Joint Committee on the Draft Constitutional Renewal Bill

Joint Committee on the Draft Constitutional Renewal Bill First Report

CHAPTER 5: RATIFICATION OF TREATIES

202._In The Governance of Britain Green Paper the Government stated that the procedure for allowing Parliament to scrutinise treaties, known as the Ponsonby Rule, should be formalised and placed on a statutory footing. The key features of the Ponsonby Rule (established by Arthur Ponsonby, Parliamentary Under-Secretary for Foreign Affairs, in 1924) are the publication of a treaty as a Command Paper and the laying of the Command Paper before both Houses of Parliament for at least 21 sitting days before ratification. Coupled with this is a Government undertaking to provide time for a debate should one be requested.

203._A number of reforms to the process have taken place in recent years, including the provision of explanatory memoranda alongside each treaty, sending each treaty subject to ratification to the relevant Commons departmental select committee (following a recommendation by the House of Commons Procedure Committee in 2000[113]), and, if a treaty is deemed to raise significant human rights issues, to the Joint Committee on Human Rights. Other reforms have also been recommended to the process. In 2000, the Wakeham Commission on reform of the House of Lords suggested that a scrutiny committee on treaties be established.[114] In 2004, the House of Commons Public Administration Select Committee (PASC) called for a new statutory provision in relation to the ratification of treaties, whilst Lord Lester of Herne Hill has tabled Private Members' Bills seeking to set conditions for the ratification of treaties.[115] Whilst we were undertaking our inquiry, PASC published a follow-up report on the Government's proposals, the conclusions of which we refer to below.[116]

204._The Government published a consultation document on this issue in October 2007.[117] Their preferred proposals for reform are contained in the Draft Bill and accompanying White Paper. In brief, the Government propose:

The system for Parliamentary approval: The Ponsonby Rule should be placed on a statutory footing, with the 21 day sitting period enshrined in legislation, and the effects of a negative vote in the Commons and the Lords set out in statute for the first time. The Draft Bill also provides a mechanism for the re-presentation of a treaty that has been subject to a negative vote.
Exceptions and exceptional circumstances: The Draft Bill sets out a) an exceptional circumstances procedure whereby the requirement for Parliamentary approval can be forgone in certain circumstances, and b) statutory exceptions to the Ponsonby Rule.
Definitions of "treaty" and "ratification".
Parliamentary scrutiny: The Government make some suggestions as to how the system of Parliamentary scrutiny might be improved.

Putting the Ponsonby Rule on a statutory footing

205._The Lord Chancellor told us that the Government's proposals were significant, because "what we sign up to in treaties, even if they do not become part of our domestic law to which we are then committed, our commitment is longer lasting in practice than in respect of any domestic legislation because it is so difficult to gain international agreement for anything other than a bilateral treaty". He therefore argued that it was essential to demonstrate that MPs "will not only have a say but they will have a decisive say … over treaties". (Q 720) Some witnesses agreed with the proposal to place the Ponsonby Rule on a statutory basis, including Sir Michael Wood, former Foreign and Commonwealth Office Legal Adviser, JUSTICE, and Peter Riddell, Chief Political Commentator, The Times, and Chairman, Hansard Society. (Ev18, para 2, Ev45, para 23, QQ 4, 9) The Bar Council argued that it would be a "positive and beneficial reform". (Ev55, para 47) Professor Eileen Denza, Visiting Professor of Law, University College London, asserted that "the current procedures elaborated within the framework of the Ponsonby Rule do give Parliament an adequate opportunity to scrutinise treaties which do not require UK implementing legislation and which are not subject to special more stringent requirements." (Ev51, para 1)

