TREATIES, BREXIT AND THE CONSTITUTION
PROCEEDINGS
JESUS COLLEGE, OXFORD 23 MARCH 2018
TREATIES, BREXIT AND THE CONSTITUTION
Table of Contents INTRODUCTION ...... 3 PANEL ONE – Parliamentary Sovereignty and the Implications of Miller ...... 6 1. Nick Barber (NB) ...... 6 2. Gerry Facenna (GF) ...... 7 3. Alison Young (AY) ...... 8 4. Martin Chamberlain (MC) ...... 10 5. Discussion 1 ...... 12 PANEL TWO: Parliament’s Role in Negotiating, Concluding and Implementing Treaty Obligations and the Constitutional Reform and Governance Act 2010 ...... 14 6. Jill Barrett (JB) ...... 14 7. Sylvia de Mars (SdM) ...... 17 8. Brigid Fowler (BF) ...... 18 9. Discussion 2 ...... 20 PANEL THREE - Constitutional Treaties, the Devolution Settlement and the British–Irish Agreement 1998 ...... 22 10. Colin Murray (CM) ...... 22 11. Graeme Cowie (GC) ...... 26 12. Ewan Smith (ES) ...... 30 13. Discussion 3...... 31 PANEL 4: International Perspectives ...... 36 14. Joanna Harrington (JH) ...... 36 15. Mario Mendez (MM) ...... 42 16. Ruth Houghton (RH) ...... 44 17. Discussion 4...... 45 PANEL FIVE: Overview and Conclusions ...... 49 18. Frank Berman (FB) ...... 49 19. Helen Mountfield (HM) ...... 51 20. Murray Hunt (MH) ...... 52 21. Discussion 5...... 54
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INTRODUCTION
Brexit is a treaty problem. Britain will withdraw from one body of treaties and, it hopes, conclude new ones. How should Parliament be involved in this?
Brexit is intended to give British lawmakers a greater measure of control over laws and policies which are currently set by the European Union. Issues such as agriculture, fisheries and trade are currently closely regulated by the European Union, whose laws have direct effect in Britain. After Brexit, the UK will take direct responsibility for these competences. Instead of relying on EU processes to settle differences with foreign countries, the UK government will need to negotiate afresh, not only with EU countries but with all states that deal with Britain through the EU. In short, Brexit turns matters of domestic law into matters of foreign policy.
Outside the EU, foreign policy problems like trade and fisheries are usually resolved by concluding treaties. Issues like these are politically controversial and many people are uncomfortable about the way in which they are settled in international fora, at considerable remove from people who are affected by them. One reason for Brexit was the idea that issues like these ought to be decided in a more democratically accountable way. However, the simple idea that people will have “control" over issues like fisheries or immigration is an illusion. It takes two to conclude a treaty, and we will need to share control with would-be partners. Governments face challenges in persuading the public that compromise is needed to achieve foreign policy goals. If people are not satisfied by the compromises embodied in the Treaty of the EU, then there is little reason to suppose that they will be satisfied by the presence of chlorinated chicken in supermarkets, or the need to grant freer movement in return for market access. And unless the government can convince other states that it can translate international obligations into domestic law, it will find it harder to persuade them to conclude treaties.
Brexit will put pressure on Britain’s system for negotiation, conclusion and incorporation of treaties. Britain has a dualist system, which means, in general, treaty obligations do not take effect in British law until Parliament makes law to implement them. This is an ancient system, and perhaps, an antiquated one. The paradox is that it assumes and perhaps even requires no parliamentary involvement in treaty negotiation or approval, so Parliament is left with decisions only on the ‘how’, not the ‘why’ or the ‘what’, of treaty obligations. This is hard to reconcile with the reality of modern treaties, which often impose obligations on, and create rights for individuals and businesses, and embody important policy choices. Certainly, few countries now take a purely dualist approach, and most allow their parliaments some say in what new international obligations they take on. The new statutory treaty procedures in the Constitutional Reform and Governance Act 2010 take only minimal steps in this direction, and Parliament has never used its new powers.
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Britain’s membership of the European Union relieved pressure on the system by making the EU competent to legislate in some controversial areas. Foreign policy problems like trade and fisheries were more likely to be solved by EU regulation or agreement than by British treaties. These solutions were scrutinised not only by national parliaments but also increasingly by the European Parliament, which carved out a significant and assertive role in approving – and therefore shaping – treaties with third countries. The politics of the Brexit negotiations have strengthened the case for the UK Parliament to have the same access to information about treaty negotiations that the European Parliament enjoys, and a vote to approve the final deal.
Since the UK joined the EU, it has made significant changes to its constitution. In 1972 the UK was a unitary state and fisheries, for example, were the responsibility of the Minister of Agriculture, Fisheries and Food in London. Today, issues like agriculture and fisheries are divided between London, Cardiff, Belfast and Edinburgh. In order to negotiate treaties in these areas, the government in Whitehall will either need to secure the consent of the devolved governments, or to amend the devolution settlement. Neither option is straightforward in the current political climate, and rapprochement seems unlikely in the foreseeable future. Even less clear is the involvement of the devolved legislatures in this process.
These are issues of fundamental constitution concern. The debate that led to Brexit was, in part, a debate about how international obligations become British law. Brexit will change the way we answered that question for forty years. The answer was contained in series of treaties, which did not merely provide for agricultural cooperation, but also for fundamental human rights and freedoms. Since the very beginning of the United Kingdom, constitutional questions have been embodied in treaties. The Treaty of Union 1707 shaped, and still shapes, the relationship between Scotland, England and Britain. Our modern Bill of Rights is a partial incorporation of the European Convention on Human Rights 1950.The civil war in Northern Ireland was settled by the British-Irish Agreement 1998. Each of these treaties is a source of constitutional rights. One implication of the decision of the Supreme Court in R (Miller & Dos Santos) v. Secretary of State for Exiting the European Union [2017] UKSC 5 is that constitutional treaties like these may form exceptions to the UK treaty rules. Like constitutional statutes, constitutional treaties form a new doctrinal category and an amorphous one, and more work needs to be done to map it.
Today’s conference will take an urgent look at the UK law on treaties, through a constitutional lens, and in particular at what is the appropriate role for Parliament after Brexit. We hope to draw problems in sharper relief and suggest some practicable solutions for parliamentarians.
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PANEL ONE – Parliamentary Sovereignty and the Implications of Miller
Chair: Leah Trueblood Speakers: Nick Barber, Gerry Facenna, Alison Young, Martin Chamberlain
1. Nick Barber (NB)
Parliamentary Sovereignty died in Factortame1 but it continues to stalk constitutional law. Miller is a “faint echo of those jangling chains.” Miller has played a very significant role in protecting Parliament’s role in the constitution in general, and in the Brexit process in particular. The executive cannot use its prerogative power to remove rights conferred by statute or to strip a statute of its effects. The decision was predictable and wholly unremarkable.
Two Senses of “Source” The ECA 1972 is the source of the validity of EU law in the UK. The European Union’s law-making processes were the source of the substance of that law
The old Case law on the relationship between prerogative and statute worked perfectly well, so why did the Supreme Court include this argument? If the point about the extent of the prerogative is right, the Fire Brigades Union disposes of the appeal.
Three reasons for the Supreme Court’s expansive approach:
“A Matter of Style” The court wished to express the decision in constitutional language.
“There is no problem in constitutional law that we cannot make worse by referring to the rule of recognition.” The mention of Parliamentary Sovereignty as the fundamental rule of recognition was an error.
The desire to “lay the groundwork for a potential challenge to an exit from the ECHR.” We could exit European Human Rights structures without a statute and this rule would prevent that.
1 The Afterlife of Parliamentary Sovereignty, I•CON (2011), Vol. 9 No. 1, 144–154
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2. Gerry Facenna (GF)
What were we concerned about at the time?
Was the Art.50 notice reversible and therefore, was Lord Pannick’s bullet analogy a correct one? “For those of us… who were EU lawyers, this seemed absolutely wrong. It is totally clear that that question is not that clear as a matter of EU law.” Inner House of the Court of Session2 has just granted permission to hear that point.
GF agrees with NB on the general effects of the judgement.
(1) that primary legislation is the highest source of law in the Constitution
(2) that the executive does not have prerogative power to act in a way that changes the law or overrides the intention of Parliament, expressed through a statute, without the sanction of primary legislation enacted by the Queen in Parliament.
(3) That removing or changing rights, in this case rights currently enjoyed as a result of the UK’s membership of the EU, must be effected by legislation, and cannot be effected by reliance on general or ambiguous words but only by express statutory language.
The Supreme Court judgment also gave us some answer to other questions The justiciability of constitutional conventions and effects of advisory referendums The Supreme Court described the relationship “between our constitutional order based on the sovereignty of parliament and an international legal order based on the supremacy of EU law.”
Did the European Union (Notification of Withdrawal) Act 2017 satisfy those requirements? No: Three Knights Opinion3 Only Parliament has the constitutional authority to authorise, and give legal effect to, the changes in domestic law and existing legal rights that will follow from a decision to leave the EU. It was and still is impossible to know what rights will be lost or retained following withdrawal. Parliament must take the decision when it is clear what the consequences will be for existing rights.
2 Wightman v The Advocate General [2018] CSIH 18 3 https://www.bindmans.com/uploads/files/documents/Final_Article_50_Opinion_10.2.17.pdf
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Parliamentary sovereignty and the principle of legality require Parliament expressly to authorise withdrawal from the EU on agreed terms, or to authorise withdrawal if no acceptable terms are agreed legislation. Resolutions or votes cannot change domestic law, nor amend or abrogate existing rights. Mark Elliot - Notification of Withdrawal Bill was sufficient4. The Three Knights Opinion was inconsistent with the bullet analogy.
Cross bench peers (Lord Kerr and others) tried to persuade the government that they hadn’t done enough in that bill. Lord Hope - … I … caution the Government against thinking that this Bill on its own will give them all the authority they need …. [It] could have provided for that in this Bill, … but it has not done so … they cannot escape from the effect of the Miller decision when we reach the end of the negotiation”. “Ultimately the law will catch up with the government” when it comes to the actual terms of withdrawal.
Dominic Grieve Amendment to the Withdrawal Bill. “A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day[, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union].” This is the most significant effect of the Miller litigation - what does it mean? o There will have to be a Bill approving the terms of the withdrawal agreement
“What happens if Parliament does not like the terms of the withdrawal agreement?” In our domestic system – an election? A further referendum? The legal powers come back to the question of what Article 50 allows. Is Article 50 “a boomerang?” Does it have “a self-destruct option.”
The answers will not be supplied by our own constitutional order but by the constitutional order we joined in 1972.
3. Alison Young (AY)
Begins with three brief points about Miller and sovereignty and then applies these ideas to Withdrawal Bill
4 https://publiclawforeveryone.com/2017/02/24/european-union-notification-of-withdrawal-bill- report-of-house-of-lords-constitution-committee/
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We have often seen challenges to sovereignty coming from two directions EU law limits parliament’s law-making capacity Challenges to legislation by Courts, e.g. Declaration of Incompatibility under HRA s.3.
Post Miller, both challenges have been diminished, especially with regard to EU law but also with regard to courts. But Miller is pregnant with the potential for more intervention further down the line.
Miller reinforces Parliamentary Sovereignty It restates the dualism of domestic and EU law. Parliamentary Sovereignty is a constitutional principle that forms a sort of “constitutional break.” The direct effect of EU law can only go so far, it cannot undermine fundamental principles like Parliamentary Sovereignty.
Miller concludes that it is not EU law that tell us the reach of EU law. It is UK law.
