A. Introduction
A new statutory right for Parliament to control the ratification of treaties for the United Kingdom has recently entered into force.Footnote 1 The topic of ‘Ratification of Treaties’ may have attracted fewer headlines than some others originally proposed for inclusion in the Constitutional Reform and Governance Act 2010 (the CRaG Act),Footnote 2 but reform in this area succeeded, with cross-party support, and is now in operation.Footnote 3 These new statutory provisions replace the ‘Ponsonby Rule’ in the UK.
The ‘Ponsonby Rule’ refers to the (former) practice of the UK Government, introduced in 1924 by the then Foreign Office Minister Arthur Ponsonby, of laying treaties before Parliament for 21 sitting daysFootnote 4 before ratification, combined with a commitment to provide time to debate treaties which the Government considers important or where there is a formal demand for debate from the Opposition. This rule had no legal status but has been observed by all British governments since 1929, and is generally recognized as a constitutional convention.Footnote 5 Similar constitutional practices based on or inspired by the Ponsonby Rule apply in a number of other countries.Footnote 6 In the UK, practice relating to the Ponsonby Rule evolved over decades in various ways; for example, the Government progressively applied the Rule to a wider range of treaties, developed alternative procedures to comply with the spirit of the Rule in urgent circumstances and adapted its practices to meet the needs of new parliamentary institutions, such as select committees.Footnote 7
While practices based on the Ponsonby Rule may have evolved in different ways in other countries and may continue to do so, in the UK the status of the rule as a convention is now a matter of history. The honour of being the last treaties ever to be laid under the Ponsonby Rule in the UK belongs to the two defence agreements signed with France on 2 November 2010.Footnote 8
The reform achieved by the CRaG Act strengthens the legal powers of Parliament in relation to the Executive and increases the transparency and visibility of Government action in relation to treaty ratifications. The transformation of the Ponsonby RuleFootnote 9 from a convention to a legislative requirement both codifies and progressively develops an important element in the British Constitution.
This short article explains the key elements of this reform and its likely effect on Government practice. It looks at the way in which the provisions which define ‘treaty’ and ‘ratification’ incorporate complex concepts of international treaty law and practice into statute. It considers what might happen in the event of a breach and whether such issues would be justiciable in the courts. Finally, it assesses whether the reform is likely to make any practical difference to the extent and quality of treaty scrutiny by Parliament, concluding that this may depend on factors outside the scope of the statutory provisions themselves, including the response of parliamentarians and the effect of wider procedural reforms in each House of Parliament.
B. What does Part 2 of the CRaG Act do?
Part 2 of the CRaG Act places parliamentary scrutiny of treaty ratification on a statutory footing and gives legal effect to a resolution of the House of Commons or Lords that a treaty should not be ratified.Footnote 10
Section 20 sets three pre-conditions which the Government must meet before ratifying a treaty:
(a) it must lay a copy of the treaty before Parliament;Footnote 11
(b) the treaty must be published ‘in a way that a Minister of the Crown considers appropriate’;Footnote 12 and
(c) the Government must wait for 21 sitting daysFootnote 13 to elapse after the treaty has been laid, without either House voting against ratification.Footnote 14
The CRaG Act does not apply to certain categories of treaties, in particular European Union treaties which provide for an increase in the European Parliament's powers and those amending the founding treaties. This is because under other legislation a Bill (or other parliamentary procedure) is already required in such cases.Footnote 15
The Act does not require a vote by either House of Parliament to approve ratification of a treaty; rather it sets out the legal consequences in the event of a vote by either House against ratification. The legal effect of a negative vote is different for each House. If the House of Commons (the lower House) votes against ratification, the Government is barred from ratifying the treaty in question. The Government may, however, start the parliamentary process again,Footnote 16 by laying a statement explaining why the Government still believes the treaty should be ratified despite the negative vote in the Commons. This would trigger a further period of 21 sitting days (ie technically the treaty itself would not be ‘re-laid’—the first copy would still be before Parliament). If the Commons voted against the proposed ratification again, the Government would again be prevented from ratifying.Footnote 17 This procedure may be repeated ad infinitum Footnote 18 with the Commons always having the last word. In practice, the Government would be unlikely to risk another defeat in the Commons unless circumstances had changed and/or substantial work had been done to reduce opposition to the ratification of the treaty in question. Accordingly, second attempts within the same session of Parliament are likely to be rare.
If the House of Lords (the upper House) votes against ratification, but the Commons does not, the negative vote is not conclusive as to the possible ratification of the treaty in question. Instead, the Government may react to a negative vote in the Lords by laying a statement (before both Houses of Parliament) explaining why the Government still believes the treaty should be ratified in spite of the negative vote in the Lords. Having done this, the Government could proceed to ratify the treaty without further delay.Footnote 19 As, in legal terms at least, a vote by the Lords against a proposed ratification is only capable of causing a short delay, it might aptly be described as an advisory power. However, in practice the exercise of this power might well be effective to cause a major reassessment by the Government as to the merits of proceeding with ratification in such circumstances. Moreover, if the House of Commons had not previously reacted to the treaty, a negative vote in the Lords might prompt it to take a greater interest in the treaty. This may result, for example, in a select committee of the House of Commons starting an inquiry on issues relating to the treaty (such as the terms of proposed reservations) and requesting an extension of the 21 sitting day laying period to allow time to consider the views of the Lords.
The reason for giving a blocking power to the House of Commons but a delaying power only to the House of Lords was to ‘respect the primacy of the House of Commons, while recognizing the importance of the role of the Lords in treaty scrutiny.’Footnote 20 This reflects the fact that the Commons is the democratically elected chamber, while the Lords are not elected by the public.Footnote 21 Reform of the House of Lords is under consideration (and has been for some time);Footnote 22 if in the future it is converted into a wholly or mainly elected second chamber there may be a case for enlarging its legal powers in relation to treaty scrutiny.
The period for scrutiny of any particular treaty by Parliament may be extended beyond 21 sitting days, in further blocks of up to 21 sitting days, by the laying of a statement by the relevant government Minister announcing the extension.Footnote 23 The decision to extend rests with the Government, and may be taken in response to a request from Parliament or on its own initiative if it is apparent that more time is needed to arrange a debate or for a parliamentary committee to complete its inquiry. The importance of section 21 is that if an extension is announced in the prescribed manner, any resolution passed by either House during the extension period will have the same legal effect as it would have had during the initial 21 sitting days.Footnote 24 For any vote taken during the extension of time to have legal effect, the statement announcing the extension must have been laid before expiry of the current period. That means that Parliament will need to present its request to the Government well before the end of the first 21 sitting day period to allow time for the relevant Minister to consider it and lay a statement. If a request is made out of time, the Minister could still decide to postpone ratification of the treaty to allow Parliament further time, but any vote taken out of time will not have legal effect under the CRaG Act.
Nothing in the CRaG Act changes the current position that treaties are not automatically incorporated into UK domestic law even when ratified. It is Government practice not to ratify a treaty until any necessary implementing legislation has been enacted.Footnote 25 This is to avoid the risk of the UK being in breach of its international obligations under the treaty in question in the event that Parliament did not enact the requisite legislation.Footnote 26 This effectively gives Parliament the power to block ratification of any treaty which requires the enactment of new legislation, in addition to its powers under the CRaG Act.Footnote 27
The CRaG Act provides an alternative procedure that may be applied in exceptional cases. Section 22 provides that ‘exceptionally’ a treaty may be ratified without the pre-conditions of section 20 having been met. Instead, the Minister must lay the treaty before Parliament and publish it, and lay a statement before Parliament explaining the circumstances that require resort to this exception, either before or as soon as possible after the treaty is ratified. This procedure may not be used after either House has voted against ratifying the treaty within the scrutiny period provided by the CRaG Act.Footnote 28
Section 22 was designed to reflect the element of flexibility embodied in the Ponsonby Rule, by which Government was allowed to inform and consult Parliament in other ways when circumstances precluded the usual 21 sitting day scrutiny period.Footnote 29 Rather than codifying ways of consulting and informing (which would have been unduly prescriptive) section 22 sets out a new procedure, namely that the Government must explain its actions in a formal statement laid before Parliament. It is to be expected that in such a statement, the Government would explain not only why ratification is (or was) so urgent that the pre-conditions of section 20 cannot (or could not) be met first, but also what other steps it is taking (or took) to inform and consult Parliament.
Questions were raised in Parliament about the intent of this provision for exceptional cases. The Joint Committee on the Draft Bill (the parliamentary committee established to scrutinize the Bill in draft at the pre-legislative stage)Footnote 30 was broadly content with this provision but asked for further details on the types of circumstances in which it might be used.Footnote 31 The Joint Committee on Human Rights (JCHR) asked ‘What is the justification for including a power for a Minister to disapply the new statutory regime in exceptional cases?’ and ‘What sort of exception does the Government have in mind?’Footnote 32
The Government replied:
Clause 23 [now section 22] reflects long-established practice whereby, in exceptional cases where it is not possible to complete the usual laying procedure, alternative means to consult and inform Parliament may be used. The use of such procedures has in fact been very rare. Examples of alternative procedures that have been used include a statement during a debate, a written ministerial statement and, on one occasion in 1942, the (rapid) passage of a Bill. Where Parliament is in recess, clearly different methods have to be used such as a letter to or a meeting with the Chair of the relevant select committee or the Leaders of the Opposition. The appropriate steps will of course vary according to the subject matter of the treaty, the level of parliamentary interest and the circumstances of the urgency. The Government has no intention of invoking exceptional procedures in any kinds of situation for which it would not currently consider alternative procedures under the Ponsonby Rule'Footnote 33
The JCHR remained unconvinced and recommended removal of the exception,Footnote 34 but this view did not receive wide parliamentary support.
