Parliamentary scrutiny of treaties: up to 2010

Standard Note: SN/IA/4693 Last updated: 25 September 2009

Author: Arabella Thorp Section International Affairs and Defence Section

IMPORTANT NOTE Parliament now has a new statutory role in the ratification of treaties, under part 2 of the Constitutional Reform and Governance Act 2010 (which came into force on 11 November 2010). As well as putting parts of the Ponsonby Rule on a statutory footing, it gives the House of Commons the power to block ratification indefinitely. Standard Note SN/IA/5855, Parliament’s new statutory role in ratifying treaties, 8 February 2011, describes the new system.

Many international treaties, conventions, protocols and agreements have major implications for domestic law and policy. However, the UK Parliament currently has no formal role in the ratification of most treaties, which is a matter for the Government under the Royal Prerogative. EU treaties aside, there is no legal obligation on the Government to inform Parliament or involve it in treaty-making or ratification. Moreover, there is no legal requirement to consult the devolved executives or legislatures. The lack of formal parliamentary involvement in treaty-making differentiates the UK Parliament from most other national legislatures.

There are several less formal ways in which a treaty may be scrutinised by Parliament before the Government ratifies it, for example under the ‘Ponsonby Rule’ which states that any treaty subject to ratification to be laid before Parliament for at least 21 sitting days before ratification is carried out by the executive and that in certain circumstances such treaties will be debated.. Select Committees are also more involved than in the past. But there is no institutional mechanism to ensure treaties are given adequate security, and only EU treaties have specific procedures that allow parliament to block ratification. The lack of a legal requirement for parliamentary scrutiny of treaties has given rise to complaints of a ‘democratic deficit’, though a counter-argument is that the executive is subject to ministerial accountability of Parliament in respect of treaties in the same way as any other policy area and that the executive needs to have freedom of action in foreign relations.

Specific proposals for reform have been put forward in private member’s bills, a Royal Commission report, several Select Committee reports and a recent Government consultation.

This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public. These proposals include suggestions that all treaties should be laid before Parliament and that a new committee should be created (either in the House of Lords or as a Joint Committee) to scrutinise treaties at either the negotiation or the ratification stage.

The Government is now proposing to put one aspect of the Ponsonby Rule on a statutory footing – the requirement to lay treaties subject to ratification before Parliament for at least 21 sitting days before ratification – and to allow the House of Commons to block ratification of treaties. The Government cannot itself set up a new treaty scrutiny committee, but has signalled its readiness for greater involvement of select committees should either House wish it. The proposals are contained in the Constitutional Reform and Governance Bill, introduced in the House of Commons on 20 July 2009. They follows a general green paper and more specific consultation paper in 2007, a draft Constitutional Renewal Bill and white paper in 2008, and various parliamentary committee reports and government responses on the issue.

The proposals have been welcomed, on the whole, although there is some disagreement over whether a 21 sitting-day period is sufficient for considered scrutiny of a treaty and what the effect of a negative vote should be. Many commentators have suggested that the proposals do not go far enough. For example, a statutory requirement to lay the treaty before Parliament does not guarantee that parliamentary time will be made available for a debate and vote. Some suggestions for increased scrutiny include more public consultation, Parliamentary involvement at an earlier stage, enhanced Select Committee scrutiny and a new Parliamentary Treaty Committee.

A range of possible examples for the UK is given by arrangements for Parliamentary scrutiny of treaties in other countries, which vary considerably – although of course their different constitutional arrangements can make direct comparison difficult.

2 Contents

1 What is a treaty? 5

2 Parliamentary scrutiny 6 2.1 Introduction 6 2.2 Current forms of scrutiny: overview 7 2.3 The Ponsonby Rule 7 2.4 Other methods of parliamentary scrutiny 9 2.5 Involvement of Select Committees 10 2.6 Extra-parliamentary scrutiny 10 2.7 Devolved administrations 10 2.8 Crown Dependencies and Overseas Territories 11

3 The European Union 11 3.1 UK scrutiny of EU treaties 12 3.2 Ratification of treaties by the European Community and European Union 12

4 Proposals for change 13 4.1 Introduction 13 4.2 Private Members’ Bills, 1996-2009 14 Lord Lester’s Bills of 1996, 2003 and 2006 14 House of Lords Bills 2008-09 14

4.3 Royal Commission on Reform of the House of Lords, 2000 15 4.4 Select Committees 1999-2004 16 House of Commons Procedure Committee, 2000 16 Public Administration Select Committee, 2004 16 Joint Committee on Human Rights, 2004 17

4.5 Conservative Democracy Task Force, 2006-07 18 4.6 Governance of Britain proposals, 2007-09 18 Green paper 18 House of Lords Debate 20 Draft Constitutional Renewal Bill and White Paper 21

5 The Constitutional Reform and Governance Bill 2008-09 23

6 Issues/analysis 23 6.1 Resolution, statute or custom? 23

3 6.2 Enough time for scrutiny? 24 6.3 Effect of a negative vote 24 6.4 Exceptions and exclusions 25 6.5 Do the reforms go far enough? 26 6.6 Options for increased scrutiny 28 More public consultation 28 More parliamentary debates and votes 28 Parliamentary involvement at an earlier stage 28 Enhanced Select Committee scrutiny 29 A new Parliamentary Treaty Committee? 30

7 International comparisons 30 7.1 Selected European countries 31 France 31 Germany 31 Ireland 32 Italy 32 Netherlands 32

7.2 Countries following the ‘Westminster style’ of Democracy 32 South Africa 33 Australia 33 New Zealand 34

7.3 The USA 35

4 1 What is a treaty? 1 The Vienna Convention on the Law of Treaties defines a treaty as:

an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation 2

Only a minority of such agreements have ‘treaty’ in their title. Other common names include ‘convention’, ‘protocol’ and ‘agreement’. They can be bilateral or multilateral.

Treaties make up one of the generally accepted trio of international law sources, the other two being customary international law and general principles of law. Every treaty in force is binding upon its parties (i.e. the states that have ratified/acceded to it), and must be performed by them in good faith. 3 A government’s obligations under a treaty can be overridden by obligations to the UN and its Security Council under the UN Charter. 4

The constitutional law of each state determines which domestic authority has the power to make treaties. According to constitutional practice in the UK, this power is retained by the Crown as a matter of Royal Prerogative 5 and carried out by the executive. Overall responsibility for treaty negotiation and ratification rests with the Foreign and Commonwealth Office (FCO), though increasingly the Department with responsibility for the subject concerned takes the policy lead. The UK usually makes about 30 treaties a year.

Given the binding quality of treaty law, the most important stage in the treaty-making process is arguably when states express their consent to be bound. 6 Sometimes states will agree that signature alone will signify consent to be bound, but more usually signature only obliges states to refrain from action that might defeat the object and purpose of the treaty, pending a decision on whether or not to ratify. Ratification is the method used in most contemporary multilateral treaties: the agreement will enter into legal force only once a minimum number of States parties have both signed and ratified it. This is intended to ensure that the legal rules laid down in the treaty will govern the behaviour of a significant group of States.

Although many treaties do not have their own enforcement mechanism, political pressure and the reciprocal nature of the international legal system usually lead most countries to comply most of the time. The faithful observance of treaties has been described as “perhaps the most important principle of international law”. 7 Remedies in national law may also be available, since in some countries treaties are automatically a binding source of national law which can be relied on in court. This is not the case in the UK, where treaties do not have

1 This section and the following one draw on House of Commons Information Office Factsheet P14, TreatiesH,H revised November 2006 2 23 May 1969, in force 27 January 1980, 1155 UNTS 331 3 This is the principle of pacta sunt servanda, now codified in the Vienna Convention on the Law of Treaties, 23 May 1969, in force 27 January 1980, 1155 UNTS 331, Article 26 4 Charter of the United NationsH,H 26 June 1945, Article 103: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” The House of Lords has recently examined whether this means that human rights obligations under the European Convention on Human Rights are overridden by requirements of Security Council resolutions: R (on the application of Al-

Jedda) v Secretary of State for DefenceHH [2007] UKHL 58, 12 December 2007 5 See Library Standard Note SN/PC/3681, The Royal PrerogativeH,H 3 November 2008 6 Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making”, International and Comparative Law Quarterly, vol. 55 no. 1, January 2006, 121-59 at 124 7 Restatement of the Law (Third): The Foreign Relations Law of the United States (American Law Institute St Paul Minnesota, 1987) vol. 1 at para. 321

5 domestic legal effect unless incorporated by domestic legislation – but they can nevertheless be highly influential in the courts. 8 As Jack Straw, the Lord Chancellor and Minister for Justice, has pointed out, “even if [treaties] do not become part of our domestic law to which we are then committed, our commitment is longer lasting in practice than in respect of any domestic legislation because it is so difficult to gain international agreement for anything other than a bilateral treaty; and it is even more difficult to gain international agreement to end that treaty unless it has clauses within it which allow for its own expiry.” 9

Concerns about the domestic effect of treaty law have accompanied its growth in volume (the UN treaty collection contains over 150,000 treaties, many of which remain in force) and in scope (treaties now cover a range of subjects as diverse as trade, climate change and crime, all with clear implications for domestic law and policy).

2 Parliamentary scrutiny 2.1 Introduction In the UK, there is no legal obligation on the executive to inform Parliament or involve it in treaty-making or ratification. Moreover, there is no legal requirement to consult the devolved executives or legislatures. Of course, the executive may feel it advantageous to seek approval for a treaty from parliament or the devolved authorities, but the lack of a legal requirement for such involvement has given rise to complaints of a ‘democratic deficit’:

While the introduction of a process of scrutiny or approval is no panacea […], it does provide the opportunity for dedicated parliamentarians to contribute to the treaty- making process through an interactive route of review and consultation, and in the final analysis, may serve to foster greater respect for treaty law by removing any doubt about a treaty’s democratic credentials. 10

The lack of formal parliamentary involvement in treaty-making differentiates the UK Parliament from most other national legislatures. Many written constitutions stipulate that parliamentary approval of treaties is required before ratification of at least some categories of treaty. This does not mean that national parliaments ratify treaties – it is still for the executive to signify the consent of a State to be bound by a treaty – but some States use the term ‘ratification’ to refer to their domestic constitutional arrangements for approving treaties (see part 7 below for information on other countries’ ratification procedures). Britain, of course, remains one of just three democracies – the other two being New Zealand and Israel – without a codified constitution.

However, the current arrangements do represent a certain balance of power: the executive makes treaties, but because they are not self-executing Parliament must legislate if they are to be part of UK law, and the Government will not usually bind itself through ratification until any necessary legislation has been passed. Of course, not all treaties do require legislation.

The usual rationale suggested for securing a role for parliament in treaty-making rests on the fact that treaties are law, so the legislature should be involved. Given the power of the executive to make treaties and power of the courts to interpret them, there is a risk that Parliament could become the one branch of government without any say in the UK’s

8 This was often the case for example with the European Convention on Human Rights before the Human Rights Act 1998 gave it domestic legal effect. 9 Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 1 July 2008 (Q720) 10 Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making”, International and Comparative Law Quarterly, vol. 55 no. 1, January 2006, 121-59 at 159

6 obligations under international law. A further effect of parliamentary involvement is that it can provide greater public access to treaty information.

