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.
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