Journal of Conflict and Security Law Advance Access originally published online on May 27, 2009
Journal of Conflict and Security Law 2009 14(1):145-165; doi:10.1093/jcsl/krp012
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Efficiency and Accountability in War Powers Reform
* Assistant Professor of Law, University of Copenhagen; Attorney at Law (W.Va., Oh.). E-mail: David.Jenkins{at}jur.ku.dk
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Abstract |
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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.
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.