If you want to know how far ‘sovereignty’ will be reduced, in the sense of whether it is possible to entrench or to ‘disapply’ legislation, you need to take account of: The specific wording of the legislation The constitutional importance of this legislation o Generally in terms of the protection of rights, or the structure of the constitution o Specifically in terms of what the legislation requires you to do
Context is key when interpreting “Legislation of a Constitutional Nature” “It might not necessarily be the case that the courts are as willing to say that Parliamentary sovereignty is a principle of the common law and if we fancy changing it, we will.” Instead, we should expect a more contextual approach, which is sensitive to the interplay between constitutional principles and the specific wording of legislation
Where does this leave us with the Withdrawal Bill?
Idea of the withdrawal bill is that we are leaving Europe, so the Acts that incorporate EU law will be expressly repealed. Henceforth, EU law will have a “zombie sovereignty”
What this then tells us about the Withdrawal Bill? Intention of the Bill is to preserve continuity and certainty o 5(1) - Supremacy of EU law not apply to any enactment or rule of law
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passed or made on or after exit day o 5(2) only applies as to the interpretation, disapplication, or quashing of any enactment or rule of law passed or made before exit day o 5(3) may apply to future modifications of law if that is consistent with the intention of that modification o Schedule 1 - reference to supremacy of EU law only so far as this is to continue on or after exit day
House of Lords Constitution Committee: “We’re not really thinking about the sovereignty of EU law any more. What we are thinking about is the normal applications of the parliamentary sovereignty in the UK.” All of the laws enacted up until exit day are old laws. All the EU derived law will derive its validity from the Withdrawal Bill. EU derived law is a separate category to other laws and to the extent that they differ we are repealing the earlier laws. “All we’ve done is… say EU derived law is just like legislation.”
Some problems Interpretation - Marleasing5 requirement that national law be interpreted in light of EU law goes further than UK interpretive rules Is Marleasing one way to achieve the supremacy of EU law? Is Supremacy a matter of primacy or a matter of sovereignty? Is direct effect more important, or is supremacy more important? How far does exclusionary effect apply? We use the word “disapplication” quite happily in the Withdrawal Bill. But the more we see disapplication, the less we are likely to consider other remedies, e.g. Declaration of Inconsistency as used by NZ courts. Henry VIII Clauses o AY is sceptical that a HVIII Clause can be used to undermine fundamental common law principles. Clause 5(3) – court has to look at modification to establish whether intention or modification is in line with the supremacy of EU law. How do you work that out and what happens if it does?
4. Martin Chamberlain (MC)
To what extent does Miller prevent the Crown from Withdrawing from Other Treaties without an Act of Parliament?
5 Marleasing SA v La Comercial Internacional de Alimentacion SA C-106/89
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Divisional Court and Supreme Court approach Miller as a Question of Statutory Construction
Does the constitutional status of the 1972 Act matter to the decision? Divisional court thinks what matters is that the prerogative has been used to vary the law of the land. Supreme Court places more reliance on the constitutional change effected by the withdrawal.
Difference between the HRA and the ECA in that the rights to which the HRA gives effect are set out in a Schedule to the Act Section 1.1. defines the Convention Rights as Schedule 1-14. Convention means the Convention as it has effect for the time being in the United Kingdom
Young/Phillipson6 - Two ways of looking at this – “Dependant Analysis” and “Bifurcated Analysis” Either rights are dependent on continuing force of the Convention or rights have a force that is separate to the Convention. MC – there is a clear answer. This is an ambulatory definition. If the UK were to withdraw from the Convention, there would be no rights to which the HRA could give effect. In this respect, the European Convention of Human Rights is similar to the Treaty of the European Union.
Carriage by Air Act 1961 “A reference to an article of a Convention is a reference to that article as it appears in a schedule.” This appears to be a non-ambulatory definition. However, Act appears to assume that the conventions to which it gives effect will remain in force in international law.
Diplomatic Privileges Act 1964 “Articles of the Vienna Convention shall have the force of law in the United Kingdom.” Appears on its face to be non-ambulatory. But what does the Convention do? Rights in domestic law are rights of accredited diplomats. If there are no accredited diplomats then how can there be rights under the Act.
“In conclusion… It is… difficult to think of any treaty that gives rights in domestic law from which the Crown could withdraw unilaterally.”
6 Phillipson, Gavin and Young, Alison (2017) 'Would Use of the Prerogative to Denounce the ECHR "frustrate" the Human Rights Act? Lessons from Miller.', Public Law., 2017 (Nov Supp). pp. 150-175.
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5. Discussion 1
Helen Mountfield (HM) - What would the ECJ say if Parliament said the Executive had to withdraw, but the Government refused to do so?
GF – It is difficult to imagine the government disobeying an order from Parliament and hard to see what the outcome of that crisis would be. The ECJ can only act on a recommendation from a national court. Assuming we could do this in the time available, and persuade a HC judge to refer, and persuade the ECJ to expedite it, then the ECJ would take the position of the government as it is.
HM – But could the High Court?
AY – this would be difficult because you would have to persuade the HC that Article 50 had direct effect.
Jill Barrett – Is the Transition Agreement covered by s.4. of the European Union Act 2011? So, can the government ratify it without an act of Parliament? How does Miller affect this?
GF – I do not think this argument could succeed. It requires a broad reading of the 2011 Act. It is clear that the 2011 Act was intended to be a restraint on the government handing power to the EU. It’s also easily fixable – repeal the relevant provisions in the Withdrawal Act.
HM – There is a legal challenge which argues that the date of the repeal should not be set by secondary legislation.
Murray Hunt – How does Miller apply to derogations? Do derogations from the Convention now require an act of Parliament? Government has announced its intention to derogate in respect of future uses of armed force abroad.
MC – S.1. of the HRA defines the convention rights “subject to designated derogations.” There is a procedure in s.14 for designating derogations from the Convention. This is subject to the negative resolution procedure. There would not need to be a statute.
In Miller, the reasoning in both courts flows from the courts’ understanding of what the 1972 Act was authorising. The question “what was Parliament authorising in the 1998 Act” has a clear answer.
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NB – Perhaps Miller doesn’t cover the situation where an international negotiation produces the change. But there may be a broader principle here that fundamental constitutional change requires primary legislation. This might apply to derogations also.
I do not think it’s hard to get questions to the ECJ. I see it as a virtual certainty that, if the issue went to the ECJ then it would be a virtual certainty that the ECJ would consider the triggering of Art. 50 to be the end of the matter. This follows from the wording of the Article, which puts pressure on negotiating states. The point of the article is to make it arduous to leave the EU. I don’t think the ECJ would go against this.
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PANEL TWO: Parliament’s Role in Negotiating, Concluding and Implementing Treaty Obligations and the Constitutional Reform and Governance Act 2010
Chair: Holger Hestermeyer Speakers: Jill Barrett, Sylvia de Mars, Brigid Fowler
6. Jill Barrett (JB)
Background to CRAG
The Ponsonby Rule is a constitutional convention in the United Kingdom constitutional law that dictates that most international treaties have to be laid before Parliament 21 days before ratification. CRAG’s aim is to give the convention the force of law.
This was first proposed in Gordon Brown’s 2007 Governance of Britain Green Paper7. The treaty provisions in the green paper were overshadowed by more controversial topics. There were many opportunities for parliamentary involvement before the Bill was introduced but this elicited “hardly any” public of parliamentary interest. There were 11 responses to the Public Consultation, of which several were former FCO legal advisers. Debates on this part of the Bill were poorly attended. Between 12 and 24 Members were present at any one time. The Bill then went into wash-up before the 2010 general election, so most clauses were never properly debated.
What does CRAG say? Relevant treaties must be laid for 21 sitting days (s.20). Extension of this period is at the discretion of the government. According to the FCO Treaty Section, only one extension has ever been granted o Protocol 15 to the European Convention on Human Rights (2014) o The Joint Committee on Human Rights (JCHR) asked for an extension, in order to publish a report and asked the government to secure a debate in both Houses during the s20 period. o The government extended the period but said it was for Committee to secure time for debate. o JCHR was not opposed to ratification but had no power to secure a debate.
7 Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/228834/7170.pdf
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The government can avoid the requirements in exceptional cases (s.22). Exceptions were made to Ponsonby from time to time in urgent cases o These had only become urgent because of clerical delay or oversight – so imposing pressure has tightened things up). CRAG makes exceptions for: o Treaties that come into force on signature or exchange of notes o Treaties that come into force automatically o Treaties with EU exclusive competence o Tax treaties which have their own statutory regime o Treaties subject to requirements of part 1 of EU Act 2011. o New exceptions can now only be added by statute.
Statistics
In the 7 years since CRAG entered into force, there have been 225 new UK treaties, of which: 153 were ‘CRAGged’ 38 exempt from CRAG as tax treaties 34 came into force by definitive signature or exchange of notes so not subject to CRAG
Impact CRAG has not made a dramatic change: the operation of the convention is now slightly more transparent. The main difference is that exceptions to the rule cannot be fudged and can only be added by statute. Interest in scrutinising treaties is still low, with the notable exception of EU Treaties.
Shortcomings
There is no procedural right to request debate or table a motion against ratifying a treaty. Changing these procedures would require buy-in from parliamentary business managers, which the government did not have at the time. The government has no obligation to provide parliamentary time. It may be possible to secure time through the Backbench Business Committee? Debates should be in government time.
No resolution has ever been tabled under CRAG. No treaty debate has ever been requested during the s20 period.
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There was one attempt to do so, for an international treaty - UK/Colombia Bilateral Agreement for the Promotion and Protection of Investments Following a House of Lords Secondary Legislation Scrutiny Committee report, one Lord tabled a motion of regret – but the motion did not have the right words to activate CRAG.
When the government initiates a debate on a treaty, it is usually because implementing legislation is required – so the debate is on the Bill not the treaty itself. For example, the UK-US Extradition Treaty of 2003 was laid under the Ponsonby Rule but ignored. Parliament realised that the treaty established asymmetric obligations when people began to be extradited. If Parliament had looked at the treaty under Ponsonby, it might have addressed the problem before it was too late.
A CRAG motion demands that parliament “take it or leave it”. There is no possibility of amending the treaty, submitting reservations or making declarations.
Solutions
There ought to be a Treaty Scrutiny Committee in Parliament.
The government ought to be obliged to inform Parliament of treaty negotiations. Sometimes, the government elects to do this, as it when negotiating the Paris Agreement on climate change. In the Netherlands, the government is obliged to report every three months on treaty negotiations in progress.
The public ought to be directly involved in scrutinising treaties. Australia has public inquiries on treaties. The House of Lords Secondary Legislation Scrutiny Committee also welcomes letters from public and even has a guide to assist interested parties.
Brexit-related treaties
CRAG won’t apply to all categories of Brexit related treaties: Withdrawal agreement and transition Future relations agreement Free trade with non-EU states Multilaterals where UK is already party but will assume responsibility for minutiae after Brexit Bilaterals between UK and 3rd states
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7. Sylvia de Mars (SdM)
The European Parliament (EP) has spent most of its history fighting for the power to scrutinise EU legislation. In doing so it has carved out the power to scrutinise the ratification of external agreements by the EU.
Originally the European Parliament had almost no powers and there was no duty to consult it. It presents an interesting model for the UK Parliament because it worked with other institutions to claw back power for itself – even though those institutions had little interest in giving the Parliament more power.
Before the Single European Act 1986 (SEA), the EP had no formal role. But behind the scenes it was concluding formal and informal intra-institutional agreements with the Council and the Commission to get information about European foreign policy, and to establish a mechanism for it to present opinions on international relations. Since then, these agreements have become more formalised.
The SEA introduced a requirement for that the EP consent to association agreements and accession treaties. Since then, more categories have been added to the list. Since the Lisbon Treaty, the list of treaties that require EP consent has covered most treaties that do not have a bearing on the Common Foreign and Security Policy.
