The House of Commons Library was given an opportunity to respond to this article before publication and sent no reply.
Many people feel uncomfortable with war, war and more war. Over recent times, the UK has been involved in Iraq, Afghanistan, Libya, Ukraine and more; and we now risk becoming embroiled in a wider war in the Middle East. Following an initial denial that we would become involved, inevitably we have placed boots on the ground: at a minimum, special forces. His Majesty’s Government is also in the process of joining our military to the EU Defence Union with little fanfare and no scrutiny or debate. We provide finance, military aid, political support and entangling alliances.
Millions of us are uneasy with this never-ending war footing and the lack of genuine debate in Parliament or the public square, wondering how these decisions are made and what checks and balances are in place. We should therefore ask whether the way in which the United Kingdom involves itself in foreign conflict is lawful.
Claire Mills, Senior Library Clerk at the House of Commons Library specialising in the Armed Forces and defence, has advised Parliament on this very question that the UK’s Ministry of Defence is an arbitrary, unaccountable dictatorship by the Secretary of State for Defence, Grant Shapps. From her point of view, any involvement in foreign conflict is lawful. Mills claims that:
The decision to deploy the Armed Forces in situations of armed conflict is currently a prerogative power. […] In constitutional terms Parliament has no legally established role and the Government is under no legal obligation with respect to its conduct, including keeping Parliament informed. […]
Nor is the Government under any constitutional obligation to abide by the result of any Parliamentary vote on military action, although in reality it would be politically difficult to engage in military action without Parliamentary support.
Mills’ claims do not, however, stand up to scrutiny, upon consulting information that will be readily available to her in the House of Commons Library. Also, her reference to the importance of non-governmental “stakeholders” hints that her attempt to mask Parliament’s ancient war powers from Parliament itself may be a device for transitioning from representative democracy to the stakeholder capitalism model being promoted by the World Economic Forum; in this case, stakeholder militarism, which may have been described as fascism in previous decades.
This sidelining of Parliament, and by extension of voters, will only serve to favour vested interests, including the military-industrial complex, instead of heeding the warnings about that complex contained in President Dwight D. Eisenhower's 1961 Farewell Address.
Engaging in Foreign Warfare
Section 3 of the 1700 Act of Settlement, enacted just before England’s political union with Scotland, confirms that the Crown has no prerogative to defend foreign lands without the consent of Parliament. This provision of what is one of the UK’s handful of statutes of constitutional significance states (as common reason would also suggest) that the use of the British military to defend foreign lands requires the consent of Parliament, which means that a vote of approval is required both in the House of Commons and in the House of Lords:
That in case the Crown and Imperiall Dignity of this Realm shall hereafter come to any Person not being a Native of this Kingdom of England[,] this Nation be not obliged to ingage in any Warr for the Defence of any Dominions or Territories which do not belong to the Crown of England without the Consent of Parliament.
Reference to the Monarch not being native has to do with the King at the time (of both England and Scotland, which were still separately-governed kingdoms until 1707) being the Dutch Prince of Orange, William III. This is a justification clause, and the application of the law is not conditional upon the Monarch or his Secretary of State not being a native. The operative clause is therefore that:
this Nation be not obliged to ingage in any Warr for the Defence of any Dominions or Territories which do not belong to the Crown of England without the Consent of Parliament.
A Table Alphabeticall of 1604, the first dictionary of the English language, defines the verb engage (then spelt with an ‘i’) as meaning “lay to pledge, binde himself”. This seventeenth-century definition of a word in a seventeenth-century text reveals that at law, “engage[ment] in any war” commences as soon as an alliance or promise is made by HM Government.
Decisions about military “ingagement” are also a two-sided coin. The wording of the Act of Settlement confirms that Parliament's war powers extend to making or denouncing allegiances and war. It is therefore only lawful for Parliament to decide whether the nation supports one or other side in a given conflict or remains neutral, or whether it denounces the war and seeks a ceasefire. It is then the role of the King’s Defence Secretary, after arguing the Crown’s position in Parliament, to perform the will of the nation assembled in Parliament. The electorate subsequently gives its verdict by means of its correspondence with its elected representatives and via the ballot box.
This understanding of when military engagement takes place is similar to how an engagement between a man and a woman—resulting in the state of betrothal, which in that era required the consent of the woman’s father—occurs prior to marriage and all that may follow. The French verb s’engager (à), from which the verb is directly derived, and the English theological usage of the verb engage (to + verb) still preserve this etymological meaning of undertaking to perform something. The ahistorical reading of the clause “engage in any war” as meaning only the stage of fighting a war is impermissible in interpreting the three-hundred-year-old Act of Settlement.
It is therefore unlawful for HM Government to deploy the Armed Forces abroad without the consent of Parliament—which can be refused, provided conditionally or granted unconditionally. Moreover, consent can be withdrawn at any time. This implies that Parliament can involve itself to whatever extent that it sees fit.
Claire Mills’ claims are thus entirely false, in open contempt of the Constitution regarding the ancient privileges and dignity of Parliament and the principles of representative democracy.
Consequently, the sending of £4.6 billion of military assistance out of the Kingdom to Ukraine was unlawful, as it was given in default of the consent of Parliament. This is because the sending of money out of the Kingdom to Ukraine to support a war to defend Ukrainian territory that is not a realm of the Crown occurs long after any engagement in the war has occurred, whose definition we have considered above.
It is no valid rejoinder to reply that British troops are not deployed on the ground, that any deployment is of special forces only with special rules of deployment and engagement, or that British military involvement is not kinetic. The British public is under no constitutional obligation whatsoever to fund the defence of lands not owned by the Crown without the consent of Parliament. The sum provided to Ukraine without consent of Parliament amounts to 10% of the UK’s annual military budget. It could alternatively have paid for a circa 2% overall cut in income tax.
Keeping a Standing Army within the Kingdom
England’s 1688 Bill of Rights and Scotland’s equivalent 1689 Claim of Rights, which are statutes of constitutional significance, set out Parliament’s powers over the keeping of a standing army in the Kingdom during a time of peace and regarding the quartering and billeting of soldiers in the Kingdom.
Art. 6 of the 1688 English Bill of Rights states:
That the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law.
This provision was based upon the grievance that the previous King James II had:
subverted and extirpated the Lawes and Liberties of this Kingdome […] By raising and keeping a Standing Army within this Kingdome in time of Peace without Consent of Parlyament and Quartering Soldiers contrary to Law.
Art. 8 of the 1689 Scottish Claim of Rights states, regarding martial law:
That the Imploying the officers of the army as Judges through the Kingdome, or imposeing them wher ther were heretable offices and Jurisdictiones, and the putting the leidges [subjects] to death summarly and without legall tryall jury or record are Contrary to Law.
Art. 17 of the 1689 Scottish Claim of Rights states:
That the Sending of ane army in ane hostile manner upon any pairt of the Kingdome in a peaceable tyme and Exacting of Locality [commandeering accommodation] and any manner of free quarters is Contrary to law.
Art. 19 of the 1689 Scottish Claim of Rights, responding to the then fresh experience of the Killing Times, states:
That the putting of Garisones on privat mens houses in tyme of peace without their Consent or the authority of Parliament is Contrary to law,
because James VII of Scotland (the same king as James II of England) had violated the laws and liberties of the Kingdom. He had disdained:
the fundamentall Constitution of this Kingdome And altered it from a legall limited monarchy to ane Arbitrary Despotick power […] By levying or Keeping on foot a standing army in tyme of Peace without Consent of Parliament which army did exact localitie free and dry quarters and By Imploying the officers of the army as Judges through the Kingdome and Imposeing them wher ther were heretable offices and jurisdictiones by whom many of the leidges were put to death summarly without legall tryall jury or record.
Further explanation of these clear provisions of the Constitution is found in the Prince of Orange’s (the future King William III’s) 1688 Declaration of Reason, the often-overlooked first constitutional document of the Revolution, in which he foresaw that King James VII/II’s régime:
might be in a Capacity to maintain and execute their wicked Designs by the Assistance of the Army, and thereby to enslave the Nation. [Emphasis added]
This is no hypothetical risk. While Tobias Ellwood was still Chairman of the Defence Select Committee, he proposed that a military takeover of the Office of the Prime Minister was the appropriate response to Partygate, a government scandal which itself may have relied on information obtained by spying on MPs by his own 77th Brigade.
For England, the unlawful quartering and billeting of the armed forces upon the civilian population is also addressed in the earlier 1627 Petition of Rights:
VI. Soldiers have been dispersed in divers Counties, and Inhabitants compelled to receive them. And whereas of late great Companies of Souldiers and Marriners have been dispersed into divers Counties of the Realme, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourne against the Lawes and Customes of this Realme and to the great grievance and vexacion of the people.
VIII. The Petition. And that your Majestie would be pleased to remove the said Souldiers and Mariners and that your people may not be soe burthened in tyme to come.
When quartering nevertheless continued under Stuart monarchs in all of their realms in spite of the 1627 Petition, an English law enacted less than a decade before the Revolution—statute 31.Car.II.C1 1679, Chapter 32—took further steps to prohibit the unconsented quartering and billeting of soldiers:
XXXII. No Officer, etc. to quarter Soldiers on any Subject without his Consent, and any Subject may refuse to quarter Soldiers. And whereas by the Lawes and Customes of this Realme the Inhabitants thereof cannot be compelled against their wills to receive Souldiers into their Houses and to sojourne them there Bee it declared and enacted by the Authoritie aforesaid That noe Officer Military or Civill nor any other person whatever shall from henceforth presume to place quarter or billet any Souldier or Souldiers upon any Subject or Inhabitant of this Realme of any degree quality or profession whatever without his consent And that it shall and may be lawfull for every such Subject and Inhabitant to refuse to sojourne or quarter any Souldier or Souldiers notwthstanding any Command Order Warrant [O.] or Billetting whatever.
O., which is mentioned in various important statutes during this period, refers to a The James Catalogue of Western Manuscripts collection in the library of Trinity College, Cambridge, that includes ancient laws—including Magna Carta—which clarify that unlawful quartering and billeting is, similarly to martial law (discussed below), contrary to the ancient law of the land, including Magna Carta, because it disseizes (dispossesses) a person of their freehold without due process of law.
One of William and Mary’s first statutes, the 1688 Mutiny Act, following the Bill of Rights, makes further reference to parliamentary war powers:
Whereas the raising or keeping a Standing Army within this Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law.
The Mutiny Act also refers to Magna Carta regarding martial law:
And whereas noe Man may be forejudged of Life or Limbe or subjected to any kinde of punishment by Martiall Law or any other manner then by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme.
Those provisions were cited again in the preamble to the 1690 Mutiny Act, with the Petition of Rights recited in Chapter 17, while Chapter 18 laid down further restrictions on quartering and billeting.
We see a similar scenario of government abuse today, as a result of immigrants being effectively quartered and billeted in hotels to a cost of almost £3 billion a year, without consent from Parliament. That amount of money would be enough to fund a 1% reduction in income tax, or it could assist hotels and other catering establishments with a 10% business rate cut.
Martial law
With a reference to Magna Carta, the 1627 Petition of Rights confirms that subjecting civilians to martial law is “against the forme of the Great Charter and the Lawe of the Land” because such proceedings are contrary to s. 29 of Magna Carta 1297, which requires that justice be carried out in accordance with the law of the land.
Section VIII of the Petition states:
that the aforesaid Comissions for proceeding by Martiall Lawe may be revoked and annulled. And that hereafter no Comissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesties Subjects be destroyed or put to death contrary to the Lawes and Franchise of the Land.
Treaties engaging the UK in war
Parliament’s war powers cannot be lawfully overridden by any treaty that the executive of the United Kingdom (HM Government) makes with the executives of other countries or with transnational organisations such as NATO and the United Nations Security Council. This is because—as confirmed by the UK Supreme Court in R Miller v DExEU Prime Minister (see Rules 1 & 2 at paragraph 277)—while the Crown may enter into treaties for the purpose of regulating international relations, the Government may not alter law without the consent of Parliament.
Parliament therefore remains free to exercise its war powers notwithstanding any promises made out of the Kingdom by Grant Shapps, with or without the knowledge of the Privy Council.
If Parliament could understand and better assert its war powers, it would become evident to our allies abroad that any promises made by HM Government are not worth the paper that they are written on unless Ministers first consult their Parliament and seek its consent. Any consent that the Government obtains should (as with the Armed Forces Bill) be refreshed with every new Parliament following an election, because one Parliament cannot bind its successor.
If that return to constitutionalism can occur, it should limit the risk of arbitrary entangling alliances of the sort warned against by US President Thomas Jefferson in his 1796 farewell address.
For example, Britain’s secret alliance with France and Russia (later specifically framed as being against Germany and Austria-Hungary) may well have contributed to the outbreak of the First World War, as alleged by John P. Cafferky in his excellently-researched book Lord Milner's Second War: The Rhodes-Milner Secret Society, the Origin of World War I, and the Start of the New World Order.
These rights became and remained British
The objection may be anticipated that none of the foregoing constitutes UK law for historical reasons.
Whereas the aforementioned laws were all specifically English and Scottish, they were inherited by the whole of the United Kingdom by the communication of rights granted in the Acts of Union (the respective transpositions by the old English and Scottish Parliaments of the treaty that united the two governments in 1706–7). See Art. 4 of the 1706 and 1707 Acts of Union.
The much-neglected reason for this ongoing validity is that these laws provide Subjects’ Rights which Parliament has over the Crown. The same applied when the United Kingdom of Great Britain politically united with Ireland a century later. See s. 6 of the the British and Irish 1800 Acts of Union.
Enforceability
Contrary to Mills’ claims that Parliament cannot enforce its own war powers (the very existence of which she denies), Parliament can in fact put a Secretary of State who breaches these rights on trial for contempt of Parliament. This offence can result in a custodial sentence for that Minister for the duration of that Parliament.
Also, criminal referrals could be made for misconduct in public office—a common-law offence in England and Wales which carries a maximum sentence of life in prison (and which the Law Commission just happens recently to have advised Parliament to reduce in scope).
The Crown and its Ministers can also be sued in the jurisdiction of England and Wales for the tort (or delict in Scotland) of misfeasance in public office, using the 1947 Crown Proceedings Act for an injunction for damages where loss has been suffered.
Parliament could, furthermore, legislate to remove certain individuals from ministerial office and to disqualify them from future office if they violate Parliament’s war power privileges.
Perhaps a member of the Armed Forces could also attempt to cite failure to obtain parliamentary consent in their defence against court martial proceedings for refusing to accept an unlawful deployment.
Surviving dependants of troops killed during an unlawful action that lacks parliamentary consent, may also be able to sue the Ministry of Defence for the tort of wrongful death; no serviceman signs up to fight and die for unlawful conflicts.
Parliamentary War Powers inherited by the Dominions
The 1627 Petition of Rights and 1688 Bill of Rights remain law in Canada, Australia and New Zealand. It could also be argued that the parliamentary war power provision in the Act of Settlement ought also to apply there, because—as with the 1688 Bill of Rights—it undoubtedly does apply to those realms regarding succession of the Crown.
(For example, it was only possible to amend the the Bill of Rights and Act of Settlement, etc., to allow Camilla to be Queen Consort following the Perth Agreement, a constitutional convention of the Prime Ministers of all sixteen Commonwealth Realms at the time.)
The above-mentioned parliamentary war powers should therefore apply in at least Canada, Australia, New Zealand, and it could be argued that they should also apply to all of today’s fifteen Commonwealth Realms as regards their respective parliaments.
USA: Congressional War Powers
With these laws having being established prior to 1776, our American cousins can also refer to them as a valid body of law by invoking the Ninth Amendment:
The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.
This is particularly the case where these older laws are consistent with, and provide rich interpretation of, Article I, Section 8, Clause 11 of the US Constitution:
The Congress shall have Power to […] declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; […]
Such could also well be the case regarding constitutional limits to quartering and billeting, expressly extended as these were to the American colonies in 1765 in Statute 5.Geo.3 ch. 33. These restrictions were then transposed into the Third Amendment of the US Bill of Rights, that:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Moreover, all constitutional principles discussed in this article that relate to the due-process-of-law aspects of Magna Carta are applicable in the United States. Citing Sir Edward Coke, the US Supreme Court ruled in 1855 that the phrase “due process of law” (in the Fifth and Fourteenth Amendments) was undoubtedly intended to convey the same meaning as the phrase “by the law of the land” in Art. 29 Magna Carta.
Note that it was the Liberty of Subject Act (1354) and Observance of due Process of Law Act (1368)—both of which confirmed Magna Carta—that commenced the ancient custom of referring to due process of law. Martial law for civilians, which is therefore also prohibited in the USA by virtue of the Fifth and Fourteenth Amendments, is further prohibited there by the 1878 Posse Comitatus Act.
Opportunities for enhanced parliamentary war powers
Sadly, Parliament applies the minimum of service to its war power duties, aided and abetted by advice from Claire Mills. Whereas there used to be an annual Armed Forces Act (a recurring constitutional requirement arising from the Bill of Rights), there is now just one per Parliament, with a debate and vote therefore occurring just once every five years regarding the UK’s colossal £45.9bn military budget, which consumes fully 17% of income tax receipts.
Each quinquennial omnibus Armed Forces Act therefore consents to a quarter of a trillion pounds of military spending—which Claire Mills is telling our representatives in Parliament can be arbitrarily expanded to infinity by the proclamation of Grant Shapps at the behest of corporate “stakeholders”.
Parliament could legislate to return to annual Armed Forces legislation and could require a separate bill for each of the Armed Forces to secure greater opportunity for scrutiny.
Parliament could better regulate the Armed Forces by enhanced use of its Defence Select Committee. It could expand the Committee’s role, with further sub-committees also launching inquiries, Royal Commissions and the like to scrutinise and investigate specific areas of concern.