On the other hand, some argue that the current informal methods of parliamentary scrutiny work well; that the executive usually reflects the position of the majority of Parliament and Ministers are accountable to Parliament and the public in the usual way; and that where domestic legislation is needed to implement treaty obligations Parliament remains the legislator.

2.2 Current forms of scrutiny: overview In the UK, though Parliament has no formal treat-scrutiny role and cannot directly block ratification by the Government, it does in fact scrutinise most important treaties, making the difference in parliamentary scrutiny of treaties between UK and elsewhere smaller than it might appear. Parliamentary scrutiny can happen in several different circumstances (discussed in more detail below):

• Treaties which require ratification are subject to the ‘Ponsonby Rule’. • Some treaties stipulate parliamentary approval. Where an agreement is of a political nature and is known to be controversial, one (or both) of the governments involved may wish to safeguard its position by writing an express requirement for parliamentary approval into the text. • Many treaties require a change to domestic legislation which will be subject to the usual parliamentary procedures. • Treaties with direct financial implications require the assent of Parliament because they affect revenue. The most common type is bilateral agreements to avoid double taxation. • European treaties have their own mechanisms for parliamentary scrutiny. • Other treaties and international agreements may be subject to some degree of parliamentary scrutiny if a Member raises the issue, for example through a Parliamentary Question or Early Day Motion. • Select Committees are increasingly being involved in scrutiny.

However, unless a treaty requires a change in UK legislation or the grant of public money, Parliament has little power to overcome the will of the executive to conclude a particular treaty. It can only express disapproval and rely on political pressure to change the mind of ministers, or, in the extreme case, withdraw its confidence from them.

Some scrutiny can also occur in other fora: through public consultation, involvement of the devolved administrations, or involvement of the Crown Dependencies and Overseas Territories.

2.3 The Ponsonby Rule During the twentieth century, a practice was established whereby any treaty subject to ratification is laid before Parliament for at least 21 sitting days before ratification is carried out by the executive. This practice began as an undertaking given by Arthur Ponsonby, the Under-Secretary of State for Foreign Affairs in the first government of Ramsay Macdonald, during debate on the Treaty of Peace (Turkey) Bill on 1 April 1924, 11 and is thus known as the Ponsonby Rule.

Ponsonby’s undertaking was in two parts:

11 HC Deb 171, 1 April 1924, cc2000-2005

7 1. To lay on the Table of both Houses of Parliament every treaty, when signed, for a period of 21 sitting days before ratification and publication in the Treaty Series. They would be debated in two circumstances: a. in the case of “important Treaties” the government would submit them to the House for discussion within the 21 days; b. for any other Treaties, time would be found for debate if there is a formal demand from any party forwarded through the usual channels;

2. To inform the House of all other “agreements, commitments and understandings which may in any way bind the nation to specific action in certain circumstances” and which may involve “international obligations of a serious character, although no signed and sealed document may exist”.

The Ponsonby Rule was withdrawn during the subsequent Baldwin government, but it was reinstated in 1929 and the first part of it gradually crystallised into a constitutional practice, observed in principle by all governments, except in special cases such as emergencies.

Under the Ponsonby Rule as it is currently practised, each treaty subject to ratification (or accession, approval or acceptance) 12 is laid before Parliament by the deposit of a Command Paper, published in one of three series by the Foreign and Commonwealth Office (FCO): the Country Series (for bilateral treaties), the European Communities Series (for treaties between Member States of the European Union), and the Miscellaneous Series (for multilateral treaties). After entry into force, all treaties binding the UK are published in the Treaty Series even if they had previously been published in one of the other series.

Since January 1997, the Government has published an Explanatory Memorandum (EM) for every treaty laid under the Ponsonby Rule, to provide information about the contents of the treaty, the Government’s view of its benefits and burdens and its rationale for ratification. The EMs are drafted by the government department which has the main policy interest in the particular treaty, but are cleared through the relevant legal adviser at the FCO. EMs are also made available to the public through the FCO’s website and, as such, they place on public record the name of the Minister with primary responsibility for a treaty, the anticipated financial implications of ratification, the means required to implement the treaty, and the outcome of any discussions which have taken place within and outside government. They also provide information on the content of any reservations or declarations. 13

Since November 2000, the FCO has ensured that a copy of each treaty laid under the Ponsonby Rule is also sent to the relevant departmental Select Committee. The committee can choose to pass it on to another committee or committees if it thinks it appropriate. The normal time for scrutiny by the committee(s) would still be 21 days, although “the Government would aim to respond positively” to requests for an extension.

The Government has also undertaken since 2000 to provide the opportunity for the debate of any treaty involving major political, military or diplomatic issues, if the relevant select

12 Accession arises when the government did not sign a treaty when it was open for signature but subsequently wishes to become a party to it. Approval and acceptance are rather like ratification, signalling that a state wants to be bound be a treaty – sometimes a state will sign a treaty subject to approval or acceptance respectively, to give it time to review a treaty after signature without invoking the constitutional procedures which might be required for ratification. 13 Joanna Harrington, ‘Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making’, International and Comparative Law Quarterly, vol. 55, January 2006, 131-2

8 committee and the Liaison Committee so request. Apparently it has not yet received any requests for a debate under this procedure. 14

The Ponsonby Rule has several limitations. Firstly, there is no presumption that Parliament will debate every treaty laid under the Ponsonby Rule, though the Government has agreed to make time for a debate in certain circumstances. Secondly, even if there is a debate and Parliament expresses its disapproval, this does not necessarily prevent the Government from ratifying the treaty. The Ponsonby Rule does not include any provision for the effect of either House resolving that the treaty should not be ratified.

Thirdly, not all treaties are subject to ratification in the international sense, and not all international commitments take the form of a treaty. The UK has for example signed many Memoranda of Understanding which include obligations but are not treaties under international law. The second limb of the Ponsonby Rule (the commitment to inform the House of all other binding agreements which involve serious international obligations) has had much less attention, and does not in any case include any reference to debates.

Fourthly, the Ponsonby Rule does not include an institutional mechanism dedicated to scrutiny of treaties.

The Ponsonby Rule has however resulted in most important treaties having some degree of parliamentary scrutiny. It also encourages greater transparency in treaty-making by requiring information to be provided to Parliament (and thence the public) about recent treaties.

2.4 Other methods of parliamentary scrutiny Further opportunities for debate arise if a treaty requires enabling legislation to bring UK law into line with the Government’s obligations under the treaty. The usual procedures for parliamentary debate on the legislation will be followed, usually before ratification. However, a new treaty does not always require the enactment of legislation.

Some treaties explicitly require parliamentary approval in order to come into force. The main categories are European Union treaties and tax treaties. Section 12 of the European Parliamentary Elections Act 2002 requires any treaty increasing the powers of the European Parliament to be approved by a specific Act of Parliament before ratification can take place (see part 3 below). Taxation treaties are also subject to specific procedures, with the most common example being double taxation agreements: the Inheritance Tax Act 1984, the Income and Corporation Taxes Act 1988 and the Finance Act 2006 provide that an Order in Council to implement such a treaty is subject to an affirmative resolution of the House of Commons, and a copy of the treaty is attached to the draft Order.

Other methods of parliamentary scrutiny may be used, particularly in cases of emergency, for example:

• Adopting a Motion • Making an announcement in the House • Making an Order in Council subject to affirmative procedure • Answering a Parliamentary Question • Consulting the leaders of the opposition parties during a recess

14 The Governance of Britain - War Powers and Treaties: Limiting Executive Powers, CM 7239, 25 October 2007, para 138

9 Consequently, despite the lack of a formal mechanism, most controversial treaties which require ratification are likely to be debated in the House of Commons.

2.5 Involvement of Select Committees Select Committees have recently become more involved in the scrutiny of treaties. The Commons Procedure Committee recommended in July 2000 that the appropriate procedure was for the FCO to send every treaty subject to ratification to the relevant Select Committee. 15 The Government accepted this recommendation, and it is now “routine practice”. 16 However, the extent of the scrutiny which might follow inevitably depends on the Committee’s other priorities and demands on its time.

The Joint Committee on Human Rights (JCHR) has been the most active in this area. It considered that “the problem of lack of effective parliamentary scrutiny [of treaties] is particularly pressing in relation to human rights treaties, because it is now well established that UK courts will have regard to such treaties in a wide range of circumstances, whether or not they are incorporated, and the Executive and administration also routinely have regard to such treaties in both policy-making and decision-making”. It therefore decided to report to Parliament on “all human rights treaties, or amendments to such treaties, in respect of which there is a need to ensure that Parliament is fully informed about the background, content and implications of such treaties.” 17 The Government has undertaken to send copies of any Treaties with ‘significant’ human rights issues to the JCHR.

2.6 Extra-parliamentary scrutiny Sometimes the Government organises a public consultation exercise on a treaty prior to ratification. The first example was the public discussion of a draft International Criminal Court Bill in 2000, which lead to the International Criminal Court Act 2001 and ratification of the 1998 Rome Statute for the International Criminal Court. A more recent example is the Government’s general consultation paper and draft bill 18 concerning ratification of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

It has also consulted during negotiations of a treaty: from April to September 2002 it consulted the public in detail on options for amending the 1972 Biological and Toxin Weapons Convention. 19

2.7 Devolved administrations Under the devolution arrangements, international relations including treaty-making remain the exclusive responsibility of Westminster. 20 But it has nevertheless been recognised that the devolved administrations need to be involved where a treaty might have implications for devolved areas of responsibility. Rules governing the cooperation between Whitehall and the devolved administrations are set out in a Memorandum of Understanding and five

15 Parliamentary Scrutiny of TreatiesHH, HC 210 1999-2000, 26 July 2000 16 The Governance of Britain - War Powers and Treaties: Limiting Executive PowersHH CM 7239, 25 October 2007, para 134 17 Joint Committee on Human Rights, Protocol No. 14 to the European Convention on Human Rights, HL 8/HC 106 2004-05, 8 December 2004, para 7 18 See Library Standard Note SN/HA/4596, Draft Cultural Property (Armed Conflicts) BillH,H 25 January 2008 19 Strengthening the Biological and Toxin Weapons Convention: Countering the Threat from Biological

WeaponsH,H Cm 5484, April 2002 20 Expressly reserved under the Scotland Act 1998 Sch. 5 part 1 para 7; not transferred under the Government of Wales Act 2006; and an ‘excepted matter’ under the Northern Ireland Act 1998 Sch 2 para 3

10 overarching concordats, including a ‘Concordat on International Relations’. 21 These concordats are explicitly intended to be binding in honour only rather than in law, but promise cooperation in the exchange of information, the formulation of UK foreign policy, the negotiation of treaties and the implementation of treaty obligations. They also provide for ministers and officials from the devolved administrations to form part of a UK treaty- negotiating team and for the apportionment of any quantitative treaty obligations as well as the imposition of penalties should the devolved bodies default on any agreed liability. Nevertheless, as Joanna Harrington points out, “It is both implicit and explicit in the nature of the devolved arrangements that Westminster retains the ability to override the actions of any devolved body and it could do so to ensure the State’s compliance with its international commitments”. 22

The Scottish Parliament has established a committee on European and External Relations to monitor developments (though most of its energies are focused on EU scrutiny). Scotland has even acted before Westminster in enacting legislation to prepare for the implementation of a treaty: when ratifying the Hague Convention on the International Protection of Adults the UK Government entered a Note declaring that the Convention applied to Scotland alone until implementation legislation was passed for the rest of the UK. 23

2.8 Crown Dependencies and Overseas Territories The Crown Dependencies of the Channel Islands and the Isle of Man have their own legislative assemblies, and the 14 Overseas Territories have separate constitutions - most have elected governments with varying degrees of responsibility for domestic matters.