The right to consent at the end of negotiations is still a power to “take it or leave it.” However, this is better than the UK model because the EP has better rights of information. The EP has the right to be regularly informed by negotiators whenever Council of Ministers (executive) is. The Parliament also has the right to issue recommendations. The Commission then has to reply, say what happened to the EP’s recommendations and if they were not followed, it has to explain why. This enables it to play a more active role on shaping Treaty negotiations. On 16 May 2017, the CJEU issued its opinion on the EU-Singapore Free Trade Agreement (EUSFTA).8 Because more topics are held to be in EU exclusive competence, the EP is asking for more power to scrutinise and issue opinions on those areas.
Examples of the EP exercising these functions: The first post-Lisbon international agreement was the Swiss TFTP agreement.
8 Available at http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_ATA(2017) 603955
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o EP said the agreement did not follow data protection principles so it refused consent. o It took18 months more to negotiate agreement that EP would agree to. Passenger Name Record agreements with Australia and USA o EP again said this was not compliant with data protection principles and secured changes. Anti-Counterfeiting Trade Agreement 2012 o The EP was not happy about invasion of privacy (there were riots....) o The EP refused consent and prevented the Treaty being concluded. The EP issues regular comments on trade agreements. o During EU-Korea negotiations the EP called for better safeguarding for EU car industry. o This extended negotiations by at least 2 years, but Europe and Korea reached agreement eventually.
The EP is causing headaches for Brexit negotiators.
It has done more about UK citizens in the EU, and EU citizens in the UK than any member state government does. The EP has passed resolution after resolution saying it cannot accept any diminution of citizen rights. The EP has also written up its own resolution about what it would like future UK-EU relations to look like (“Ukraine Plus Plus”). This sets a benchmark, and deviations will need to be justified. The EP likely to seek views on what national parliaments think of the Withdrawal Agreement.
8. Brigid Fowler (BF)
It is important to acknowledge the level of misunderstanding and confusion about the whole treaty process. Terms like approval and ratification are often used interchangeably. Politicians not familiar with this process This both explains and perhaps reflects the fact that CRAG has never been used.
The dualist system means politically important treaties have tended to require primary legislation. For this reason, there is little sense that Parliament has not been able to engage with treaties when they want to. The most politically contentious foreign policy decisions – such as Iraq and Syria - have taken place on motions.
Michael Gove told the Environment Select Committee that parliament could stop a trade treaty under existing procedures. He did not say how.
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Not everyone is aware there will be at least two new UK-EU trade agreements to be signed during the Brexit transition…
Parliamentary procedures on the Withdrawal Agreement are tortuous. We are still debating the concept of a “meaningful vote” after 15 months. The government position has changed. It originally supported a vote on a motion in both Houses. Since then, primary legislation has been introduced. The government then clarified the fact that the Withdrawal Agreement would be subject to CRAG Then Dominic Grieve introduced his amendment. That amendment did not suggest the idea of primary legislation, which had already been announced. o They amendment prevented the government exercising powers contained in Clause 9 in order to implement the Withdrawal Agreement until parliament had by statute expressed its consent by statute.
But what happens if Parliament votes no? This raises questions about how parliament might say ‘go back and renegotiate’ There is currently no formal process for doing this.
New trade agreements There is some awareness now of how politically, economically, and socially consequential new trade agreements might be. For parliamentary to play a strong role we do not only need Parliamentary consent at the end of the process. We also need to give parliament the power to put down markers earlier in the process.
Should we implement trade agreements through secondary legislation?
The Customs Bill and the Trade Bill are currently stuck in the Commons. The government says these bills do not need careful scrutiny because they have already been subject to UK’s scrutiny system for European treaties. There are relatively strong procedures in place for rules made at EU level due to a lack of trust in the EU. o However, when these powers return to the UK those procedures won’t be needed. Even that system is imperfect. For example, it is difficult to get time for debate on floor of House. We might call this the ‘bastard argument’, after Edward Leigh, who said in the context of statutory instruments that Henry VIII was a bastard “but at least he’s our bastard.”
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Caroline Lucas’s proposed amendment to Trade Bill trying to tie executive to passage of parliamentary motions before signing international trade agreements.
9. Discussion 2
Jack Simson Caird – The positive thing about the plan for vote on a motion is that it will cover the political declaration on future UK-EU relations. It will give parliament a voice at the beginning of the process and potentially the scope for setting out its objectives. But a vote on a motion can’t replicate the EP’s role. The overarching UK constitutional framework cannot regulate relations between parliament and government by statute. There will never be a UK equivalent of A50, requiring the government to get Parliament’s approval for a treaty before it is concluded.
Dominic Burbidge – Does the EP have the power to call for an extension of the A50 period, given that if it vetoes the WA then there will be no deal and so a massive loss of citizens’ rights?
SdM – No. The EP is likely to become more hesitant with its demands as the deadline approaches, because of the risk of loss of rights. This is not like a trade deal, where the question is gradual increase of links. For now, it can keep pushing because Ireland is a bigger hurdle.
Murray Hunt. The JCHR’s request for s.21 extension of 8 sitting days in respect of Protocol 15 was still not enough for a debate on the report. This shows the limitations of CRAG. The JCHR wanted a debate because Protocol 15 was the solution to debates around ECHR subsidiarity etc. It was a good opportunity for the government to show how it had fixed the problems. But there was no way of forcing debate.
Also, there was a huge amount more that Parliament could have done, even before CRAG.
JB: Parliament could have had a stronger CRAG if it had wanted to. Why is there such a low level of interest amongst parliamentarians in treaties other than EU treaties? One of the problems is the dualist system: they focus on the legislation because they think it is only that that will have any effect.
Joanna Harrington: Existing EU 3rd party agreements: the presumption that scrutiny isn’t needed now, because the agreement was scrutinised under the EU process, assumes that the new deal will be the same. But when negotiating one-to-one the UK won’t have the same weight as when EU was negotiating…
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BF: In the Trade Bill Delegated Powers Memorandum the government did acknowledge that ‘rolled over’ treaties might need substantial changes. But debates are still mostly about the substance of trade bills rather than constitutional concerns. The plan is to remain bound by the EU’s own agreements during transition, but it is not clear how we will legislate for that.
Holger Hestermeyer: The UK certainly won’t get the same deal as the EU. We can’t just copy the agreements exactly because they have numbers (Tariff-rate Quotas and Rules of Origin) and copying exactly will deny UK the benefits it wants from them.
The larger issue is that 50% of trade agreements to be rolled over are with the EEA, Turkey and Switzerland: Rolling over the EEA treaties would mean joining the single market. The government has said it doesn’t want that. If we don’t roll over the single market then what would it mean to “copy exactly” with a state like Norway? Turkey is in a customs union with the EU. The government has said it doesn’t want that either. So, what would rolling over mean with a state like Turkey? Nobody knows what rolling over Swiss-EU agreements would mean because even the list of those agreements is 28 pages long…
Trade agreements can contain intellectual property standards, labour standards, environmental protection standards, pretty much anything that the parties agree to. That limits flexibility.
SdM: The notion that international agreements are something for the executive, with very limited involvement of parliament, is outdated. It belongs to an era when executives didn’t change over as frequently as they do now. What if the government has nearly completed an agreement when there’s a change of government and the new government doesn’t like the way the agreement would restrict its power to make domestic legislation on the economy or environmental or workers’ protection?
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PANEL THREE - Constitutional Treaties, the Devolution Settlement and the British–Irish Agreement 1998
Chair: Miles Jackson Speakers: Colin Murray, Graeme Cowie, Ewan Smith
10. Colin Murray (CM)
Anthony King left Northern Ireland out of The British Constitution, both its substance and title. He said, ‘[w]hat happens in Northern Ireland scarcely affects British constitutional development; constitutional development in Britain scarcely affects what happens in Northern Ireland’.9 But the tail is now wagging the dog.
McCord, the Northern Irish strand of Miller was a gambit – it may yet unfold into a series of constitutional challenges, if Brexit threatens the Good Friday Agreement (GFA).
Since the McCord element of the Miller judgment was agreed unanimously by the UKSC, talk of the GFA blocking Brexit should have stopped. But it hasn’t. The EU was part of the background to the GFA, it was not embedded in the text of the bilateral or multi-party agreements. What the GFA does do is substantially constrict the room for manoeuvre for Brexit. This point has only started to dawn on Brexiteers, as evidenced by Kate Hoey’s abrupt assertion (outwith any concept of feasibility) that the GFA had outlived its usefulness and needs to be renegotiated. The GFA exemplifies constructive ambiguity, but with an irreducible core. This is especially the case because the Northern Ireland Act 1998 (NIA), might have provided ‘in effect a constitution’ for Northern Ireland,10 but it was at best a partial translation of the GFA’s principles. There is a “constitutional” statute underpinned by a broader treaty.
The GFA is embedded into the EU and the UK’s approach to Phase One. It has amplified by the EU, through the Commission’s proposals for implementation of Phase One. It now permeates the Brexit debate: Lord Patten proposed amendments to the Brexit bill to enshrine the principles of the GFA. The EU Summit said, in very bald terms, that if the UK does not come up with Option A [comprehensive trade solution] or Option B [magical technological solution] by the 28th of June then then it will oblige the UK to go ahead Option C [regulatory alignment].
9 A. King, The British Constitution (OUP, 2007) p.ix. 10 Robinson v Secretary of State for Northern Ireland [2002] UKHL 32; [2002] NI 390, [11] (Lord Bingham).
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HMG refused to assent to the Irish Government’s request to use the intergovernmental conference to deal with the fact that the NI Assembly is not sitting. Arlene Foster said on the 22nd of March if Option C comes into force “it would definitely affect the entirety of the United Kingdom.”
GFA is an archetypal constitutional treaty. What might this mean for future litigation, if the UK does not accept Option C and does not meet the requirements of the GFA?
GFA is constructively ambiguous. It is intended to be acceptable to different constituencies. It is difficult to say that there was ever a set of agreed principles coming out of the GFA.
The Irish government says the Anglo-Irish Agreement was scrapped by the GFA. In its place came the British Irish Agreement. This created an architecture that includes the British-Irish Intergovernmental Conference, which is supposed to work when devolution is not functional in Northern Ireland.
The Irish Government is under political pressure to call on the BIIGC in the absence of a functioning Executive in Northern Ireland (not least by its own frustration to see nationalism have more of a voice in the process). The BIIGC would enable the Republic of Ireland to influence policy in Northern Ireland through civil servants sitting permanently in Belfast.
But the role of the BIIGC in the absence of the Executive is unclear – it is not explicitly a fall-back mechanism. For Unionists, strand 3 was intended to kill the hated Anglo-Irish Agreement (AIA) For nationalists it was an affirmation that, should devolution stall, there would be no return to direct rule without a “green tinge”. Further efforts in this direction could exacerbate Unionist fears over a return to the AIA and the DUP’s whip-hand at Westminster is likely to see the UK Government refuse to play.
HMG and the DUP argue that this is not the strict wording of the GFA. They say the Intergovernmental Conference should only cover material that is not covered by devolution and should only sit when the assembly is sitting and operational. Status quo ante described as “British sovereignty with a green tinge.”
The big issue for Brexit in the GFA comes in three different forms. Rights Status Citizenship
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In each, HMG’s present position is minimalist. The EU’s position takes a much larger view, as reflected in the Withdrawal Agreement.
