The Procedure Committee has agreed to the following
PARLIAMENTARY SCRUTINY OF TREATIES
1. The power to make treaties
is a prerogative power vested in the Crown and exercised on the
advice of the Secretary of State for Foreign and Commonwealth
Affairs in consultation with other Ministers; there is no constitutional
requirement for treaties to be laid before or approved by Parliament.
While many treaty obligations necessitate the introduction of
primary or secondary legislation which must be passed by Parliament,
treaties which require no such legislation (or which require only
secondary legislation subject to negative resolution), may come
into force without any parliamentary debate having taken place.
Over time a number of conventions have evolved regarding Parliamentary
input into treaty-makingin particular the so-called 'Ponsonby
Rule', first formulated in 1924but it has been observed
that "the lack of formal parliamentary involvement in treaty-making
distinguishes the British Parliament from most other national
2. The Procedure Committee decided to undertake a
short inquiry into the Parliamentary scrutiny of treaties. During
our inquiry we took evidence from the Chairmen and Clerks of the
Defence and Foreign Affairs Committees, and from Mr John Battle,
Minister of State at the Foreign and Commonwealth Office (FCO),
with FCO officials. We received a memorandum from the FCO, and
we requested comments from chairmen of departmental select committees
on their committees' past involvement, if any, in the scrutiny
of treaties. We are grateful to all those who contributed to our
Background to the Inquiry
3. Our inquiry was originally prompted by a request
from the Defence Committee, which in its 1998 Report on NATO Enlargement
suggested that the current role of Parliament in treaty-making
was unsatisfactory. The Committee stated its belief that it had
a responsibility to examine on the House's behalf treaties falling
under its remit before they were ratified, and its view
that a debate in Parliament on NATO enlargement (to which Ministers
had committed themselves in evidence to the Committee) should
be an essential part of the ratification process of the protocols
allowing that enlargement; but the Committee noted that any debate
could have no actual effect on that process. The report
"the current situation, in which the level
of involvement of the UK Parliament in treaty-making is decided
by the Government's business managers, is unclear and inadequate",
and suggested that the arrangements for scrutiny
of treaties be reviewed by the Modernisation Committee. We took
up the inquiry, as belonging more appropriately within our terms
of reference, at the request of the Modernisation Committee.
The Ponsonby Rule
4. The Ponsonby Rule is a convention whereby almost
all treaties which do not come into force on signature are laid
before Parliament for 21 days before they are ratified. It was
first stated by, and derives its name from, Mr Arthur Ponsonby,
former Under-Secretary of State for Foreign Affairs. In a debate
in the House in 1924 Mr Ponsonby affirmed that
"It is the intention of His Majesty's Government
to lay on the table of both Houses of Parliament every treaty,
when signed, for a period of 21 days, after which the treaty will
be ratified ... In the case of important treaties, the Government
will, of course, take an opportunity of submitting them to the
House for discussion within this period. But, as the Government
cannot take upon itself to decide what may be considered important
or unimportant, if there is a formal demand for discussion forwarded
through the usual channels from the Opposition or any other party,
time will be found for the discussion of the treaty in question."
5. The FCO aims to lay all treaties before Parliament
within three months of signature, although factors outside the
UK's control can cause delays.
Over time the requirement for a treaty to lie on the table for
21 days has hardened into a requirement for all treaties to be
laid for at least 21 sitting days before ratification.
The FCO interprets the Ponsonby Rule as applying to acceptance,
approval and accession as well as to ratification,
and since 1998 the FCO has also applied the Rule to treaties subject
only to the mutual notification of the completion of necessary
internal procedures by each contracting party.