The UK nevertheless maintains responsibility for the defence and international relations of the Crown Dependencies and Overseas Territories, including treaties. Unless expressly authorised to do so by the UK Government, they do not have the authority to become party to treaties in their own right. Instead the UK Government may decide to extend the application of a treaty to one or more of them, either at the time of the UK’s ratification or at a later date. It would usually consult with the government concerned.

The Ponsonby Rule does not apply to such extensions, but it is the practice of the UK Government to provide information on any consultation with the Overseas Territories and/or Crown Dependencies in the Explanatory Memorandum. 24

3 The European Union The UK has established sophisticated and comprehensive methods for parliamentary scrutiny of European Union (EU) business, not least because much European Community (EC) law is directly applicable in the Member States or creates directly enforceable rights. This includes scrutiny of EC and EU treaties and of international agreements to be concluded by the EC or EU (with or without member States also being parties).

21 Memorandum of Understanding and supplementary agreements between the United Kingdom Government, Scottish Ministers and the Cabinet of the National Assembly for Wales, Cm 4444, October 1999, subsequently replaced by Memorandum of understanding and supplementary agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland

Executive CommitteeH,H Cm 4806, July 2000. 22 Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making”, International and Comparative Law Quarterly, vol. 55, January 2006, 121-59 at 150 23 See FCO, Explanatory Memorandum on the Hague Convention on the International Protection of AdultsH,H CM 5881, July 2003 24 The Governance of Britain - War Powers and Treaties: Limiting Executive Powers, CM 7239, 25 October 2007, para 129

11 3.1 UK scrutiny of EU treaties When the UK joined the European Economic Community (EEC) in 1973, accession was preceded by the passing of the European Communities Act 1972, which made the obligations under the Treaty of Rome and the law deriving from it applicable within the UK. Since then, whenever new treaties have been agreed which amend the original Treaty (including treaties of accession), there has been new legislation in the UK to amend the 1972 Act. This allows those parts of the new treaty which are intended to have domestic legal effect to be applicable within the UK. The passage of the implementing legislation is not formally part of ratification and there is no reference in the Bill to ratification of the treaty, but legislation is necessary if ratification is to proceed. Successive European Community (Amendment) Bills have been designed to make all the legislative provisions necessary for the implementation of a new treaty, clearing the way for the Government to deposit an instrument of ratification after the Bill has received Royal Assent.

Under the European Parliamentary Elections Act 1978, Parliament introduced a specific limitation on the freedom of the Government to ratify treaties on the basis of the prerogative power. Section 6 of the 1978 Act required that “no treaty which provides for any increase in the powers of the European Parliament shall be ratified by the United Kingdom unless it has been approved by an Act of Parliament”. Thus, since 1978 Parliament has had to give its explicit approval (by Act of Parliament) to any subsequent treaty or other international agreement which increases the powers of the European Parliament.

Section 5 of the European Union (Amendment) Act 2008, which paved the way for ratification of the Treaty of Lisbon, provides that any future treaty amending the founding EU treaties which is agreed under the Ordinary Revision Procedure 25 must be approved by an Act of Parliament before the Government may ratify it. 26

3.2 Ratification of treaties by the European Community and European Union The European Community (and Euratom) has express legal personality, 27 giving it rights and obligations under international law and enabling it to sign treaties such as the World Health Organisation (WHO) treaty, environmental treaties, association treaties and readmission and visa facilitation treaties. The Commission negotiates international agreements such as trade and commercial agreements on behalf of the Community with the authorisation of the Council. Member States decide the negotiating mandate by unanimity or Qualified Majority Vote (QMV), depending on the policy area in question, and approve any final agreement on the same basis.

The European Union has no express legal personality at present, but Articles 24 and 38 of the Treaty on European Union (TEU) provide a treaty-negotiation procedure on the basis of which treaties have been signed in the name of the EU. In 2004, in the context of the negotiations on the Treaty Establishing a Constitution for Europe, the British Government supported the granting of legal personality to the Union, but with some reservations. The then Europe Minister, Denis MacShane, thought it would “have the advantage of clarity and simplicity”, but added that “the Government would only accept it on the basis that the distinct arrangements for the Common Foreign and Security Policy and aspects of Justice and Home Affairs were fully safeguarded, along with the existing arrangements for representation in

25 Article 48(2) to (5) of the Treaty on European Union 26 See Library Research Paper 08/03, The European Union (Amendment) Bill, 15 January 2008, p12 ff 27 Article 281 TEC

12 international bodies”. 28 The Government would not accept, for instance, “any proposal that meant giving up its permanent membership of the UN Security Council and the rights which go with that”. 29

Article 1(55) of the Treaty of Lisbon would amend Article 46A TEU to give the EU legal personality. The Treaty is supported by a Declaration (No.24) confirming that “the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties”. The Government is confident that the new situation would not create new powers for the EU. 30

In either case, treaties may be examined by the House of Commons European Scrutiny Committee and may be debated in one of the European Committees (formerly European Standing Committees) or even on the Floor of the House, and also by the House of Lords EU Select Committee or one of its sub-Committees.

4 Proposals for change 4.1 Introduction Calls to improve parliamentary oversight and scrutiny of the treaty-making process are not new. Most observers agree that modern efforts first crystallised in the early twentieth century when a number of British anti-war MPs sought to secure greater parliamentary control over treaty-making, in reaction to the impact of treaties of alliance in the First World War and concerns about ‘secret treaty-making.’ A summary of the most often-used arguments for and against enhanced scrutiny is given below.

The case for increasing parliamentary scrutiny:

• The volume and scope of treaty-making has grown and now covers a wide range of subjects, often with clear implications for domestic law and policy. • The current degree of parliamentary oversight arguably amounts to a ‘democratic deficit’. • Current practices rely largely on the sanction of political criticism and have no legal effect on the Government’s decision to ratify. • There is no requirement for sub-national tiers of government to be involved in oversight. • There is no institutional mechanism to ensure treaties are given adequate security. • Greater parliamentary scrutiny would result in more information about treaties entering the public domain.

The case for the status quo:

• In a Westminster-style democracy, the executive comes from the party with the most seats in parliament, and therefore the executive’s line usually reflects that of the majority of parliament. • The executive is subject to ministerial accountability of Parliament in respect of treaties in the same way as any other policy area. • The executive needs to have freedom of action in foreign relations.

28 HC Deb 6 May 2003, cc 566-7W 29 Government White Paper, A Constitutional Treaty for the EU: The British Approach to the European Union

Intergovernmental ConferenceH,H Cm 5934, September 2003 30 FCO, The Reform Treaty: The British Approach to the European Union Intergovernmental Conference,H H Cm 7174, July 2007

13 • A requirement upon the government to involve parliament prior to the signing of a treaty would be cumbersome, resource-intensive and practically impossible given the number and variety of treaties. • Where a treaty requires implementing legislation to have domestic effect, parliament remains the law-maker. • Select Committees are showing increasing willingness to scrutinise treaties. • The Ponsonby rule has been improved through introduction of Explanatory Memoranda and referral to relevant Select Committee. • There are other methods which can be used to trigger parliamentary debate on a Treaty.

Specific proposals for reform have been put forward in private member’s bills, a Royal Commission report, several Select Committee reports and a recent Government consultation, outlined in turn below. These proposals include suggestions that all treaties should be laid before Parliament and that a new committee should be created (either in the House of Lords or as a Joint Committee) to scrutinise treaties at either the negotiation or the ratification stage.

4.2 Private Members’ Bills, 1996-2009 Lord Lester’s Bills of 1996, 2003 and 2006 Lord Lester of Herne Hill introduced a Treaties (Parliamentary Approval) Bill (HL) in 1996. It was withdrawn following the Government’s undertaking during the Second Reading debate to provide an Explanatory Memorandum for each Treaty laid under the Ponsonby Rule, including Government’s reasons for ratification and any financial implications. 31

His subsequent bills of 2003 32 and 2006 33 aimed to provide a statutory rule that all treaties be laid before Parliament, accompanied by an explanation of the contents and purpose, an explanation of the reasons for believing that entering into the treaty is in the interests of the United Kingdom and its inhabitants and an estimate of the costs and benefits arising from ratification. Certain types of treaty were to require approval by each House before ratification, whereas others would be subject only to the negative resolution procedure.

House of Lords Bills 2008-09 Two House of Lords Bills this session touch on the parliamentary scrutiny of treaties. Lord Tyler’s Constitutional Renewal Bill 34 “seeks to improve upon the Government draft”. 35 It would establish a joint Treaties Committee of both Houses of Parliament to examine both treaties and treaty-like documents and make its reports on ratification an essential part of the scrutiny process (clauses 20-23):

Treaties would be laid before Parliament, and the Committee would report on them within 21 days, flagging them for attention much as the House of Lords Committee on the Merits of Statutory Instruments presently does for secondary legislation.

The committee could opt to recommend that the 21 day period be extended, to allow time for either or both Houses to schedule a debate and substantive resolution on a

31 HL Deb 28 February 1996 c1555ff 32 The Executive Powers and Civil Service BillH H , HL Bill 15 of 2003/04 33 The Constitutional Reform (Prerogative Powers and Civil Service etc) BillH,H HL Bill 62 of 2005-06 34 HL Bill 34 2008-09 35 Lord Tyler, Constitutional Renewal Bill [HL] Explanatory Notes, para 4

14 given Treaty. Save for particular treaties excluded under terms of Clause 22, all would be subject to annulment by either House of Parliament. 36

Clause 3 of Lord Willoughby de Broke’s Constitutional Reform Bill 37 states simply “Neither Her Majesty, nor any Minister of the Crown on Her behalf, may enter into treaties, agreements or other binding international instruments without the prior authorisation of Parliament.”

4.3 Royal Commission on Reform of the House of Lords, 2000 In early 2000, the Royal Commission on the Reform of the House of Lords reported on the merits of a proposal for the establishment of a House of Lords Treaty Scrutiny Committee and on the general question of whether there was scope to expand existing arrangements for parliamentary scrutiny of treaty-making. 38

The FCO submitted a comprehensive memorandum to the Commission. It argued, amongst other things, that the FCO would not be in a position to recommend that the Government commit itself to any form of compulsory pre-conclusion scrutiny for all treaties. It stated that the huge variety of treaties and political and diplomatic circumstances in which they are negotiated would preclude a general commitment of that kind.

As far as post-conclusion scrutiny was concerned, the FCO considered the Ponsonby Rule to be adequate:

[…] the FCO believes there may be a tendency to underestimate the value and potential of the Ponsonby Rule, taken in its broader context.

