Preston Lim is a student at Yale Law School as well as a graduate from Princeton and Tsinghua University. He currently serves on several student boards at Yale and is an editor for the Yale Journal of International Law. Preston also served as a Policy Advisor to MP Erin O’Toole.

His article, “Reforming Canada’s war prerogative,” was published in the most recent issue of the Canadian Foreign Policy Journal. You can access it here.

We sat down with Preston to discuss his article and what reforming the war prerogative would look like for Canadian foreign policy and beyond.

Hello Preston, thank you for joining us today. I just realized this morning it’s interesting how we are discussing war powers on Remembrance Day! Let’s jump into it. Your article assesses the implications of the current power in Canada to declare war and deploy the military residing within the executive branch. Can you elaborate on why you argue that the arrangement between the Prime Minister and their Cabinet under Royal Prerogative needs to be reformed?

 In terms of why it’s worth reforming the war prerogative, I would argue there are two main reasons:

The first reason is to boost democratic values. So, the idea here is that if you give the decision-making ability to the House of Commons, you take it away from the executive and you can boost values like accountability and legitimacy. And, you know the British have had these debates for a lot longer of a time than the Canadians have. One British MP, Jack Straw, famously argued that the Royal Prerogative has “no place” in a western democracy – saying that it has been used as a “smokescreen” by ministers to obfuscate the use of power, for which they are insufficiently accountable. That’s a sentiment I agree with. To me the deployment of troops overseas, particularly to situations where they might come into harm’s way, well that’s arguably the gravest decision a democracy can make. And so, the government should, at the very least, be forced to come to Parliament for approval and to expose its reasoning to the scrutiny of House debate.

The second reason is that bringing the decision to the House could arguably result in a better decision. This is an old argument as well. Rosara Joseph who has written a book on the war prerogative in the British context, she calls this the “many minds” argument. And it’s very intuitive, it’s just the argument that the House benefits from the diversity of thought and background of its membership. Of course, a lot more diverse than even a diverse cabinet can be. So, the idea here is that through scrutiny, through debate, members drawing on their own diverse backgrounds will actually come to a better decision than cabinet ministers acting alone and sequestered away from the House.

Kind of like the saying how “two heads are better than one.” Interesting. This ties into the second question. Why is this a change worth considering and perhaps implementing for our federal government at this point in time?

Right. So, timing is a key issue in politics, and obviously the government is rightfully focused right now on dealing with COVID-19, so you know policy issues that would have made it onto the House floor in previous Parliaments are necessarily back of mind. So, I would argue that at least until the current government is considering a future military or peacekeeping deployment, very few MP’s, let alone a major political party are likely to focus on prerogative reform.

In terms of why this broader moment is important though, I focus on the fact that the Conservatives at least for the past couple of years have been critical of Liberal deployment decisions that don’t consult the House. So clearly there is a desire on the part of at least the Conservatives to make the deployment decision more accountable and open. The Mali mission for example, that was a decision taken in exercise of the prerogative without full parliamentary debate and contracted quite a considerable amount of Conservative ire. So, it is something a lot of Conservative MP’s care about, and when the next deployment decision comes, if the numbers of MP makeup in the House are looking favorable, I think there is a real chance for a conversation on a bill or constitutional convention. Both are ways to displace the prerogative, but I argue in the piece that a Parliamentary Act is really the way to go.

The nice thing is, we are able to look at the experiences of other countries. The British, as I mentioned earlier, have gone ahead with war powers reform. They’ve gone a very different direction than say the Americans-they did it through a constitutional convention. The nice thing about a convention is that it’s flexible. The flip side is that just like how it’s easy to build out a convention on a case-by-case basis, it’s also really easy to degrade it in a case-by-case way.

That ties into the next question. In your article, you mention a potential counterpoint to your argument is that holding a parliamentary vote on war may dilute ministerial responsibility. What sort of remedies could be used to redress this issue if the government decided to place war powers on statutory footing?

This is a good question, and I think they key word here is “may”. The main fear is that military deployment votes may lead to less democratic deliberation. Just to sketch out this counterargument more, the principle of ministerial responsibility, which is core to parliamentary democracies like ours, is that the government at the end of the day should take full responsibility for its decisions. Therefore, the fear here is that we are muddling that clarity. So, if responsibility for policymaking is no longer just made by Cabinet but is actually shared between ministers and MP’s, then it’s harder to hold ministers accountable.

My answer here is that this is an area that would benefit from closer historical study. The reason I say that is; it’s clear in certain circumstances that opposition parties, even if they support the decision to go to war, they can change their mind and actually fiercely scrutinize the war effort years from deployment. This isn’t particularly clear in the Canadian context, but in the paper, I draw on the American context. I draw on the Vietnam War where Congress was overwhelmingly for the Gulf of Tonkin Resolution, which was basically the entry into the Vietnam War. It’s clear that Congress in this period used all tools of scrutiny they could bring to bear on the government’s conduct of the war. A very similar situation to a certain extent in Iraq and Afghanistan, although Vietnam I would say is the peak of congressional scrutiny. The point here is that it’s not clear that just because an opposition party supports the government in the deployment vote, that the opposition will then go cap in hand with the government for the duration of the conflict.

In your article, you also mention parliamentary “Secret Sessions.” Do you see those playing a role if we went this way?

