header-logo header-logo

Who should declare war

24 April 2008 / Julian Samiloff
Issue: 7318 / Categories: Features , Public , Procedure & practice , Constitutional law
printer mail-detail

Julian Samiloff ponders who has the present-day power to start military proceedings

It's a fact of our constitution that under the Royal Prerogative the power to declare war and commit British forces to military operations is vested in the prime minister. Parliament has no formal legal role in sanctioning such use although the government, by convention, does undertake to keep Parliament substantially informed. It may be posited that in exercising this particular prerogative the prime minister enjoys what ancient kings once enjoyed: the use of almost absolute power in the application of a discretion, and that in doing so he knows that such use cannot generally be challenged in the courts or stopped by a Parliament controlled by his party.

With some prerogatives, control by judicial review is possible, however, the courts have limited their use of it on the basis that some matters involving the use of the prerogative are issues of “high policy”, including declaring and conducting war, and are not justiciable.

Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374)

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Hogan Lovells—Lisa Quelch

Hogan Lovells—Lisa Quelch

Partner hire strengthens global infrastructure and energy financing practice

Sherrards—Jan Kunstyr

Sherrards—Jan Kunstyr

Legal director bolsters international expertise in dispute resolution team

Muckle LLP—Stacey Brown

Muckle LLP—Stacey Brown

Corporate governance and company law specialist joins the team

NEWS

NOTICE UNDER THE TRUSTEE ACT 1925

HERBERT SMITH STAFF PENSION SCHEME (THE “SCHEME”)

NOTICE TO CREDITORS AND BENEFICIARIES UNDER SECTION 27 OF THE TRUSTEE ACT 1925
Law firm HFW is offering clients lawyers on call for dawn raids, sanctions issues and other regulatory emergencies
From gender-critical speech to notice periods and incapability dismissals, employment law continues to turn on fine distinctions. In his latest employment law brief for NLJ, Ian Smith of Norwich Law School reviews a cluster of recent decisions, led by Bailey v Stonewall, where the Court of Appeal clarified the limits of third-party liability under the Equality Act
Non-molestation orders are meant to be the frontline defence against domestic abuse, yet their enforcement often falls short. Writing in NLJ this week, Jeni Kavanagh, Jessica Mortimer and Oliver Kavanagh analyse why the criminalisation of breach has failed to deliver consistent protection
Assisted dying remains one of the most fraught fault lines in English law, where compassion and criminal liability sit uncomfortably close. Writing in NLJ this week, Julie Gowland and Barny Croft of Birketts examine how acts motivated by care—booking travel, completing paperwork, or offering emotional support—can still fall within the wide reach of the Suicide Act 1961
back-to-top-scroll