From its very inception, as the historical account above shows, the Rule was not seen simply as an exercise in publicising the Government's action in foreign affairs, but as providing Members of Parliament with the opportunity to bring about fuller Parliamentary debate in those cases where it was regarded as necessary or especially useful. There have been notable advances in practice under the Rule in recent years, and the FCO is very ready, in its own practice, to remain constantly on the alert for ways in which the operation of the Rule might be continuously improved. Moreover the Ponsonby Rule fits within a broader nexus of treaty practice in which the influence of the legislative authority of Parliament is more widely brought into play than is sometimes recognised. Paragraph 30 above offers a detailed conspectus of how matters have recently been working out in actual practice. 39

The FCO also set out a range of considerations that it thought would need to be considered and addressed if any new procedure was to be successful. These were:

• the advantages of democratic accountability in the treaty area • the balance between the roles of the two Houses of Parliament • the Government's reasonable needs for flexibility in treaty negotiation and over treaty conclusion • the problems arising out of the constitutional rule that treaties are not self-executing • the Parliamentary burden • Ministerial time • the burden on the FCO and on other Government Departments

36 Lord Tyler, Constitutional Renewal Bill [HL] Explanatory Notes, paras 12-13 37 HL Bill 50 2008-09 38 Report of the Royal Commission on the Reform of the House of Lords (the Wakeham Commission), A House

for the Future,HH Cm 4534, January 2000, paras 8.37-8.42 39 para 40

15 • resource implications • the problems of securing Parliamentary time for implementing legislation 40

The Royal Commission’s report ultimately agreed with the FCO on the point that the large number and variety of treaties and the political and diplomatic circumstances in which they are negotiated would preclude a general commitment to compulsory pre-conclusion scrutiny. 41 It did, however, propose that the House of Lords Liaison Committee should consider the establishment of a select committee to scrutinise treaties laid before parliament under the Ponsonby Rule and draw attention to any implications which merit parliamentary consideration before ratification takes place. 42 In the event, the Liaison Committee decided to wait for the Commons Procedure Committee to report (see below) before making a recommendation on this. 43

4.4 Select Committees 1999-2004 House of Commons Procedure Committee, 2000 The Commons Procedure Committee published a report in 2000 on Parliamentary Scrutiny of Treaties. 44 It was not in favour of a Commons sifting committee for treaties, but did make recommendations on enhancing the role of the existing Select Committees, some of which the Government accepted. In particular, the Government undertook to send a copy of any treaty laid before parliament under the Ponsonby Rule, along with an Explanatory Memorandum (EM), to whichever it regarded as the most appropriate departmental Select Committee so that the committee could carry out an inquiry if it so wished.

The Procedure Committee also recommended that the Government undertake to accept calls from the relevant select committee and supported by the Liaison Committee for a debate on the floor of the House of any treaty requiring ratification which had major political, military or diplomatic implications. The Government agreed to do so “normally”. 45

Public Administration Select Committee, 2004 The Public Administration Select Committee carried out an enquiry examining the prerogative powers of Ministers and whether they should be subject to more systematic Parliamentary oversight. It published its report, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, in March 2004, including a proposal for a draft Bill. 46 The Committee concluded that a different approach was required and as such appropriate legislation should be introduced, following a public consultation exercise on Ministerial prerogative powers. It wanted to put into statute greater parliamentary control over all the executive powers enjoyed by Ministers under the royal prerogative, including specific proposals for ensuring full parliamentary scrutiny of the conclusion and ratification of treaties.

40 para 42 41 http://www.archive.official-documents.co.uk/document/cm45/4534/chap8.pdf 42 A House for the FutureHH, Report of the Royal Commission on Reform of the House of Lords, Recommendation 56 43 House of Lords Liaison Committee, third report of 1999-2000, HL 49 44 House of Commons Procedure Committee, second report of 1999-2000, Parliamentary Scrutiny of Treaties, HC 210, and Government Response to the Committee: Parliamentary Scrutiny of Treaties, Procedure Committee Second Special Report 1999-2000, HC 990 1999-2000 45 Government Response to the Committee: Parliamentary Scrutiny of Treaties, Procedure Committee Second Special Report 1999-2000, HC 990 1999-2000 46 Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to

ParliamentH,H HC 422 2003-04, 16 March 2004

16 The report was accompanied by a paper from Professor Rodney Brazier which included a draft Bill under which the “more important treaties” would require a debate in both Houses and their approval by way of a separate Resolution of each House.

The Government’s response was published in July 2004. It was not enthusiastic about the recommendations:

The ratification of a treaty is a function of the executive, acting on behalf of the Crown under its prerogative powers. Parliament already has considerable opportunity for scrutiny, since the text of every treaty to which the UK is a party subject to ratification or its equivalent is laid before it for consideration and, if Parliament so wishes, for debate. Since 1997 the Government has ensured that such texts are accompanied by an Explanatory Memorandum to make the purpose and effect of the treaty clear. This information is also available on the Internet.

Further opportunities for debate arise where the provisions of a treaty need to be implemented in UK law, when either primary or secondary legislation is required if this is not already in place (as the Report acknowledged at paragraph 25). The Government does not, as a matter of general policy, move to ratify a treaty unless the required legislation is in place, since this could put the UK in a position where it was unable to fulfil its obligations under international law. Even where legislation is not required to implement a treaty, Ministers are accountable to Parliament in exactly the same way as for any other area of policy.

While the Government remains committed to considering ways of improving the efficient and effective scrutiny of treaties by Parliament, introducing the Committee's provisions might not only delay the ratification process, but could also be a substantial burden on Parliament's time, without materially adding to the scrutiny that Parliament is already at liberty to make.

The Government will however reflect further on the Committee's recommendation in this regard. 47

Joint Committee on Human Rights, 2004 In 2004, the Joint Committee on Human Rights (JCHR) examined the issue of Parliament’s involvement in treaty scrutiny. In its report it set out its particular concerns over the lack of effective scrutiny of human rights treaties:

In keeping with a number of recent recommendations, we consider it desirable for Parliament to be more involved before the ratification by the Executive of treaties which incur human rights obligations on behalf of the UK. The purpose of the constitutional practice known as the Ponsonby Rule is to enable Parliament to be informed about a treaty that the Executive intends to ratify, and to give it an opportunity to debate it if it is controversial. In practice, however, there is no mechanism for reliably scrutinising treaties to establish whether they raise issues which merit debate or reconsideration before they are ratified.

The problem of lack of effective parliamentary scrutiny is particularly pressing in relation to human rights treaties, because it is now well established that UK courts will have regard to such treaties in a wide range of circumstances, […]and the Executive

47 Government Response to the Public Administration Select Committee’s Fourth Report of the 2003-4 Session,

Taming the Prerogative: Strengthening Ministerial Accountability to parliament,HH HC422, July 2004

17 and administration also routinely have regard to such treaties in both policy-making and decision-making.. 48

Since then, the JCHR has arguably shown how effective select committees can be when it comes to treaty scrutiny. It has scrutinised numerous different treaty obligations in an attempt to hold the Government to account, including, innovatively, in respect of the Council of Europe Convention on the Prevention of Terrorism. An EDM tabled on 20 October 2006, in the name of the Chairman of the Committee Andrew Dismore MP, stated:

That this House takes note of the Council of Europe Convention on the Prevention of Terrorism, Cm 6901, presented to Parliament on 24th July; and requests that Her Majesty's Government does not ratify it until the Joint Committee on Human Rights has considered and reported on its implications.

4.5 Conservative Democracy Task Force, 2006-07 The Conservative Party has expressed its support for a review of the powers conferred under the Royal Prerogative and for giving Parliament a greater role in the scrutiny of treaties. In February 2006 the Conservative Leader, David Cameron, launched a Democracy Task Force to review whether amendments to the scope of the Royal Prerogative should be made. In a speech on 6 February 2006 Mr Cameron stated:

I believe the time has come to look at those powers exercised by Ministers under the Royal Prerogative.

Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making government more accountable.

[…] Restoring trust in politics means restoring trust in Parliament – and one way to do that is to enhance the role of Parliament in scrutinising the Government’s decisions.

The report of that task force was published on 6 June 2007. It proposes full Parliamentary approval for “significant” treaties:

With regard to treaties, we reaffirm our belief that ratification should be removed from the Prerogative and made subject to Parliamentary consent. Those with significant implications – essentially those with financial, legal or territorial implications for the United Kingdom or its citizens – would require full Parliamentary approval, while the remainder would simply be laid before the Houses of Parliament with automatic approval if they were not challenged within twenty-one business days. 49

4.6 Governance of Britain proposals, 2007-09 Green paper On 3 July 2007 Gordon Brown, in one of his first acts as Prime Minister, announced a package of constitutional reforms intended to strengthen democracy and accountability and establish a new relationship between the government and the people. Among suggested reforms was a proposal to limit the Royal Prerogative powers of the executive in several areas, including the ratification of treaties. In its green paper, entitled The Governance of

48 Joint Committee on Human Rights, Protocol No. 14 to the European Convention on Human RightsH,H HL 8/HC 106, 8 December 2004, paras 5-6 49 Conservative Democracy Task Force, Power to the People: Rebuilding ParliamentHH, 6 June 2007, p8

18 Britain, the Government said that it wished to formalise the current arrangements for parliamentary scrutiny of treaties by putting the Ponsonby Rule on a statutory footing. 50

A more specific consultation paper, entitled The Governance of Britain, War Powers and Treaties: Limiting Executive Powers, 51 followed on 25 October 2007. This paper explained the current procedures for ratifying treaties and set out options for putting the existing arrangements for parliamentary scrutiny of treaties onto a statutory footing. The document contained illustrative draft clauses to show how such provisions could look in legislation and invited comment on them. The main innovation suggested was that a vote against ratification could bind the Government.

The consultation closed on 17 January 2008. Only 11 responses were received; respondents included one MP, three former Foreign and Commonwealth Office legal advisers, two Non-Governmental Organisations (NGOs), the Law Society of Scotland, some academic and practising lawyers and one other individual. The Government has published a summary of the responses 52 and outlined them as follows:

The respondents showed a reasonable level of support for placing the Ponsonby Rule onto a statutory footing, in other words, to impose a legal obligation on Government to publish and lay a treaty before Parliament for at least 21 sitting days prior to ratification. Four argued that it was not necessary to put the arrangements onto a statutory footing, and that they worked well on the basis of convention. Seven agreed with the Government view that any new legislation would need to allow for alternative procedures to be used in exceptional cases where urgency precluded the normal publication and laying procedures. Some considered that Parliament should decide when these apply, while others would prefer the Government to retain a measure of discretion as at present.

There was general acceptance of the case for different treatment for special categories of treaties, for example taxation treaties, which are published to Parliament under a different procedure. Some stressed the importance of parliamentary control, and some specifically supported the option of including in the legislation a power to exempt specified categories of treaty.

The consultation posed the question of whether there should be provision for extending the 21-day sitting period, stipulated under the Ponsonby Rule, if Parliament requests further time. Respondents indicated a general desire for flexibility so as to enable Parliament to have additional time to scrutinise particular treaties when necessary. The majority supported – or did not express opposition to – 21 sitting days as the standard laying period and no one expressed support for extending the period to 40 days across the board, although one respondent suggested a minimum laying period of 3 months.

On the question of whether changes are required to parliamentary procedures in either House for triggering a debate on a treaty, some respondents preferred no change; others proposed new trigger arrangements, for example the establishment of a new specialist treaty committee which could request extensions, a motion by a single MP, or a motion signed by 10 percent of MPs.

Some respondents expressed strong support for the principle that a vote against ratification should bind the Government. Others suggested it would be better not to

50 The Governance of BritainHH, Cm 7170, July 2007 51 The Governance of Britain, War Powers and Treaties: Limiting Executive PowersH,H Consultation Paper CP26/07, Cm 7239 2006-07 52 The Governance of Britain – Analysis of Consultations, March 2008, CM 7342-3

19 specify the legal effect of a vote. There was very little comment on the details of what the legal effect of votes should be or on the relationship between votes of the two Houses.