The Defence Select Committee should, for example, be holding hearings on the unlawful deployment of 77th Brigade by the Cabinet Office, without any consent of Parliament, to spy on and deploy information warfare capabilities against lawful subjects, including MPs—which arguably also touches upon the prohibition of martial law.
Other historic atrocities that have evaded parliamentary scrutiny should also be investigated: for example, the declassified testing of chemical and biological weapons against the British people, including the spraying of zinc cadmium sulphide, as reported on the BBC and documented in the BBC’s Inside Out programme.
When asked by the Guardian whether such “tests” were continuing, Porton Down spokeswoman Sue Ellison said, “It is not our policy to discuss ongoing research.” If Parliament and the Defence Select Committee did their job, no military spokesperson would be able to make such arrogant and high-handed statements and retain their employment and liberties. Claire Mills is wrong when she says that the Government is under no legal obligation with respect to such conduct.
There is also a desperate need for our parliamentary representatives to catch up with the modern theatre of war. For instance, they should be scrutinising weather warfare and geoengineering, on which the Royal Society recently shed some light.
Such activities can have catastrophic impacts. For example, an RAF rainmaking experiment in 1952 is now recognised as having caused a biblical flood in Lynmouth that wiped out an entire village, killing 34 innocent people, yet nobody responsible was held to account.
With Parliament dawdling behind the curve, scrutiny is also missed regarding robotics and artificial intelligence and space weapons, to give just a couple of examples of the ever-expanding horizons of warfare.
Only Parliament can carry out this scrutiny role, because it is by parliamentary statute that the classification of state secrets is regulated. Select Committees of Parliament can demand access to classified information in private hearings, and Parliament can legislate to declassify any information.
Alternatively, with the consent of the Speaker of the House, MPs can use parliamentary privilege to enter any classified information and documents into the parliamentary record for all to see, without risk of prosecution.
The vital importance of the Defence Select Committee and other forms of parliamentary scrutiny is precisely why UK Column was concerned about the Committee being chaired by 77th Brigade’s reservist Lieutenant Colonel, the Rt Hon. Tobias Ellwood MP, during the pandemic. In that period, the Brigade was avowedly and unlawfully spying on MPs.
Nobody will confirm nor deny whether Ellwood was in active service at that time, which—if he indeed was—may have caused him to turn a blind eye to what was occurring, if he was not personally involved in directing the Brigade’s activities. There would in that case also have been a conflict between the parliamentary privilege that Ellwood enjoyed by dint of being a Member of Parliament and his being subject to the restrictions of the Official Secrets Act as an active serviceman if he was deployed at the time. Ellwood departed the role soon after our article, allegedly for other minor statements that he made regarding Afghanistan.
Ancient laws, rights and liberties
England’s 1688 Bill of Rights explains of itself that the Subjects’ Rights which it secures—including those relating to parliamentary war powers—were at that time already pre-existing, “auntient and indubitable Rights and Liberties of the People of this Kingdome“ that “shall stand remaine and be the Law of this Realme for ever”. This has similar meaning (with alternative justification) to the phrase “unalienable rights” that is found in the USA’s Declaration of Independence. Constitutional scholars on both sides of the Atlantic should therefore look to their history books to better understand the inviolability of these ancient rights and liberties.
Pre-Conquest
William Stubbs explains, when setting out the customs at the time of Edward the Confessor, that pre-1066 English Parliaments had far-reaching war powers.
The King in the Anglo-Saxon era would not usually ask for aid from his kingdom unless for imminent war. When he did, questions of “what concerns war, if there is war” would always be the first business in Parliament; other business would be delayed.
There then followed a most rigorous consensus-building process, which continued until Parliament was able to perform the function indicated by its name and speak with singular voice.
Such questions were at that time always drawn up in writing and read in full parliamentary session, to be treated of and disputed there among the peers of Parliament. Replies and views would also be drawn up in writing, with the aim of proceeding:
according to the better and more healthful plan according as, at length, the majority of the parliament shall agree.
Where the majority (and presumably not merely a simple majority) could not come to an agreement, 25 Members would be elected to debate further. If they did not agree, then twelve would he elected from among them, then six, then three, then two, until finally one man was selected—who could not disagree with himself. He would make the decision for all if a greater number could not agree to make a decision.
The King and his Council would, when Parliament had thus decided, be allowed to examine and amend such decisions once they had been written out. This was done in full Parliament, with the consent of Parliament and not behind Parliament’s back.
The Barons will have paid particular attention to such questions because it was they who would be required to provide soldiers and weapons from their estates if the King took the kingdom to war. Taxpayers are now in a similar position, with approximately 17% of their income tax funding the Ministry of Defence.
