MISC 70: Letter to the Chairman of the Joint Committee on the Draft Constitutional Renewal Bill, from the Chairman of the Committee
Scrutiny of Treaties
The Foreign Affairs Committee has discussed the provisions in the Government's draft Constitutional Renewal Bill relating to the parliamentary scrutiny of treaties, and wishes to draw the following comments to your Committee's attention in advance of the evidence session with the Lord Chancellor on 1 July.
1. The draft Bill contains provision for placing the Ponsonby Rule on a statutory footing, and provides that a treaty should not be ratified (other than in exceptional circumstances) if either House has resolved that it should not be ratified. However, we note that it is not proposed that decisions on ratification will automatically be put before Parliament. The situation will therefore presumably remain as it has been since the Ponsonby Rule was first announced, that the Government will find parliamentary time for the discussion of a treaty, if "a formal demand for discussion [is] forwarded through the usual channels from the Opposition or any other party".
We further note that if either House is invited to take a decision on ratification, the draft Bill does not specify the procedures which would be followed (nor indeed would it be appropriate for it to do so, as it is for each House to determine its own procedures).
Our view therefore is that the provision in the draft Bill is unlikely to result in any change to the existing practice, under which treaties are debated in Parliament very infrequently. The Joint Committee may however wish to raise with the Lord Chancellor how he envisages the House of Commons will be invited to take a decision on ratification on the rare occasions on which this happens, e.g., what will be the likely length of debate, will it be on an amendable motion, and will it be taken on the Floor or in committee?
2. We note that these proposals relate only to scrutiny of a treaty once signed, and do not offer any greater opportunity for Parliament or its committees to scrutinise the negotiations which precede signing. It could be argued that this is a significant weakness with the existing Ponsonby arrangements, as is the fact that many 'treaty-like' documents (such as memoranda of understanding, exchanges of letters between governments, EU common positions and UN Security Council resolutions) may be more important in their effects than most treaties, yet are excluded by the Ponsonby Rule.
3. Finally, we note that there is a capacity problem with regard to Parliament's ability to scrutinise individual treaties. Although departmental select committees have the power to examine individual treaties, where relevant to their order of reference, other demands on committees' time mean that in practice only exceptionally important treaties - such as the Lisbon Treaty on which we reported in January 2008 - receive scrutiny. The Joint Committee may therefore wish to consider whether to recommend that the House of Commons Modernisation or Procedure Committees should revisit the idea of a 'sifting committee' which could give initial scrutiny to all treaties and make recommendations either to select committees or to the two Houses that particular treaties merit further examination and debate. (This however should not debar a departmental committee, and in particular the Foreign Affairs Committee, from scrutinising a particular treaty at any point in time.)
19 June 2008
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