Judicial review under a British war powers act.

• Author: Jenkins, David

ABSTRACT

This Article considers how U.K. courts might exercise review under a hypothetical British "war powers act," in the event that the current Labour Government or an incoming Tory one responds to calls to reform the Royal War Prerogative and Parliament passes such a stature. The Article undertakes a comparative study, analyzing how U.S. courts apply the political question doctrine in war powers cases. It suggests that they apply the doctrine in a way that assesses the justiciability of the particular subject matter of a case, thereby supporting deference to the political branches in most war powers cases without foreclosing review altogether. Explaining how and why U.S. courts show such deference despite the Constitution's "declare war" clause and a strong form of judicial review, the Article concludes that a future British "war powers act" would likely hot invite the kind of inappropriate judicial activism that some inside and outside of government have feared in avoiding statutory prerogative reform.

TABLE OF CONTENTS I. INTRODUCTION II. WAR POWERS, SEPARATION OF POWERS, AND INSTITUTIONAL PROCESSES III. WAR POWERS, POLITICAL QUESTIONS, AND JUDICIAL REVIEW A. Executive, Legislative, and Judicial Roles in War-Making B. The Political Question Doctrine and Judicial Deference IV. CONCLUSION I. INTRODUCTION

Contrary to earlier indications that it would reform the Crown's war prerogative through primary legislation, the British Government now takes the position that a non-binding House of Commons resolution is the best means of increasing Parliament's involvement in the decision to go to war. (1) This resolution would require the Prime Minister to seek approval from Parliament before authorizing the British military to use force, subject to certain exceptions for emergencies or other national security reasons. (2) If implemented, the resolution would not have the binding legal effect of a statute and, therefore, would be unreviewable by the courts, thus preserving the Crown's war prerogative. (3) The Government's about-face partly addresses worries that any legal division of the war powers between the Crown and Parliament might result in undesirable judicial interference in delicate policy matters concerning war. (4) Intervening judges would not only risk undermining operational efficiency but also lack the democratic accountability of elected officials. Despite the current preference for a resolution, however, there remains the possibility of statutory reform at a later date--either by a continuing Labour Government or, more likely, by a new government under the Conservative Party, whose leader, David Cameron, has advocated changes to the war prerogative as part of a broader package of political reforms. (5) In any case, now that the subject of a British "war powers act" (as this Article generally labels a hypothetical statutory reform) has been seriously broached by all major parties, it seems appropriate to study some of the important constitutional issues potentially raised by such a statute. While prominent legal scholars have provided Parliament with thoughtful evidence about the desirability and expected impact of various options for war prerogative reform, (6) little academic commentary on this speculative but constitutionally significant subject has emerged.

This Article hopes to fill this gap in academic literature by addressing concerns that judicial enforcement of a war powers act (the content of which this Article does not speculate upon) might lead to excessive and inappropriate judicial activism in delicate policy matters concerning war. (7) It suggests that such concerns are likely exaggerated and that the main effects of a war powers act (contingent, of course, upon its actual terms) would probably be more political than legal. As the attitude of British judges toward a war powers act is wholly conjectural (as is future passage of such an act itself), this Article draws conclusions from American law, where courts, Congress, and the President have long faced entrenched constitutional provisions that govern the exercise of government war powers and that, to some degree, remain subject to judicial review. (8) This very different constitutional system actually makes for an apt comparison because its outer appearance of legalism masks the fact that U.S. courts are prone to defer to the other branches in matters of war despite the existence of legally binding constitutional or statutory provisions. (9) Such judicial behavior occurs because courts are usually institutionally ill-suited to interject themselves into non-justiciable matters such as war powers disputes unless the threatened injury to individual rights or an extreme executive--legislative conflict necessitates review. (10) A closer comparative look at the constitutional division of war powers and the political question doctrine in the United States is therefore a helpful starting point for predicting what the reaction of British courts might be to any future war powers act. Further speculation from an internal perspective of British public law is necessary for a fuller picture, but that step goes beyond the work herein. Accordingly, this Article is also an invitation for British legal scholars to more closely examine separation of powers and judicial deference within the specific context of war powers, which is a specialized field of public law somewhat underdeveloped in the United Kingdom but increasingly relevant and important in light of ongoing constitutional change.

2. WAR POWERS, SEPARATION OF POWERS, AND INSTITUTIONAL PROCESSES

   The Labour Government's decision to consider a resolution addressed two concerns that might arise from any legally binding, statutory requirement that the Government first get parliamentary approval before committing military forces to an armed conflict. (11) First, such a statute might undermine operational efficiency, flexibility, and spontaneity by subjecting military decisions to a slow, public, and adversarial political process in Parliament. (12) Second, such a statute might drag unelected judges into the highly sensitive and politically-contested area of war-making. (13) Any reform that would set legal restrictions on the Government's war powers, therefore, could have unintended consequences and might be too radical a departure from the British constitutional tradition of pure Governmental and Parliamentary--not judicial--involvement in decisions of high policy.

   The United States provides one of the best and most obvious examples of a departure from the British tradition. (14) The U.S. Constitution of 1787, enforceable in the courts by judicial review, formally divides the war powers between the legislative and executive branches. (15) This situation is distinct from the parliamentary system in Britain, where Crown ministers are accountable (in theory) to a sovereign Parliament (and the politically ascendant House of Commons) while simultaneously wielding a traditionally powerful, monarchical prerogative power over war. (16) While the separation of powers doctrine exists in the United Kingdom as a matter of abstract constitutional principle, (17) the convention of ministerial responsibility arguably tends to reduce the risk of serious, open confrontations between the Government and Parliament. (18) By contrast, the U.S. Constitution's sharp separation of the legislative and executive branches and the distribution of war powers between them intentionally sets conditions for potentially profound institutional conflict. (19) Such conflict has implications for judicial review and the role of the courts in war-making. (20) Regardless of whether one finds the prospect of substantial checks and balances desirable as a means of controlling government decision making, (21) primary legislation abolishing the war prerogative and requiring the Government to seek advance parliamentary approval for military action might replicate this internally adversarial American system. And if such a conflict does occur, the worry then becomes that unelected judges might intrude and inappropriately impose judicial solutions to controversial political disputes over war.

   Were Parliament ever to pass a war powers act, however, the potential for judicial meddling in matters of war might be more theoretical than real. The American experience is thus worthy of closer study and comparison because it suggests--even under constitutionally entrenched war power provisions--that this is the case. U.S. courts are loathe to interfere in war powers disputes, despite (or maybe because of) a written Constitution that places far more restrictions on government and gives far more power to the judiciary than a war powers act could do in the United Kingdom. (22) In the United States, Congress has the power to declare war, raise and spend revenue, and otherwise authorize and provide for the armed forces. (23) These congressional powers often collide with the war powers of the President, who, as Commander-in-Chief, deploys and commands the military. (24) The result is legal ambiguity in the scope of the President's discretion to engage in and conduct hostilities, given that it is Congress that has the authority to commit the nation to war and limit military resources. The only certainty in this system is that by assigning to the executive and legislative branches different but complementary war powers, the Constitution recognizes that both the executive and the legislature have important roles in military decision making. (25) Overlap and friction between congressional and presidential war powers thus allow for considerable political maneuvering, compromise, and sometimes conflict between the legislative and executive branches. Nevertheless, some form and degree of legislative approval for executive military actions is required. (26) Executive-legislative cooperation, no matter how legally tenuous or politically fragile, is thereby...