13th Century
In 1270, Parliament supported Henry III's Eighth Crusade by levying a property tax for that purpose. However, on 24 February 1297, a parliament assembled at Salisbury withheld consent to Edward I’s war in Gascony. The Parliament Rolls of Medieval England reveal a stalemate between Parliament and the King until he assented later that year to the statutory 1297 issuance of Magna Carta.
This historical experience demonstrates that Parliament can extract significant concessions from the Crown when it has the gumption to exercise its powers and privileges over matters of importance to the Crown. Similarly, concessions were extracted in the 1700 Act of Settlement because it was in Parliament’s gift to settle the succession of the Crown for William III.
14th Century
In 1300, Edward I assented to statute 28.Edw.I 1300, Articles upon the Charters, which confirmed Magna Carta and established punishments for infringements of it. Chapters 2, 3 and 6 were then recited in 3.Edw.II 1309, The Statute of Stamford, which confirmed the connection between parliamentary war powers and Magna Carta. There, it was written that the 1300 Act was (amongst other things):
then ordained in Alleviation of the Grievances which his People had sustained by the wars, which had been, and in amendment of their Estate, and to the end that they might be more ready to his Service, and more willingly aiding when he had need thereof.
The chapters recited referred to “grievance and damage without measure” having been caused by the extortionate taking by the Crown of goods, meat and drink, etc.—presumably meaning by soldiers during time of war.
The statute accordingly abolished various taxes not authorised by Magna Carta or Parliament, some of which will have funded the King’s wars. It also sought to make further prohibition of trespass, making reference while doing so to the unlawful quartering of armed forces.
This prohibition expanded upon concerns raised in statute 2.Edw.II 1309, Of the Not Taking Undue Prises from Ecclesiastical Persons or Others, which referred to the:
frequent and various taking, carrying and driving away of Corn, Horses, Carts, Oxen, Cows and other Goods and Chattels, by certain [of] our Ministers and others done,
and to the lodging of the King’s men in the homes of religious people and consuming their goods against their will, causing “intolerable burdens” that diminished their ability to conduct worship, hospitality ministries and works of charity. Presumably, the armed forces of the time preferred to be quartered in warm, comfortable monasteries—which, unlike many other settings, will have contained plenty of food and ale.
This 1309 statute recited Chapter 1 of the 1275 First Statute of Westminster:
That none shall come to eat or lodge in any House of Religion or any other’s Foundation than of his own, at the Costs of the House, unless he be specially requested by the Governor of the House before his coming thither; nor yet at his own Costs against the Will of the Governor of the same, etc.
Grievances continued, and soon thereafter, 21 Barons, referred to as the Lords Ordainers, signed 5.Edw.II 1311, The New Ordinances. This was a set of regulations imposed on the King in response to “deceitful counsel”, in particular from Piers Gaveston (said to be the King’s favourite, a pejorative term that today would translate to “Prime Minister”, which itself originated as a term of abuse). Chapter 9 of the Ordinances set out extensive parliamentary war powers in context, with a description of historic powers that the Barons already possessed:
IX. That the King go not out of the Realm. Forasmuch as the King ought not to undertake Deed of War against any one, nor go out of his Realm, but by common assent of his Baronage, for the many Perils that may happen to him and his Realm, We do ordain, That the King henceforth shall not go out of his Realm, nor undertake against any one Deed of War, without the common assent of his Baronage, and that in Parliament.
And if he otherwise do, and upon such Enterprize cause to be summoned his Service, and such Summons shall be for none and if it happen that the King undertake Deed of War against any one, or go out of the Realm, with the assent of his said Baronage, and it be necessary that he appoint a Guardian in his Realm, then he shall appoint him with the common assent of his Baronage, and that in Parliament.
Restrictions on the King leaving the Realm would (in the days before secret treaties with foreign executives could be negotiated by video call and digital signatures) have empowered Parliament to ensure that nothing said, done or given by the Crown out of the Kingdom would be without the consent of Parliament and to ensure that the King provided adequately for the Kingdom while abroad.
A similar provision was included in Section 3 of the original 1700 Act of Settlement:
That no Person who shall hereafter come to the Possession of this Crown shall go out of the Dominions of England, Scotland or Ireland without Consent of Parliament.
Alas, that provision was repealed by the 1715 Statute, 1.Geo.II Stat. 2 ch. 51, for the lamentable reason that “The restriction may prove inconvenient with regard to the Service of our Sovereign Lord the King”—and yet the entire point of democracy is to curtail and inconvenience the Crown to secure the greater good for the whole of the nation.