The consultation document asked what provision there should be for the Government to present a new proposal to ratify the same treaty if there had previously been a vote against it. A number of respondents felt that that if the outcome of a vote is binding, there should be provision for the Government to re-propose the same treaty for ratification, although views were mixed on how quickly it might be able to do so. Some respondents argued for maximum flexibility to allow Government to decide as it sees appropriate, by not specifying the effect of a vote in legislation.

Some support was also expressed for the establishment of a new parliamentary select committee or sifting committee on treaties, and one respondent set out a detailed proposal for streamlined legislative powers to implement treaties which had been scrutinised by the proposed new specialist committee. Some suggested pre-signature scrutiny of treaties, coupled with a system of “softmandating” whereby the Government is given a general negotiating mandate and has to account to a parliamentary committee for any departure from it.

House of Lords Debate On 31 January 2008 the consultation document was debated in the House of Lords; 53 ten speeches touched on the issue of treaties. Those who felt that more scrutiny was needed argued for a new treaties committee.

Lord Armstrong of Ilminster suggested that the Ponsonby Rule was sufficient in most cases, and that although there ought to be more parliamentary discussion of particularly important treaties, such as those which commit the UK to membership of international organisations or which have global implications such as climate change measures, this did not need to be put on a statutory footing. 54

Lord Anderson of Swansea also felt that there was enough scrutiny under current procedures, as most were highly technical and those which were not so technical but controversial would be debated on the Floors of both Houses. 55 He added that in all the time he had chaired the Foreign Affairs Committee in the House of Commons he could not recall debating the ratification of a treaty. 56

Baroness Williams of Crosby, by contrast, felt that the current degree of scrutiny was not enough. She called again for a scrutinising Select Committee on treaties (which she had previously asked the Liaison Committee to establish). She felt that having parliamentary approval before major treaties are ratified would “very much strengthen democracy in this country, and enable us to reach more considered decisions than some which are currently taken, virtually negatively, by a failure to ask for a debate”. 57

53 HL Deb 31 January 2008 c747 ff 54 HL Deb 31 January 2008 c770 55 His example, however, was of the Lisbon Treaty which, as a European Community Treaty is debated under separate procedures. 56 HL Deb 31 January 2008 c749 57 HL Deb 31 January 2008 cc756-7

20 Lord Wakeham, who had chaired the Royal Commission on the future of the House of Lords (see above), also called again for a Select Committee on treaties to be established as a significant part of a reformed House of Lords. 58

Lord Goodhart raised the example of the UK-USA Extradition Treaty to argue that parliamentary scrutiny was needed before the signing of a treaty, and suggested that this should be done by a Joint Committee of both Houses which could take evidence, publish a report if serious objections were likely, and decide whether or not the treaty required the consent of parliament. He pointed out that the government is not allowed to make laws for the UK by the exercise of the prerogative, and said that it should not be allowed to use prerogative powers to commit the UK to obligations under international law without the consent of parliament. 59 His calls for early scrutiny were echoed by Lord Maclennan of Rogart (“it should not simply be ex post facto, when the consequences of rejection can be very serious”) 60 and Lord Kingsland. 61

The Minister replied that was already common practice for Ministers to communicate with the relevant Select Committee prior to signature of a treaty, and added that “it is important to remember that there is often a long time between treaty negotiations commencing and treaty ratification and it would not be practical to involve Parliament in the negotiation process without risking excessive delay”. 62

Draft Constitutional Renewal Bill and White Paper On 25 March 2008 the Justice Secretary, Jack Straw, announced a White Paper 63 and draft Bill 64 on “constitutional renewal” for pre-legislative scrutiny. An analysis of the responses to the October 2007 consultation was published at the same time.

As expected, Part 4 of the draft Bill suggested placed the existing arrangements under the Ponsonby Rule for laying treaties before Parliament on a statutory footing, making them mandatory (other than in exceptional circumstances where alternative procedures would be used to consult Parliament) and allowing the Commons to block ratification. Its terms were very similar to the draft clauses in the consultation paper, but with revised provisions on the effect of a negative resolution. The draft Bill would not have affected the current arrangements for European Union or tax treaties, but would have covered all other treaties which are binding in international law, rather than trying to define ‘important’ treaties.

Nick Herbert said that the Conservative Party welcomed the proposal to put on a statutory basis the rules governing ratification of treaties. 65 David Howarth for the Liberal Democrats called it a step in the right direction, but added “given their tight grip on the business of the House, does not the proposal mean that there will be a vote in the House only if the Government want one?” 66 As the Public Administration Select Committee pointed out,

58 HL Deb 31 January 2008 c775 59 HL Deb 31 January 2008 cc759-60 60 HL Deb 31 January 2008 c787 61 HL Deb 31 January 2008 c791 62 HL Deb 31 January 2008 c796 63 Ministry of Justice, The Governance of Britain – Constitutional RenewalH,H March 2008, Cm 7342-I 64 Ministry of Justice, The Governance of Britain – Draft Constitutional Renewal Bill, March 2008, Cm 7342-II 65 HC Deb 25 March 2008 c24 66 HC Deb 25 March 2008 c27

21 The Government does not propose that there should be a debate and vote on every treaty, or indeed on any treaty. It would be for Members to demand a vote, and for the Government, if willing, to find the opportunity for this vote to take place. 67

The draft Bill proposed that a negative vote in either House could delay ratification, and whilst the Lords could not block ratification, the Commons could. The plan suggested was that the Government could keep re-laying a treaty until either it or the Commons gave way:

158. A vote against the ratification of a treaty in either House of Parliament should be given legal effect. In the event of a vote by the House of Commons against ratification of a treaty, the Government could not proceed to ratify it. If the Government later wished to re-present the same treaty to Parliament for ratification, it would have to lay an explanatory statement before both Houses and re start the 21 sitting-day laying period from the beginning, in which a further debate and vote could be triggered. Another negative vote would again block ratification. In other words, the House of Commons would have the last word. In the event of a vote by the House of Lords against ratification of a treaty, the Government could not proceed to ratify it, unless it first laid an explanatory statement before both Houses explaining why the treaty should be ratified notwithstanding the views of the Lords. The Government believes that this approach would respect the primacy of the House of Commons, while recognising the importance of the role of the Lords in treaty scrutiny.

The White Paper The Governance of Britain – Constitutional Renewal 68 signalled the Government’s willingness for greater involvement of committees in treaty scrutiny, but emphasised that this was a matter for Parliament to decide:

164. Useful suggestions were made during the consultation on the setting up of parliamentary committees to scrutinise treaties prior to ratification. The Government would welcome any institutional change which would enhance the capacity of Parliament to contribute to the scrutiny of treaties within the statutory framework proposed. It is for the Houses themselves to decide upon such arrangements, as well as such other procedural matters as the means by which Parliament may trigger a debate or request an extension of the laying period. Accordingly, such matters should not be put on a statutory footing, as it properly remains within the competence of each House to regulate its internal procedures.

165. The Government awaits with interest any proposals that may emerge from the Houses of Parliament for such enhancements, and will be pleased to engage in a dialogue with the committees concerned to ensure that any new arrangements work in the most constructive and expeditious manner possible. The Government does not consider that a formal mechanism for the scrutiny of treaties prior to signature is practical or workable, given the diverse circumstances and timeframes in which treaty negotiations are conducted.

Both the Public Administration Select Committee and a special Joint Committee on the draft Bill made detailed comments on the treaty provisions of the draft Bill. The Public Administration Committee considered the proposals to be a very weak form of parliamentary safeguard which the Government could in any case short-circuit by declaring a need for urgency, by failing to make time for a debate or by repeatedly asking the House of Commons to reconsider a negative decision. 69 The Joint Committee took a great deal of both written

67 Public Administration Select Committee, Constitutional Renewal: Draft Bill and White Paper, HC499 2007-08, 4 June 2008, para 82 68 March 2008 Cm 7342-I 69 Public Administration Select Committee, Constitutional Renewal: Draft Bill and White Paper, HC499 2007-08, 4 June 2008, paras 81-89

22 and oral evidence on this issue, and while it generally welcomed the proposal to put this aspect of the Ponsonby Rule on a statutory footing, it also recommended the creation of a new Joint Committee on Treaties. 70 Detailed comments from their reports appear in the issues/analysis section of this paper (part 6 below).

5 The Constitutional Reform and Governance Bill 2008-09 The Government published its responses to the two Committee’s reports on the draft Bill alongside a new Constitutional Reform and Governance Bill on 20 July 2009. The Bill is likely to be debated on second reading in the House of Commons in October 2009.

Part 2 of the Bill (clauses 21 to 25) concerns the parliamentary scrutiny of treaties. It implements the Government’s proposal to put the Ponsonby Rule’s requirements for treaties to be laid before Parliament for 21 days before ratification on a statutory footing and to give the House of Commons a statutory power to object indefinitely to the ratification of a treaty. Though some of the wording has been changed from that of the draft Bill, the substance is almost identical (the main change is the addition of a power to extend the 21-sitting-day period).

The major issues raised by these clauses are analysed in the following section.

6 Issues/analysis 6.1 Resolution, statute or custom? In 1924 Mr Ponsonby considered whether parliamentary scrutiny of treaties should be a matter of resolution, statute or custom. He considered that custom was the most enduring method:

I would, however, remind the House of the paradox that, under the British Constitution, it is rules that depend solely on practice and usage which are the most immutable. A change effected by Acts of Parliament is not likely to last so long as one effected solely by Ministers as a change of practice, and dependent only on the will of the Members of the Legislature for the time being. 71

A requirement for express Parliamentary approval for each and every Treaty would, he thought, be “a very cumbersome form of procedure and would burden the House with a lot of unnecessary business”. He considered the absence of disapproval to be sufficient sanction, as the most valuable elements of the process were the publicity and opportunities for discussion it provided. 72

Some witnesses to the Joint Committee on the draft bill agreed, suggesting that it would serve no useful purpose to make the Ponsonby Rule statutory, as this would not make the Government any more likely to comply with the requirements. Furthermore, the Clerk of the House of Commons said that by placing parliamentary procedure in statute the proposal risked “blurring the constitutional separation between the courts and Parliament described in Article IX of the Bill of Rights” 73 which reads “the freedom of speech and debates or

70 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008 71 HC Deb 1 April 1924 c2003 72 Ibid c2004 73 Clerk of the House of Commons and Clerk of the Parliaments, Further evidence to the Joint Committee on the Draft Constitutional Renewal Bill, July 2008 (Ev 65) para 24

23 proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. It would also mean a certain loss of adaptability.

Other witnesses, however, felt that it would be a positive and beneficial step, and the Joint Committee agreed. 74

6.2 Enough time for scrutiny? There are mixed views about whether a 21 sitting-day period is sufficient for considered scrutiny of a treaty. Some commentators suggest that it has worked well in the past, whereas others suggested that flexibility might be needed, especially if Select Committees were going to conduct inquiries and publish reports. The Joint Committee on the draft bill called for a mechanism to be set out in statute to increase this period in exceptional circumstances; 75 a general provision to this effect appears in clause 22 of the Bill.