206._There was little outright opposition to the proposal to place the Ponsonby Rule on a statutory footing per se. However, Sir Franklin Berman, a former Foreign and Commonwealth Office Legal Adviser, argued that since there was no reason to fear that governments would stop complying with the Ponsonby Rule, "no useful purpose would be served by legislating", and "[i]t would be a waste, both of Parliamentary time and of opportunity, to legislate to such minimal effect." He was also concerned that statutory intervention could introduce a "harmful degree of formalism", and could "raise the spectre of future attempts by sectional interests to secure judicial control". (Ev34, paras 4-6) The Clerk of the House of Commons and the Clerk of the Parliaments were concerned that a proposal to place Parliamentary procedure in statute risked "blurring the constitutional separation between the courts and Parliament". The Clerks noted that there were "strong arguments of principle … for showing caution in seeking to codify Parliamentary procedures and conventions. These apply all the more strongly if that codification is to take statutory form". (Ev65, paras 24-25) It is worth noting in this context that Mr Ponsonby himself was sceptical about the statutory route:

"legislation [is] a clumsy and undesirable method of accomplishing our purpose … under the British Constitution, it is rules that depend solely on practice and usage which are the most immutable. A change effected by Acts of Parliament is not likely to last so long as one effected solely by Ministers as a change of practice and dependent only on the will of the Members of the Legislature for the time being."[118]

207._A number of others expressed ambivalence about the effectiveness of such a reform. Democratic Audit was of the opinion that, while a statutory basis for treaty making was desirable, the proposed arrangements were inadequate. (Ev04, para 29) Unlock Democracy were disappointed at the mechanism the Government had chosen and the accountability that those proposals embodied. (Ev58) PASC argued that "[t]his part of the draft bill … establishes a very weak form of Parliamentary safeguard".[119] All of these witnesses were of the opinion that the Government was focussing on the wrong issue, and instead should focus on ways of improving Parliamentary scrutiny of treaties. We address some of their concerns in paragraphs 233 to 238 below.

208._We agree that the Government's proposal to place the Ponsonby Rule on a statutory footing is a "positive and beneficial" reform.

The detail of the resolution

THE 21 DAY SITTING PERIOD FOR LAYING TREATIES BEFORE PARLIAMENT

209._The Government have proposed to retain the 21 sitting day laying period, noting that the majority of respondents to its consultation supported—or did not express opposition to—21 sitting days as the standard laying period.[120] This provision is set out in clause 21 of the Draft Bill. Sir Michael Wood argued that 21 days "have proved to be satisfactory in practice, and seem to strike the right balance between Parliament and the Executive in this matter." (Ev18, para 8) Professor Denza agreed that the history of the Ponsonby Rule suggested there would be no great advantage in entitling Parliament to request an extension of the 21 days. (Ev51, para 1)

210._Some other witnesses disagreed. The Bar Council wondered "whether 21 days is sufficient time for busy Parliamentarians to consider, review, investigate, research and debate a treaty in order to mount a reasoned and considered opposition to any proposed ratification … We think that, even if 21 days were to be adopted as the standard period, it should be capable of extension if Parliament requests additional time." (Ev55, para 49) Witnesses including Democratic Audit and M J Bowman, Director of the University of Nottingham Treaty Centre, argued along similar lines. (Ev04, para 33, Ev41) M J Bowman also suggested that, in cases of unusual complexity, the "optimal solution might entail the possibility of formal suspension of the statutory period (up to a certain time limit) to enable appropriate procedures to be completed". (Ev41)

211._PASC thought that "21 days seems like very little time for Parliamentary scrutiny and a possible vote".[121] The Clerk of the House of Commons and the Clerk of the Parliaments noted that scrutiny of treaties in recent years had generally been undertaken through the conducting of inquiries and publishing of reports by select committees. They raised the concern that, in the light of the "agreed role of select committees in ensuring Parliamentary scrutiny", 21 days might be insufficient. They also noted a previous commitment by Ministers that, where a committee indicated it would need more than 21 days to conduct an inquiry, the Foreign and Commonwealth Office (FCO) would be willing to show flexibility in timing. The Clerks questioned whether it was appropriate that "the arrangements for securing extensions where they are agreed to be necessary should remain informal when other aspects of the procedure are to be made statutory." (Ev65, paras 31-33)

212._We conclude that, whilst a 21 day sitting period will be sufficient time for Parliamentary scrutiny of treaties in the vast majority of cases, there is a need for a mechanism to be set out in statute to increase this period in exceptional circumstances. The new Joint Committee on Treaties, which we recommend in paragraph 238, would have an important role to play in such circumstances.

