Select Committee on Procedure Second Report



SECOND REPORT

The Procedure Committee has agreed to the following Report:—

PARLIAMENTARY SCRUTINY OF TREATIES

Introduction

1. The power to make treaties[8] 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-making—in particular the so-called 'Ponsonby Rule', first formulated in 1924—but it has been observed that "the lack of formal parliamentary involvement in treaty-making distinguishes the British Parliament from most other national legislatures."[9]

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 inquiry.

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[10] 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 commented that—

    "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",[11]

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."[12]

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.[13] 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,[14] 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.[15] 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",[16] in other words to go beyond the Government's strict undertakings under the Rule in certain specified areas we deal with later in this report.

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.[17]

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).[18]

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 ratification.[19])

9. The Minister of State was unable to give us a categorical assurance that a formal request from a select committee—whether expressed through a Report to the House, and EDM signed by the Members, or a request endorsed by the Liaison Committee—would of itself trigger a debate. His view was that this was necessarily a matter for the business managers.[20] 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".[21] 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.[22]

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;[23] 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 treaties".[24]

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.[25] 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 told us—

    "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."[26]

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.[27] 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".[28]

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.[29] 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.[30]

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",[31] and noted that in other countries treaties approved by Parliament usually come into force in national law as soon as they are ratified.[32] 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.[33]

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.[34] 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".[35] 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".[36]

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, argued that—

    "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 their scrutiny.[37] 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 Committee.[38] Mr Hood pointed out that, due to the lengthy and confidential negotiation process—

    "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".[39]

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.[40]

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.[41]

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."[42]

The Minister of State told us that "it is in [the] gap between signing and ratification that we see the role of scrutiny".[43] 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."[44]

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.[45]

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".[46]

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 wrote that—

    "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."[47]

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".[48]

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.[49] 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.[50] He queried whether a sifting committee would blend "accountability and efficiency", and whether it would really add value to procedures already in place.[51] 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."[52]

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.[53] 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.[54]

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.[55] 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.[56] This echoed the comments of Mr Ponsonby himself in 1924, who warned that—

    "resolutions expressing Parliamentary approval of every treaty before ratification would be a very cumbersome form of procedure ... The absence of disapproval may be treated as sanction."[57]

EXPLANATORY MEMORANDA

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.[58] 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.[59]

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."[60]

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.[61] 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."[62] 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.[63]

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.[64] 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 mandate".[65] The Foreign Affairs Committee has also had input into the policy process behind the negotiation of a number of treaties.[66]

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

9   Parliament and Treaties, Richard Ware, from Parliament and International Relations, ed. Carstairs and Ware, 1991. Back

10   Third Report of the Defence Committee, Session 1997-98, NATO Enlargement, HC 469. Back

11   Third Report of the Defence Committee, Session 1997-98, para 106. Back

12   Hansard, 1.4.1924, c1999. Back

13   Q111. Back

14   Ev, p 27, para 9. Back

15   Ev, p 27, para 11. Back

16   Q122. Back

17   Ev, p 1, para 5, Q122 and FCO submission to the Royal Commission on Reform of the House of Lords, para 12. Back

18   FCO submission to the Royal Commission for Reform of the House of Lords, para 30. Back

19   Defence Committee, First Report of 1999-2000, The OCCAR Convention, HC 69. Back

20   Q101. Back

21   Q104. Back

22   Q106. Back

23   Ev, p 27, para 12. Back

24   Ev, p 33. Back

25   Ev, p 27, para 14. Back

26   Q113. Back

27   Official Report, 4.7.00, Third Standing Committee on Delegated Legislation. Back

28   Q95. Back

29   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

30   Cf. Defence Committee, Third Report of 1997-98, NATO Enlargement, HC 469. Back

31   Q90. Back

32   Ev, p 28, para 22. Back

33   Q112. Back

34   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

35   Ev, p 32. Back

36   Ev, p 29. Back

37   Ev, p 30. Back

38   Ev, p 28, para 20. Back

39   Ev, p 30. Back

40   Ev, p 31. Back

41   Ev, p 30. Back

42   FCO submission to the Royal Commission on Reform of the House of Lords, para 39. Back

43   Q111. Back

44   Ev, p 1. Back

45   Q18. Back

46   Ev, p 2. Back

47   Ev, p 29. Back

48   Ev, p 32. Back

49   Q99. Back

50   Q90. Back

51   Q114. Back

52   Q121. Back

53   Royal Commission on the Reform of the House of Lords: A House for the Future, para 8.42. Back

54   Q19. Back

55   Ev, p 1. Back

56   Q108. Back

57   Hansard, 1.4.24, c1999. Back

58   www.fco.gov.uk. Back

59   FCO submission to the Royal Commission on Reform of the House of Lords, para 30. Back

60   Q1. Back

61   Q2. Back

62   Q99. Back

63   Q3. Back

64   Ev, p 26 and Q95. Back

65   Ev, p 34. Back

66   Q84. Back


 
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