Whilst almost every British government has respected this convention
since its inception in 1924, it has no statutory or otherwise
enforceable basis. However, the present Government has strongly
reaffirmed its commitment to the Rule. The Minister of State undertook
to us that "our intention is to apply the Ponsonby Rule and
apply it Ponsonby-plus",
in other words to go beyond the Government's strict undertakings
under the Rule in certain specified areas we deal with later in
THE WORKINGS OF THE PONSONBY RULE
6. The FCO in its memorandum to the Committee states
that in 1997, 36 treaties subject to ratification (and hence covered
by the Ponsonby Rule) were laid before Parliament; a further 51
were laid upon their entry into force (not having previously been
laid under the Ponsonby Rule). In 1998, the figures were 25 and
43 respectively; in 1999, 54 and 36.
7. Of the 25 treaties laid under the Ponsonby rule
in 1998, three were debated on the Government's initiative (although
one of these debates was also prompted by the Defence Committee).
Of these, one was debated for "general policy reasons following
a pledge by the Prime Minister" (the NATO enlargement protocols,
on an adjournment motion); and two for the purposes of legislation
needed to implement them (the Ottawa Landmines Convention and
the UK/Hong Kong Air Services Agreement). Three more needed debate
for legislative implementation (all EU-related agreements).
8. We took the opportunity of our inquiry to clarify
some aspects of the interpretation of the Ponsonby Rule. One issue
we explored was what constitutes a sufficient 'trigger' for debate
under the Rule. In 1998 members of the Defence Committee tabled
an Early Day Motion (EDM) calling for debate in Parliament before
the ratification of protocols to the Washington Treaty on enlarging
NATO. However, Ministers had already committed themselves to such
a debate, both in their evidence to the Committee and in a statement
by the Prime Minister, and it was therefore not clear whether
the EDM itself would have been enough to trigger the provisions
of the Rule and ensure debate on the floor of the House. (A related
case, also involving the Defence Committee, arose in 1999, when
the members of the Committee tabled another EDM calling for the
Government not to ratify the convention establishing the Organisation
for Joint Armament Co-operation (OCCAR) until the Committee had
reported on its implications. The Committee duly reported before
9. The Minister of State was unable to give us a
categorical assurance that a formal request from a select committeewhether
expressed through a Report to the House, and EDM signed by the
Members, or a request endorsed by the Liaison Committeewould
of itself trigger a debate. His view was that this was necessarily
a matter for the business managers.
However, he also stated that if a select committee sought a debate
on a treaty involving major issues, "I do not see that there
would be the kind of resistance that we might imagine".
He also told us that the Government was willing to show flexibility
in regard of timing, for instance if a select committee wished
to conduct an inquiry that was likely to take more than the 21
days specified under the Ponsonby rule.
EXCEPTIONS TO THE PONSONBY RULE
10. There is a limited number of exceptions to the
Ponsonby Rule. Bilateral double taxation arrangements have not
been tabled under the Rule since 1981;
and there are a "handful" of other exceptions, mostly
laid before Parliament as Command Papers. In these cases Parliament
generally has an alternative means of considering such treaties:
for example, bilateral double tax agreements may not be entered
into until Parliament has approved a draft Order in Council implementing
them. The Treasury Committee, within whose remit such agreements
fall, told us that "although the Committee might wish to
scrutinise the Government's general policy on double taxation
provisions, ... it is not likely to wish to inquire into individual
11. The FCO told us that "the Ponsonby Rule
has been understood to allow for exceptions from its operation
in special cases, when other means of consulting or informing
Parliament can be used instead". Such alternative procedures
might include adopting a Motion, passing a Bill, making an announcement
in a debate, adopting a resolution as part of the Affirmative
Resolution procedure, answering a Parliamentary Question, or consulting
leaders of the Opposition and other parliamentary parties. The
FCO notes that in practice such departures from the Rule occur
rarely. The Government
will not ratify a treaty prior to the passage of any legislation
required to implement its commitments. As the FCO's Legal Adviser
"the standard practice of Government is
to never move to undertake a legal obligation under a treaty that
requires implementation in our law without first ensuring that
the necessary legislation is in place."