The examples given in the Government's consultation document indicate the kinds of circumstances in which alternative procedures have been used in the past.Footnote 35 Two of the three instances cited from the last decade were treaties concerning Northern IrelandFootnote 36 and the other concerned the Lockerbie trials in The Hague.Footnote 37 Since publication of that document in 2007, there has been only one further instance. The United Kingdom–Iraq Agreement concerning training and maritime support to the Iraqi forces was laid before Parliament on 25 September 2009.Footnote 38 On 22 October 2009 ministers announced their intention to bring the agreement into force as soon as the Iraqi Government was ready, even if the normal 21 sitting day period had not expired (due to the summer recess).Footnote 39 This action was justified by reference to the general cross-party agreement that training activity in Iraq should resume as quickly as possible, and the fact that the Government had kept Parliament fully informed of progress on the agreement during the recess.Footnote 40 The Agreement was debated in the House of Lords on the same day.Footnote 41 No comment was made in either House about the proposed truncation of the scrutiny period. This therefore appears to be the kind of case in which Section 22 could and might have been used, had the CRaG Act been in force at that time.
The requirement of Section 22 to lay (not just make) a statement explaining why that Section has been or is going to be invoked will ensure greater transparency. In future, it should be much easier for Government, Parliament and the public to monitor its use and detect any increase in the frequency of its use. It is to be hoped that the higher profile of the new procedure will deter Government from using it and concentrate minds on preparing to meet the Section 20 requirements as quickly as possible whenever urgency could be anticipated.
Section 24 requires the Minister to ‘accompany the treaty with an explanatory memorandum explaining the provisions of the treaty, the reasons for Her Majesty's Government seeking ratification of the treaty, and such other matters as the Minister considers appropriate.’ This provision was proposed by way of an amendment tabled by Lord Norton of Louth in the final stage of the Bill's passage through Parliament, and accepted by the Government during the pre-General Election ‘wash-up’,Footnote 42 so it was not debated. Its intent was, presumably, to codify the Government's practice, consistently followed since 1996, of providing an explanatory memorandum with every treaty laid under the Ponsonby Rule.Footnote 43 A similar but more detailed amendment had been proposed by the JCHR and tabled by Andrew Dismore MP in the Commons, but later withdrawn.Footnote 44
It is worth noting that the addition of section 24 was the only amendment made to the provisions on Ratification of Treaties during the legislative process.Footnote 45
C. International Law Issues in the CRaG Act—the Definition of ‘Treaty’ and ‘Ratification’
For politicians, the clauses which define ‘treaty’ and ‘ratification’ (now section 25 of the CRaG Act) held the least interest. The Joint Committee on the Draft Bill recommended no changes to the definitions as drafted. They did recommend that Government and Parliament investigate ways of enhancing the scrutiny of ‘other treaty-like documents’ such as memoranda of understanding—but did not suggest this be done in the proposed legislation. No amendments were tabled to this clause in the Commons or the Lords. For international lawyers, these may be the most interesting provisions. They determine the instruments that are subject to the Act. They provide a more complete definition of the concept of a treaty than has existed before in UK legislation.Footnote 46 While these definitions only have statutory force for the purposes of Part 2 of the CRaG Act, they may be of wider interest.
1. The Act only applies to ‘treaties’
Section 25 provides that (1) In this Part ‘treaty’ means a written agreement—
(a) between States or between States and international organizations, and
(b) binding under international law.
This definition is closely aligned with the definition of treaty in article 2(1)(a) of the Vienna Convention on the Law of Treaties (VCLT), which provides:
[T]reaty’ means 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.
Like the VCLT, section 25 defines ‘treaty’ as a type of agreement.Footnote 47 The VCLT specifies that the format and name of the document do not determine its status as a treaty or otherwise—the reference to ‘two or more related instruments’ indicates that exchanges of letters or notes may be treaties (if the substantive criteria are met). Section 25 does not include these words but there is nothing in the provision that indicates otherwise. It was perhaps considered too self-evident to need stating.