PARLIAMENTARY CONTROL: THE EFFECT OF NEGATIVE VOTES IN THE COMMONS AND LORDS

213._Clause 21 of the Draft Bill proposes that the Commons should have the power to prevent a treaty from being ratified for so long as it continues to oppose it. A negative vote in the House of Lords would only be able to delay the ratification of a treaty, if the Government still wished to proceed and the Commons was not opposed. The Lord Chancellor told us that this was "the fundamental, substantive difference" that the Government's proposals would bring, because at present "even were Parliament under the Ponsonby Rule to vote against a treaty, it could still be ratified. I believe that to be unacceptable." (QQ 711, 750) Other witnesses, such as Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, and Democratic Audit, agreed that this was a positive development since the Ponsonby Rule would be strengthened, by being given legal effect. (Ev01, para 9, Ev04, para 30)

214._The Bar Council argued that "the giving of legal effect to a negative vote would be a principled step in accord with Parliament's democratic role and authority." (Ev55, para 47) Others welcomed the differential effect of negative votes in the Commons as opposed to the Lords. Elizabeth Wilmshurst, a former Foreign and Commonwealth Office Deputy Legal Adviser, argued that the suggested provision for the House of Lords was "quite elegant" in that it gave the Lords "a real voice." (Q 22) MJ Bowman thought that "a reasonable balance" of respective powers had been struck, so long as the current composition of the Lords continued. (Ev41) Mark Ryan, Senior Lecturer in Constitutional and Administrative Law, Coventry University, also noted that this part of the Draft Bill had been drafted in the context of a partially reformed House of Lords, and that it might be necessary to give a fully reformed House greater powers. (Ev36, para 12)

215._Some witnesses were concerned that the drafting of these provisions was unclear. M J Bowman argued that the drafting of clause 21(5)(b), on the effect of a vote in the Commons and the Lords, "seems flaccid, inelegant and open to possible misinterpretation". (Ev41, B) Professor Robert Blackburn, Professor of Constitutional Law, King's College London, also told PASC that the drafting of clause 21(5) was a "bit obtuse; you have to read it two or three times to actually get any meaning out of it."[122] Anthony Aust, former Foreign and Commonwealth Office Deputy Legal Adviser, made a similar point. (Ev16, para 8)

216._Although there was broad support for the respective roles of the Commons and Lords, there were some objections to the balance of power between Parliament and Government implied in the proposals. PASC pointed out that Parliament would have the opportunity to object "only if the Government decides to provide the opportunity for Parliament to object", since it "would be for Members to demand a vote, and for the Government, if willing, to find the opportunity for this vote to take place."[123] Mark Ryan suggested that the negative resolution procedure proposed in the Bill should be replaced by an affirmative resolution, "thereby providing Parliament with more control over the process. This would help achieve the Government's primary objective of redressing the executive/ Parliamentary balance." (Ev36, para 15, see also Ev09, para 14)

217._We agree with the Government's proposals in terms of the relative effects of a negative vote in the Commons and the Lords, as set out in clause 21 of the Draft Bill, at least while the Lords retains its current composition. We note concerns in evidence about the confusing drafting of this clause, and therefore recommend that the Government clarify and simplify the drafting of this part of the Bill.