12. Where the House does have the opportunity to
scrutinise treaties outwith the Ponsonby arrangements, it often
finds that little scrutiny is warranted. The Minister of State
cited the example of a Standing Committee on Delegated Legislation
looking at the draft European Court of Human Rights (Immunities
and Privileges) Order 2000, a statutory instrument subject to
Parliamentary approval which was required to enable the Government
to ratify two Council of Europe international agreements governing
the practical functioning of the new permanent European Court
of Human Rights.
In this case, the Minister commented, the DL Committee debated
the instrument for only seven minutes because "we all knew
exactly what we were talking about and it was straightforward".
Other countries' experiences
13. The Defence Committee pointed out in its report
on NATO enlargement that in most other Allied countries the consent
of the legislature is required before treaties can be ratified,
and that in many cases parliamentary committees make recommendations
to the legislature before ratification is debated. This is also
the case in most OECD countries.
Of the current 16 NATO member states, only Canada shares with
the UK a ratification process which requires no formal involvement
from the legislature. In other member countries treaties are ratified
by the head of state upon authorisation of the legislature, usually
by a simple majority (although in the case of the United States
a two-thirds majority in the Senate is required for final approval
of the resolution of ratification). Although in most of these
countries the assent of the legislature is required for the ratification
of all international agreements, in Norway, for example, the consent
of Parliament is needed only for issues of "special importance".
In many member states, parliamentary committees make recommendations
to the legislature before the consideration of ratification. In
the case of Turkey, the Foreign Affairs and Defence Committees
both examine the draft ratification law before it is submitted
to the Plenary Assembly.
14. Responding to the criticism that British procedures
for parliamentary scrutiny of treaties are inadequate, the Minister
of State commented that "all the countries are different,
so there is not one homogenous system that the rest of the world
conforms to so that we are out of line",
and noted that in other countries treaties approved by Parliament
usually come into force in national law as soon as they are ratified.
The Minister also asserted that in the United States, accession
to some treaties (including "pretty innocuous" ones)
is being delayed, unreasonably in the opinion of some, by the
Senate Committee on Foreign Relations.
Experience of Select Committees
15. We asked all Chairmen of departmental and scrutiny
select committees to comment on their committees' involvement
in scrutiny of treaties or draft treaties. Most of the committees
which responded had not dealt with any treaties, in many cases
because there had been few or no treaties relating to their order
of reference. Several
Chairman thought that there was little amiss with the existing
procedures. Mr David Marshall, Chairman of the Scottish Affairs
Committee, wrote that "my sense is that by and large the
current arrangements for treaties are satisfactory".
Mr Barry Sheerman, Chairman of the Education and Employment Committee,
commented that those arrangements had "not occasioned me
or the Education Sub-Committee any dissatisfaction".
16. Other Chairmen did express dissatisfaction with
the current arrangements, and had more specific points and suggestions
to make. Mr Jimmy Hood, Chairman of the European Scrutiny Committee,
"Nowadays treaties frequently lay down detailed,
technical regulation in relation to specific industries (such
as the agreements relating to recognition of standards in the
car industry, or on air safety measures, or for dealing with environmental
problems at sea): very different from the high-level alliances
dealt with by treaties in the nineteenth century."
He thought that these types of issue are "more
analogous to legislation that to the formation of grand alliances",
and that Parliament accordingly should play a greater part in
European Union treaties form a somewhat distinct category, and
several types of EU international agreement are submitted to the
Committee, as well as the House of Lords European Communities
Mr Hood pointed out that, due to the lengthy and confidential
"often the first document available for
scrutiny is the text of the final agreement, long after Parliament
could bring any real influence to bear on the process, and often
with very little time available for scrutiny because the parties
are anxious to ratify the treaty".
Mr Hood stated that his committee has, however, developed
"more or less informal" means of keeping abreast of
the early stages of the negotiating process, including being given
details of approved negotiating mandates. He suggested that greater
involvement of departmental select committees in scrutiny of EC
negotiating mandates and treaties would be useful.
