War with ISIL: Should Parliament Decide?

Abstract

The Government of Canada presently possesses the power to commit Canadian soldiers to battle without Parliamentary approval. On this basis, troops were deployed to Northern Iraq after a brief debate inaugurated by a non-binding take note motion presented in the House of Commons. This article notes that this power is anomalous in the era of responsible government, and argues that it should be reconsidered in the light of recent changes to the constitutional order of the United Kingdom.

The article describes the constitutional convention created in the United Kingdom in 2012. This requires the Government to abide with the results of a vote in the House of Commons on the deployment. This article argues that the adoption of the convention was not a response to abstract concerns about the balance of powers. Rather, it was deemed be politically necessary owing the revelations about the Blair Government’s abuse of the royal prerogative.

The article further argues that the same incentives for abuse of the Government’s power over combat deployments exist in Canada at present. The creation of a Canadian constitutional convention requiring prior Parliamentary approval would promote the transmission of accurate information about the factual and legal basis for military action and would serve as a check on deployments that might violate international law. Accordingly, the article describes how such a convention might be created in Canada and concludes that it is both appropriate and necessary in the current political environment.

Keywords: constitutional conventions, royal prerogative, executive power, military deployments, legal history, constitutional history, Chilcot report, Davids commission, aggressive war, declarations of war

JEL Classification: K30, K40, K42