GOVERNMENT'S ABILITY TO RE-PRESENT A TREATY

218._The Constitutional Renewal White Paper proposes that the Government should have the right to re-present a treaty that has been subject to a negative vote in either House. If it wished to do so, the Government would have to lay an explanatory statement before both Houses and re-start the 21 day sitting period from the beginning. As noted above, the Commons would have the power to continue to block a treaty, whilst a treaty subject to a negative vote in the Lords could be passed so long as the Government had laid an explanatory memorandum explaining why it wished to proceed.[124] A number of witnesses were in broad agreement with the Government's approach. Elizabeth Wilmshurst said that "[o]ne could think of all sorts of reasons why the Government should be able to submit and resubmit." (Q 21) Professor Tomkins did not "have a problem with ... endless dialogue or discourse" between Parliament and the Executive, noting that either side was only likely to be "bloody minded" if there was "reasonable ground for behaving in this way … if there is a genuine disagreement, let that disagreement be had." (Q 21) M J Bowman agreed that such a power was important, and that the Commons' right to delay treaties indefinitely should therefore be conditional on the Government's right to re-introduce certain documents. (Ev41, A)

219._Others were less convinced. Peter Riddell thought that a provision whereby a treaty could be submitted no more than once in each session of Parliament might be a sensible way to proceed. (Q 9) Mark Ryan argued that the proposal raised "an issue of constitutionalism and whether the executive should just simply accept a decision of the democratically elected House of Commons that a treaty should not be ratified." (Ev36, para 13) PASC thought that this was "constitutionally dangerous territory", pointing out that the Commons has "a long-standing rule that the same question should not be put to it twice in the same Parliamentary session". PASC therefore concluded that in the event of a negative vote in the Commons, "the Secretary of State should respect this view, and the House should not be asked to consider the same question again before the next Parliamentary session. Clause 21 of the draft bill should be amended accordingly."[125]

220._We agree with the Government that the Secretary of State should be able to re-submit for Parliamentary approval a treaty which either House has resolved should not be ratified.

Exceptions and exceptional circumstances

ALTERNATIVE PROCEDURES IN EXCEPTIONAL CIRCUMSTANCES

221._Clause 22 of the Draft Bill makes provision for alternative procedures for consulting and informing Parliament so as to provide flexibility when needed in exceptional circumstances. Such instances might include when a treaty needs to be ratified during a recess, or when "delay would be detrimental to the national interest." In such cases, they would "inform and consult Parliament by the most expeditious and practical means available".[126] Sir Michael Wood agreed that it "should be for Government to decide whether exceptional circumstances (which are likely to be very rare) exist. Only they will have the necessary information (including possibly sensitive information) to take such a decision, and be in a position to balance all relevant considerations, foreign policy and other." (Ev18, p4) Professor Denza agreed, noting that past occasions of exceptional circumstances "have usually been accepted by Parliament without challenge." She argued that the safeguards that the Government proposed "seem to be adequate and sufficiently flexible for the purpose." (Ev51, para 1)

222._A number of other witnesses expressed concern at the proposal, on various grounds: that it gave Government too much control over when the "exceptional" procedure should be followed; that the drafting was vague; that the safeguards proposed in respect of the procedure were not included in the Bill itself; and that the definition and application of "exceptional" circumstances could be justiciable.

223._PASC argued that it was not right for the Government alone to decide when Parliamentary ratification could be bypassed, arguing that "[a] safeguard that can be ignored at will is no safeguard at all." PASC therefore recommended that the Draft Bill should either define the circumstances in which a treaty might need to be ratified in such a manner, or make it for Parliament to waive the requirement for its approval within 21 days.[127] Graham Allen MP, Professor Tomkins, Mark Ryan and M J Bowman also argued that the circumstances in which Ministers could bypass the treaty ratification procedure were too vaguely drawn. (Ev17, para 11, Ev01, para 10; Ev36, para 14; Ev41, B) JUSTICE suggested that clause 22(1) could be tightened by adding the words "by reason of urgency". (Ev45, para 24) Democratic Audit also had reservations that the power to bypass Parliamentary ratification was based on the Secretary of State's own judgment, and felt the proposal should be deleted altogether. Failing that, "as a minimum" there should be more detail in the Draft Bill about the circumstances in which the Parliamentary procedure could be set aside, "and the alternative measures that will ensure accountability." (Ev04, para 31)