17. Mr John Horam, Chairman of the Environmental
Audit Committee, wrote that his committee was concerned about
the limitations of the Ponsonby arrangements, and took the view
that there was insufficient appraisal of the environmental import
of treaties. He was strongly of the view that any opportunities
"for airing relevant issues earlier rather than later in
the negotiating process" would be beneficial.
Models for enhanced scrutiny of treaties
18. A fundamental question in considering options
for improvement in the levels of parliamentary scrutiny of treaties
is whether Parliament is seeking to intervene in the initial negotiating
process or to review the results of that process when complete.
The FCO commented that
"There is a fundamental difference between
forms of scrutiny taking place before or during
the negotiation of a treaty and those taking place after
a treaty has been concluded but as part of the process of decision
whether the United Kingdom should become a party to it."
The Minister of State told us that "it is in
[the] gap between signing and ratification that we see the role
We accept that there are difficulties inherent in examining the
actions of the Government before or during the negotiation of
a treaty, particularly where many countries are involved in that
negotiation. For the purposes of this report, therefore, we have
confined our attention to possible ways of improving parliamentary
review of treaties once the negotiating process is complete and
an agreed text is available for scrutiny.
A SIFTING COMMITTEE
19. Mr Bruce George, Chairman of the Defence Committee,
proposed that a "sifting committee" should be set up
to review treaties laid before Parliament. He argued that
"There is no realistic possibility of individual
Members being able to scrutinise all treaties laid before the
House, and their systematic scrutiny by departmental committees
seems impractical. If scrutiny is to be a reality, there is therefore
a case for a Committee along the lines of the Joint Committee
on Statutory Instruments which would not only examine them against
the same kind of criteria ... but might also ... refer those of
particular significance to the appropriate departmental committee."
He suggested that such a committee should have the
support of a Clerk, a legal adviser and administrative staff,
and the ability to call witnesses before referring a treaty to
another committee or committees.
20. An alternative suggestion made by the Chairman
of the Foreign Affairs Committee, Mr Donald Anderson, was that
the legal advisers to the Joint Committee on Statutory Instruments
should be empowered to examine treaties on technical grounds;
Mr Anderson remarked that "treaties are usually technical
documents which are accessible only to an international lawyer".
21. Many of the select committee chairmen who submitted
written evidence expressed scepticism about the concept of a sifting
committee. Mr Barry Sheerman of the Education and Employment Committee
"I would not expect many Members to volunteer
to serve on a 'sifting committee'. I doubt that Select Committees
would take kindly to instructions from elsewhere on their programme
of work. If the subject of a treaty is sufficiently significant,
there is no barrier under our existing procedures to the appropriate
Committee dealing with it."
Likewise, Mr Martin O'Neill, Chairman of the Trade
and Industry Committee, commented that "a departmental committee
is quite capable of deciding for itself whether to pursue inquiries
into a particular treaty".
22. Any requirement that departmental committees
should routinely examine treaties would inevitably impose a much
greater burden on some committees than on others. As the Minister
of State pointed out, the number of treaties falling within different
committees' orders of reference varies widely: the Foreign Affairs
Committee in particular would have little or no time for other
inquiries if it had to consider every treaty that might be referred
to it. He noted that
"New Zealand decided against going down the road of specialist
committee just to look at treaties because of the amount of time
and resources" it would consume, taking into account how
few treaties would have been of sufficient interest to merit the
attention of such a committee.
He queried whether a sifting committee would blend "accountability
and efficiency", and whether it would really add value to
procedures already in place.
The FCO legal adviser told us that
"The vast bulk of the [approximately] 600
treaties over the last five years are highly technical and, dare
one say, boring instruments which it is very unlikely anyone is
going to be interested in seriously, certainly not from a political
point of view."
THE HOUSE OF LORDS
23. The Report of the Royal Commission on the Reform
of the House of Lords examined a similar proposal for a select
committee within a reformed House of Lords to scrutinise treaties
on a technical basis. Such a committee would be able to draw the
attention of the House to "any significant implications"
before the end of the 21-day Ponsonby period. The Royal Commission
recommended that the House of Lords Liaison Committee consider
this proposal. Some
of our witnesses supported the idea of drawing upon the expertise
of the House of Lords in legal matters, or proposed that there
should be a joint sifting committee.
