War and law – again

Forgive me for returning to the subject of war. The immediate cause is a recently published report from Chatham House – Depending on the Right People: British Political-Military Relations 2001-10. Its author, former diplomat James de Waal, wants more transparent accountability for military decision-making. He thinks, unlike Tony Blair’s chief of staff Jonathan Powell, that this requires greater formality than simply assembling ‘the right people’ to take the appropriate decisions.

There are two reasons why this argument is important. The first is constitutional. Political accountability is, in many ways, the obverse of legal liability. Slowly, hesitantly, but consistently, the courts and parliament are pushing back concepts of an unaccountable royal prerogative that allows the executive to bypass the legislature and evade the courts. Tony Blair and David Cameron have both supported what is in effect a new constitutional convention. In Blair’s words, ‘going to war’ is now unthinkable ‘except in circumstances where militarily for the security of the country it needs to act immediately – without full parliamentary debate’.

The second reason will be apparent to anyone who is briefed on the experience of the Iraq and Afghan conflicts. Read former Guards officer Patrick Hennessey’s The Junior Officers’ Reading Club or Kandak: Fighting with Afghans and recognise the sheer pointlessness of British troops braving unimaginable danger to gain locations which are vacated as soon as won, working with allies understandably distrustful of their long-term commitment. It is just too close to Conrad’s famous image of the French gunboat meaninglessly firing into the jungle in Heart of Darkness. As for an image of the likely end of this conflict, it is difficult not to see helicopter evacuations from the US embassy at Saigon (pictured) – the ignominious end of the Vietnam war.

There has, of course, been a debate about whether legislation should require parliamentary approval for the commencement of military action. At one stage, when it seemed he might be interested in constitutional reform, Gordon Brown appeared ready to act. A Lords Constitution Committee at the time supported this idea: a differently constituted one, however, (including Lord Goldsmith, author of the famously contentious legal opinion on Iraq) reported in June this year that it disliked this obligation of formality.

De Waal’s argument takes place, however, at a less elevated level than simply the decision to start hostilities. He is concerned that other ‘key military decisions are taken with insufficient political oversight’. He challenges the traditional division of military operational and overall political decision-making. There is, he says, ‘no well-understood model of how ministers, senior military officers and civil servants should work together’. The consequence is that the actual form of both our engagement in Iraq (which was one of three packages initially presented to ministers and the only one that required control of part of the country) and the extension of our Afghanistan mission to Helmand province were coloured too much by the self-interest of the military and subject to too little political scrutiny.

For those interested in the politics of the Blair years and the constitution of the country, this is important. De Waal challenges ‘the narrative’, to which many (including me) have hitherto subscribed. This is that Britain’s recent military failures have been due to under-resourced but over-ambitious missions decided by politicians failing to heed professional advice: by contrast, ‘many of the principal problems seem to have occurred low down in the government machine rather than at the top’.

As an example, the Iraq inquiry heard evidence that equipment failures were due not to political parsimony but supply bottlenecks. So Gordon Brown’s truculence may not have been to blame, after all. And it was the leaders of the armed forces that wanted the most extensive role in Iraq, causing Jonathan Powell to warn his master: ‘the military are making another effort to bounce you into a decision [to this effect]’.

Our reduced military capacity means that another Falklands, Iraq or Afghanistan is well beyond our now severely reduced means. However, appropriate parliamentary control remains as crucial as it was to the framers of the bedrock of our modern constitution, the 1689 Bill of Rights: ‘the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law’. This requirement, radical at the time, now rather shows its age. Democratic Audit’s research put us in the category of European countries with the weakest military accountability, along with Greece, Cyprus and France.

De Waal makes his case. We should codify our arrangements for military accountability. In any event, debate on updating constitutional arrangements that derive from a settlement over 300 years ago, of which this is but one example, would surely prove at least as fruitful as the upcoming set pieces on EU membership or a separate Scotland.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice