PARLIAMENTS GOING TO WAR
PARLIAMENTS GOING TO WAR The role of Parliaments in deciding whether they go to war and use force in international affairs is examined in this article. 1. Waging war: the quintessential Executive power and the quintessential parliamentary ‘cheque/check’ In Montesquieu’s famous tripartite separation of powers (Executive, Legislative and Judicial), the power to make war was clearly part of the Executive power. It was the quintessential sovereign power when the sovereign and state were inseparable and supposedly all powerful domestically. As Legislative and Judicial powers were separated from Executive powers and given to Parliaments and courts, the power to make war remained clearly within the Executive power of the English sovereigns. But this power was always subject to availability of funding for the soldiers and weapons to fight them. Both became more expensive with the end of feudal levies and the increasing sophistication of 16th century weapons. As Parliament’s approval for taxation was necessary, they had an effective veto over what wars could be fought. Under the early Stuarts, Parliament did exercise that control in various wars of choice.1 In the early 16th century, the choices were generally between fighting the Hapsburgs, fighting the French, or not fighting anyone – until they found themselves at war with the King. The vote to pay or not pay for a war was effectively a vote for or against the war. For this, Parliament was necessary and seen to be necessary. For example, in 1625, King Charles I was thwarted in his attempts to continue participating in the Thirty Years’ War when Parliament allowed him only £112,000 instead of the £700,000 he asked for. During the 18th century, the power of the purse of the English Parliament constrained all government action and meant that monarchs started to appoint Ministers who could get legislation, especially money Bills, through Parliament. By convention, they came to be led, coordinated, and then nominated by a ‘Prime’ Minister. The ‘loss’ of the American colonies led to the crystallisation of the parliamentary system. Although Executive power legally remained in the sovereign’s hands, it was increasingly exercised by Ministers appointed by the sovereign under powers conferred by legislation or
exercised by the sovereign on the ‘advice’ of Ministers – advice which, following ever strengthening conventions, was increasingly followed. Executive power took two forms – the legal power which was retained by the King and the conventional power held by those who retained the confidence of the House of Commons. As the King followed the advice of the Prime Minister, the threat of ‘de-funding’ the military appeared superfluous.2 The relationship between legal and conventional Executive power takes four different forms: 1. Powers given to ‘Queen-in-Council’ or ‘Privy Council’ in which the sovereign would make decisions in the presence of, and on the advice of, Ministers. Many Commonwealth countries had similar bodies (e.g. Australia’s FEC – Federal Executive Council or Governor-General-in-Council). Actions are taken on Ministerial advice, but the Governor-General can and does ask questions and require answers – especially on issues of legality – a version of Bagehot’s description of the Crown’s role being “to be consulted, [to] encourage, [and] to warn.”3 2. The ‘prerogative’ exercised directly by the sovereign – seen as the residue of the sovereign’s once theoretically (but not historically) absolute power. These were increasingly exercised on advice, while those powers which could be exercised without advice came to be called the ‘reserve powers.’4 3. Statutory powers given to Ministers or nominated officials under legislation. These do not involve the Head of State unless the Minister is to be sacked for doing so. 4. Powers that are neither statutory nor prerogative (such as the power to enter contracts). These generally do not involve the Head of State. 2. The ‘War Power’ in Australia – shifting bases from colony to Dominion to independent nation Like many other Commonwealth countries, Australia did not initially gain full independence – securing effective domestic autonomy
Professor Charles Sampford
(DPhil Oxon) is the Director of the Institute for Ethics, Governance and Law – a multi-university Strategic Research Centre headquartered at Griffith University and established on the initiative of the United Nations University. He was the Foundation Dean of Law at Griffith and established the curriculum and research culture that has helped Griffith Law reach global rankings as high as #33 in the world and #1 in Australia. He led the Key Centre for Ethics, Law, Justice and Governance – the only Australian Research Council (ARC) Centre in law or governance and he has published 32 books and 150+ articles and chapters and been invited to give over 300 keynotes and other public presentations.
276 | The Parliamentarian | 2021: Issue Three | 100 years of publishing