In Australia, the laying period of 15 sitting days (or 20 sitting days for treaties of major political, economic or social significance) has been deemed sufficient for the Joint Standing Committee on Treaties to conduct an inquiry and publish a report on a treaty.

6.3 Effect of a negative vote The biggest difference brought by the Bill would be that the Commons would be able to prevent a treaty from being ratified for as long as it continues to oppose the measure, on repeated re-laying of the treaty by the Government (the Lords alone would, by contrast, only be able to delay ratification briefly). This is achieved through the negative resolution procedure, meaning that unless either House objected, ratification could go ahead.

This provision has generally been welcomed as strengthening Parliament’s role, though there was criticism of inelegant drafting and concerns that the balance of power between the Commons and the Lords may have to be adjusted if the composition of the Lords is altered. 76 On the question of possible disagreements between the Commons and the Lords, Jack Straw, the Lord Chancellor and Secretary of State for Justice, said, “The current proposal is that, since we have to allow for the possibility – hopefully remote – of a stand-off between this place and the other place, it should be the elected House that decides”. 77

One academic suggested that the negative resolution procedure would not sufficiently redress the balance of power between the Government and Parliament. 78 Mr Straw had said when introducing the draft Bill that the Government would look at using the affirmative resolution procedure instead. 79 However, the negative resolution procedure has reappeared in the Bill itself.

The proposal that after a negative vote in the Commons the Government should be able to re-present a treaty as many times as it liked attracted some support, notably from the Joint Committee on the draft bill, with many reasons identified for why it might be appropriate for

74 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, paras 205 and 208 75 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 212 76 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, paras 213-7 77 HC Deb 25 March 2008 c32 78 Mark Ryan, Senior Lecturer in Constitutional and Administrative law, University of Coventry, Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, Ev 36, para 15 79 HC Deb 25 March 2008 c35

24 the Government to resubmit. 80 There was also, however, significant criticism. The Public Administration Select Committee, for example, felt that this was “constitutionally dangerous” and suggested that the Government should not be able to re-lay a treaty before the next Parliamentary session, noting that the House has a long-standing rule that the same question should not be put to it twice in the same Parliamentary session. 81 The Government rejected this recommendation:

The Government considers it unlikely that a treaty would be re-presented to Parliament following a vote against ratification by the House of Commons in the same session, but does not agree that a statutory prohibition should be imposed. Treaties operate in an international context which may change rapidly due to external factors – in unusual cases parliament may have good reason to change its view in a short space of time. 82

Despite the innovation of this provision, many commentators have pointed out that it is unlikely to be used very often if current patterns of parliamentary interest in treaties continue. 83

6.4 Exceptions and exclusions In “exceptional” circumstances (undefined), the Government would be able to ratify a treaty without following the new treaty scrutiny requirements (clause 23). It would have to explain in a statement to Parliament why it was taking (or had taken) this step, and the Joint Committee on the Bill called for this statement to include detailed information on the nature of the exceptional circumstances. 84 There have been some concerns that not all of the instances in which the Ponsonby rule has been avoided in the past have been genuinely urgent cases. 85 However, the Government did not accept the suggestion of the Public Administration Select Committee that the bill should either define the circumstances where the usual scrutiny rule would not apply, or give Parliament (rather than the Government) the power to waive the requirement. 86 Nor did it follow the Bar Council’s proposal that the alternative safeguards referred to in the White Paper (consulting Parliament on a shorter timetable, making an oral or written statement to Parliament, consulting Opposition leaders and others during a recess and/or certifying the reasons why it is an exceptional case) should appear on the face of the Bill and be made mandatory. 87 Another suggestion was that the Secretary of State could be required to take all reasonably practicable steps to ensure that no treaty is ratified without the new requirements being followed. 88

80 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 220 81 Public Administration Select Committee, Constitutional Renewal: Draft Bill and White Paper, HC499 2007-08, 4 June 2008, para 87-89 82 Ministry of Justice, Government response to the report of the Public Administration Select Committee on the Draft Constitutional Renewal Bill, Cm 7688, July 2009, para 74 83 See for example Elizabeth Wilmshurst, Associate Fellow, Chatham House, Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 13 May 2008 (Q19) 84 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 226 85 Public Administration Select Committee, Constitutional Renewal: Draft Bill and White Paper, HC499 2007-08, 4 June 2008, para 87 86 See Public Administration Select Committee, Constitutional Renewal: Draft Bill and White Paper, HC499 2007-08, 4 June 2008, para 87 87 General Council of the Bar, Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, May 2008 (Ev 55), paras 50-51 88 Professor Adam Tomkins, Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 11 May 2008 (Ev 01), para 10

25 Nor do the proposals widen the scope of treaties considered by Parliament. As with the Ponsonby rule, only treaties requiring ratification, accession, approval, acceptance or other domestic procedures would be covered. Double taxation agreements and EU treaties would continue to be dealt with under their own special arrangements, which has not provoked any controversy.

More problematic is the issue of ‘treaty-like’ documents such as Memoranda of Understanding (MOUs) , exchanges of letters between governments, EU common positions and UN Security Council resolutions, which would continue to have no parliamentary scrutiny. The Commons Foreign Affairs Committee noted that many of these may be more important in their effect than most treaties, 89 and Anthony Aust notes that they are especially important for many defence arrangements (for instance on the stationing of ballistic missiles) which need to be classified and so cannot be embodied in treaties. 90 Some international lawyers indeed consider MOUs actually to be treaties. 91 The Lord Chancellor envisaged that such documents could be examined in future by a Select Committee, in confidence if need be, 92 and the Joint Committee on the Bill recommended that the scrutiny of such documents should be enhanced. 93

6.5 Do the reforms go far enough? As noted above, the Government’s proposals simply put the existing customary requirement for laying treaties before Parliament on a statutory basis. The one significant reform is to give the House of Commons a statutory power to object indefinitely to the ratification of a treaty. But the Bill does not even incorporate the other aspects of the Ponsonby Rule on making time for a debate or vote, or on notifying Parliament of other treaty-like agreements, let alone provide any increase in number of treaties being debated or any other method of Parliamentary scrutiny. As Lord Norton of Louth put it, “In constitutional terms, it is a major change, giving Parliament powers it has never had before, but it could be meaningless if you then do not have the mechanism to give effect to that change”. 94

A statutory requirement to lay the treaty before Parliament does not guarantee that parliamentary time will be made available for a debate and vote. The Bill does not specify how a debate and vote on ratification of a treaty would be triggered, and the Government says that this would be left to the “usual channels” and for “people to make a noise”. 95 The Ponsonby Rule that “important Treaties” would be submitted to the House for discussion within the 21 days and that “if there is a formal demand for discussion forwarded through the usual channels from the Opposition or any other party, time will be found for the discussion of the Treaty in question” 96 would therefore presumably still stand; and the Government has also promised to allow debates on major treaties if the relevant select committee and the Liaison Committee ask for them. However, there have been calls instead for a formal requirement for a debate or vote if requested by a committee or a well-supported Early Day

89 Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 19 June 2008 (Ev 75), para 2 90 Anthony Aust, former Deputy Legal Adviser to the Foreign and Commonwealth Office, evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 2 June 2008 (Ev 16), para 10 91 See Jan Klabbers, The Concept of the Treaty in International Law, 1996 92 Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 1 July 2008, Q 752 93 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 232 94 Lord Norton of Louth, Evidence session of the Joint Committee on the Draft Constitutional Renewal Bill, 1 July 2008, Q751 95 Jack Straw, Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 1 July 2008 (Q750) 96 HC Deb 171, 1 April 1924, cc2003-2004

26 Motion. 97 Jack Straw has also suggested that an appropriate mechanism might be to make provision in the Standing Orders of each House that if a certain number of members said they wanted a debate and vote then this would have to happen. 98 The Government is likely to resist fettering the discretion of the business managers. 99

The fact that the Bill makes no provision for the scrutiny of treaties actually to take place has prompted criticism, for example:

• “The proposal is largely presentational, apart from the fact that the Commons can, indeed, stop the Government ratifying a treaty, which is a power unlikely to be used very much […The] real problem about treaties […] is that Parliament does not actually scrutinise them, and the provisions in the Bill do not do anything about that […] I see the problem as getting Parliament interested in significant treaties and the Bill does not do that.” 100

• “The provision […] is unlikely to result in any change to the existing practice, under which treaties are debated in Parliament very infrequently.” 101

Despite Joint Committee saying its role was to be more assertive on behalf of Parliament, 102 it made few recommendations in this area to increase substantially Parliament’s role in the scrutiny of treaties.

There is a question-mark over whether the Government’s limited duties under the new provisions could even be enforced. The House of Lords has in the past suggested that the ratification of treaties is a non-justiciable issue, 103 so if parliament wants to be sure it could take judicial review against the government for ratifying a treaty in breach of the new requirements, it may wish to provide for this expressly on the face of the Bill. 104

Several witnesses to the Joint Committee on the draft bill considered that the Government was focusing on the wrong issue, and instead should focus on ways of improving Parliamentary scrutiny of treaties. 105 Sir Franklin Berman, former legal adviser to the Foreign and Commonwealth Office, suggested instead that “it would be by far more productive for both Parliament and the Executive, in place of the Government’s present proposals, to undertake a more thorough and wider-ranging study into the linked questions of the treaty- making process as such and the incorporation of treaty rights and obligations into United Kingdom law.” 106 He considered that such a study might lead to a fresh view of the balance of responsibilities between Government and Parliament in the treaty-making process which

97 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 237 98 Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 1 July 2008 (Q751) 99 Jack Straw, Lord Chancellor and Minister for Justice, Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 1 July 2008 (Q750) 100 Elizabeth Wilmshurst, Associate Fellow, Chatham House, Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 13 May 2008 (Q19) 101 Foreign Affairs Committee, evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 19 June 2008 (Ev 75) 102 Lord Tyler, 13 May 2008, Q6 103 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 418, per Lord Roskill 104 Professor Adam Tomkins, Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 11 May 2008 (Ev 01), para 9 105 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 207 106 Sir Franklin Berman, former legal adviser to the Foreign and Commonwealth Office, evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 11 June 2008 (Ev 34)

27 could be effected non-statutorily, and to a new understanding of the relationship between treaties and domestic law in the UK, which would form a worthwhile subject for legislation.

6.6 Options for increased scrutiny As noted above, whilst some commentators are relatively content with the proposed framework for the parliamentary scrutiny of treaties, others are concerned that it would be ineffective and have suggested various options for increased scrutiny.

In considering these, it is important to think about the purpose of the scrutiny: would it be to ensure regularity/constitutionality, or to provide or legislative/quasi-legislative approval of treaties as precondition for UK’s assent? Should parliament be sharing policy-making with the executive (which would really require it to be involved in treaty-negotiation) or simply be given a take-it-or-leave-it power once the treaty had been agreed? If a new Committee were created, should it just be a sifting committee or should it have substantive powers to conduct inquiries and make recommendations?

More public consultation There are precedents and scope for consulting the public more widely on treaties. Before the ratification of the Rome Statute for the International Criminal Court there was a public consultation on a draft International Criminal Court Bill, as a result of which the Government made changes to the extradition provisions of the Bill to remove the requirement of dual criminality when a third country seeks extradition over a Statute crime. 107 And between April and September 2002, the UK carried out a public consultation on the position to be adopted during the negotiations on amending the 1972 Biological and Toxin Weapons Convention, which expressly sought views from MPs, NGOs and other organisations and individuals with an interest in the subject. 108

Building upon these precedents, it may be possible to encourage wider discussion of treaty and international issues in the future.

