As background to the war powers issue, the London Daily Telegraph (2.11.15) reported denials by Tony Blair, the former British Prime Minister, that his Ministers had been instructed in 2003 to “burn” the initial legal opinion of the former British Attorney General, Lord Goldsmith, over the legality of the Iraq invasion - an opinion substituted a few days later by a fresh opinion justifying the war “under existing (UN) resolutions”.
The report implied from its sources that as the date for the invasion was “already in the diary” there could be no going back. Mr Blair has himself denied that he personally issued any such instruction to “burn” the first opinion.
Presumably the truth will out when the long-awaited report of the Sir John Chilcot Inquiry on the Iraq War is issued, now firmly expected to be in June or July next year.
Meanwhile debate has been raging over the Cameron Government’s plans to extend its bombing in Iraq to Syrian areas controlled by ISIS, and whether Parliament should be consulted first, in line with the precedent set in 2013 when the Government lost the vote in the Commons over responding to the Syrian government’s use of chemical weapons against its own people.
The Guardian newspaper (4.11.15), and the Commons Select Committee on Foreign Affairs, have argued that apart from the fact that bombing will not advance a solution to the Iraq/Syrian and wider regional conflicts, the Prerogative ‘war power’ is already vested in the Parliament, subject to Executive overrides for direct national defence and, probably, humanitarian emergencies. [The Commons Committee also took the view that Britain’s diplomatic authority in multilateral negotiations towards a ceasefire would be compromised by its status as a combatant.]
The issue today has mutated somewhat since the recent tragic terrorist bombings in Paris which illustrates that the context in which war powers are exercised is all important. Prior to this the view was that the situation in Syria did not represent a direct military threat to Britain and therefore war-like action in that regard was neither urgent, nor appropriate, without referral to Parliament. Now perceptions have changed, the politics have changed, and those who take the view that Britain is now directly and immediately threatened by ISIS believe the Government’s Executive Authority is a sufficient legal basis and its exercise for the purpose is justified. They accept that the Government should nonetheless make a referral to Parliament ex post facto.
Should this be the case it would be more difficult to make out that the Prerogative War Power had left the Executive. The issue would then be the processes within the Executive leading to a legally based authorisation. However at the time of writing Mr Cameron remained determined to secure a Parliamentary vote and its approval (if his reasons are sound).