A written agreement to amend a treaty is also a treaty within the meaning of the VCLT if it meets the other elements of the definition in article 2(1)(a).Footnote 48 Likewise a treaty amendment is a treaty for the purposes of the CRaG Act if it meets the other criteria in section 25. Such an interpretation would be consistent with previous practice under the Ponsonby Rule.Footnote 49
There are two differences between section 25 and article 2(1)(a) worth noting. Section 25 is wider than the VCLT definition as it includes agreements between States and international organizations. These are also regarded as treaties in international law albeit not within the terms of the VCLT.Footnote 50 They have accordingly been treated by the Foreign and Commonwealth Office (FCO) as subject to the Ponsonby rule.Footnote 51 So, for example, headquarters agreements between the UK and an international organization have routinely been laid under the Ponsonby rule.Footnote 52
Section 25 uses the words ‘binding under international law’ to qualify ‘international agreement’, whereas the VCLT uses ‘governed by international law’. Although this fine distinction was noted by one expert,Footnote 53 it was not questioned by any member of Parliament, so there is no explanation on record. The Government stated that in applying the Ponsonby Rule it was guided by the definition of treaty in the VCLTFootnote 54, and that its aim was to put the Ponsonby rule into statute. So why change that expression?
The explanation may be found in the Government's decision to limit the application of the CRaG Act to treaties, and to exclude from its scope non-binding instruments.Footnote 55 The term ‘binding under international law’ is more precise than ‘governed by international law’, as it clearly refers only to treaties, which directly confer binding rights and obligations on the parties, and not to non-binding documents (commonly referred to generically as ‘MoUs’—short for Memoranda of Understanding).Footnote 56 The term ‘governed by international law’ in article 2(1)(a) of the VCLT serves to distinguish treaties from agreements between States that are governed by a system of national law (eg contracts) and from non-binding documents. So, in effect, it means the same as ‘binding under international law’. However, if a particular phrase is lifted out of its treaty context and enacted in a statute, there is a risk that a different interpretation might be arrived at. An argument might be advanced in a UK court that as an MOU or an act done under an MoU may occasionally have consequences in international law, it is ‘governed by international law’. For example, reliance by one State to its detriment on a commitment in an MoU might in some (rare) circumstances give rise to estoppel against the other StateFootnote 57, or the contents of an MoU might be used as evidence of a State's view or intention regarding a particular matter which is the subject of international legal proceedings. The possibilities are illustrated by the ways in which MoUs have been treated as relevant in UK domestic proceedings, albeit not binding, for example in proceedings concerning ‘deportations with assurancesFootnote 58.
This distinction between a treaty (which creates binding rights and obligations under international law) and a ‘treaty-like document’ (which does not, but which may in certain, special circumstances have legal consequences) is fundamental in government legal practiceFootnote 59 but may seem to others to be rather subtle.Footnote 60 Accordingly, it was perhaps to be expected that the Government would seek to eliminate any risk of ambiguity in the CRaG Act. It would be difficult to include ‘treaty-like documents’ within any statutory regime, as, apart from the absence of any centralized system in Government for handling and recording non-treaties, how would such a category of documents be defined?
The Joint Committee on the Draft Bill asked the Secretary of State for Justice what steps the Government would take to ensure effective scrutiny of ‘treaty-like documents’. The Secretary of State replied that if such a document were disclosable, it might be examined by a Select Committee.Footnote 61 This reply broke no new ground; a variety of non-treaty documents such as MoUs and declarations have been published in the past on the Government's initiative or on request by parliamentary committees.Footnote 62 If committees wish to receive such documents on a more systematic basis, the best way forward would be for them to discuss arrangements for this with the Departments concerned.
2. The Act only applies to treaties when they are subject to ‘ratification’
Section 25Footnote 63 defines ratification as an act (of a specified type) which establishes the UK's consent to be bound in international law. The specified types of act are ratification, accession, approval or acceptance, or notification of completion of domestic procedures. This is based closely on the wording of article 11 of the VCLT,Footnote 64 but notably excludes signature and ‘any other means if so agreed’. This reflects established practice under the Ponsonby rule.Footnote 65 The Joint Committee on the Draft Bill considered whether there was any merit in Parliament seeking to scrutinize draft treaties prior to signature, but did not make any recommendations in this regard, nor were any amendments to this effect tabled.Footnote 66 The definitive enumeration of types of act considered as ‘ratification’—and the absence of any words equivalent to ‘any other means if so agreed’ makes the extent of the Government's obligations clear. It also confines those obligations to treaty acts of a formal kind in which there would generally need to be some involvement by the FCO (eg in drawing up an instrument of ratification and submitting it to the Foreign Secretary for signature, or the delivery of a note through diplomatic channels). Given the FCO's role in the laying of treaties before Parliament this is a relevant practical consideration (from its point of view).
