Parliamentary scrutiny of treaties: up to 2010

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1 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.

2 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 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

3 Contents 1 What is a treaty? 5 2 Parliamentary scrutiny Introduction Current forms of scrutiny: overview The Ponsonby Rule Other methods of parliamentary scrutiny Involvement of Select Committees Extra-parliamentary scrutiny Devolved administrations Crown Dependencies and Overseas Territories 11 3 The European Union UK scrutiny of EU treaties Ratification of treaties by the European Community and European Union 12 4 Proposals for change Introduction Private Members Bills, Lord Lester s Bills of 1996, 2003 and House of Lords Bills Royal Commission on Reform of the House of Lords, Select Committees House of Commons Procedure Committee, Public Administration Select Committee, Joint Committee on Human Rights, Conservative Democracy Task Force, Governance of Britain proposals, Green paper 18 House of Lords Debate 20 Draft Constitutional Renewal Bill and White Paper 21 5 The Constitutional Reform and Governance Bill Issues/analysis Resolution, statute or custom? 23 3

4 6.2 Enough time for scrutiny? Effect of a negative vote Exceptions and exclusions Do the reforms go far enough? 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 Selected European countries 31 France 31 Germany 31 Ireland 32 Italy 32 Netherlands Countries following the Westminster style of Democracy 32 South Africa 33 Australia 33 New Zealand The USA 35 4

5 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 This section and the following one draw on House of Commons Information Office Factsheet P14, TreatiesHH, revised November May 1969, in force 27 January 1980, 1155 UNTS 331 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 Charter of the United NationsHH, 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 See Library Standard Note SN/PC/3681, The Royal PrerogativeHH, 3 November 2008 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, at 124 Restatement of the Law (Third): The Foreign Relations Law of the United States (American Law Institute St Paul Minnesota, 1987) vol. 1 at para

6 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 treatymaking 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 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. Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 1 July 2008 (Q720) 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, at 159 6

7 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, cc

8 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 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. Joanna Harrington, Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making, International and Comparative Law Quarterly, vol. 55, January 2006,

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

10 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 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 Parliamentary Scrutiny of TreatiesHH, HC , 26 July 2000 The Governance of Britain - War Powers and Treaties: Limiting Executive PowersHH CM 7239, 25 October 2007, para 134 Joint Committee on Human Rights, Protocol No. 14 to the European Convention on Human Rights, HL 8/HC , 8 December 2004, para 7 See Library Standard Note SN/HA/4596, Draft Cultural Property (Armed Conflicts) BillHH, 25 January 2008 Strengthening the Biological and Toxin Weapons Convention: Countering the Threat from Biological WeaponsHH, Cm 5484, April 2002 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

11 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 treatynegotiating 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 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 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) 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 CommitteeHH, Cm 4806, July Joanna Harrington, Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making, International and Comparative Law Quarterly, vol. 55, January 2006, at 150 See FCO, Explanatory Memorandum on the Hague Convention on the International Protection of AdultsHH, CM 5881, July 2003 The Governance of Britain - War Powers and Treaties: Limiting Executive Powers, CM 7239, 25 October 2007, para

12 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 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 Article 48(2) to (5) of the Treaty on European Union See Library Research Paper 08/03, The European Union (Amendment) Bill, 15 January 2008, p12 ff Article 281 TEC 12

13 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 HC Deb 6 May 2003, cc 566-7W Government White Paper, A Constitutional Treaty for the EU: The British Approach to the European Union Intergovernmental ConferenceHH, Cm 5934, September 2003 FCO, The Reform Treaty: The British Approach to the European Union Intergovernmental Conference,HH Cm 7174, July

14 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, Lord Lester s Bills of 1996, 2003 and 2006 Lord Lester of Herne Hill introduced a Treaties (Parliamentary Approval) Bill (HL) in 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 and 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 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 HL Deb 28 February 1996 c1555ff The Executive Powers and Civil Service BillHH, HL Bill 15 of 2003/04 The Constitutional Reform (Prerogative Powers and Civil Service etc) BillHH, HL Bill 62 of HL Bill Lord Tyler, Constitutional Renewal Bill [HL] Explanatory Notes, para 4 14

15 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 Lord Tyler, Constitutional Renewal Bill [HL] Explanatory Notes, paras HL Bill 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 para 40 15

16 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 Select Committees 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 para 42 A House for the FutureHH, Report of the Royal Commission on Reform of the House of Lords, Recommendation 56 House of Lords Liaison Committee, third report of , HL 49 House of Commons Procedure Committee, second report of , Parliamentary Scrutiny of Treaties, HC 210, and Government Response to the Committee: Parliamentary Scrutiny of Treaties, Procedure Committee Second Special Report , HC Government Response to the Committee: Parliamentary Scrutiny of Treaties, Procedure Committee Second Special Report , HC Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to ParliamentHH, HC , 16 March

17 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 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 Session, Taming the Prerogative: Strengthening Ministerial Accountability to parliament,hh HC422, July