Rights equivalence. Rights Equivalence – Ireland must ‘ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland’.11 Ireland and the EU have accepted that the idea of equivalence is reciprocal. This does not just mean civil and political rights in the European Conventions. It could mean the Four Freedoms. Rights equivalence is not civil and political rights equivalence vis the ECHR. It could support claims that because of the rights of the people of Northern Ireland to choose to identify as European Citizens, they should be entitled to equivalent rights under the four freedoms as Irish citizens in Ireland, and equivalent rights to vote and stand for the EU Parliament. The phrasing of equivalence provision presents NI as the base line for the ROI, a baseline which could be shifted by Brexit. The problem with this literal account of the treaty provision is that the context of this provision could (should) be interpreted in light of the principle of reciprocity of obligation. The base line is an ECHR standard of rights protection. The ceiling is full equivalence with a range of EU rights. A minimalistic approach to GFA obligations could have been secured by an EU-UK trade agreement including ECHR rights requirements (for NI).
Status Under the heading of ‘Constitutional Issues’ Part 2(1)(i)) of the GFA declares that: “it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people.”12 This is re-iterated in section 1 of the NI Act 1998. A change to the constitutional status of NI could be in violation of the GFA, save with the consent of the majority of its people. This is ordinarily interpreted to apply to a ‘border poll’ on the status of NI as part of the UK, and in the Miller case the UK Supreme Court rejected the argument that it required the assent of the people of NI to triggering Withdrawal.13 Para 44 of the Phase 1 Report reaffirms the importance of the status of NI. Nonetheless, it is arguable that should the constitutional status of NI within the UK change – for instance utilising para 49-50 of the Phase 1 Report to establish a ‘special status’ for NI such as a customs territory – the principle of consent may become operational.
11 GFA, Section 6, para.9. 12 GFA section 6, para. 11. 13 R (Miller) v Secretary for State for Leaving the European Union [2017] UKSC 5.
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Should this occur without, at the very least, the involvement of all the representatives of the communities as defined by the GFA? Of particular concern should the Stormont Assembly continue to be non-operational and/or direct rule is established Imagine a situation in which a border in the Irish sea. Economic and social rights of NI are almost entirely dealt with by EU process. How much of a change to UK sovereignty do you need before the status of NI is changed? We may see a unionist call for the vote on this issue.
Citizenship. People in NI can choose to be Irish or UK citizens. This is embodied in the GFA, Part 2(1)(vi). This part is perhaps linked to s.75/76 of the NIA though this refers to non-discrimination, not explicitly to citizenship) o But what does it mean to be a citizen? Is an Irish citizen shorn of their operative EU rights on Brexit day a true Irish citizen? o The EU’s Option C defends this position explicitly, but if the UK’s preferred holistic trade deal or magic technological solution, there will be litigation as to whether the NIA is being undermined. Phase One says EU citizens can establish an EU company in Belfast. You cannot establish an EU company in New York just because you are an EU citizen.
All of these issues will profoundly shape the Brexit process.
In 2004, when, as a result of the citizenship referendum in Ireland, changes to Ireland’s Constitution instituted in response to the GFA14 were in part reversed. To maintain its international obligations, the Irish Government first sought the UK Government’s agreement that ‘that this proposed change to the Constitution is not a breach of the … Agreement or the continuing obligation of good faith in the implementation of the said Agreement’.15
There is no compromissory clause in the GFA. An action before the International Court of Justice (ICJ), does not appear to be a possibility. Both states, in making their declarations of compulsory jurisdiction (the formal recognition of the Court’s authority) have included qualifications. The Irish Government has the most evident exclusion, which allows for all disputes to be heard at the International Court except those that arise between it and the UK with regard to Northern Ireland. The UK’s
14 Constitution of Ireland, Bunreacht na hEireann, Nineteenth Amendment. 15 Citizenship Referendum: Interpretative Declaration by the Irish and British Governments regarding the British Irish Agreement, available at: http://eudo- citizenship.eu/NationalDB/docs/IRE%20Citizenship%20Referendum%20Interpretation.pdf. Accessed 25 Jan 2017.
25 TREATIES, BREXIT AND THE CONSTITUTION declaration is slightly more open in that it states ‘any dispute with the government of any other country which is or has been a Member of the Commonwealth’.16
The GFA and the back-stop Agreement
The GFA does not seek to reshape identity in NI – it accepts the two-community arrangement, even ossifies it. The Northern Ireland elements of the Phase 1 Withdrawal Agreement are explicitly created with the aim of saving/securing the GFA. But they also inescapably change its nature. They are premised not on two communities, but on one people of Northern Ireland, uniquely placed to claim rights within both the UK and EU. Going forward, this singular effort to dissolve Northern Ireland’s identity- politics crisis could have profound long-term effects on NI politics.
11. Graeme Cowie (GC)
If the Scottish government’s opposition to Brexit is “the world’s most boring constitutional crisis” then its refusal to grant legislative consent to the Trade Bill “isn’t even the most boring constitutional crisis in the devolution and Brexit band.”
Devolved authorities make two points. First and foremost, they are seeking to protect their right to implement what is agreed in their own distinctive ways: domestic form of “managed divergence” or “regulatory equivalence They are also saying that, in the absence of the EU’s more complex multilateral trade negotiating structures, that they will need to have a more formal and more substantive role in setting the negotiating priorities of the UK Government when it seeks out trade deals with the wider world.
Key Points: 1. The UK Government’s position on replacing the limits on devolved competence imposed by EU Treaties with a domestic restriction is a fundamental change to devolution 2. The UK Government’s amendments do not yet address the underlying concerns of both the Scottish and Welsh devolved governments 3. The concerns are about how GOVERNMENTS use powers, not just how LEGISLATURES use powers, which means consent provisions are both possible and important; and
16 Both states’ declarations are available at: http://www.icj- cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3. Accessed 25 Jan 2017.
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4. There needs to be a much clearer distinction for devolved purposes between consent provisions and a right to diverge on implementation for international agreements.
It is important to distinguish between the role of devolved authorities in the negotiation stage of international agreements, as against their role in implementation. Otherwise, we cannot be sure what exactly they are complaining about.
There are about 150 areas across the three devolution settlements that potential engage EU law A devolved legislature cannot act inconsistently with EU law. It has a responsibility for implementing EU law in respect of devolved matters, especially agriculture, fisheries, the environment and transport. Moreover, a devolved executive should act compatibly with EU law in developing of policy.
There are a range of devolved policy areas that are constrained by EU law. Agriculture, fisheries, the environment and transport, to name but a few, are all areas with significant bodies of law made on an EU-wide basis, which the devolved authorities are obliged to implement
So long as the EU leaves discretion, policy responsibility rests with the devolved authorities. GM Crops are a good example. EU directives do not mandate that member states permit GM Crops. Scottish and Welsh authorities have banned GM crops, departing from UK government policy. This is an implementation discretion, not a veto on implementation of an international obligation.
a. The Withdrawal Bill
What does the Withdrawal Bill change? The requirement to act compatibly will become anachronistic as that body of law will not have territorial effect. The Withdrawal Bill removes this restriction. The UK Government wants to retain some of the restrictions that the EU placed on devolved competence “in order to preserve the single UK market.” Devolved authorities do not accept that the retention of power is a replication of what existed beforehand. They see these as wholly domestic restrictions on devolved competence rather than those arising as a result of international obligations.
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As they see it, they are not being asked to give effect to obligations that hat the UK has agreed to under international treaties.
The Devolved authorities object to: Limits on their competence with respect to retained EU law. UK ministers’ competence to modify retained EU law in devolved areas. Their view is that the UK ministers should not have the power to modify EU law in developed areas without consent.
The Devolved authorities want to ensure that they have role in consent to common frameworks that protect an internal market. If restrictions are imposed on competence that might remove their opportunity, even under Sewel, to scrutinise and decide whether to grant consent to any new common frameworks.
Although devolved legislatures are prohibited to legislate to modify retained EU legislation in an area that is devolved, the UK parliament would be able to do this. Delegated powers in the withdrawal bill mean that ministers will be able to modify retained EU law in devolved areas. This restriction “is a moving target. It is not a static freeze.” It creates areas that could be changed without further scrutiny. Sewel applies only to primary legislation not to delegated leg.
What has happened since the bill was introduced? The Scottish and Welsh governments recommend that legislative consent should be withheld. The UK government, through the Joint Ministerial Committee on European Negotiations, has attempted to reach agreement on how to change Clause 11 of the Bill.
The UK government has tabled amendment in the Lords to this effect Original o Retained EU law protected from modification by devolved authorities except insofar as it is released New o Retained EU law is released except insofar as it is retained.
Second Change Any set of regulations that propose to restrict a devolved legislature in relation to retained EU law must only be made after consulting with the relevant devolved authority. That is a right of consultation, not a right of veto.
Third Change
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“Reporting requirement” whereby every 3 months the Government must explain why it believes certain restrictions are still necessary, and update Parliament on the progress that has been made to establish common frameworks to replace those restrictions. But no sunset clause for eventual release of powers.
The Scottish and Welsh Governments are not content with this new approach because, as John Swinney (Deputy First Minister for Scotland) put it:
“clause 11 does not make provision requiring the agreement of [the Scottish] Parliament or [ ] Government. Without that, we will have things done to us, in terms of devolved competence, that the founders of our Parliament would not have approved of.”
Realistically, consent won’t be given to the Bill unless clause 11 guarantees the requirement for consent to “re-reserve” powers previously exercised by the EU on a case-by-case basis and/or a sunset clause is agreed to that releases restricted powers at a defined future date.
b. The Trade Bill
The Trade Bill is important because it includes a fourth category of delegated power to add to the three in clauses 7-9 of withdrawal bill.
The same problems apply here – there is no consent requirement.
There are other objections they have about delegated powers, which are common to both the Withdrawal Bill and the Trade Bill. Under clauses 7-9, there are significant Henry VIII powers given to UK Government Ministers. These powers would, among other things, allow them to make regulations that relate to devolved matters or which even modify the devolution statutes.
Would a consent requirement give devolved regions a veto over Brexit? This framing of that dispute is very misguided, especially in relation to the Trade Bill. What the devolved authorities are calling for is the right to be able to choose how to implement international obligations in areas of devolved competence, not whether to implement them at all. We need a much sharper distinction to be drawn between treaty negotiation and approval on the one hand, and treaty implementation on the other.
Moreover, the UK government’s concern that consent would lead to a veto is overblown, because there is a provision in all 3 devo statutes that enables the UK
29 TREATIES, BREXIT AND THE CONSTITUTION government to instruct a devolved authority to give effect to an international obligation s.58 Scotland Act This has never been used before, in part because it would almost certainly relate to European Law.
12. Ewan Smith (ES)
a. Foreign Policy in devolved regions
Our system of devolution is still in its infancy and we have not come up with the sort of textured solution that settled federal jurisdictions like the United States enjoy.
Independence is a divisive issue in Scotland. Devolution isn’t. 75% of scots voted for devolution in 1997 and support has only risen since then.
Devolution was granted on the basis that issues like agriculture, fisheries and trade would be closely regulated by the EU. It was also granted by a Labour Party with the largest Parliamentary majority in history, which had held majority support in Scotland and Wales for generations. For the immediate future, problems could be resolved on a Party to Party basis.
International relations, international trade and development assistance were reserved to Westminster. But the Scottish Parliament has cross party committees dealing with all of these matters. The Scottish government also has an International Division in Victoria Quay, and Interests Sections based in British Embassies abroad, established and financed using funds voted by the Scottish Parliament. The Foreign Office does not have a Scottish, Welsh or Irish interests section. The assumption is that those interests are essentially national and indivisible in spite of policy differences at a national level. However, the idea that different interests might need to be embodied in different policies is implicit in the devolution settlement.
Do we need to amend the devolution settlement itself?