It is only ratification by the UK that brings a treaty within the scope of the CRaG Act; if ratification is by the European Union alone and not the member States, that act does not establish as a matter of international law the UK's consent to be bound by the treaty, and so does not come within section 25. Proposed treaty ratifications by the European Union are scrutinized by Parliament under other arrangements.Footnote 67
3. Acts of organs of international organizations
Acts of an organ of an international organization (with international legal personality) are not within the scope of the CRaG Act because they are not international agreements to which States become parties; for example UN Security Council resolutions and EU Common Positions.
States typically participate in the adoption of such acts by voting at a meeting; whether unanimity or majority vote is required for adoption depends on the terms of the treaty, as does the mode of entry into force.Footnote 68 For example, conservation measures adopted by the Commission for the Conservation of Antarctic Marine Living Resources are binding on Members of the Commission, and enter into force automatically subject to an opt-out procedure.Footnote 69 The obligation to implement them flows from the obligations which States assume when they become Members of that Commission.Footnote 70
Accordingly, such acts were not laid under the Ponsonby Rule, and it is to be expected that the CRaG Act will be interpreted in the same way. This does not necessarily mean that acts of organs of international organizations are not subject to parliamentary scrutiny, rather, that other arrangements apply.Footnote 71 Moreover, any general treaty obligation to implement acts of an international organization would be subject to parliamentary scrutiny at the time of ratification of the treaty by which the UK assumes that obligation.
4. Regulations, rules, measures, decisions and similar instruments made under a treaty
The definition of ‘treaty’ in section 25 does not include a regulation, rule, measure, decision or similar instrument made under a treaty (other than one that amends or replaces the treaty (in whole or in part)).Footnote 72 These instruments are products of a kind of secondary law-making by States. They may look rather like acts adopted by organs of international organizations, but they are juridically different in that they are made by States acting under a treaty which has not established any international organization with separate legal personality.Footnote 73
Even without this provision, the majority of instruments adopted under treaties would anyway not fall within the scope of the CRaG Act, because they are not within the definition of ‘treaty’ in section 25(1) and/or they are not subject to ‘ratification’ as defined in section 25(3) and (4). Most acts adopted by treaty bodies are not binding under international law.Footnote 74 Those which do have binding force are often not subject to ratification, but rather enter into force automatically or through a tacit acceptance procedure. For example, decisions adopted under article 13 of the OSPAR Convention may become binding through a procedure which permits States to opt out but does not require any further action to signify consent to be bound.Footnote 75 So there would be no ratification as defined by section 25.
Treaties made under treaties were subject to the Ponsonby Rule on the same basis as any other treaty. This practice is not changed by section 25(2) as a treaty is not similar to a regulation, rule, etc.Footnote 76 Amendments to treaties have also been subject to the Ponsonby Rule in the same way as treatiesFootnote 77 and the proviso to section 25(2) makes clear that they are within the definition of ‘treaty’, even if adopted by means of a regulation or similar instrument.Footnote 78
Consequently, it is difficult to think of many instruments that fall within the exclusion of section 25(2) that might otherwise have come within the Act. Possible examples could be Channel Tunnel regulations made under article 10 of The Treaty of Canterbury signed by the UK and France in relation to the construction and operation of the Channel Fixed LinkFootnote 79 or Measures adopted at the Antarctic Treaty Consultative Meeting, under Article IX of the Antarctic Treaty (other than those that amend the Environmental Protocol).Footnote 80 These instruments were not laid under the Ponsonby Rule, so this element of the definition reflects established practice.
The non-application of the Ponsonby Rule, and now the Act, to these kinds of secondary instruments therefore does not appear significant from the point of view of parliamentary scrutiny. Where implementing legislation is required, the legislation will be subject to a parliamentary process.Footnote 81 The text of the international obligation, if not incorporated into the legislation, would generally be laid before Parliament with the Bill or Statutory Instrument.Footnote 82 In any event, Parliament would have had the opportunity to scrutinize the power to make secondary instruments when the parent treaty was ratified by the UK, although, it must be said, future uses of the power might not be easily foreseeable at that stage.