DEBATES ON SUBSTANTIVE MOTIONS
24. Another suggestion made by Mr George was that
any debate on a treaty should arise on a substantive motion for
its approval rather than on a motion for the adjournment of the
House. The Minister
of State told us that he "did not have strong views"
on this question, but he also warned of possible complications
which might arise from the passage of a motion approving or disapproving
certain parts of a treaty.
This echoed the comments of Mr Ponsonby himself in 1924, who warned
"resolutions expressing Parliamentary approval
of every treaty before ratification would be a very cumbersome
form of procedure ... The absence of disapproval may be treated
25. Since January 1997 explanatory memoranda (EMs)
have been laid together with all treaties tabled under the Ponsonby
rule, and recorded in the Votes and Proceedings. Since the end
of 1999 such explanatory memoranda have been made available to
Members through the Vote Office, and to the wider public on the
FCO's internet site.
An EM contains a description of the subject of the treaty, an
account of the reasons why it is proposed that the UK become a
party to the treaty, and a description of the benefits and burdens
likely to result from the UK's participation in the treaty. Only
around 55 per cent of EMs are produced by the FCO, most of the
remainder being produced by the Home Office and the DTI.
26. Following a recommendation by the Foreign Affairs
Committee in 1997, all treaties together with EMs are sent to
that committee's clerk; but
"most of the treaties so circulated do not
relate directly to the work of [that] committee ... most of the
treaties are in fact ...technical and relate to sister committees
for actual scrutiny."
The Chairman of the Foreign Affairs Committee therefore
recommended that the treaties and EMs should as a matter of course
be passed to other relevant committees.
There was almost universal agreement among select committee chairmen
that this should be done.
27. The Minister of State told us that "I see
no reason why [the FCO] could not ensure that explanatory memoranda
went to the relevant select committee on every single treaty."
He suggested that where a treaty might be relevant to more than
one committee, that 'lead' committee would pass it on to other
interested committees and liaise with them about its scrutiny.
The Chairman of the Defence Committee also emphasised the need
for co-ordination and 'joined-up' committee work.
The Way Forward
28. The catalyst for the formation of the Ponsonby
Rule was the generally held view that secret treaties and secret
clauses within treaties had been made before and during the First
World War. The Rule
was intended to show that the Government was open about its treaty-making.
We have seen over the course of our inquiry that the Ponsonby
Rule actually gives Parliament wide-ranging access to the contents
of treaties prior to ratification, and appears (but in ways that
require further clarification) to concede the principle that time
for debate should be made available when the demand for it is
shown to exist. The FCO has shown its continual willingness to
expand the scope of the Ponsonby Rule and contribute to better
Parliamentary scrutiny of treaties, for which it is to be commended.
29. We are not convinced that there is a strong
case for a Commons sifting committee set up specifically to deal
with treaties on either technical or political grounds. Both
the Defence and Foreign Affairs Committees appear to have little
trouble keeping track of those treaties which fall within their
remit, and do not need to have treaties of major import drawn
to their attention.
30. While we reject the idea of a Commons sifting
committee, we believe that Lord Wakeham's proposal of such a committee
in the reformed House of Lords may have merit. A Lords sifting
committee could benefit from the relatively non-partisan atmosphere
and the legal expertise of the Lords. It will of course be for
their Lordships to decide whether to set up such a committee.
In the event that a Lords Treaties Committee is created, it will
be important for the two Houses to collaborate in setting up mechanisms
to enable Commons committees, in particular, to benefit from the
work of that committee.
31. We believe that the appropriate role for the
Commons in relation to the scrutiny of treaties is to draw upon
the established expertise of the departmental select committees.