224._The Bar Council expressed concern that not all of the safeguards mentioned in the White Paper were contained in the Draft Bill, in particular that there was no reference to mechanisms to consult Parliament on alternative more rapid means. It made a number of suggestions about how this power could more adequately be controlled, including a mandatory requirement on the Secretary of State to consider consulting Parliament on a different, shorter timetable; an oral or written Ministerial statement explaining the exceptional circumstances; and taking steps to consult Parliament on a faster basis and consult Opposition leaders and others as appropriate during a recess. (Ev55, paras 50-51)

225._The Clerk of the House of Commons and the Clerk of the Parliaments noted that, because the Draft Bill would allow the Government "exceptionally" to ratify a treaty without fulfilling the statutory conditions, and no definition of "exceptionally" was given, the definition and its application could "become a matter for the courts as well as for Parliament." (Ev65, para 34)

226._We agree that, in exceptional circumstances, there should be a means by which the Government can ratify a treaty without it being subject to the Parliamentary approval process. However, it would require full justification. If the power under clause 22 is invoked, the requirement for a statement laid before Parliament under clause 22(3)(b) must include a requirement for detailed information on the nature of the exceptional circumstances. The Government should also indicate in its response to our report the kind of circumstances—such as extreme urgency—in which it would consider ratification under clause 22. Subject to these considerations, we are content with the proposed drafting of clause 22.

STATUTORY EXCEPTIONS TO THE PONSONBY RULE

227._Clause 23 of the Draft Bill sets out the types of treaties that will be excepted from the provisions of clause 21, principally certain European Union and taxation treaties, since they are subject to separate Parliamentary scrutiny mechanisms. The Constitutional Renewal White Paper states that the Government are continuing to investigate whether any other categories should be excluded from the requirements of the Bill, and if any are identified, they will be proposed in the form of an additional clause on the face of the Bill.[128] We received few comments about the specific proposals currently in the Draft Bill. PASC concluded that "[t]hese exemptions give us no cause for concern."[129] However, Sir Michael Wood argued that clause 23 should include a power to add further exceptions: "Parliament should have the final say on whether this is appropriate, so it would be right for the power to be exercisable by a procedure requiring the assent of Parliament, such as a statutory instrument requiring an affirmative resolution of each House." (Ev18, para 7)

228._We agree that the present exceptions to the Ponsonby Rule should be outlined in statute, as proposed in clause 23. We further recommend that the Government continue to investigate whether any other categories of treaties should be excluded in a similar manner, with a view to publishing a definitive list by the time of the Bill's introduction.

Definitions

229._Clause 24 defines "treaty" as an agreement in writing between States or between States and international organisations, and binding under international law. "Ratification" means an "act" which establishes as a matter of international law the UK's consent to be bound by that treaty. An "act" is defined as the deposit or delivery of an instrument of ratification, accession, approval or acceptance, or the deposit or delivery of a notification of completion of domestic procedures.

230._We received little evidence on the suitability of these definitions per se, although Anthony Aust did question why the clause describes a treaty as "binding under international law", rather than "governed by international law" as set out in the Vienna Conventions on the Law of Treaties. (Ev16, para 9) There was a substantial body of evidence suggesting that the documents currently covered by the Ponsonby Rule (and hence by the proposals in the Draft Bill) might be too narrowly defined. The House of Commons Foreign Affairs Committee told us 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." (Ev75, para 2) Peter Riddell agreed, highlighting documents such as a recent US/UK memorandum of understanding on missile defence, or an exchange of letters between the Prime Minister and the American President on Trident in 2006, which were "far more important than 90 per cent of treaties going through". (Q 9) Graham Allen MP made a similar point. (Ev17, para 11) Mr Ponsonby himself, when announcing the Government's new approach in 1924, stated that treaties "do not cover the whole ground, and His Majesty's Government desire that Parliament should also exercise supervision over agreements, commitments and undertakings by which the nation may be bound in certain circumstances and which may involve international obligations of a serious character, although no signed and sealed document may exist".[130]