D. Has the CRaG Act Changed the Source of the Domestic Legal Power to Conclude Treaties?
In UK domestic law before the CRaG Act, the legal authority to conclude treaties was based on the Royal Prerogative power to conduct foreign relations.Footnote 83 The Royal Prerogative may be described as ‘those inherent legal attributes that are unique to the Crown’ and are derived from customary common law.Footnote 84 Is the Government's power to ratify treaties still based on the Royal Prerogative—or is Part 2 of the CRaG Act now the source of the power? This is essentially a question of statutory interpretation.Footnote 85
According to the long title of the Act, the purpose of Part 2 was to ‘make provision relating to the ratification of treaties’. The Act itself contains no reference to prerogative powers; it neither expressly saves nor expressly abolishes them. Section 20 is expressed as a restriction on the power of the Government to ratify a treaty, rather than as the source of a power (‘…a treaty is not to be ratified unless…’). This wording only makes sense if the power to ratify is conferred by some other law. If Parliament had intended to abolish the prerogative power to ratify treaties, it would have needed to confer on Government a new statutory power to ratify treaties, in which case one might have expected section 20 to say ‘a treaty may be ratified if’ and to specify who may ratify it. Other sections confer powers on Ministers to do things in relation to the provisions of section 20 (eg section 21(1), section 22), but there is no provision that expressly confers the power to ratify a treaty.
It should also be noted that Part 2 of the CRaG Act only concerns the ratification of treaties and not other aspects of the Government's treaty-making powers, such as negotiating, adopting and signing treaties, and other international treaty actions such as extending a ratification to an Overseas Territory, making a reservation or declaration, responding to another State's reservation or declaration or renouncing a treaty.
The effect of the CRaG Act on the prerogative would appear to be similar to that of the European Parliamentary Elections Act 2002, which was held in R (Wheeler) v Office of the Prime Minister merely to circumscribe the Crown's prerogative power in a relevant respect, by imposing a precondition on its exercise in relation to treaties providing for an increase in the powers of the European Parliament.Footnote 86 This interpretation accords with the Government's stated intention in relation to Part 2 of the CRaG Act. The Secretary of State for Justice stated in his oral evidence to the Joint Committee on the Draft Bill: ‘With … treaties we are modifying the prerogative; with the Civil Service we are replacing the prerogative basis of the Civil Service with an entirely statutory basis.’Footnote 87
Does it make any practical difference whether one regards the statutory provisions as replacing prerogative powers or as regulating their exercise? Probably not, for most purposes. For government and parliamentary officials however there may be a small procedural difference. Treaties were, before the CRaG Act, published as Command Papers.Footnote 88 If the Act were now the source of the power to lay a treaty, they would in future be laid as Act Papers.Footnote 89 The differences between an Act paper and a Command paper are minor and technical,Footnote 90 not legal. It is to be expected that treaties will continue to be published as Command Papers. Indeed the first two treaties to be laid under the CRaG Act have been published as Command Papers,Footnote 90a and this gives an indication, albeit informal, of views in government and parliamentary officialdom on the source of the power to lay treaties (and ratify them).
E. What Might Happen if Part 2 of the CRaG Act is Breached?
Various possible kinds of non-compliance (or apparent non-compliance) with Part 2 can be imagined. The Government might ratify a treaty without any parliamentary procedure at all. It might publish and lay the treaty but ratify it before expiry of the laying period (the original 21 sitting days or an extension of it) without complying with section 22. It might ratify a treaty after the House of Commons has voted against it. It might apply the procedures of section 22 in a case which is not exceptional. It might lay a treaty without an explanatory memorandum or with one that does not contain the required information.
There are various types of responses that the Government might make to such allegations. It might acknowledge and apologise for failure to lay a treaty or an explanatory memorandum, due to clerical oversight. It might argue that the ‘treaty’ it is alleged to have been ‘ratified’ without parliamentary procedure was not a treaty as defined in the Act. Or, it might point out that the UK gave its consent to be bound by signature not subject to ratification. Or that ratification was by the European Union not the UK. Some of these arguments might turn on points of international treaty law. Others might turn on fact and political judgement, such as whether ratification under section 22 was justified, or whether the reasons given in an explanatory memorandum are sufficient to satisfy section 24.
Some compliance issues might require reference to parliamentary proceedings, which the courts traditionally regard as unsuitable subject-matter for adjudication.Footnote 91 For example, the Government might argue that a particular resolution passed by the House of Commons did not block ratification under section 20 because it did not in terms state that the particular treaty should not be ratified, or due to some procedural irregularity concerning the resolution. An argument that the laying period had not fully expired might turn on different views as to whether a particular day was a ‘sitting day’ as defined by section 20(9).
Self-evidently, Parliament is in principle the most appropriate forum for the airing and resolution of disputes concerning the application of Part 2 of the CRaG Act. But if interested individuals take their case to the courts, which of these issues—if any—might a court treat as justiciable?
