by Philippe Lagassé
Canada’s military training mission in Afghanistan will end in 2014. When the Canadian Forces are next sent overseas, members of Parliament will likely vote on the mission. The Conservative government has made it a point to consult the House of Commons on military deployment decisions since 2006, and there is now an expectation that MPs will get to voice their views on these matters. Any government that ignored the House when ordering the military on a significant operation abroad would be roundly criticized. Yet this does not mean that the Commons controls the executive’s authority to send the CF overseas. The House’s role is merely advisory; MPs can express an opinion, but Parliament does not decide when Canada goes to war.
This arrangement has notable advantages. It allows MPs to debate deployments when time is not of the essence, but preserves the executive’s ability to deploy the armed forces during crises and emergencies, or when Parliament is not sitting. The current practice further ensures that, if Cabinet is convinced that it is vital for Canada to deploy the armed forces overseas and a majority of MPs disagree, the Commons must either accept the executive’s right to decide or withdraw its confidence in the government.
Canada’s MPs should appreciate that the British convention undermines the principles of responsible government as applied to military deployment decisions.
With this application of responsible government principles — namely, that the government gets to govern, unless the Commons no longer has confidence in the government — a balance between democratic legitimacy and an efficient executive is achieved.
Despite the benefits of the status quo, there are indications that MPs believe that the Commons should act as a check on this discretion authority of the government, which is sourced in a royal prerogative — powers and privileges that belong to the Crown in its own right, as recognized by common law.
Indeed, when Parliament was prorogued this past fall, members of the opposition were concerned that Cabinet could commit the CF to operations in Syria without first seeking the Commons’ approval. The executive would have had the prerogative authority to do so, but this reality disturbed opposition critics and certain commentators.
In a new paper published by the Canadian Defence & Foreign Affairs Institute, I examine what lessons Canadian MPs can learn from the United Kingdom about giving the Commons control over this royal prerogative. The British effort to tame this prerogative highlights issues that are worthy of our considerations.
British parliamentarians looked at passing an Act of Parliament to grant the Commons legal control over expeditionary military deployments, but they identified a significant problem with this avenue. Placing statutory limits around exercises of the prerogative to deploy armed force would invite the judiciary to review the legality of military deployments. British parliamentarians have been wary of involving judges in what is essentially a political question. Canadian MPs will also have to ask themselves if the courts should be involved in reviewing political decisions to send the armed forces on operations abroad.
In lieu of a statute, British parliamentarians have spent the past 10 years diligently constructing a constitutional convention that vests the Commons with political control over this power. The convention leaves the Crown’s prerogative untouched in law, thereby discouraging judicial re-views of military deployments. However, the convention makes it a binding constitutional rule that the executive must secure the approval of MPs before deploying the armed forces, except during crises and emergencies. The strength of this convention was demonstrated last August, when British MPs vetoed Prime Minister David Cameron’s proposal to consider military strikes against the Syrian regime.
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As the Syria vote showed, however, the British convention does not make military deployment votes matters of confidence. The British Commons can prevent the executive from sending the armed forces on expeditionary operations with no immediate consequence to MPs. Cabinet ministers, those who are constitutionally responsible for foreign and defence policy matters, can be prevented from acting by MPs who have no constitutional responsibilities or accountabilities for these issues. Put bluntly, the British convention is all check and no balance: when it comes to military deployments, the British government does not necessarily get to govern anymore, even when MPs express confidence in them to govern. The result has been greater confusion about how much discretion over expeditionary military deployments the British executive retains.
Canadian parliamentarians should therefore learn two lessons from the British experience.
First, our MPs must recognize that conventions do not form instantaneously. The British rules were only solidified after a decade of work and numerous committee reports. If Canada’s parliamentarians want binding control of this executive power, they must be prepared to put in a comparable level of effort.
Second, Canada’s MPs should appreciate that the British convention undermines the principles of responsible government as applied to military deployment decisions. The current Canadian practice ensures an alternative government must be cobbled together, or an election must be held, if MPs wish to actually sanction the executive for sending the CF on operation overseas without the approval of the Commons. A Canadian convention should preserve this relationship between the Commons and Cabinet to avoid the ambiguity that now surrounds the respective responsibilities of the British executive and legislature for these decisions.
Alternatively, Canadian parliamentarians could determine that our existing arrangement is good enough, since it does exactly that.
Published in the Ottawa Citizen, December 3, 2013