A new Magna Carta? - Political and Constitutional Reform Contents


PART V

INTERNATIONAL RELATIONS

Chapter 20: Treaties and International Law

111 Treaties and their ratification

(1) The prerogative power in relation to foreign affairs includes a power for ministers to enter into and to ratify treaties. [474]

(2) This power is exercised subject to subsections (3) to (8) below.[475]

(3) Treaties to be laid before Parliament before ratification

(a) Subject to what follows, a treaty is not to be ratified unless—

(i) a Minister of the Crown has laid before Parliament a copy of the treaty,

(ii) the treaty has been published in a way that a Minister of the Crown thinks appropriate, and

(iii) period A has expired without either House having resolved, within period A, that the treaty should not be ratified.

(b) Period A is the period of 21 sitting days beginning with the first sitting day after the date on which the requirement in subsection (a)(i) is met.

(c) Subsections (d) to (f) apply if the House of Commons resolved as mentioned in subsection (a)(iii) (whether or not the House of Lords also did so).

(d) The treaty may be ratified if—

(i) a Minister of the Crown has laid before Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why, and

(ii) period B has expired without the House of Commons having resolved, within period B, that the treaty should not be ratified.

(e) Period B is the period of 21 sitting days beginning with the first sitting day after the date on which the requirement in subsection (d)(i) is met.

(f) A statement may be laid under subsection (d)(i) in relation to the treaty on more than one occasion.

(g) Subsection (h) applies if (i) the House of Lords resolved as mentioned in subsection (a)(iii), but (ii) the House of Commons did not.

(h) The treaty may be ratified if a Minister of the Crown has laid before Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.

(i) "Sitting day" means a day on which both Houses of Parliament sit.

(4) Extension of 21 sitting day period

(a) A Minister of the Crown may, in relation to a treaty, extend the period mentioned in subsection 111(3)(a)(iii) by 21 sitting days or less.

(b) The Minister does that by laying before Parliament a statement (i) indicating that the period is to be extended, and (ii) setting out the length of the extension.

(c) The statement must be laid before the period would have expired without the extension.

(d) The Minister must publish the statement in a way the Minister thinks appropriate.

(e) The period may be extended more than once.

(5) Subection 111(3) not to apply in exceptional cases

(a) Subsection 111(3) does not apply to a treaty if a Minister of the Crown is of the opinion that, exceptionally, the treaty should be ratified without the requirements of that subsection having been met.

(b) But a treaty may not be ratified by virtue of subsection (a) after either House has resolved, as mentioned in section 111(1)(c), that the treaty should not be ratified.

(c) If a Minister determines that a treaty is to be ratified by virtue of subsection (a), the Minister must, either before or as soon as practicable after the treaty is ratified—

(i) lay before Parliament a copy of the treaty,

(ii) arrange for the treaty to be published in a way that the Minister thinks appropriate, and

(iii) lay before Parliament a statement indicating that the Minister is of the opinion mentioned in subsection (a) and explaining why.

(6) Subsection 111(3) not to apply to certain descriptions of treaties

(a) Subsection 111(3) does not apply to—

(i) a treaty covered by section 12 of the European Parliamentary Elections Act 2002 (treaty providing for increase in European Parliament's powers not to be ratified unless approved by Act of Parliament);

(ii) a treaty covered by section 5 of the European Union (Amendment) Act 2008 (treaty amending founding Treaties not to be ratified unless approved by Act of Parliament).

(b) Subsection 111(3) does not apply to a treaty in relation to which an Order in Council may be made under one or more of the following—

(i) section 158 of the Inheritance Tax Act 1984 (double taxation conventions);

(ii) section 2 of the Taxation (International and Other Provisions) Act 2010 (double taxation arrangements);

(iii) section 173 of the Finance Act 2006 (international tax enforcement arrangements).

(c) Subsection 111(c) does not apply to a treaty concluded (under authority given by the government of the United Kingdom) by the government of a British overseas territory, of any of the Channel Islands or of the Isle of Man.

(d) Section 111(c) does not apply to a treaty a copy of which is presented to Parliament by command of Her Majesty before that section comes into force.

(7) Explanatory memoranda - In laying a treaty before Parliament, a Minister shall 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.

(8) Meaning of "treaty" and "ratification"

(a) In this section "treaty" means a written agreement—

(i) between States or between States and international organisations, and

(ii) binding under international law.

(b) But "treaty" 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)).

(c) In this section a reference to ratification of a treaty is a reference to an act of a kind specified in subsection (d) which establishes as a matter of international law the United Kingdom's consent to be bound by the treaty.

(d) The acts are (i) deposit or delivery of an instrument of ratification, accession, approval or acceptance; (ii) deposit or delivery of a notification of completion of domestic procedures.

(9) A ministerial decision to enter into or to ratify a treaty is not subject to challenge before the courts of the United Kingdom. [476]

(10) A treaty to which the United Kingdom is a party does not alter the domestic law of the United Kingdom unless it has been incorporated into national law by legislation. [477]

112 Customary International Law

(1) A court in the United Kingdom may apply rules of customary international law, without the need for incorporating legislation, if this would not be contrary to a statute of the United Kingdom Parliament or a prior decision binding on the court. [478]

(2) To be so applicable, the rule of customary international law must have attained the position of general acceptance by civilised nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decision. [479]




474   Common law; Cabinet Manual Ch.3 para 3.34 Back

475   Part 2 of the Constitutional Reform and Governance Act 2010 (c.25) Back

476   Common law Back

477   Common law; Cabinet Manual Ch.9 para 9.14 Back

478   Common law Back

479   Common law Back


 
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Prepared 10 July 2014