More parliamentary debates and votes The Ponsonby rule may have its limitations, but there is a view that Parliament and its committees do not make effective use of existing scrutiny mechanisms and that there is more scope for debate on treaties within Parliament, if Members wish. 109 The main opportunities are noted in section 2 above.

Parliamentary involvement at an earlier stage Some commentators have called for a non-statutory “soft mandating” mechanism, allowing Parliament to have some influence on the negotiation of a treaty or at least immediately before signature. 110 This would involve, say, the minister and officials meeting the relevant Select Committee before international negotiations on a treaty to agree a “soft mandate” or

107 Cm 4847, 25 August 2000. See Library Research Paper 01/39, The International Criminal Court Bill [HL],H H 28 March 2001, p60 108 FCO, Strengthening the Biological and Toxin Weapons Convention: Countering the Threat from Biological Weapons, Cm 5484, April 2002 109 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 238 110 See Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 236

28 general bargaining position and desirable outcome. The minister would then report back to the Committee and explain any departures from the agreed position. 111

MJ Bowman, Director of the University of Nottingham Treaty Centre, suggested that where signature of a treaty was essentially a preliminary to ratification, parliamentary involvement before signature could minimise the risk of disagreements between Parliament and Government over the desirability of ratification. But he also noted that the provisions would not cover the small but possibly important number of treaties where consent to be bound is expressed by signature alone, without any need for ratification, pointing out that the Bill would not provide for any parliamentary scrutiny of such treaties. He described this as a “significant loophole”. 112

Joanna Harrington considers that “there should be a mechanism that enables Parliament to draw attention to a future treaty action that has strong opposition and this mechanism should not rest on executive goodwill or discretion.” She suggests that a negative resolution procedure could be invoked within the time period assigned for scrutiny, which would “not overly tie the hands of the executive during treaty negotiation”:

Such a procedure might also encourage greater cooperation between the levels and branches of government to avoid a lobby for triggering the negative resolution mechanism at a later stage. It is also a middle ground position that balances the various interests at play, admittedly sacrificing some efficiency for some accountability. 113

On the other hand, Sir Michael Wood, former legal adviser to the Foreign and Commonwealth Office, said that this is not a matter to be dealt with by legislation. Moreover, he pointed out that treaty negotiations are often conducted in secret, making parliamentary scrutiny at that stage difficult if not impossible. 114

The Government does not consider that a formal mechanism for the scrutiny of treaties prior to signature is practical or workable, “given the diverse circumstances and timeframes in which treaty negotiations are conducted”, 115 but has not specifically addressed the case of treaties where consent to be bound is expressed by signature alone.

Enhanced Select Committee scrutiny As noted in section 2.5 above, reforms introduced by the Government in 2000 gave departmental Select Committees a potentially greater role in the scrutiny of treaties. This has not been taken up as enthusiastically as some had hoped: Select Committees have increasing workloads and limited resources, and the impetus to scrutinise treaties must come from the Members themselves who set their own agenda. Yet the fact that there has been relatively little scrutiny undertaken by Select Committees is not necessarily indicative of a failing of the reform itself. For example, the JCHR has shown that Committees can and do take an active role in treaty scrutiny, and the recent use of an EDM to help to draw political attention to a treaty and its implications shows how the system can function (see section 4.4 above).

111 See Democratic Audit, Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, May 2008 (Ev 04), para 35 112 Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, June 2008 (Ev 41) 113 Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making”, International and Comparative Law Quarterly, vol. 55, January 2006, 121-59 at 158 114 Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 6 June 2008, (Ev 18) para 8 115 Ministry of Justice, The Governance of Britain – Constitutional RenewalH,H March 2008, Cm 7342-I, para 165

29 MJ Bowman has suggested that committee scrutiny of treaties requires not only expertise on the subject covered by the treaty in question, but also expertise on how the treaty could be used for recognising, protecting and enhancing the relevant interests under international law. 116

A new Parliamentary Treaty Committee? During the consultations and debates on the “constitutional renewal” proposals, calls for a new dedicated Treaty Committee have been renewed. Such a committee could be primarily a sifting committee, liaising with relevant select committees to decide if a debate and vote or an inquiry were required, and perhaps could also have the power to request a debate or vote or an extension of the 21-day sitting period; 117 or it could undertake inquiries and publish reports itself. The Government has suggested it would welcome any institutional change which would provide better parliamentary scrutiny of treaties within the proposed framework, but regards it as being for the Commons and Lords to decide for themselves on any such innovations. 118

Joanna Harrington has set out her opinion of the advantages of treaty committees like Australia’s:

In my view […] a national parliamentary committee comprised of representatives from all parties and all regions specifically dedicated to the task of treaty scrutiny is the best means to achieve greater public awareness as well as democratic accountability. A treaty committee regularizes and institutionalizes the scrutiny function, providing a public home for a wealth of treaty information, while ensuring that parliamentary time is given to the consideration of the future treaty action before the nation is bound. The committee must, however, be of an adequate size if it is to follow Australia’s lead and carry out hearings across the nation, and it must be supported by an adequate secretariat capable of nurturing a fruitful relationship with both government departments and civil society. 119

The Joint Committee on the draft Bill recommended the creation of a new Joint Committee on Treaties for the UK, but suggested that it should be a type of sifting committee rather than conducting many inquiries itself. It proposed that a new committee should have the power to sift treaties to establish their significance, assess whether an extension to the 21-day sitting period is required for a particular treaty, and scrutinise treaty-like documents such as Memoranda of Understanding, in order to support existing select committees and help plug the current gaps in the parliamentary scrutiny of treaties. 120

7 International comparisons Many other countries have formal parliamentary involvement in the ratification of treaties. It is possible to identify some reforms which have delivered enhanced scrutiny in other countries, particularly Australia. However, an obvious problem with importing these wholesale is that few countries have constitutional systems comparable to that of the UK. Many European countries and the USA have written constitutions which give treaties the

116 Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, June 2008 (Ev 41) 117 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 235 118 Cm 7342-1, para 164 119 Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making”, International and Comparative Law Quarterly, vol. 55, January 2006, 121-59 at 158 120 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166 HC 551 2008-09, 12 August 2008, para 238

30 force of domestic law directly in national courts, and therefore give their parliaments the power to give or withhold formal consent to the ratification of treaties.

7.1 Selected European countries France International relations are the privilege of the executive, and the government continues to consider this as an area which it alone deals with. Parliament does however have some involvement. Under Article 53 of the 1958 Constitution, several categories of treaty or agreement may only be ratified or approved by virtue of an act of parliament:

• Peace treaties • Commercial treaties • Treaties or agreements relating to international organization • Treaties that commit the finances of the State • Treaties that modify provisions which are matters for statute • Treaties relating to the legal status of persons • Treaties that involve the cession, exchange or addition of territory. 121

All Government bills authorising the ratification of a treaty are tabled before the National Assembly and systematically referred to the Foreign Affairs Committee. Members can table amendments to the bill but not to the treaty itself, though in some cases the committee’s recommendations have led to negotiators removing a clause from a treaty subsequently concluded with other states. 122 There does not seem to have been any cases of outright rejection of an authorisation bill but rather cases of postponement for very long periods:

Thus, in 1979 and 1981, the committee postponed the examination of an extradition treaty with Canada. This finally led the Minister of Foreign Affairs to re-negotiate a new treaty which was then passed. 123

Whilst the Senate will always hold a public debate on an authorisation bill, the National Assembly will frequently pass the bill without further debate.

Germany Germany’s basic law, as interpreted by the Federal Constitutional Court, grants the executive the dominant position on foreign affairs. Treaties which regulate the political relations of the Federation require the approval of parliament before ratification through “acts of consent”. 124 In practice this includes military alliances, treaties of guarantee, treaties on political co- operation, peace treaties, non-aggression pacts and treaties dealing with questions such as disarmament, neutrality and peaceful settlement of disputes. It is fair to say that the vast majority of important international agreements will fall within this category. 125 There is, however, considerable discretion on the part of the executive as to when to submit an international agreement to the Bundestag.

121 Assemblée nationale, The Ratification of TreatiesH,H undated [viewed 22 September 2009] 122 Assemblée nationale, The Ratification of TreatiesHH, undated [viewed 22 September 2009], I 3 123 Assemblée nationale, The Ratification of TreatiesHH, undated [viewed 22 September 2009], I 3 124 Jochen Abr. Frowein, Michael J. Hahn, “The Participation of Parliament in the Treaty Process in the Federal Republic of Germany”. Chicago-Kent Law Review, vol 67 no2, 1991, 366 125 Jochen Abr. Frowein, Michael J. Hahn, “The Participation of Parliament in the Treaty Process in the Federal Republic of Germany”, Chicago-Kent Law Review, vol 67 no2, 1991, 367

31 If the treaty obligations require a corresponding change to domestic legislation through an act of parliament, the German constitution requires that the consent of parliament is gained before the executive may accept the international obligation. The treaty can only be either accepted or rejected as a whole.

Ireland Ireland has a constitutional requirement to involve the national Parliament in treaty-making. The Irish Constitution of 1937 provides that “every international agreement to which the State becomes a party shall be laid before Dáil Éireann” and further stipulates that “the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by the Dáil Éireann”. An exception is made to both requirements for “agreements or conventions of a technical and administrative character”. 126

Italy The role of the Italian parliament in the treaty-making process is very modest. In recent years parliament has taken a keener interest and a more active role in the shaping of foreign relationships but scrutiny remains informally-based rather than grounded in the constitution. As in the UK, scrutiny can often take the form of hearings, inquiries and motions. 127

Netherlands In the Netherlands treaties are concluded by or with the authority of the Crown. The ‘Council of State’, which is the highest advisory body to the government, is consulted on proposals for the approval of treaties before they are submitted to parliament. The treaty is then submitted to parliament for approval. Legally, the States-General (the lower and upper houses) are free to withhold their approval from a treaty. According to Dutch constitutional practice they can also postpone their decision on the proposal for approval presented by the government. As soon as approval has been given, the Crown has the constitutional freedom to proceed to ratification.

7.2 Countries following the ‘Westminster style’ of Democracy For states that follow the British constitutional tradition, the power to conduct foreign relations, including the power to make treaties, is one of the royal prerogatives retained by the Crown and carried out by the executive branch, usually though the minister responsible for foreign affairs. Since prerogative powers, by definition, provide the executive with the power to act without parliament’s consent, treaty-making (including treaty-ratification) is a wholly executive act. 128

This situation can and has been altered by statute in jurisdictions including Australia, Canada and South Africa. As far as Canada is concerned, reforms have not resulted in a significant extension of parliamentary oversight and the prevailing view is that the Parliament has no formal role in treaty-making – a position that has been staunchly guarded by successive Governments. Other countries which have pursued more innovative and wide-ranging reforms are discussed below.