Traditionally the Royal Prerogative power to make and ratify treaties was considered to be non-justiciable.Footnote 92 Although the House of Lords decided in Council of Civil Service Unions v Minister for the Civil Service Footnote 93 that prerogative powers were in principle subject to judicial review, it commented that certain types of prerogative power such as the making of treaties were not susceptible to judicial review because their nature and subject matter are not amenable to the judicial process.Footnote 94 In R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Rees Mogg,Footnote 95 the Divisional Court rejected a claim that the UK may not lawfully ratify the EU Protocol on Social Policy, as it would breach section 6 of the European Parliamentary Elections Act 1978 (which prohibited ratification of any treaty which provides for an increase of the powers of the European Parliament without approval by Act of Parliament). The Court did not decide that the matter was non-justiciable, but rather that it ‘turns on a narrow question of construction, as to which there is a ready answer.’Footnote 96 The question was whether the reference to the ‘Treaty on European Union’ in the Act of Parliament which approved ratification of that Treaty,Footnote 97 included the Protocol on Social Policy. The Court decided that it did. The Court referred to the argument that it would be entitled to consider whether any treaty which the Government proposed to ratify involved an increase in the powers of the European Parliament and commented ‘Fortunately we have not been concerned with that problem in this case.’Footnote 98 This case gives a good indication of the kind of CRaG Act issue on which the courts might be prepared to adjudicate as well as the likely areas of caution.
In R (Wheeler) v Office of the Prime Minister,Footnote 99 the High Court dismissed a claim that the Government may not ratify the Treaty of Lisbon without holding a referendum, as this would be in breach of a ‘legitimate expectation’ based on a manifesto promise. This decision turned on whether there was such an expectation enforceable in public law. The court considered this to be a political rather than a legal matter, and it was for Parliament to decide whether the Government should be held to account to any promise previously made.Footnote 100 Although not necessary for its decision, the court also made the following remarks which are now very pertinent to any issue that might arise under Part 2 of the CRaG Act:
That such a decision [to ratify a treaty] is not altogether outside the scope of judicial review is illustrated by the fact that s.12 of the European Parliamentary Elections Act 2002 makes statutory approval a condition precedent to the ratification of any treaty which provides for an increase in the powers of the European Parliament. [Counsel for the Prime Minister] realistically conceded that a decision to ratify without such approval would be amenable to review. It may also be noted that the challenge in this case relates (at least in its avowed target) to the procedure to be followed in reaching the decision to ratify rather than to any potentially sensitive issue of policy involved in the decision itself. Nevertheless it seems to us that the limits of reviewability should be determined on a case by case basis if and when the need arises.Footnote 101
The position would therefore seem to be that an alleged breach of Part 2 of the CRaG Act could, in principle, be justiciable, but courts are likely still to be reluctant to interfere with the exercise of the power when the issue involves policy concerning foreign relations. Much will depend on the particularities of the alleged breach.Footnote 102
The question of remedies may be difficult, if ratification has already taken place. In international law, it is unclear whether a State's ratification may effectively be withdrawn before a treaty enters into force.Footnote 103 After its entry into force, whether and if so on what terms a State party may withdraw depends on the terms of the treaty concerned. Even if withdrawal is provided for, there may be a very high price to pay in terms of international relations and reputation. Obviously the courts would have this in mind when considering the terms of any declaration they may be asked to grant.
Could non-compliance with Part 2 of the CRaG Act affect the validity of the UK's ratification of the treaty under international law? This is most unlikely. The normal rule of international treaty law is that a State may not invoke the provisions of its internal law to justify its failure to perform a treaty.Footnote 104 Nor may it claim that its ratification is invalid due to any violation of its internal law regarding the power to ratify, ‘unless that violation was manifest’ and ‘concerned a rule of its internal law of fundamental importance.’ To be ‘manifest’ a violation has to be ‘objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith’.Footnote 105 It is difficult to see how a violation of the CRaG Act would be manifest unless the Government had publicly admitted it or it had been declared by a court and reported widely in the news media. Ratification of a treaty in defiance of a negative vote by the House of Commons may well be considered to breach a fundamentally important provision of section 20, but it is less clear that other kinds of procedural violations would be. In any case, except in extreme circumstances, it is hard to imagine any UK Government attempting to invoke its own failure to comply with domestic law in order to avoid international treaty obligations.
