Prime Ministerial Exercise of the War Prerogative in the Iraq Affair: An Analysis. Rebecca Zaytoonnejad Moosavian MPhil 2009 Prime Ministerial Exercise of the War Prerogative in the Iraq Affair: An Analysis Rebecca Zaytoonnejad Moosavian LL.B (Hons), PCAP, Solicitor (non-practising) This thesis is submitted in partial fulfilment of the requirements for the award of Master of Philosophy of the University of Northumbria at Newcastle. School of Law August 2009 Abstract ‘Prime Ministerial Exercise of the War Prerogative in the Iraq Affair: An Analysis’ This study sets out to investigate an arcane, ancient and currently unreformed area of the British constitution; the war prerogative. This Crown power continues to lie with the monarch at law, though in political reality it is exercised by the Prime Minister with the support of Parliament. The war power has come to vest in the Prime Minister due to the office’s colonisation and resultingly close interrelationship with the institution of monarchy. The study will argue that there are prevailing cultural, structural and legal influences of monarchy which potentially benefit the premier in his exercise of the war prerogative. This and related issues will be afforded specific and detailed consideration in the context of the March 2003 decision to deploy troops in Iraq. The Iraq affair constitutes an invaluable case study as one of the most controversial warfare decisions in recent history, one that generated topical debate and new scrutiny of the war prerogative. This study conducts a detailed investigation of the legal and constitutional checks and balances upon the prime ministerial war prerogative with specific focus upon their operation in the Iraq affair. The study discusses significant shortcomings in the functioning of constitutional checks in the lead up to military action in Iraq, particularly the convention of collective Cabinet responsibility and the requirement that Parliament supports warfare. The study also appraises the efficacy of legal checks upon the war and related prerogatives in the judicial arena; it considers developments over the course of the broad Iraq period, paying specific attention to advances in judicial review. The roles of constitutional components such as the Crown and conventions in these constitutional dynamics are identified and analysed where relevant. Furthermore, the extent to which post-Iraq proposed reforms might overhaul the area and address constitutional inadequacies will be considered. In undertaking its investigation into this constitutional area the study employs two analytical devices which provide illuminating insights upon the war power, the checks upon it and its exercise by Mr Blair in the Iraq affair. The first device involves the identification and exploration of divergences between the legal framework governing this area and the political reality occurring beneath. Applying this device exposes material contradictions between the law and reality in this area, allows the accuracy and efficacy of legal terminology to be assessed and finally reveals assumptions or ideologies underlying the legal framework. Over the course of this study it is argued that the various disparities between the law and political reality in this area act to benefit the Prime Minister in his exercise of the war prerogative. The second device entails careful consideration of the role of boundaries between law and non-law (particularly politics) in this area. Such boundaries play a central role in judicial understandings of both conventions and prerogative power, and are vital to the maintenance of coherence and legal purity in this area. This study focuses particularly upon the judicial erection of boundaries that distinguish between justiciable and non-justiciable prerogatives such as the war power. It demonstrates that despite appearances of progress in judicial review, these boundaries are based upon selective judicial interpretations and approaches to evidence which inherently act to favour government. Thus, in disputes concerning the war and related prerogatives the judiciary is institutionally incapable of political neutrality, instead being geared towards the support of strong government. Contents Contents Table of Cases Table of Statutes Table of International Sources of Law Acknowledgements Declaration Introduction Aims of Study Emergence of the Office The Blair Premiership Overall Structure of Study Analytical Approach to be Adopted in this Study: [1] Divergence between framework and practice [2] The role of boundaries between law and non-law Chapter One Use of the War Power in Iraq: Political Background [1] Background to the Iraq ‘War’: Chronology [1.1] Early 2002: Policy Towards Iraq Changes [1.2] April 2002 Onwards: Cabinet Weakened [1.3] September 2002: Dossier Published [1.4] November 2002 – March 2003: UN Negotiations [1.5] March 2003: The Attorney General’s Advice [1.6] 18th March 2003: The Parliamentary Vote [1.7] July 2004: Dossier Discredited [1.8] March 2003-Present: Military Involvement in Iraq [2] Relevant Constitutional Issues Identified Chapter Two The Crown and Prime Minister [1] The Three Meanings of ‘The Crown’ [1.1] The Crown as Monarch [1.2] The Crown as Government [1.3] The Crown as State [2] The Crown and Law [2.1] The Apex of Legal Power [2.2] The Role of Monarch in Law [3] The Crown and Prime Minister [4] Disparity: the Crown as a ‘Legal Fiction’ Chapter Three Conventions, the Prime Minister and the War Prerogative [1] Conventions Concerning the Prime Minister [2] Conventions Defined [2.1] Common Definitions [2.1.1] A convention is a constitutional rule or practice [2.1.2] A convention has a binding quality [2.1.3] A convention has an ethical, normative or moral dimension [2.1.4] A convention is distinct from a law and is not enforced in courts [2.2] The Flexibility of Conventions [3] Conventions Throughout the Iraq Affair [3.1] The Monarch Must Act upon Ministerial Advice [3.2] Collective Cabinet Responsibility [3.3] Parliamentary Approval of War [4] Analysis [4.1] Conventions and the Discrepancy Between the Constitutional Framework and Reality [4.1.1] The Distinctions Identified [4.1.2] The Role of ‘Convention’ in the Disparity [4.2] The Role of Boundaries in relation to Conventions Chapter Four Prerogative and Prime Minister [1] Legal Views of Prerogative [1.1] Narrow Prerogative [1.2] Wider Diceyan Prerogative [2] Significant Prerogative Powers of the Prime Minister in the Iraq Affair [2.1] Power to Appoint Cabinet Ministers [2.1.1] The Appointment Power: General Points [2.1.2] Prime Ministerial Appointment of the Attorney General [2.2] Cabinet Chairmanship Powers [2.3] Power to Request a Dissolution of Parliament [2.4] Additional Wider Prerogative Powers [2.4.1] The Foreign Affairs Prerogative at Law [2.4.2] The Defence Prerogative at Law [3] The War Prerogative [3.1] Judicial Involvement with the War Prerogative [3.1.1] Judicial Review of Prerogative: General Principles [3.1.2] The Judiciary and the War Prerogative [3.2] Parliamentary Involvement with the War Prerogative [3.2.1] Parliament and Prerogative: General Principles [3.2.2] Parliament and the War Prerogative [3.2.3] Post-Blair Proposed Reforms to the War Prerogative [3.3] Traditions of Leadership and the War Prerogative [4] The Prerogative Analysed [4.1] Disparity between Legal Framework and Reality [4.2] The Role of Boundaries in Prerogative Chapter Five Caselaw Concerning the War and Related Prerogatives During and After the Iraq Affair [1] Overview of Developments in Legal Checks over the Broad Iraq Period [1.1] Abbasi v Foreign Secretary [2002] [1.2] C.N.D. v Prime Minister [2002] [1.3] Al Rawi v Foreign Secretary [1.3.1] Al Rawi in the Divisional Court [2006] [1.3.2] Al Rawi in the Court of Appeal [2007] [1.4] Gentle v Prime Minister [1.4.1] Gentle in the Court of Appeal [2006] [1.4.2] Gentle in the House of Lords [2008] [1.5] Summary of Developments [2] The Law-Politics Boundaries in Iraq Caselaw [2.1] CND v Prime Minister [2.2] Al Rawi (Divisional Court) [2.3] Gentle in the Court of Appeal [2.4] Summary of Discussion [3] Disparities between Law and Reality [3.1] Disparities Identified [3.2] Views of Knowledge and Expertise in Iraq Caselaw Knowledge and Expertise in CND v Prime Minister Knowledge and Expertise in Al Rawi (Divisional Court) Knowledge and Expertise in Al Rawi (Court of Appeal) Conclusion [1] Aim 1: Understandings of the three key constitutional components established [1.1] The Crown [1.2] Conventions [1.3] Prerogative [1.4] Summary of findings regarding disparities in this area [2] Aim 2: Conclusions regarding the operation and interaction of relevant constitutional components in the Iraq decision [2.1] The operation and interaction of the ministerial advice convention and the Crown [2.2] The operation and interaction of the collective cabinet responsibility convention and the prime ministerial chairmanship powers [2.3] The operation and interaction of the parliamentary approval ‘convention’ and a cluster of key prime ministerial prerogatives [3] Aim 3: Deeper insights into the efficacy of checks and balances upon the war prerogative afforded by the Iraq affair [3.1] Effectiveness of constitutional checks on the war prerogative [3.2] Efficacy of legal checks upon the war prerogative Bibliography Table of Cases A and others v Secretary of State for the Home Department [2005] 2 AC 68, HL Adegbenro v Akintola [1963] AC 614 HL (PC) Amin v Brown [2005] EWHC 1670 Ch, [2005] All ER (D) 380 (Jul) Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Attorney General v De Keyser’s Royal Hotel Limited [1920] AC 508 Attorney General v Jonathan Cape Ltd. & Others [1976] Q.B. 752 Blackburn v Attorney General [1971] 1 W.L.R. 1037 British Broadcasting Corporation v Johns [1965] Ch 32 Burmah Oil Company v Lord Advocate [1965] AC 75 (HL) Calvin’s Case (1608) 7 Co.