Would it be possible to establish an ambulatory account of retained law? Compare s29.(2)(d) of the Scotland Act 1998 and s.80 (1) of the Government of Wales Act 2006
b. Constitutional Treaties
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Can a treaty be constitutional, or merely its incorporating statute? What happens if, instead of looking at the incorporating legislation, we look at the treaty itself? David Allan Green - The Good Friday Agreement is “a core constitutional text of the UK, and of Ireland [...] of more everyday importance than hallowed instruments such as, say, Magna Carta of 1215 or the 1689 Bill of Rights"17 The constitutional nature of the Treaty of the European Union is an important factor in the reasoning of High Court in Miller.18
A simplified account of dualism sees the interpretation of a constitutional treaty as a simple question of statutory interpretation It would be “monstrous and absurd” for a court to construe a treaty19 But this isn’t the way courts approach treaties – “dualism” is a helpful simplification of the constitutional rules that receive treaties.
The constitutional rules that receive treaties vary according to the object and purpose of a treaty Al-Skeini v. Secretary of State for Defence [2007] UKHL 26 (House of Lords) This affects the way the court construes treaty rules and also to the power to ratify and withdraw.
The cognisibility of a Treaty may depend on its object, purpose and operation. R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 756 (House of Lords) at [43] pp
“It is at least possible, in these terms, to look directly at the constitutional effects of treaties, and not simply at the constitutional effect of the legislation that incorporates them.” The Treaty of Waitangi The Sino British Joint Declaration o In each of these cases these treaties can be the source of rights and duties and they certainly refract domestic law.
But, the arguments about the novelty and heterodoxy of constitutional statues would be greatly amplified if we had to consider treaties concluded by the government as well as statutes concluded by parliament.
13. Discussion 3
17 https://www.ft.com/content/34a22284-0ff3-36a7-9e33-c010bbb2cd23 18 [37]-[43], [50]-[63] 19 Blad’s Case 3 Swanston 603, 36 ER 991 (Chancery)
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Holger Hestermeyer – It is normal for federal entities to have a role in negotiating treaties. That was the way CETA was negotiated. Perhaps we need a large federal competence like an interstate commerce clause?
ES – It depends on the precise nature of the political settlement between the centre and the subsidiary bodies. If we had a functioning steering group this would be much easier. The proliferation of different bodies dealing with different aspects of the same issue is a problem that needs legislation to solve.
GC – We are not a federal state. It is relatively easy to impose limits on the legislative competence of devolved legislatures. While holding to our constitutional traditions, we cannot easily do this in respect of Parliament.
The UK does this by convention, but that has already been placed under strain. There is disagreement as between the HMG and the Scottish government as to which aspects of the Withdrawal Bill require consent. In the absence of legal constraints, it is very difficult to institutionalise those relationships.
CM – We might solve these problems by looking backwards to the situation the UK’s involvement in European project. Pitt spent 20 years from about 1780 trying to establish a unified UK market and trying to break down trade barriers as between Ireland and the UK. This only came to fruition in the Act of Union in 1801. Gallagher v. Lynn [1937] AC 863
There used to be a Northern Irish Foreign Policy. There certainly was when Sean Lemass met Terence O’Neill in 1965. Structures like this are not alien to the UK constitutional order
Martin Chamberlain – I do not agree that the Scotland Act is ambulatory. It contains a definition of EU Law – obligations from time to time provided for under the EU treaties.
ES – I defer to you Martin. That sounds correct.
Dominic Burbridge - To what extent do the three key strands of the GFA have to be realised in conjunction – can they be realised separately? What happens if we have a free trade agreement with India which gives NI citizens greater economic rights than Irish citizens. Would this breach the GFA
CM – We might think of the GFA in terms of core-principles and penumbral principles. This is why it is important to study the December reporting document and to consider whose interpretation wins out? The Phase 1 report it is neither
32 TREATIES, BREXIT AND THE CONSTITUTION minimalistic nor atomised. Paras [44] – [52] present the three key strands “mulched together into a broader account of what the GFA requires.” If the UK had a stronger hand, we might expect to have seen a more discrete account of these principles.
“The people of Northern Ireland” is a phrase that is shot through the December 2017 agreement. The GFA talks about “two communities” and about the right to choose “Irish” or “British” citizenship. It “ossifies the division” between those communities. In contrast, the December 2017 Agreement talks about “stuffing their mouths with gold and hoping they go away as a problem.”
A recent report for the JCHR both in Northern Ireland and the Republic of Ireland expresses concern about the right to representation for the people of Northern Ireland in the European Parliament. We are getting to a “post democratic scenario” in which large amounts of law in force in NI are imposed upon it. The only close analogy is the when the Free City of Danzig was yoked into a customs union with Poland by art. 100 of the Treaty of Versailles People in Northern Ireland are being told “you’re going to get the best of all possible worlds. Don’t complain about it.”
Jill Barrett – When I was last in government in 2010, there were delegations to multilateral treaties in which there were no representative from devolved administrations. But if they had asked, they could have joined us. With this in mind, has the Concordat on International Relations as between the Scottish and UK governments been useful and what will happen post Brexit?
GC – In the context of EU negotiations, representatives of devolved administrations are often present in the room. They can’t vote but can they can advise and can be consulted. For example, the minister responsible for Scottish fisheries supports the UK delegation in Common Fisheries Policy negotiations.
This sort of soft power might be more important now that trade agreements are up for grabs.
In the Lords debate, consent issues could be solved by revisiting the terms of the MoU between these institutions. But there are limits to what that can achieve – because the two governments are fighting over the terms of the framework as well as its sphere of application.
The Welsh government has been the most active in formalising the means by which Wales influences UK foreign affairs. It has called repeatedly for the Joint Committee to be placed on a statutory footing. But the informality of the UK constitution makes this difficult.
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ES – I expect that the Concordat works in lots of different ways depending on the problems at hand. In China, issues like airline access, which was important to the Scottish government could potentially have been raised through the UK Economic and Financial Dialogue. To the best of my knowledge, the Scottish Government did not participate directly in this. However, the First Minister was able to raise this sort of issue directly with the Premier.
Nick Barber – “Citizenship? What the hell?”
CM - There are perhaps as many as nine different categories of people from the frontier worker to a UK citizen who moves to NI. The Phase 1 agreement sets out different rules that apply to each of them. We can only hope that nine categories become something more manageable.
Nadine McNally - Given that reference to the EU are entrenched in the GFA, if HMG wished to amend this would the issue have to put to the people of Northern Ireland and perhaps Republic of Ireland? The UK’s international obligations extend to the Republic of Ireland. If negotiations break down, would this read to an international legal dispute?
CM - There was nothing in the GFA that would require a vote except the preamble. This was dealt with in Miller. The question isn’t whether the GFA stops Brexit, but what sort of Brexit it allows. Peace funding is not a part of the agreement. Interestingly, we sometimes think of the divorce settlement as money going in one direction. In fact, the UK has agreed that the EU will continue to pay for NI for years to come.
It is wrong to thing of the GFA as set in stone. There have been multiple reiterations from St Andrews to the Haass-O’Sullivan Talks to the Stormont House Agreement. All of these have changed aspects of the Agreement. What we would need to change the fundamental character of the Treaty would be a UK-Ireland protocol. When Ireland set out the 19th Amendment in 2004, it was though that this might change citizenship provisions in the GFA. The Irish government decided to negotiate a new protocol.
There is no dispute settlement provision in the GFA. UK and Ireland’s reservations to the compulsory jurisdiction of the ICJ make it unlikely for this to generate an international issue.
Jack Simson Caird – Could the Continuity Bills lead to “legislative warfare?”
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GC - The Scottish Parliament and Welsh Assembly each passed a Continuity Bill which stakes out the power to control retained EU law. There are significant question marks about whether these Bills are within competence. Presiding Officer statements give indicatives views.
“Good luck to anyone trying to make sense of how these three statutes are intended to make sense” The Welsh Bill dovetails more closely with Withdrawal Bill, so it is more likely to be in competence. The Bills are perhaps intended mainly to secure concessions on Clause 11.
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PANEL 4: International Perspectives
Chair: Eirik Bjorge Speakers: Joanna Harrington, Mario Mendez, Ruth Houghton
14. Joanna Harrington (JH)
Concerns about WWI secret treaties lead to the Ponsonby Rule. Note that the framers of the US Constitution chose the Senate for the “advice and consent” provisions because they thought it would be a confidential partner in treaty-making. Article II, section 2 was not intended to be a “sunlight” provision. Early treaty discussions in the Senate were held in secret, with leaks leading to newspaper reports of these discussions. Having a constitutional requirement for “advice and consent” does not necessarily generate transparency.
The early 20th Century interest in parliamentary involvement faded over time. In Canada, by the mid-1960s, the practice of tabling treaties in the federal Parliament was forgotten, overlooked or abandoned. The last treaty in Canada to receive formal parliamentary approbation was the 1966 Auto Pact.
Australia’s “Trick or Treaty” report in 199520 reinvigorated interest in Parliamentary scrutiny. The impetus for that report came from a concern about human rights treaties rather than trade or investment treaties. International human rights treaties were used by lawyers in the Australian courts, and there was a sense that this process of executive legislation bypassed Parliament. See also NZ equivalent - The Treaty Making Process, Reform and the Role of Parliament.21 See also: o Baker v Canada (Minister of Citizenship and Immigration)22 o Minister of State for Immigration and Ethnic Affairs v Teoh23 o Tavita v. Minister of Immigration24
20 Australia. Parliament. Senate. Legal and Constitutional References Committee. Trick or Treaty? Commonwealth Power to Make and Implement Treaties (November 1995) Report No. 474. Available at https://www.aph.gov.au/parliamentary_business/committees/senate/legal_and_constitutional_affairs/c ompleted_inquiries/pre1996/treaty/report/index 21New Zealand Law Commission, The Treaty Making Process, Reform and the Role of Parliament, Report No. 45 of December 1997. Available at http://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/R45-TreatyMaking.pdf 22 (1999) 2 SCR 817 23 (1995) 183 CLR 273 24 (1994) 2 NZLR 257
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The question of whether to enter into a new treaty can be a general election issue. Canada–US Free Trade Agreement was the focus of the 1988 federal election in Canada Many believe that NAFTA 2.0 will form the basis for an October 2019 federal election.
It is desirable to have some involvement of Parliaments in the making of treaties, whether through practice, policy or statute. The desire for involvement is often motivated by democratic deficit concerns, with the discussion of parliamentary roles in treaty-making being code for desires for greater transparency in executive treaty- making, or improvements in the public knowledge of treaties, or greater accountability. The time for Parliament to play a role should be after negotiation but before ratification.
I will focus on coverage, procedures, content and exceptions. In doing so, I will mention the mechanisms for institutionalizing parliamentary involvement, as well as mechanisms for incorporating sub-national unit involvement, addressing a “federalism democratic deficit25”.
a. Mechanisms for Parliamentary Engagement
There is a need to consider the stage of the treaty-making process. I have focussed on the stage after negotiation, when one has a final text, but before individual state ratification or accession. At that stage, the tabling of treaties, after negotiation but before ratification, also known as the laying before Parliament of a proposed treaty action, is one of the easiest mechanisms, from the perspective of the executive branch. It can be accomplished as simply as making a notation in the official Journal for either one house, or both houses in a bicameral system. But this prompts the query: “who has the time (or the inclination) to check the Journals for a listing of new treaties?”
Tabling can also be accomplished by depositing treaties in batches – such as all treaties in a first quarter– although “batching” may give inadequate time for scrutiny. Note the comparison to House of Lords EU sub-committees. Listings of new EU initiatives are available for review, but were the Lords really interested or motivated to review any matter on the list, absent a matter that had attracted media interest?