This principle—applied today, as could perfectly well be legislated for—would require the King’s Ministers to announce to Parliament any plans to leave the Kingdom or to meet online with foreign powers, such as other countries or transnational organisations like the United Nations or World Economic Forum, which Defence Secretary Grant Shapps has attended, with him taking frequent counsel from Bill Gates.
Consent by Parliament for Ministers to engage in their planned travel or conferencing could, for example, be conditional on the Minister being accompanied by a Parliamentary representative who would take minutes, with the Parliamentary representative being under a duty to report back to the House if overseas functionaries turned out to refuse their constant presence alongside the Minister during negotiations, so that the treaties or pseudo-treaties thus signed could be declared null and void.
Such a law could also refer to the Crown taking money, etc., out of the Kingdom: for example, regarding foreign aid, which is now once again within the purview of the Foreign Office and involves the taxpayer funding of many NGOs.
Ordinances such as those of 1311 are like statutes, but they lack Royal Assent. Many ordinances, for example, were promulgated during the English Civil War and Interregnum, all of which were were considered void upon the 1660 Restoration of Charles II because they lacked Royal Assent. The 1311 Ordinances were, like the original 1215 issuance of Magna Carta, imposed upon the King by his Barons and were consented to under duress.
Edward II had his revenge upon the Lords Ordainers in 1322 when Thomas of Lancaster, leader of the 21 Barons who had authored the 1311 Ordinances, was captured and executed. However, it was Parliament that had the last laugh, because Edward II was imprisoned at Kenilworth, forced to abdicate (a proof that monarchs can be lawfully deposed for unfitness for office) and reportedly brutally murdered at Berkeley in 1327.
Edward II’s son, Edward III, then took the throne. In 1352, he assented to Bill 25.Edw. III.5, Statute the Fifth, which confirmed and provided enforcement provisions for Parliament’s war powers in Chapter 8:
VIII. No finding of Men of Arms, but by Tenure, or Grant in Parliament. Item, It is accorded and assented, That no Man shall be constrained to find Men of Arms, Hoblers [keepers of warhorses], nor Archers, other than those which hold by such Services, if it not be by common Assent and Grant made in Parliament.
This provision was then recited in 1402 in Chapter 13 of 4.Hen.IV, Statutes of the Fourth Year:
It is ordained and established, [by] the Statute made the Twenty-fifth Year of [our] said Grandfather, That no Man be compelled to find Men of Arms, Hoblers, nor Archers, other than those which do hold by such Service, unless it be by common Assent and Grant made in the Parliament shall be firmly holden and kept in all Points: So that always by Force or Colour of the said Supplications, nor of any other Statute thereupon be made.
17th Century: Peace Treaty
We next see the issue of parliamentary war powers play out dramatically in a 1640 peace treaty, An Act for the Pacification between England and Scotland, which is also found in the records of the Old Scottish Parliament. The treaty did not outlaw what was already an impending war between the two nations, but it did seek to secure that should either of the nations go to war against the other, it must only be with the consent of their respective parliaments and not by the singular will of one man:
It is agreed that ane act be past in the parliament of England that the kingdomes of England or Ireland shall not denunce nor make warre againest the kingdome of Scotland without consent of the parliament of England; as one the other pairt it shall be enacted there that the kingdome of Scotland shall not denunce nor make warre againes the kingdomes of England and Ireland without consent of the parliament of Scotland.
Also, the third article of the treaty required that no war be made nor denounced with any foreigners without the consent of both Parliaments, so as to avoid war being made by one of the Kingdoms that was denounced by the other. The text of that article claims that this was quite normal in all military alliances. It also called for mutual aid if either Kingdom was invaded.
This treaty provision of 1640 is the only reference that I have found regarding the denouncing of war requiring the consent of Parliament; but if it is Parliament that decides whether or not to go to war, it does follow that any motion to denounce war should be made following debate and consent in Parliament. Otherwise, there is a risk that Parliament could denounce a war while the King's Defence Secretary calls for war, or has been told by his international associates and departmental staff to do so.
Regrettably, no such statutes appear to have followed the treaty. We can therefore only speculate as to whether the 1650–1652 Anglo-Scottish War could have been averted had the principles of lawful government been holden for more.
18th Century
Scotland then enacted a statute on parliamentary war powers in 1703, just prior to the 1706 Union with England, securing that both England and Scotland were finally on the same footing and that their respective governments were at last compliant with the will of Parliament expressed in the terms of the 1640 peace treaty.
