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.
|Publication status||Accepted/In press - 17 Dec 2009|