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
| 