231._The Lord Chancellor told the Committee that scrutiny of such documents "would have to be done on an ad hoc basis … What, however, we have to deal with here is the legal status of those instruments. Since memoranda of understanding do not have the same status in international law as treaties, presumably that was why it was chosen to be a memorandum of understanding rather than a treaty, then it would not fall within this area. For the future, I could envisage that, if a memorandum were disclosable, albeit in confidence, it might be examined by a Select Committee". (Q 752)

232._Whilst we accept the Government's proposed definitions of treaties covered by the Ponsonby Rule and the proposed statutory process, we also recognise the case for enhanced scrutiny of other treaty-like documents, such as memoranda of understanding. We therefore recommend that Government and Parliament investigate ways of enhancing the scrutiny of such documents. The Joint Committee on Treaties, which we propose in paragraph 238, would have an important role to play in this process.

Parliamentary scrutiny

233._Whilst some witnesses, such as Sir Michael Wood (Ev18) and Professor Steven Haines, Professor of Strategy and the Law of Military Operations, Royal Holloway College, University of London, (Q 19) were relatively content with the system of Parliamentary scrutiny, a number of other witnesses expressed their concern that the present system was ineffective. Democratic Audit was one of several witnesses to point out that "the Ponsonby Rule does not in practice lead to debates, let alone votes, being held on treaties." Indeed, it pointed out that the Government had admitted as much in its consultation paper. Therefore the proposals "would have no practical impact, since … the opportunity to reject a treaty that the government proposal seems to provide would not arise. Parliament will have to change its organisation and procedures if it is to turn this latent power into a reality." (Ev04, paras 29, 32, see also Q 19)

234._In this context, a number of witnesses attached importance to the need to reform Parliamentary procedure and practice. For instance, the Bar Council asserted that "it is important that each treaty put before Parliament is given scrutiny and that institutional mechanisms are in place to ensure this is done." (Ev55, para 52) However, M J Bowman sounded a note of caution, suggesting that it would be necessary for Parliament to develop expertise in the international (as well as the national) dimension of treaty-making as a prerequisite to any enhanced role. (Ev41) In addition, three specific proposals emerged.

235._First, a new sifting committee on treaties. Democratic Audit suggested such a committee could liaise with relevant select committees to decide if a Commons vote was required, with the power to request a debate or vote, or an extension of the 21 day sitting period, if required. (Ev04, para 33) Unlock Democracy made a similar suggestion, (Ev58) whilst Elizabeth Wilmshurst and Graham Allen MP were also sympathetic to this idea. (Q 19, Ev17, para 11) The Foreign Affairs Committee recommended that this idea be examined, in particular because of what it perceived to be a current lack of capacity within Parliament to scrutinise individual treaties. (Ev75, para 3) Professor Robert Hazell, Director, Constitution Unit, University College London, was also in favour of such a sifting committee. He argued that select committees had not on the whole risen to the challenge of treaty scrutiny, with the "shining exception" of the Joint Committee on Human Rights. He also argued that this "would be a classic kind of Lords function, following the example of the Committee on the Merits of Statutory Instruments." (Q 87) The Constitution Unit also suggested that a joint committee was an alternative option, as has been established in Australia. (Ev07, para 9.2) However, Professor Denza, whilst acknowledging the need for more systematic scrutiny, thought that this should be undertaken by the sub-committee of the Foreign Affairs Committee, rather than a new committee.[131] (Ev51, para 2) The Lord Chancellor thought "very strongly that the work of the Commons and the work of the Lords should complement each other." (QQ 753-754)

236._Second, an improved mechanism for the scrutiny of treaties prior to signature. Democratic Audit and the One World Trust suggested a "soft mandating" mechanism to give Parliament the opportunity to discuss the Government's position in treaty negotiations, as well as wider international organisations. (Ev04, paras 34-35, Ev03) Unlock Democracy made suggestions along the "soft mandating" line, citing in particular the practice of the Danish Parliament. (Ev58) The Foreign Affairs Committee also suggested that some mechanism for improved scrutiny of negotiations before signing might be appropriate. (Ev75, para 2) M J Bowman was sympathetic to the idea, suggesting that "the mechanics of such a system" could be explored through a trial or pilot study. (Ev41) However, Sir Michael Wood argued that such scrutiny would "not be practical" in many cases, since negotiations are often conducted behind closed doors and "the very fact that negotiations are taking place at all is a matter of considerable sensitivity". He added that it might not be possible for the Government to reveal its negotiating hand without damaging consequences. (Ev18, p4)