The notice or tabling approach places the onus for action on parliamentarians. They can call attention to a proposed treaty action through written or oral questions, early
25 J. Harrington, Redressing the Democratic Deficit in Treaty Law Making: (Re-)Establishing a Role for Parliament (2005) 50 McGill L.J. 465
37 TREATIES, BREXIT AND THE CONSTITUTION day motions, or the calling for an inquiry by a committee. Indeed, MPs can initiate such actions without arrangements for deposit or tabling in Parliament This happened in Canada’s House of Commons in 2002 with the passage of a motion calling on Canada to ratify the Kyoto Protocol on climate change. This was done without having the treaty text in front of them – and by a “national” Parliament in the face of opposition from three provinces.
A more developed mechanism is having a designated home within Parliament Australia’s Joint Standing Committee on Treaties (JSCOT)
This is the home to where all proposed treaty actions can be sent, along with explanatory memoranda and/or “National Interest Analyses”. Such a home provides a focal point, and gives more attention to treaties than a simple deposit in Parliament, particularly if the treaties committee has a website that lists treaties under current negotiation.
A designated treaties committee can serve to publicize the executive’s reasons for wanting to ratify a treaty. Its committee members can seek further explanations or clarifications, can propose reservations and understandings, and can hear testimony from witnesses, including stakeholders, and NGO representatives. Committee members and staff can also build relations with those working within ministries of foreign affairs, that may lead to a cooperative approach over time, or at least a familiarity with each-others’ roles. A designated treaties committee is also a means for parliamentarians to have the benefit of staff with expertise, and may help to establish and retain institutional knowledge.
Which house should host such a committee, or is a joint committee best? The Canadian Standing Senate Committee on Human Rights has argued26 that the Senate is a more appropriate host because it has more of a mandate for regional and minority representation than the House of Commons. And as an unelected body, it also argued that it can be more insulated from short-term public opinion. That argument could be used against the Senate as it suggests a democratic deficit.
A third option is to create a mechanism whereby a proposed treaty action is tabled, and then an alert is sent to the parliamentary select or standing committee, or committees plural, that deal with the subject matter. In South Africa, health-related treaties go to the health committee, environmental treaties go to the environment committee, and trade treaties go to the trade committee.
26 Canada. Parliament. Senate. Standing Senate Committee on Human Rights (December 2001) Promises to Keep, Implementing Canada’s Human Rights Obligations, available at https://sencanada.ca/content/sen/committee/371/huma/rep/rep02dec01-e.htm
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Multiple or joined committee can consider treaties with overlapping subject matter, or for chairs of committees to work together, as well as the use of sifting mechanisms to decide which treaties are deserving of more committee time.
Parliamentary committees can also organize an inquiry about a treaty of their own motion. This includes a treaty about which the executive branch has not expressed an interest in ratifying. Canada’s Senate Committee on Human Rights undertook an inquiry into whether Canada should ratify the American Convention on Human Rights. In Canada, the federal government has previously promised Amnesty International, in advance, that a parliamentary review on whether Canada should ratify the Optional Protocol to the UN Torture Convention would take place.
b. Mechanisms for the Engagement of Subnational Units
Subnational units, whether within federal states or quasi-federal states, want to have a role in the scrutiny of treaty actions that concern their areas of jurisdiction. Mayors of big cities care about climate change. Self-government agreements between Ottawa and indigenous communities include obligations of consultation for relevant new international legal obligations.
Quebec enacted legislation to require treaties dealing with provincial areas of jurisdiction to be laid before Quebec’s National Assembly. The legislation required the legislative branch to adopt a resolution of support for future executive action. A key actor behind this legislation was parliamentarian and professor Daniel Turp, whose litigation concerning Canada’s withdrawal from the Kyoto Protocol was cited, and then, dismissed by Lord Carnwath in the Miller judgment. Australia has also experienced efforts at the state level to be engaged in treaty making, whether in Queensland, Western Australia, or Victoria.
Perhaps the more practical option is for the national Parliament to provide in its hearings for provincial representatives to submit their views, rather than replicating several treaty scrutiny committees at various levels.
At the negotiation stage, Canada cooperates with (“some say co-opts”) provincial executive branches and their officials by ensuring that they have representation on a Canadian negotiating delegation.
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Canada does not negotiate treaties on matters of culture without a Quebec member on the delegation, nor negotiate fishing treaties without a member from Newfoundland and Labrador.
At the post-negotiation, but pre-ratification stage, the decision to ratify a treaty in Canada is often made in consultation with provincial executive representatives This can be ad hoc or formal. There are regular meetings of federal, provincial and territorial officials for human rights matters. Those discussions are held in confidence; they are not public meetings; although the end result may become public in the form of understandings and reservations when Canada deposits the instrument of accession or ratification.
c. Factors for Further Consideration
At what stage in the process should Parliament be involved? Miller focusses on notice to negotiate. That is an early stage in the negotiations process. Legislatures can set parameters for negotiation. o Trade promotion authority. However, if Parliament sets too many red lines this can strangle negotiation, especially negotiations that end up taking place over many years. If a national Parliament has made public all the terms of a deal to be reached, this can alienate potential partners.
At the post-negotiation stage, but pre-ratification stage, practical considerations may be organized into concerns of coverage, procedures, content, and exceptions.
Coverage - Should the parliamentary mechanism for considering new treaties be used for template treaties? This includes double taxation treaties, or social security agreements, where a template is used to prepare one treaty and then replicated for the next. In some cases these treaties are already separated out by legislation requiring a separate approach. However, a template treaty with a particular treaty partner could raise public concern. For example, an extradition treaty, written to template, but with Iran, Syria or China, will definitely be a matter of public interest. New Zealand’s Minister for Foreign Affairs decides which bilateral treaties are considered important enough to be tabled in Parliament. US domestic practice has developed to distinguish between “treaties” and executive agreements, to take the latter category out from the Senate scrutiny provisions. It was not until the 1970s, and the passage of the Case-Zablocki Act of 1972, that these executive agreements had to be tabled in Congress.
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Procedures What is the right timescale for parliament to act? o Sitting days, power to demand extension
Content – Should parliamentarians should receive more than just the treaty text? There is a spectrum of potentially disclosable information including guidance notes, national interest analyses, explanations of positions taken and negotiation trade-offs, plans for domestic implementation. There is potential for overlap with Parliament’s role to enact legislation in advance of ratification of a treaty that requires a change in domestic law.
Exceptions We may need to provide for urgent actions or emergency treaty making. Can past treaty actions can be reviewed by an institutionalized parliamentary scrutiny process? South African Constitution (s.231) requires parliamentary approval for treaties to become binding, but exempts treaties “of a technical, administrative or executive nature”.
Should mechanisms for parliamentary engagement be lead by the requirements of multilateral treaties or bilateral treaties? There is the potential for twin-track scrutiny, with not all treaties being subject to full inquiries with hearings and witnesses.
Multilateral treaties attract public interest but they may ultimately be less controversial than bilateral treaties. Negotiating a multilateral treaty can lead to the watering down of the obligations o North Atlantic Fisheries Organization convention is a rare example of a multilateral treaty tabled in Parliament that led to significant parliamentary attention.
Bilateral treaties are more controversial Agreement between New Zealand and Singapore on a Closer Economic Partnership of 2001 Australia – US Free Trade Agreement of 2004. Canada – Colombia Free Trade Agreement 2008 o Parliamentarians pushing for the inclusion of a side agreement to address human rights concerns.
When treaties give states party the authority to adopt measures, should they be subjected to another round of parliamentary review?
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Quotas in fisheries treaties are not amendments but operational aspects of a treaty regime. New chemicals regulated under environmental treaties EU directives.
15. Mario Mendez (MM)
Three key transformations at the domestic level in response to the changing remit of treaty-making; Parliamentary control, direct democratic control, and constitutional or judicial control (and all of which should be given consideration in the context of any future UK rules pertaining to treaty-making in a post Brexit era)
a. Parliamentary control.
Formal Constitutional rules giving parliament an approval role over some or even all types of treaty making: The US Constitution 1787 (Art. 2) has the first legislative approval mechanism (a super majority requirement in the senate) The Belgian constitution 1830s provides for legislative approval for certain types of treaty which has been the most widely copied model. Copied by France and other continental European countries and spread in the era of decolonisation through Africa, and also frequently the approach in Latin America and Asia. There is variation in the types of treaty requiring parliamentary approval but often it seeks to capture treaties the subject matter of which falls within the remit of ordinary legislation. The post WWII period also sees the emergence of supermajority requirements for certain types of treaty, notably for access to supranational organizations; Denmark began this trend and it has been copied by a number of European states including Luxembourg. We have also seen the emergence of some forms of parliamentary control in relation to reservations: recent constitutional texts to do so include Chile and Mexico.
But we should not assume that approval rules necessarily manifest themselves in actual meaningful input into the treaty-making process (the EU and the US are two famous examples where the input has become meaningful). However the contrary more frequently appears to be the case. Thus the authors in the forthcoming Oxford Handbook on Comparative Foreign Relations law point out that a) In some 18 African Commonwealth States, where the president is usually from the majority in parliament; parliament acts as a rubber stamp in relation to Treaty-Making (and one might expect this to be equally true in Latin American States with strong presidential regimes) b) Spain’s 1978 constitution was born with a parliamentary approval
42 TREATIES, BREXIT AND THE CONSTITUTION requirement for a wide category of treaties, in reality, however, there is no culture of democratic scrutiny.
Parliamentary control over withdrawal is relatively rarely expressly provided for, the Netherlands appearing to be the first country to do so in the early part of the 20th Century and a number of countries have followed suit. However it is still the case that even recently drafted constitutional texts, such as the TFEU, often say nothing at all about withdrawal. This needs to be given serious consideration.
b. Popular control.
There is some element of popular control over the treaty making power Switzerland has been holding referendums on Treaties since the early part of the 20th century and has to date held well over a hundred referendums on treaty questions. Denmark and Ireland also have a practice of holding referendums on treaties (albeit primarily EU treaties). The UK’s European Union Act is another example (albeit one that inappropriately took the popular control too far it making it potentially applicable to matters of relatively trivial importance). The Dutch bottom up initiative in relation to the EU–Ukraine Agreement temporarily blocked that treaty, but the current government is in the process of seeking to remove the potential application of this bottom-up initiative to treaties.
c. Constitutional or judicial control.
Constitutional control comes in two forms: ex ante and ex post controls. Ex ante control emerged in France and the EU. Thus most recently the CJEU has precluded the EU from entering into a Passenger Name Record agreement with Canada and more controversially precluded the EU from acceding to the ECHR and its opinion on ISDS provisions in the CETA Agreement are eagerly awaited and indeed there is the suggestion that the ex ante opinion procedure could be triggered in relation to the withdrawal agreement with the UK. The Wheeler litigation in the UK was also an attempt at ex ante control. Austria has ex post review power written into its constitution, while in some other systems it has been adopted as a matter of constitutional practice as in Germany and the EU. The Ghanaian Supreme Court in 2017 held that a treaty Ghana had concluded with the US, binding as a matter of international law, was unconstitutional as the government had not followed the parliamentary approval requirements under the Ghanaian constitution.
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A key point to note here is that ex ante constitutional control, that is prior to the treaty entering into force for the relevant state, is perfectly compatible with international law, and that ex post review, often rejected as a matter of design or practice because it is said to conflict with international law, can actually be designed (and/or practiced) compatibly with the requirements of international law.
16. Ruth Houghton (RH)
I will consider the impact of greater Parliamentary involvement in international law.