The current arrangements give select committees considerable
leeway in their approach. We commend the Defence Committee in
particular for its ingenious and assiduous approach to its responsibility
to examine those treaties within its remit; but other committees
have also been innovative in this area. The International Development
Committee told us of its inquiry into the finalising of the EU's
mandate on the Lomé Convention, which, according to the
Government, "contributed to the successful conclusion of
The Foreign Affairs Committee has also had input into the policy
process behind the negotiation of a number of treaties.
32. We believe that other select committees should
be encouraged to develop expertise in this field. We accordingly
recommend that the FCO should send every treaty subject to ratification,
along with its explanatory memorandum, to what it adjudges to
be the relevant select committee. It would then be for that committee
to decide whether to take further action on particular treaties,
whether by holding informal discussions with the lead Department,
consulting with other select committees, or taking formal evidence
and reporting to the House.
33. The process of scrutiny of treaties should
not terminate with the production of a select committee report.
Adequate opportunity for debate on the floor of the House is an
essential part of the process. Achieving this was one of the
aims of the Ponsonby Rule as originally formulated. Back in 1926,
the House had no departmental select committee structure and it
was sensible to specify the usual channels as the sole means for
determining the level of demand within the House for a debate.
However, the Rule as set out in 1924 no longer fully reflects
parliamentary realities. We therefore recommend that the Government
should give the following undertaking: that if a select committee
requests that a debate should be held on the floor of the House
before ratification of a treaty involving major political, military
or diplomatic issues, either on a substantive or a non-substantive
motion, and if that request is supported by the Liaison Committee,
then that request would normally be acceded to. We believe that
such an undertaking would be within the spirit of the original
Ponsonby Rule, and would represent a sensible modernisation of
the Rule to adapt it to the increased role of select committees
in the scrutiny process.
8 Throughout this Report we have used the term "treaty"
to mean all international agreements intended to bind the United
Kingdom under international law, including those titled "Convention",
"Protocol", etc. This follows FCO usage. Back
Parliament and Treaties, Richard Ware, from Parliament
and International Relations, ed. Carstairs and Ware, 1991. Back
Third Report of the Defence Committee, Session 1997-98, NATO
Enlargement, HC 469. Back
Third Report of the Defence Committee, Session 1997-98, para 106. Back
Hansard, 1.4.1924, c1999. Back
Ev, p 27, para 9. Back
Ev, p 27, para 11. Back
Ev, p 1, para 5, Q122 and FCO submission to the Royal Commission
on Reform of the House of Lords, para 12. Back
FCO submission to the Royal Commission for Reform of the House
of Lords, para 30. Back
Defence Committee, First Report of 1999-2000, The OCCAR Convention,
HC 69. Back
Ev, p 27, para 12. Back
Ev, p 33. Back
Ev, p 27, para 14. Back
Official Report, 4.7.00, Third Standing Committee on Delegated
Ev, p 28, para 22; A more detailed description of practice in
other countries is given in the FCO submission to the Royal Commission
for Reform of the House of Lords, para 33 onwards. Back
Cf. Defence Committee, Third Report of 1997-98, NATO Enlargement,
HC 469. Back
Ev, p 28, para 22. Back
Culture, Media and Sport Committee; Health Committee; Science
and Technology Committee; Scottish Affairs Committee; Trade and
Industry Committee; Treasury Committee; and Welsh Affairs Committee. Back
Ev, p 32. Back
Ev, p 29. Back
Ev, p 30. Back
Ev, p 28, para 20. Back
Ev, p 30. Back
Ev, p 31. Back
Ev, p 30. Back
FCO submission to the Royal Commission on Reform of the House
of Lords, para 39. Back
Ev, p 1. Back
Ev, p 2. Back
Ev, p 29. Back
Ev, p 32. Back
Royal Commission on the Reform of the House of Lords: A House
for the Future, para 8.42. Back
Ev, p 1. Back
Hansard, 1.4.24, c1999. Back
FCO submission to the Royal Commission on Reform of the House
of Lords, para 30. Back
Ev, p 26 and Q95. Back
Ev, p 34. Back