237._Third, a new mechanism for requesting a Parliamentary debate or vote. The Foreign Affairs Committee noted that "it is not proposed that decisions on ratification will automatically be put before Parliament." (Ev75, para 1) The Committee also noted that if either House was invited to take a decision, the Draft Bill does not specify the procedures which would be followed. Unlock Democracy suggested that an Early Day Motion (EDM) signed by 10% of MPs could trigger a debate. (Ev58) The One World Trust argued that the current tacit understanding that a request for a debate through the "usual channels" would be granted by government should be replaced by a formal requirement for a debate or vote if so requested, for instance through a committee request, the Liaison Committee or a broadly supported EDM. (Ev03) A number of witnesses thought that a new treaties committee should have a role in requesting a debate. The Clerk of the House of Commons and the Clerk of the Parliaments argued that select committees could be given the power, through standing orders, to ensure that the House debated treaties to whose ratification they were opposed. This could be achieved via a "filter" by the Liaison Committee. The Clerks also noted that, "[b]ecause the provisions in the draft Bill are engaged only if the House resolves that the treaty should not be ratified, such debates would presumably need to be held on substantive motions." (Ev65, para 30) The Lord Chancellor accepted that "the arrangements for getting a vote have been left at large, basically for the usual channels and for people to make a noise", but "the anxiety of business managers … is that if you lay too much down in a Bill in terms of procedure, the discretion of business managers may be limited." He suggested that one solution might be to "make provision in the Standing Orders of the House, each House, that if X number said they wanted a debate and vote, there would have to be a debate and vote". (QQ 750-751)

238._We have noted the widespread view in evidence that Parliament and its committees do not make effective use of existing scrutiny mechanisms. This may simply be due to the many competing demands on committees' time and resources. It would be disappointing if for this reason the Government's proposals to give Parliament a statutory role in the approval of treaties had no effect in practice. We therefore recommend that a new Joint Committee on Treaties be established. This Committee should be large enough to include a range of expertise from both Houses, but small enough to operate efficiently and effectively. The tasks of the Joint Committee could include sifting treaties to establish their significance; assessing whether an extension to the 21 day sitting period is required in respect of a particular treaty (as recommended in paragraph 212); and scrutinising (or considering new ways of scrutinising) other treaty-like documents (as recommended in paragraph 232). We envisage this Committee would support existing select committees in the scrutiny of treaties and would work to ensure the current gaps in scrutiny are filled.

113 Procedure Committee 2nd Report (1999-2000), Parliamentary Scrutiny of Treaties, HC 210 Back

114 A House for the Future: Royal Commission on the Reform of the House of Lords, January 2000 (Cm 4534) Back

115 2003: Executive Powers and Civil Service Bill [HL]; 2006: Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill [HL] Back

116 Public Administration Committee, 10th report (2007-08), Constitutional Renewal: Draft Bill and White Paper (HC 499) Back

117 Ministry of Justice, The Governance of Britain-War powers and treaties: limiting Executive powers, October 2007, Cm 7239 Back

118 HC Deb (1924) 171, c2002-03 Back

119 Constitutional Renewal: Draft Bill and White Paper, op cit., para 84 Back

120 Ministry of Justice, The Governance of Britain-Constitutional Renewal, March 2008, Cm7342-I, paras 152, 157 Back

121 Constitutional Renewal: Draft Bill and White Paper, op cit., para 87 Back

122 ibid., Q 49 Back

123 ibid., paragraphs 82, 84 Back

124 The Governance of Britain-Constitutional Renewal, op cit., paragraph 158 Back