Concerned that the Crown would pass to the House of Hanover since Queen Anne had no heir, Scotland (which had already shared the same monarch with England for a century by this point) was keen to prevent a German king from taking the new United Kingdom to war without the consent of the Scottish Parliament. This safeguard was achieved in the Act anent peace and war (emphasis below added):
Our sovereign lady, with advice and consent of the estates of parliament, statutes, enacts and declares that after her majesties' decease, and failyieing heirs of her body, no person being king or queen of Scotland and England shall have the sole power of makeing war with any prince, potentate or state whatsoever without consent of parliament, and that no declaration of war without consent foresaid shall be binding on the subjects of this kingdom, declaring alwayes that this shall no wayes be understood to impede the sovereign of this kingdom to call furth, command and imploy the subjects thereof to suppress any insurrection within the kingdom or repell any invasion from abroad according to former laws; and also declaring that every thing which relates to treaties of peace, alliance and commerce is left to the wisdom of the sovereign, with consent of the estates of parliament who shall declare the war. And her majestie, with consent foresaid, repells, casses and annulls all former acts of parliament in so far as they are inconsistent herewith or contrare hereunto.
Although that Scottish statute was repealed by the Parliament of Great Britain in 1707 on the questionable grounds of ostensibly being inconsistent with the Acts of Union, by this time the governments of both England and Scotland were nonetheless bound to the similar provision in Article 3 of the 1700 Act of Settlement.
Conclusion
The advice given by Claire Mills is evidently disinformation resulting from negligence—or, to quote from the grievances in Scotland’s 1689 Claim of Rights, resulting from “wicked and evil design”. The impact of this misadvice cannot be overstated, in light of the colossal budget of the Ministry of Defence.
It is clear, contrary to Mills’ briefing, that the Crown’s sole war power prerogative in our day is that it has an obligation to repel an invasion of or quell an insurrection within the Kingdom or its dominions and territories. Classically, these twin duties are referred to as “the defence of the realm” and “keeping the King’s peace” respectively, and they correspond with the mention in US oaths of office of constitutional “enemies, foreign and domestic”.
The British Constitution, then, requires that the Crown must refer back to Parliament for its consent if any operations go beyond what is strictly necessary once peace for the British people has been restored.
Whereas the pre-Conquest custom of English kings not seeking military assistance until the Kingdom is at imminent threat may have contributed to the disastrous Norman invasion, it is nonetheless tempting to consider a reinstatement of the Anglo-Saxon emphasis on important military questions being a priority for Parliamentary business—with the aim of proceeding “according to the better and more healthful plan, according as, at length, the majority of the parliament shall agree”, “for the many Perils that that may happen to him (the king) and his Realm”, and so “that no Man shall be constrained” to be relieved of his money and purchasing power or be otherwise inconvenienced “to find [tax money for] Men of Arms, etc.”, “if it not be by common Assent and Grant made in Parliament”.
It is also tempting, on such important questions, to develop a similar rigorous method to the pre-Conquest customs observed at the time of Edward the Confessor, so that Parliament can, un-whipped, proceed towards finding a common voice on the most crucial questions of “what concerns war, if there is war”, whether war be made or refrained from, praised or denounced—in place of decisions being made by the sole will of Grant Shapps.
By restoring the war powers of Parliament, we the people would also benefit from questions of “what concerns war, if there is war” becoming central once again to manifestos, hustings and election debates.
The United Kingdom can also promote this principle of democracy and limited government beyond our borders by making treaties with other nations like the 1640 treaty between England and Scotland. This could secure the benefit that other nations adopt the constitutional principle of requiring the consent of their own parliaments before deciding to make or not make war and whether to praise or denounce it, thereby restoring to our national assembly the dignified role that it was once said to have abroad as the Mother of Parliaments. Another reward that such treaties would reap would be that wars which nations do fight are only prosecuted with the genuine consent of nations following the exhaustion of diplomacy.
One thing is for sure: Grant Shapps should be censured for announcing the deployment of hundreds and tens of thousands of troops and the sending of hundreds of millions of pounds out of the Kingdom to defend foreign countries by Twitter, before ever announcing his plans to Members of Parliament.
Shapps should be required to suffer the inconvenience of walking the short distance down Whitehall from his office to the House of Commons to make his announcements in person, setting out his full plans in writing, to seek the the express consent of the nation’s representatives assembled in Parliament.
Blessed are the peacemakers: for they shall be called the children of God.
Matthew 5:9
Article image: 3rd Battalion, Royal Anglian Regiment, in Afghanistan, 2007. By Celticwarrior3551 | licence CC BY-SA 3.0