I’m not as concerned with operational security and the secrecy argument as some of the other prerogative reform critics are. The basic idea here, just to lay out the counterargument, is that you don’t want the enemy to learn what you’re doing through the debate. If you have everything out in the open it’s dangerous for troops and Canadians. I think that was truer in previous decades and centuries. It’s no longer true when deployment decisions today are really done in full light of the press, where we are often not the first movers and are reacting to a problem that has already been digested and discussed by the UN. Often today it is a UN mission we are talking about. So, for the “Secret Session” I think there is often no need for such stringent rules of the debate, as everything has already been litigated in the press.

That brings us nicely into the next question. Let’s say for the sake of argument that Parliament enacts a framework statute in a similar vein to the American War Powers Resolution, like you have suggested. What would that mean for Canada’s foreign relations and commitments to UN PKO or NATO?

This is another great question, and I don’t want to punt it, but I’ll say the answers are empirically unclear, and that’s useful for us. There are a whole bunch of people pushing for prerogative reform, some do it for pacifistic reasons and believe it will lead to a country going to war a lot less. For example, if you look at the Australians who have several organisations pushing for war powers reform for pacifistic reasons. I think the ultimate end of war powers reform is not actually decreased deployment, but for a more democratic form of decision making. To answer your question more directly, there is a scholar who has studied this extensively in the US context-his name is Peter Haas, and he has basically quantified adherence to the American War Powers Resolution. His main finding, very interestingly, is that passage of the War Powers Resolution had no effect on the likelihood of the US entering into conflict and has had no effect on the magnitude of conflict that the US enters into. The point here is that it’s just not clear that displacing the prerogative leads to use of force reduction. Maybe you can say the American context is very weird because of the Presidency and the executive there having a historic pattern of sidestepping the War Powers Resolution, so maybe that’s why it has had no effect. Essentially, if you just had a statute that enforces an efficient debate process with a clear “yes” or “no” after a given period of time, it’s not clear that will lead to a decrease in deployment.

Moving to the next question. More broadly, are there any potential geopolitical consequences that you could predict from this sort of change to Canada’s war-making abilities?

This is tied to the last question somewhat, my answer is that if Parliament were to pass a war powers statute, I think you would see the executive branch go to greater lengths to explain why a given deployment is in Canada’s national interest. That’s something I think all parties should celebrate. In the few cases in the past where the executive branch has had to come to Parliament for a vote, I think it has been forced to air its reasoning out in the open. To expose a deployment decision to the cut-and-thrust of parliamentary debate and the scrutiny of the legislature is a hard thing and means the government needs to really consider its reasons for deployment and how to make the case more clearly.

A broader point here, especially if these debates are public… Look, it’s an important enough vote that I think the executive branch will be more cognisant of the public will. It will really pay more attention to what decisions Canadians are likely to support, especially with how long these missions tend to be and how much they tend to cost.

To answer your question more directly, Canadians as a whole are supportive of the international system, thankfully. They are supportive of the international liberal order. So, practically speaking I find it unlikely that this is going to result tangibly in a change in Canada’s geopolitical footprint, but I do think it will force the executive to articulate its reasons more clearly to involve parliament and the people a little bit more in foreign policy. That I think can only lead to a more unified country.

That’s a good point. We can turn now to the last question. You mention in your article that the federal Conservatives presently have a “golden opportunity” to potentially displace the war prerogative while in a minority government. Do you think this is an issue for the federal Conservative Party to champion or could it attract some consensus among other parties?

Again, COVID-19 means that war powers reform is not occurring anytime soon, but your question is a great one for the future. If there’s a party that is likely to champion substantive war powers reform, it’s the federal Conservatives. They’ve raised hay about this over the past couple of years whenever the Liberals have decided to deploy forces overseas, and if you look at it more historically, Reform Party MP’s actually pushed formally for the displacement of the war prerogative in the 1990’s. There was a Reform Party bill in 1995, and there was a motion in 1996. Both failed, but the point is that this is a strain of thought that is still quite strong in the modern Conservative Party.

So, I see them as the party most likely to champion substantive war powers reform. I would hope they are not the only party that does so. I could see support for a well-thought-out effort coming from the federal NDP, traditionally speaking the NDP has favored a more pacifistic approach to international relations. That changed a little bit with Jack Layton. I think he bears great credit for shifting the NDP’s approach to foreign and military affairs, but I think it’s in the NDP’s DNA to understand an effort like this. I think displacement of the prerogative, if it was something the Conservatives really thought-out well, could attract the NDP to get on board with.

Now, the federal Liberals for the past couple of decades have been the staunchest opponents of war powers reform. If you look at all the parliamentary debates, it’s always Liberal MP’s arguing that reform is going to interfere in the executive’s ability to act swiftly and efficiently. The only point I would make here is that I feel in a certain sense that the Liberals are actually betraying their constitutional tradition here. If you look at Prime Minister Mackenzie King, who led during the Second World War, he had the firm belief that “parliament will decide.” It’s clear that he believed that no substantial Canadian force should ever be deployed abroad without a parliamentary vote. If you dig into the Second World War debates more specifically, you’ll see that King actually gave parliament the decision, the vote, if Canada should enter into War at all. That was his dictum, and it’s as true today as it was then, and I hope it’s something that the federal Liberals will return to as it is in the interest of more democratic decision-making and a more responsive and public-facing foreign policy.​

 

Image by James Beheshti, courtesy of Unsplash.

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