Parliament and Parliamentary approval cover a number of different phenomena. The specifics can be very enlightening. The Vienna Convention on the Law of Treaties 1969 makes it clear that ratification is an international act; it says nothing of the domestic mechanism. Customary international law gives us the starting point that States’ legislative processes can be taken into account for the purposes of establishing customary international law: see Nottebohm27. The ICJ there undertook a survey of domestic processes. There seems to have been a shift under the ILC’s approach in its current work on customary international law (Conclusion 5 in particular) Para 99 of the ILC’s latest report28 says we can look to debates in Parliament, not only at legislation. Has the ILC had opened up a way in which Parliamentary practice can feed into the formation of customary international law in a broader way than Nottebohm?
Legislative acts can be taken into account for the purpose of the determination of customary international law, but what exactly does that mean? But if international law only looks at what the State says, can it really look into parliamentary debates and how those unfolded? We need to think in a more focused way about the role played by Parliamentary scrutiny and certain pieces of legislation in the ascertainment of customary international law.
Legislative approval is a growing trend but that may take the form of an act of parliament or a negative resolution. In South Africa there is a requirement for a resolution of both houses
27 Liechtenstein v. Guatemala [1955] ICJ 1 28 Reference? Is this Chapter V of A/71/10? CIL not addressed in the 69th Session…
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In France peace treaties, trade agreements, membership of international organizations, treaties connected to finance, territorial changes or changes to domestic law require legislation before they can be ratified. Germany requires federal legislation if the treaty regulates federal matters. In the US there is a need for Senate approval rather than a need for legislation. In the Netherlands there is the possibility of tacit agreement by Parliament.
An area in which we have seen parliamentary debates feeding into the development of customary law is the use of force. In the UK there is a convention – a domestic customary rule - that the government will seek parliamentary approval before engaging in the use of force internationally. In the Russian Duma a similar development can be traced.
17. Discussion 4
Jill Barrett: The use of the terms parliamentary and legislative approval can be confusing. In the UK we can see a clear distinction: one the one hand there is parliamentary scrutiny of the treaty; and on the other we have legislative approval, which refers to the passing of an Act of Parliament. These are two different things. In monist systems it may be different. In the Netherlands parliamentary approval is required before ratification, but then the treaty automatically has the force of law. There, Parliament is granting both parliamentary and legislative approval.
Jack Simson Caird: Should Parliament have a role before approval? What sort of incentives are these mechanisms intended to create?
JH: One of the difficulties in the negotiation of multilateral treaties is the role of blocks. That is not assisted by Parliament setting down deadlines in advance or saying ‘we have to achieve this or that’. This is a fortiori in bilateral negotiations: who wants to negotiate with someone whose Parliament has already set out the parameters? In certain subject areas, Canada has institutionalized this in the sense that there are mechanisms for the involvement of Parliament in treaty making. In addition, Canada also does NGO consultations, in order to inform the Executive’s mandate in treaty making.
Ewan Smith: 18 months ago we had a big discussion in this country whether the government could issue a notification under the TEU without consulting Parliament. That debate was not a foregone conclusion. Would anyone make the case for less Parliamentary involvement in treaty behaviour?
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Frank Berman: Doesn’t that depend on how you do it? Joanna, surely there are a lot of examples where negotiators go into a negotiation, including bilaterally, with an established national policy or framework? Model bilateral investment treaties: these models are published everywhere and they set a framework within which the negotiators operate Statutory authority for the negotiations of fairly commonplace standard-form bilateral agreements: social security, mutual taxation agreements, mutual legal assistance agreements. o There may be a specified procedure for approving the treaty afterwards but you have something on which Parliament has already spoken.
Now that is an example of what you might call ‘good’ Parliamentary control, because it makes life easier for everyone. But I certainly wouldn’t answer the provocative question—the underlying assumption that Parliamentary involvement is always a good thing. My answer would be that good involvement is a good thing.
JH: Template treaties are a good example. In Canada we have a statutory requirement according to which template treaties needed to be approved, but they got overlooked because no one was interested.
MM: For parliamentary, popular and constitutional control, the ideal would be that Parliament feeds into the actual negotiation process itself. That is certainly the case with the paradigmatic example of the European Union where the controls are supposed to feed into the negotiations. On termination, there are constitutional texts that say that there needs to be approval of withdrawal. There may be synergy between the Parliamentary approval of treaty making and unmaking, approval being needed for withdrawal only to the extent to which it was necessary in relation to the treaty making. For example, in Latin America you have examples of where a referendum is required in order to join a treaty and, by the same token, a referendum is required also for the leaving of that treaty.
Vaughne Miller: If we want ‘good’ parliamentary involvement—we need to be careful what we ask for. Under the 2011 EU Act it is necessary for Parliament to pass an Act of Parliament in various situations connected to the grant of power to the EU. This has meant that Parliament is having to pass an Act for quite mundane matters such as archives and the digital version of the EU Journal. This might take up valuable Parliamentary time.
Anthony Bradley: Some issues are so obvious that they are in danger of being passed over:
One is the accountability of government to Parliament. Was there not an occasion in the 1935 when the Foreign Secretary, Sir Samuel Hoare was held individually
46 TREATIES, BREXIT AND THE CONSTITUTION responsible for the conclusion of the Hoare–Laval Pact29? Governments are collectively responsible for what they do. That event was wholly exceptional and it would not happen today in the well-coordinated system of government that we now have! But we should not assume that executive and legislative functions exist in separate worlds—nor should we treat Parliament as a single, undifferentiated entity.
Parliament is sometimes talked about as if it were not bicameral. I can see different roles for an upper house and for a lower house in relation to the making of treaties.
Thirdly, a sovereign parliament, if it wishes, could legislate with a view to breaking a treaty. That might not have any effect in international law, but for the purposes of the British constitution it would achieve its intended effect.
Finally, I might mention the extensive discussion that has taken place in recent years regarding the involvement of Parliament in executive decisions to commit the armed forces to action abroad. This seems to me to be something of a parallel relationship to the making of treaties. And another narrower area, with some parallel to treaty- making, is parliamentary involvement in Whitehall decisions affecting overseas territories. There was a regrettable departure in 2004 from what had been agreed to be good executive practice when the Queen in Council meeting in secret issued a new constitution for the British Indian Ocean Territory (the Chagos islands) and the existence of the new constitution was not made public for a week or more.
Arabella Lang: As a Swede at heart, I look to Sweden, where Parliament has a strong role at least in theory and where Parliament sends delegations to treaty negotiations. How appropriate is that for the UK?
JH: To Arabella’s point—that is one of the benefits of a treaties committee, because it builds expertise over time.
MM: I agree with Vaughne. The treaty-making power is not democratically satisfactory of itself. But within the confines of the 2011 EU Act there is a need for Parliamentary legislation on so many issues whenever Article 352 (TEU or TFEU) is engaged, so that struck me as being nonsensical. On the point about greater scope for parliamentarians to be involved, this seems to be a good idea; the UK would benefit from having a variant of the EU set up. Switzerland has had this for some time now.
29 Geoffrey Wilson, Cases & Materials on Constitutional and Administrative Law (2nd edn CUP 1976) 144–6
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Professor Bradley’s point made me think of a quotation from Sir Eli Lauterpacht: ‘The reality of Britain’s legislative supremacy ends where the UK’s international law obligations begin.’
Whilst, Parliament can legislate in contravention of its treaty obligations, it is also the case that the treaty making power results in such a vast array of treaty making that the constitutional reform act was simply not good enough.
RH: There is an interesting interface between the international and domestic level: it seems that there is more and more interaction between the two levels.
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PANEL FIVE: Overview and Conclusions
Chair – Sir Frank Berman Speakers – Helen Mountfield, Murray Hunt
18. Frank Berman (FB)
I have had three thoughts running through my mind.
The automatic assumption is that Parliamentary control is a good thing. I am glad that has been questioned. The answer I would give to it is that it depends on when you do it as well as what it is you are setting out to do. The when is as important as the what. When a government is in the process of dealing with a difficult international negotiation, it wishes to avoid the embarrassment of coming to the end of the negotiation and finding that the outcome of that negotiation is one that the domestic traffic won’t bear. If that is the outcome then parliamentary involvement is a good thing and you have to work out how to do it.
The second thought is that if anybody ever had the idea the international law and national law were separate, divisible things, that idea ought to be thoroughly dead. It has been dead in the minds of international lawyers for some time; but I am not sure the same realization has always been present in the minds of domestic lawyers. That leaves you with a problem, that if the two systems interpenetrate, as they do, then how do you make that work. And, in addition, come what the CJEU calls ‘the EU legal order’ and now they talk about ‘the international legal order’ as well. It would seem that this quasi federal state of the UK is a part of a number of legal orders too. So, we have this complicated problem of various legal orders, each occupying a sphere of its own, but the important thing is not that; it is when the spheres interlock, work and have to be made to work in relation to one another. The judicial institutions of the EU have never been of great legal help in enabling us to form a proper conceptual picture as to how they should work.
The degree of Parliamentary enthusiasm for treaty making has been virtually zero, with the honourable exception of Anthony Lester, whose ideas were not realistic. We are going to have to do something intelligent in that regard, and I have a feeling that there will be no way to do it until after we have had a car crash over our exit from the EU, and that we will then have to begin picking up the pieces and try to make sense of it all.
It is Parliamentary time that rules the world, not Parliamentary sovereignty.
Ponsonby was more a rhetorical flourish than a practical institution.
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The European Convention on Human Rights was laid before Parliament under the Ponsonby rule. Was there any inclination on the part of Parliament or Government to stimulate a debate?
Such a rule of practice is what you make of it. Foreign Office legal advisors made a lot more out of the rule during the last period of its life than had previously been the case. The real anxiety ought not to be the FCO’s treaty making powers within the high political sphere. It is what other ministries get up to. To standardize that the way in which treaties are handled is a positive gain for integration, for consistency, and for control.
I think that the argument for having some kind of centralized mechanism is overwhelming. This is not because of the possibility that a Parliamentary vote would improve things greatly. The most important thing about having a centralized mechanism would be the secretariat and the resources made available to it. That expertise would put Parliament in a position to enter into a sensible dialogue with those inside the governmental machine who are doing the treaty making—that would be a huge gain.
In the end, we have to strike a balance between encouraging or discouraging approval and getting the treaty in to effect. Half-hearted Parliamentary procedures currently leave judges to address treaties which have never been given a careful and proper legislative stamp. I do not think that is satisfactory. The answer is to sort out our systems for putting into effect treaty obligations which we have openly undertaken within our own domestic law. Additional Protocol of 1977 to the 1949 Geneva Convention, signed by HMG in 1977 at the conclusion of the conference, This was ratified 20 years later, and then only on the basis that the most unlikely and improbable of back benchers, Jeffrey Archer, came out top in the ballot for Private Members’ Bills. The Additional Protocol was then ratified on the basis of a short, purpose built statute.
There will always be cases in which the Executive will go ahead and do something and then face the music afterwards. I am not sure there is all that much to be done to avoid that, because the music is there for them to face after they have done it. But I find it quite astonishing that there should not have been a push not from the backbenches, but from the governmental side, to encourage discussion on treaty making. It seems such an obvious democratic issue. That is what any government interested in the validity of its decision-making should want to do.
We are trying to build up a broader understanding of all of the elements that contribute to a grown-up process for negotiating, approving, enacting,
50 TREATIES, BREXIT AND THE CONSTITUTION implementing our treaty obligations. Quite when the circumstances are going to arise making that possible is difficult to say. We need a proper balance between approval and implementation. A sensible and mature system for dealing with treaties has got to be balanced with the Parliamentary role in approving treaties and giving domestic effect to international obligations.
19. Helen Mountfield (HM)
The debate has very well illustrated in the situations where individuals’ rights are at stake. Parliament must have a role in identifying our objectives in negotiating treaties and how we are going to achieve them. If we do not do that, the price will be that we have no accountability in a broad sense.