F. What Difference Will Part 2 of the CRaG Act Make in Practice?
The overarching aim of the Governance of Britain reforms was ‘to hold power more accountable’Footnote 106 and in relation to treaties it was to formalize the procedure for allowing Parliament to scrutinize treaties and ‘to put the Ponsonby Rule on a statutory footing’.Footnote 107
Enacting the rules has made them more precise, more widely accessible and more widely known within the Civil Service. Although written guidance on the Ponsonby Rule has been available from the FCO for many years,Footnote 108 administrators were not always aware of it. Even one former Foreign Secretary has admitted to discovering the Ponsonby Rule only when receiving a submission about it while serving as the Foreign Secretary.Footnote 109 It is important that the rules are clear and easily accessible to those whose work only occasionally involves a treaty. It is also important that procedures for exceptional circumstances and the exempted categories of treaties are clearly and exhaustively set out in primary legislation. The statutory provisions should also increase the awareness of Parliamentarians of their procedural rights in relation to treaties. The legal effects of a negative vote are now clear and certain; this may provide a greater incentive for those opposed to a treaty to demand a debate and vote.
Parliamentary officials have already been active in implementing new procedures to take account of the Act. The weekly list of Statutory Instruments published on Parliament's website now includes a new section headed ‘Treaties subject to negative resolution procedure (laid under section 20 of the Constitutional Reform and Government Act 2010)’.Footnote 110 This will show the date of laying of each treaty and the number of unexpired statutory sitting days. Now it will be easy for anyone to monitor each treaty and to know immediately if the Government has not followed correct procedures or if it has invoked section 22. But the most important question is: will these statutory provisions make a practical difference to the amount and quality of Parliamentary scrutiny of treaties?
The weakness of this reform lies in what it does not do. It prescribes the actions of Government to initiate the parliamentary scrutiny period; and the legal effects of a vote. But it does not provide any mechanism to ensure that if a debate and vote is requested by a sufficient number of members, that it will take place. That is left to the usual conventional arrangements, similar to those that apply to a negative resolution on a Statutory Instrument (‘If enough people complain about it, there is always a vote on it’).Footnote 111
The point was succinctly made by Lord Norton of Louth during the Joint Committee's questioning of Ministers: ‘In constitutional terms it is a major change, giving Parliament powers it has never had before, but it could be meaningless if you do not have the mechanism to effect that change.’ In response, the (then) Secretary of State for Justice suggested that the best solution might be to make provision in the Standing Orders of each House, that if X number said they wanted a debate and vote, there would have to be a debate and vote, and possibly also that the appropriate subject Select Committee should produce a report on it.Footnote 112
It is to be hoped that the Houses will consider amending their Standing Orders to provide clearer mechanisms for ensuring that treaties receive rapid and effective scrutiny whenever there is sufficient interest. Provided that any trigger is activated within the statutory 21 sitting days, in time to present a request for a time extension if one is needed, it would work in harmony with the CRaG Act. No such proposal has yet been considered as the attention of the House of Commons has been on larger reforms based on the recommendations of the Reform of the House of Commons Select Committee. These resulted in the establishment of a new Backbench Business Committee in June 2010 and agreement to establish a new House Business Committee to consider government business.Footnote 113 It is not yet clear how debate on a resolution tabled by Opposition parties or by backbench members to oppose ratification of a treaty would be handled under these new arrangements, as the distinction between government and non-government business is far from clear-cut.Footnote 114 Once the new procedures have ‘bedded down’, it would be useful to consider whether they are sufficient to cater for treaty business or whether more tailored procedures are required.
New rules may not be all that is needed to ensure effective treaty scrutiny. The Joint Committee on the Draft Bill noted the ‘widespread view in evidence that Parliament and its committees do not make effective use of existing scrutiny mechanisms. This may simply be due to the many competing demands on committees’ time and resources.' It went on to say—and it is difficult not to agree with this—‘It would be disappointing if for this reason the Government's proposals to give Parliament a statutory role in the approval of treaties had no effect in practice.' It therefore recommended a new Joint Committee on Treaties, whose functions would include sifting through treaties to establish their significance and assessing whether an extension of the 21 sitting day period is required for a particular treaty.Footnote 115 It is not yet clear whether there is sufficient support in both Houses to enable such a committee to be established and staffed,Footnote 116 nor is it clear that it would have enough business to warrant regular meetings, given that on average only about thirty or so treaties are laid before Parliament per year, some of which might not need much scrutiny. Swift sifting of treaties is obviously key to the effectiveness of Parliamentary scrutiny. The Joint Committee on Human Rights—the committee which of late has taken the most active interest in treaties—did not propose any new treaty committee in its report on the CRaG BillFootnote 117 but focused rather on the procedural importance of the Government's practice of sending copies of all treaties to the relevant select committees, along with the accompanying explanatory memorandum, at the same time as laying them.Footnote 118 This suggests that some relatively modest improvements in Parliament's internal distribution system, coupled with the availability of expert advice on treaties to all relevant committees, might be a good starting point, if the time is not yet ripe for a parliamentary treaty committee.