126 Constitution of IrelandHH, 1937 (as amended), Article 29(5) 127 Giovanni Bognetti, “The Role of the Italian Parliament in the Treaty Making Process”, Chicago-Kent Law Review, vol 67 no2, 1991, 407 128 Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making”, International and Comparative Law Quarterly, vol 55, January 2006, 142

32 South Africa Treaty-making in South Africa is a shared responsibility between the national executive and both houses of Parliament. Whilst negotiation and signature of all international agreements is a matter for the national executive, the 1996 Constitution specifies that major treaties requiring ratification or accession must be approved by both houses of parliament. 129 Various parliamentary committees in both Houses review the treaty before it is considered by each House sitting separately. The committees, and the Houses, can either accept or reject the treaty, but may also propose declarations and reservations, with the whole process taking from six months to a year to complete. 130 Even those treaties that are exempt from this requirement (because they are of a technical, administrative or executive nature, or do not require either ratification or accession) must be tabled in the Assembly and Council “within a reasonable time”.

International agreements become law in the Republic when they are enacted into law by national legislation, though an exception is made for a “self-executing” provision of an agreement that has been approved by Parliament. 131

Commenting in 2000 on the system adopted by South Africa, the FCO noted:

South Africa, which had consciously broken new ground in its post-apartheid Interim Constitution, discovered that paradoxical consequences followed, and has returned in the 1996 Constitution to a somewhat more orthodox position, but with certain new features. Notably, it divides treaties into those which require Parliamentary approval and those which do not, and makes new provision for the former category to become part of South African law. 132

Australia Australia originally followed the Westminster model closely, but it has now implemented a range of reforms that have enhanced parliament’s oversight and scrutiny function in relation to treaty-making, notably through the creation of a new treaty committee.

Most of the reforms were implemented in 1996 in response to an extensive report by the Senate Legal and Constitutional References Committee entitled Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995). They included improved access to treaty information, greater public consultation, and – most influentially – an enhanced role for parliament including a new standing committee on treaties. The new process for parliamentary scrutiny has five aspects:

• The tabling in Parliament of all treaty actions proposed by the Government in Parliament for at least 15 sitting days before binding action is taken (since 2002, 20 sitting days for treaties of major political, economic or social significance); • The preparation of a National Interest Analysis (NIA) for each treaty, outlining the obligations contained in the treaty, the benefits for Australia of entering into the treaty and the likely costs, and any consultation that has taken place; • The establishment of the parliamentary Joint Standing Committee on Treaties (JSCOT); • The establishment of the Treaties Council comprising the Prime Minister, Premiers and Chief Ministers; and

129 Constitution of the Republic of South AfricaHH, 1996, s231 130 Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making”, International and Comparative Law Quarterly, vol 55, January 2006, 145-146 131 Constitution of the Republic of South AfricaH,H 1996, s231(4) 132 FCO, Evidence to the Royal Commission on the reform of the House of LordsH H [undated; 1999-2000?]

33 • The establishment on the internet of the Australian Treaties Library. 133

Once tabled, the treaty (and NIA) is sent for scrutiny to JSCOT, a large all-party committee supported by a small secretariat. JSCOT can inquire into and report upon any treaty matter, whether bilateral or multilateral, including treaties in the process of being negotiated as well as those that have already been concluded. It can do this by, for example, holding public hearings across Australia and reviewing submissions from parliamentarians, non- governmental organisations, academics and industry groups, as well as individual citizens, during the 15- or 20-day sitting period. It then prepares a report for Parliament containing its advice on whether the treaty should bind Australia and on any other issues that emerged during the review process. Usually this recommends ratification, but on a few very rare occasions, JSCOT has made a unanimous recommendation against the ratification of a proposed treaty action. This can have an impact, but JSCOT’s greater benefit is probably found in its more-frequent criticism of the Government for inadequate NIAs and insufficient consultation, and its ability to make a wealth of treaty information available for public scrutiny, including departmental information. 134 It has however been criticised for serving as “a tool for political management” and “a means by which the executive can channel protest, deflect opposition, and in essence legitimize its own policy preferences.” 135

It is notable that even this high degree of Parliamentary scrutiny does not legally constrain the executive in its decisions as to whether or not to ratify a treaty. 136 A 1999 Government review concluded that the sufficiency of the scrutiny process alleviated any need for a rule requiring the parliamentary approval of treaties for ratification. 137 However, the extent to which these improvements have enhanced transparency and accountability of the executive has yet to be clearly established. 138

New Zealand New Zealand, which does not have a written constitution, has introduced rather more limited reforms to parliamentary scrutiny of treaties. In the past, treaties came before the New Zealand Parliament only if implementing legislation for domestic law was required. In 1993 the New Zealand Law Commission called for reform in a draft report, The Making, Acceptance and Implementation of Treaties: Three Issues for Consideration by its then President, Sir Kenneth Keith (now serving in the International Court of Justice). This led to the publication of Report 45: The Treaty-making Process: Reform and the Role of Parliament in 1997 which called for the creation of a treaty committee. The recommendation for a specific treaty committee has not been taken up, but in 1998 select committees began scrutinising certain proposed treaty actions on a trial basis. The procedures have since been incorporated into standing orders:

133 See Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’, Sydney Law Review vol 25 no 4, December 2003, 423 at 439-40 134 Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making”, International and Comparative Law Quarterly, vol. 55, January 2006, 131-6 135 Ann Capling and Kim Richard Nossal, ‘Square Pegs and Round Holes: Australia’s Multilateral Economic Diplomacy and the Joint Standing Committee on Treates’, paper presented at the annual meeting of the International Studies Associaiton, Chicago, 20-24 February 2001, quoted in Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’, Sydney Law Review vol 25 no 4, December 2003, 423 at 444 136 Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’, Sydney Law Review vol 25 no 4, December 2003, 423 at 431-2 137 Department of Foreign Affairs and Trade, Review of the Treaty-Making ProcessHH, August 1999 138 Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’, Sydney Law Review vol 25 no 4, December 2003, 423 at 443

34 All treaties the Government is proposing to ratify, or take similar action on, are presented to the House. They are mostly multilateral treaties (involving New Zealand and two or more other countries) and the occasional bilateral treaty (involving only one other country). Bilateral treaties of particular significance may be presented at the Minister’s discretion. Each treaty is accompanied by a national interest analysis, which provides background and explanation. The treaties are referred to the Foreign Affairs, Defence and Trade Committee, which examines the treaties itself if the subject area is primarily within its own terms of reference. If not, the committee refers them on to more appropriate committees. SO 387–390. 139

The committee looking at the treaty will consider whether there are any matters relating to the treaty that should be drawn to the House’s attention. Committees usually have, by convention, up to 15 sitting days to report to the House before the government may take final action, such as ratification. 140

7.3 The USA In the USA, there is a constitutional requirement to involve the Senate in the making of treaties. The Constitution requires the Senate’s approval, by a two-thirds vote, before the President can make a treaty. 141

When the President submits a treaty to the Senate, it is referred to the Committee on Foreign Relations. The Committee can either order the treaty to be reported back to the Senate – favourably, unfavourably, or without recommendation – or decline to act on the treaty. It can also call for amendments the treaty, which would require renegotiating with the other party or parties to the treaty. No further amendments may be introduced once the Senate has moved to the process of considering the resolution of ratification, although Senators may still attach reservations, declarations, statements or understandings that can affect the interpretation or implementation of the treaty. 142

The Senate’s website sets out how this has worked in practice:

The Senate has rejected relatively few of the hundreds of treaties it has considered in its history. Many others, however, have died in committee or been withdrawn by the president rather than face defeat.

Some presidents have found it helpful to include senators in negotiating treaties in order to help pave the way for later Senate approval.

The requirement for a two-thirds vote ensures that a treaty will need bipartisan support to be approved.

The Senate may also amend a treaty or adopt various changes, which may lead the other nation, or nations, to further negotiate the treaty.

The president may also enter into executive agreements with foreign nations that are not subject to Senate approval.[…]

Senate Options

139 New Zealand Office of the Clerk of the House of Representatives, Effective Select Committee Membership: A

Guide for Members of ParliamentHH, 2007 140 New Zealand Parliament, Parliament Brief: Select Committees 141 Constitution of the United StatesHH, Article II, section 2 142 ‘Senate Consideration of Treaties’, CRS Report for Congress by the US Congressional Research Service, 10 April 2003; InfoUSA website from the US Information Agency; and Congressional Quarterly’s Guide to Congress, 5th Edition, 2000.

35 The Senate, itself, does not ratify treaties--actual ratification only takes place when the instruments of ratification are formally exchanged between the parties. When a treaty is submitted to the Senate for approval, it has several options for action. Depending on whether or not a two-thirds majority votes in favor, the Senate may approve or reject the treaty as it has been submitted. It may make its approval conditional by including in the resolution amendments to the text of the treaty, reservations, understandings, interpretations, declarations, or other statements. The president and the other countries involved must then decide whether to accept the conditions and changes in the legislation, renegotiate the provisions, or abandon the treaty. Finally, the Senate may choose to take no definitive action, leaving the treaty pending in the Senate until withdrawn at the request of the president or, occasionally, at the initiative of the Senate.

Most treaties submitted to the Senate have received its advice and consent to ratification, and the ratification has subsequently been signed and deposited in the National Archives by the president. During its first two hundred years, the Senate approved more than 1,500 treaties, approximately 90 percent of those submitted to it. To date, only 21 treaties have been rejected by a Senate vote because they failed to receive the required two-thirds majority, the most recent being the October 13, 1999 vote to reject the Comprehensive Nuclear Test Ban Treaty. A number of these, including the Treaty of Versailles, were rejected twice. Most often, the Senate has simply not voted on treaties that its leadership deemed not to have sufficient support within the Senate for approval, and in general these treaties have eventually been withdrawn.

On a number of occasions, the Senate has exercised its role in the treatymaking process in such a way that treaties never entered into force. Of the many treaties approved by the Senate with amendments, reservations, understandings, or interpretations, forty-three never entered into force because the reservations or amendments were not acceptable either to the president or to the other country or countries party to the treaty.

An amendment makes an actual change in the language of the treaty. Also available to the Senate are other options, short of outright rejection of a treaty. The terminology of these limiting actions varies. Although the labeling of the Senate's expression may be relatively unimportant in determining its legal effect, the most significant actions, in order of their impact, are: amendments; reservations; understandings; interpretations; declarations; and statements, or similar wording such as clarification, recommendation, explanation, or sense of the Senate.[…]

At least eighty-five treaties were eventually withdrawn because the Senate never took final action on them. Treaties may also remain in the Senate Foreign Relations Committee for extended periods since treaties are not required to be resubmitted at the beginning of each new Congress. There have been instances in which treaties have lain dormant within the committee for years, even decades, without action being taken.

Senate action is not the only reason that various treaties signed by the United States have remained "unperfected treaties" and never entered into force. In some cases, the president has simply not submitted treaties to the Senate although they have been signed. In others, the ratification process has not been completed by the president even though the Senate has given its approval. In still other cases, treaties have not taken effect because of actions of other nations. 143

143 US Senate Treaty Briefing

36 The difficulty in obtaining a two-thirds vote has been a cause of the vast increase in the number of international agreements classified in the US as “executive agreements”, and not submitted to the Senate. The United States is currently a party to nearly nine hundred treaties and more than five thousand executive agreements. 144

The US has bolstered the role of the legislature in treaty-making by requiring the texts of executive agreements to be transmitted to Congress. It has also passed legislation specifically authorising the executive to conclude international agreements in certain fields, including foreign aid, agriculture, and trade. 145

144 ibid 145 Joanna Harrington, “Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making”, International and Comparative Law Quarterly, vol 55, January 2006, 141-2

37