I thought of something that has been doing the rounds on Twitter, where a well- known pro-Brexit journalist was holding forth on why the government was so stupid in the way it was conducting the Brexit process30. She said: if it had been down to me it would have been very simple—we are not paying any money; we would like to have no tariffs, if you put no tariffs on us we will put no tariffs on you. This is the problem. People don’t understand the complexities. The details are profoundly political; we need therefore Parliamentary input.
The consequence of the Miller judgment is very clearly that we must have it constitutionally as well. The Government argued that it had an untrammelled prerogative power to enter into or withdraw from treaties, unless Parliament has filled the gap by way of statute31. That seems to conflict with the International Tin Council32 view of how national and international law interrelate. By that account, the reason national courts don’t look at international law is that it doesn’t have effect on national law. If it does have effect on national law then the executive cannot make changes without the input of the legislator. It seems to me that the heart of the decision is that there is a link between saying that the Executive can enter into and leave treaties, and that Parliament is sovereign. It is only up until and to the extent that a treaty doesn’t have effect in domestic law that it is entirely a matter for the Executive.
But this is true only of very few treaties. As Lord Kerr explored in his minority judgment in the SG case33, there are a lot of a treaties that are intended to give individuals rights. When we leave such a treaty, are we taking rights away? If such
30 This may refer to the Politics UK interview with Julia Hartley Brewer, available at https://www.youtube.com/watch?v=reC_fodQVpY 31 Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508 32 Maclaine Watson v. International Tin Council: [1989] 3 All ER 523 33 R (SG) v. Secretary of State for Work and Pensions. [2015] UKSC 16
51 TREATIES, BREXIT AND THE CONSTITUTION treaties are going to have legal effect then we need Parliamentary involvement. If not we run into a situation where judges are going too far. Parliament needs to have an appropriate say at the appropriate moment.
The consequence of Miller is that we cannot, without direct statutory authority, withdraw from a treaty that is intended to have effect in domestic law, unless Parliament has envisaged some other mechanism. One could derogate from the HRA without parliamentary authority (s.14), according the parameters set out in the HRA itself. But that is not to say that one can abandon the whole thing under s.21, by sucking all the content out of it by leaving the Convention. That is the consequence of Miller.
To the extent that Parliament chooses the ambulatory model of legislation, by which the law is what the treaty says for the time that there is a treaty, that choice is circumscribed by the principle of legality and has to be narrowly interpreted. The presumption is that if Parliament legislates to give effect to some treaty, then the effect is that we expect that to be the law; if there is a wish to remove it, then that is fine but the legislature has to do it. If that is the case then we need to look at the structures within which Parliament operates so as to enable it properly to scrutinise.
I have been worried by what I heard today: the 21 days set out in legislation are all very well and good but if you do not have time to debate the treaty at issue then what is the point of putting it before Parliament in the first place? What can be done in that regard so as to enable Parliament to have a sensible role in a world where treaties are becoming increasingly important.
20. Murray Hunt (MH)
In Using Human Rights Law in English Courts34, I argued that the time had arrived when the courts could recognize a common law interpretative obligation, requiring them to strive to interpret national law so as to be consistent with international human rights law. To counter possible criticisms on the basis of democratic deficit I argued that there was no need to worry, because we had the Ponsonby Convention, which gave Parliament the opportunity to consider human rights conventions before the UK became bound by them. So, before the courts could apply them Parliament had had its say. Colin Warbrick wrote a very kind review but one line in it has stayed with me: ‘the reference to Ponsonby is a joke!’ Warbrick was right. Ponsonby was not really a convention; there were no real examples of Parliament exercising its power under it. There is still a lack of appetite in Parliament for scrutinizing treaties.
34 Oxford: Hart, 1997
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I will discuss some examples where the Joint Committee on Human Rights did get involved. Protocol 14 of the ECHR. This was agreed with a view to aiding the Court in grappling with its backlog. The protocol was laid before Parliament and no- one took much notice of it, but everyone was excited about reining in the Court. o The JCHR produced a report, explaining Protocol 14, setting out the consequences for domestic authorities. The JCHR stated that what it was trying to do was to get Parliament involved, mindful of the democratic critique that was coming. The report sank without a trace. The Council of Europe Treaty on Countering Terrorism was also scrutinized prior to ratification. o The JCHR recommended that it should not be ratified as our domestic law did not comply. Again, the report really did not register at all in Parliament. Prisoner transfer agreement with Libya. o The treaty itself came to the JCHR’s attention before well into the 21- day period. The JCHR began to ask questions in correspondence. The political sensitivity of the treaty was clear from the fact that the Secretary of State personally called the Chair of the Committee. There was, however, no proper Parliament scrutiny. The UN Convention on the Rights of Persons with Disabilities was scrutinized very thoroughly o The JCHR held an extensive inquiry. It looked into the reservations that the Government wanted to enter, and the reasons for them.
All this was pre-CRAG. After CRAG, the JCHR stressed that it was important for the government to provide information at an early point in the period. The two final examples are post CRAG.
The UN Convention on Preventing and Combating Violence against Women and Girls. o The JCHR took evidence and looked at reservations, coming up with a recommendation that the Government should ratify as soon as possible. That has not happened, but it is a good example of how Parliament can do something useful to scrutinize reservations when there is an ongoing debate as to whether or not one should ratify. Protocol 15 to the ECHR. o The JCHR recommended ratification but stressed that Parliament needs to debate the matter. o The Government refused to have a debate on the issue. The government had worked hard to have subsidiarity and the margin of appreciation inserted in to the Preamble of the ECHR. But it did not
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want to go to the Commons and argue that ‘we have now fixed this and this is what will happen in the future.’ There was no debate.
We depend on informal understandings that need to be formalized. It is crucial for Parliament to flush out the Explanatory Memorandum as early as possible and to scrutinize it as early as possible, and then ask the right questions as early as possible. There then needs to be a hearing that involves human rights organizations with a view to improving the scrutiny process. Then a range of committees need to be involved. The JCHR looks only at human rights treaties. We need other committees too. The committees need to finalize their reports as early as possible.
Parliament ought in my view to have a vote even on derogations and interpretative declarations. The problems with the CRAG framework have been well summarized by Jill: there is not enough time for Parliament to conduct a proper enquiry. The committee needs the power to secure a proper debate, not necessarily on the government’s time.
For me the perfect end state is for all select committees to consider treaties in their area, thus allowing for Parliament to hold the Executive to account. It may be necessary to have a standing committee on treaties; there may well be an appetite for it too. Joanna touched on the example of the Australian Treaty Committee: I have been sceptical of such a specialist committee, as it might risk other committees not getting involved. But it would be a store of knowledge and expertise. There are about 30–35 treaties coming through each year. That is a large number of treaties but conducts triage, identifying the committees to which they ought to go. That is the sort of mechanism we need.
21. Discussion 5
HM: I think what we cannot have is a curtain. Of course, judges can look at treaties and take them into account. If judges are going to be involved with treaties, and they are, then you have to have procedures and to let Parliament have its say. It is as important that the legislature has the opportunity to scrutinise treaties as domestic legislation.
FB: That is why I would rather have some kind of specialized treaty committee, because that committee would contribute to building up responsible participation in the process, and will not see it as simply political point scoring.
Chris Johnson (CJ): I think there is potentially that appetite. If you create a structure, then it snowballs: it creates expertise and it creates demand. You create a committee,
54 TREATIES, BREXIT AND THE CONSTITUTION which over time builds up expertise and a brand, and the process becomes smoother and more efficient. The real hurdle is to bite the bullet and set up a committee. I think there probably is an appetite for that. I am acutely conscious, because I manage the EU Select Committee, that in a sense we have a limited shelf life. One of the things to prioritize is a treaties scrutiny committee.
FB: Would you locate that in the Lords or would you want it to be a joint committee?
CJ: I am only talking about the Lords here. I think that, as regards finding Parliamentary time, the Lords is actually a good place for this, because nobody actually controls time in the House of Lords; it is a self-regulating House where there is much more flexibility in relation to how time is managed, as compared with the House of Commons.
FB: And there is lots of expertise; certain members of the House of Lords negotiated treaties in their time.
CJ: Yes, and retired Permanent Secretaries and so on. So, I think there is an appetite. But it would not have the same teeth as the Commons might have.
HM: No, and it would not have the same legitimacy. I think that is why people voted for Brexit, because they felt that decisions were being made in a place where they had no say over it.
FB: It doesn’t rule out Chris’ idea though, because you could have the vetting done in an expert committee, as long as the decision was located in Parliament.
MH: I agree, there is a danger in locating it in the Lords. It was a great idea to make the JCHR a joint committee; that makes it possible to address some of the misgivings about human rights. If there were to be a specialist committee, I think it should be joint. Sifting is what experts do anyway; one could have one person doing that triage, as one person would be enough to do the triage that is needed.
James Rhys: There are always challenges in engaging Parliament. Whether such a committee ought to be centralized or specialized is a key debate. But I think we are entering into a challenging phase. In the EXEU committee, scrutiny is not always considered to be a good thing. ‘The referendum has spoken; Government needs to get on with Brexit; scrutiny will only delay.’ Parliament may see it as its duty to interfere with trade deals, to stop chlorinated chicken; but there will be this challenge as regards Parliament’s role in the future.
FB: Would there be an inbuilt tension between a specialist committee and the subject specific departmental committees?
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JR: My view is that the risk of overlap is much smaller than things falling through the gaps. I would much sooner have a specialist committee fighting it out with the trade committee, with both piling in, rather than everyone ignoring the issue. I would err on the side of keeping a central committee doing a sift and also scrutinising.
Jill Barrett (JB): Murray’s points illustrate the sort of things a scrutiny committee might usefully fix. The Prisoner transfer agreement with Libya was laid before Parliament for the full Ponsonby period; the problem was there was a clerical oversight in sending it to the JCHR, so the Committee got it late. It Is extraordinary that the JCHR had to complain to the FCO. The Government should have extended the period.
As to Protocol 15, I do not know why there was not debate. But the Government knew that the JCHR would not object to ratification. I suspect it was a matter of the Government not wanting to give its time.
Thirdly, the memoranda, they are often no more than two sides of paper. Parliament never demanded more, ever. For statutory instruments, there are templates for what to put in; for treaties, there are no such things. That surely is one of the first things a treaty committee might do.
Perversely, the requirement to lay, as things stand, create incentives for the Government to lay the treaty before Parliament only at a very late stage. That perverse effect needs to be addressed.
These are all things that a centralised treaty committee could deal with. It could be sifting committee that passes things on or it could be a scrutiny committee. I am sure a joint committee is the right way to go.
JR: Members have a low incentive to get involved, even though they are interested in the effects of treaty obligations. If members feel that their involvement does not make any difference then that is a problem. You need something with a hard edge, in order to have members invest time and energy into the process.
HM: That is why it needs to be more than 21 days.
Arabella Lang: But which do you have first, an approval process which stimulates demand?
Gerry Facenna: Where you have international agreements that impinge on EU competences there has been litigation on these matters, and the Council has lost on each occasion. The European Parliament argued successfully that it had not been
56 TREATIES, BREXIT AND THE CONSTITUTION kept in the loop; the Council argued that they had published in the Official Journal; the CJEU held that that was not enough. That might be a useful model. There may be a general obligation under which the government is obligated to keep Parliament informed.
Alison Young: Another example is Australia and what exactly happens within the Australian constitutional setup. First, they publicize treaties which are being negotiated and, already at that stage, invite NGO involvement, which means pressure on Parliament to do things. Secondly, Australia is federal, meaning that there is interaction between the federal and state level. Entering into a treaty has knock on consequences for devolved units. Involving them with a view to putting pressure on Parliament is the crux of the issue.
HM: There is a database where you can look at treaties which are under negotiation?
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