Richard's Consti & Theory Blog

This is where I post my (fairly random) thoughts on issues I come across in Constitutional Law, and in Legal Theory more generally. I need to make clear that the contents of this Blog are no-one else's responsibility (except where law dictates), and that no trees died in the making of this part of the blogosphere. I may try to be witty ...

Thursday, July 27, 2006

Prerogative of War

The BBC has resurrected the old argument about whether the Royal Prerogative should be transferred from the Monarch (usually acting through the Government on everyday political questions) to the House of Commons. The occasion of this - at least nominally - was a House of Lords Constitution Committee Report on the War Prerogative.

As the BBC's purported Q&A makes embarrassingly obvious, they don't really know what they're talking about - an elementary Yahoo! search would have found this summary by the Treasury Solicitor. A constitutional law student with time on their hands might care to e-mail the Beeb to correct their errors: I'll start with an invitation to them to include expressly some reference to R v S of S FCA exp Everett [1989] 1 QB 811 in their remarks about passports.

However, the Today programme (link to audio record - Real Player) yielded an interesting discussion involving Lord Holme (Lib Dem) and the Earl of Onslow (Con), which may be more informative. Lord Holme noted that (1) the HL Constitution Committee were unanimous, and (2) that a modern democracy shouldn't work like that, and (3) legitimacy required a House of Commons vote. The Earl maintained (with the perhaps unfortunate illustration of a surprise French attack on Dover) that the present situation (1) gives the needed flexibility whilst (2) in practice making illegitimate military adventures impossible.

All of these arguments and counter-arguments can be countered further: I shall content myself with remarking that on a question of Consti a group that are unanimous may be suspected of not having discussed the issues fully enough. However, I have not yet read the Report - it's not yet on the Committee's website - so I may apologise to them later (NB 'may'). A more careful critic will wish to explore further Lord Holme's criticisms of the Earl's 'in practice' comments, but also His Lordship's confidence in identifying what 'legitimacy' requires.

The irony of the Labour Government position being argued by a Conservative peer is too delicious fully to escape comment ...

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