reassert itself. It is about time.

 

References

Bagehot, W. (1867/1993), The English Constitution, London, Fontana.

Blick, A. (2005), How to Go to War: a handbook for democratic leaders, London, Politico’s.

Burall, S, Donnelly, B. and Weir, S. (2006), Not In Our Name: Democracy and foreign policy in the UK, London, Politico’s.

House of Commons Select Committee on the Modernisation of the House of Commons (2005), Scrutiny of European Business, HC 465-I.

Levy, M. (2008), A Question of Honour, London, Simon and Schuster.

Ministry of Justice (2007a), The Governance of Britain, London, TSO.

Ministry of Justice (2007b), War powers and treaties: Limiting Executive powers, London, TSO.

Ministry of Justice (2008a), The Governance of Britain – Constitutional Renewal, London, TSO.

Ministry of Justice (2008b), The Governance of Britain – Draft Constitutional Renewal Bill, London, TSO.

Norton-Taylor, R. (1995), Truth is a Difficult Concept: Inside the Scott Inquiry, London, Fourth Estate/The Guardian.

Public Administration Select Committee (2004), Taming the Prerogative, HC 422, London, TSO.

Weir, S., and Beetham, D (1999), Political Power and Democratic Control, London, Routledge.

Weir, S. (ed). (2007), A World of Difference, London, Democratic Audit / Federal Trust /One World Trust.

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