Joint Committee on the Draft Constitutional Renewal Bill Written Evidence

Memorandum by Mr Anthony Aust (Ev 16)

  1.  I will deal only with the clauses in Part 4 on ratification of treaties.

  2.  As a former FCO Deputy Legal Adviser, I am well acquainted with treaties and treaty procedures. In 2000, two years before I retired, Cambridge University Press published my monograph, Modern Treaty Law and Practice. (A second edition was published in 2007.) The book deals with treaties from a practical perspective. I am also well aware of the relationship between Parliament and the Government. I shall not comment on the policy, but will stick to technicalities.

  3.  As with the power to go to war (which is not the subject of the draft Bill), the constitutional power of the Crown/Government to ratify a treaty (generally without the prior consent of Parliament), and the supreme power of Parliament to make laws, is a product of the seventeenth-century constitutional struggle between the King of England and Parliament. This resulted in the power to legislate being almost completely vested in Parliament, yet with the Government retaining certain prerogatives, including the decision to ratify treaties or to go to war. This particular division of powers was inherited by most former colonies of the United Kingdom, the United States being the principal exception.

  4.  The treaty-making power of the Government is exercised by the Secretary of State for Foreign and Commonwealth Affairs. Although there is no general requirement for Parliament to consent to the entering into a treaty, under a constitutional convention (known as the Ponsonby Rule) a treaty which is subject to ratification, or an analogous procedure, is laid before Parliament with a short explanatory memorandum for 21 sitting days so that Parliament can be informed of the treaty. It may debate the treaty it if it wishes, but this seldom happens unless legislation is needed or the treaty is of major political importance, in which case the Government would normally arrange for a debate anyway. If a select committee needs more than 21 days to inquire into a treaty, the Government will usually agree to this; and a copy of the treaty is sent to the relevant departmental select committee. Extra-parliamentary consultations are also held.

   5.  Many treaties to which the United Kingdom wishes to be bound do not need any UK legislation, or at least no new Act of Parliament; either the treaty obligations can be carried out under an existing Act (see Clause 23(1)) or subsidiary legislation could be made under an existing Act (see Clause 23(2)). In the latter case, Parliament has the possibility of withholding consent to the making of the necessary subsidiary legislation. This is very rarely done, mainly because the subject matter is usually unobjectionable or the Government can, by use of its majority and whipping, force through the matter. But, when a new Act is needed, both Houses of Parliament can debate the treaty and, if necessary, could withhold necessary legislation. This would make it impossible for the Government to ratify the treaty.

  6.  The purpose of the draft Bill is therefore twofold: to put the Ponsonby Rule on a statutory basis and to enable Parliament to resolve that a treaty may not be ratified.

   7.  What is not clear is the relationship between the power of Parliament to refuse a new Act (or the making of subsidiary legislation under an existing Act), so preventing the ratification of a treaty, and the new power suggested in Clause 21(4) that either House may resolve that a treaty should not be ratified. It may well be that, in practice, the new power would be exercised before Parliament is asked to legislate (should that be necessary). If so, this should be explained by the Government if and when Part 4 of the draft Bill is presented to Parliament.

  8.  I have only two other comments to make on the draft clauses. First, although I follow the meaning of Clause 21(5), the wording is not as clear as it might be. Could it be improved?

  9.  Second, Clause 13(1)(b) largely reflects Articles 2(1)(a) of both the Vienna Convention of the Law of Treaties 1969 and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986. But, the Clause describes a treaty as "binding under international law" whereas both Vienna Conventions define a treaty as "governed by international law". It is not clear why "governed by" is not used in the Clause. Although I consider both terms should mean the same thing, if the Bill uses a different term there could be a problem. When the Bill is debated in Parliament, it might be argued that there is a difference between "binding under" and "governed by". The point might be raised at the suggestion of an NGO which wants to establish that the phrase "binding under" was deliberately chosen in an attempt to exclude MOUs which the NGO might argue are within the definition of treaties in the Vienna Conventions.

  10.  MOUs are international instruments which may look like treaties but are not because the States involved do not intend them to be "governed by" international law. (MOU is short for Memorandum of Understanding, which is what most MOUs are formally called.)[1] If the Bill becomes law, certain acts of the Government in relation to treaties would be open to judicial review, and it would be unfortunate if an applicant were to question whether a departure from the definition of treaty in the Vienna Conventions is material. The matter is important since MOUs are crucial to the transaction of international relations by States, not just the United Kingdom. They are especially important for many defence arrangements, which need to be classified, and so cannot to embodied in treaties.

2 June 2008

1   On MOUs generally, see A Aust, Modern Treaty Law and Practice, 2nd edn, Cambridge, 2007, pp 20-1 and Ch 3. Recent examples of MOUs are the so-called "diplomatic assurances" concluded with certain Arab States. The international lawyer who believes most strongly that MOUs are treaties is Professor Jan Klabbers: see his book, The Concept of Treaty in International Law, The Hague, 1996. Regarding Klabbers' theory, see Aust, pp 49-52. Back

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