2 Progress towards ratification
7. The Minister told us in oral evidence in November
2008 that the Government aimed to ratify the Convention "in
the spring of 2009".[10]
He argued against publishing any the reservations and interpretative
declaration in draft because of the need for confidential discussions
within Government about the form they would take. He suggested
that scrutiny by Parliament and civic society should take place
once the Convention had been formally laid before Parliament.[11]
8. We welcomed the spring ratification target but
said "we would be extremely disappointed if ratification
were to proceed without any further opportunity for consultation
and scrutiny by disabled people and their organisations".[12]
We recommended that a 4 to 6 week period for consultation be built
into the timetable for ratification, suggesting that this would
not put at risk the spring target.[13]
9. In its reply to our report, the Government ruled
out formally consulting on the proposed reservations and interpretative
declaration because it did not want to hold up ratification.[14]
It said:[15]
This does not mean that the Government has not
been open to feedback on the proposed reservations or interpretative
declaration more generally. Indeed the Government will continue
to welcome comments on the bass on which we propose to ratify.
As previously stated, the parliamentary processes for ratification
provide an opportunity for scrutiny by both Houses, including
debate, on the terms of our proposals. The Government will ensure
that the information provided to Parliament is disseminated more
widely by the Office for Disability Issues, to allow disabled
people and their organisations to consider the terms and implications
of what we propose. They will be able to make their views known
to Departments directly, and to MPs and Peers.
10. The Explanatory Memorandum explains the additional
steps that the Government have taken to consult on the Convention:
Subsequently [to the Ministerial statement on
6 May 2008 outlining possible areas for reservation] there have
been a number of discussions with disabled people and their organisations,
primarily around the possible reservations/declarations. The
Government has continued to provide updates on the Convention
via two websites: www.odi.gov.uk and www.direct.gov.uk. Information
is also available on www.un-convention.info run by an independent
advisor to the Government on disability and human rights.
11. In its response to the Explanatory Memorandum,
the Equality and Human Rights Commission (EHRC) said, however,
that:
[P]ublication of the Explanatory Memorandum has
provided the first opportunity for the Commission and others to
formally comment on the Government's planned reservations and
declaration.[16]
The Northern Ireland Human Rights Commission (NIHRC)
told us it:
regrets that despite a number of requests that
it be consulted as to the plans in respect of ratification, not
least because of its designated role under Article 33(2) [as part
of the domestic mechanism for monitoring compliance with the Convention],
its first opportunity to consider the content of the reservations
was upon publication of the Explanatory Memorandum.[17]
12. The Convention places an express duty on State
parties to closely consult people with disabilities in respect
of changes to law and policy designed to implement the Convention
and in respect of other decision making-processes which concern
issues which may relate to them.[18]
The Office of the UN High Commissioner on Human Rights has recently
stressed the value of an open and collaborative approach to ratification
of the Convention:
Domestic processes for ratification offer important
opportunities for awareness-raising and promoting understanding
of the treaty under consideration.[19]
13. We remain of the view that the Government
should have consulted on both the justifications for and the precise
terms of the reservations and interpretative declaration it proposes
to make to the Convention, either before the Convention was laid
before Parliament, or for a specified period after the Convention
was laid and before ratification. It is not acceptable for the
Government to claim that consultation cannot take place now because
of the need to ratify as soon as possible, when the Government
delayed its own timetable for ratification in order for departments
to agree their positions. Nor can inviting disabled people and
organisations to write to the Minister or other parliamentarians
be a substitute for a proper consultation on the terms on which
the UK will ratify the Convention.
Parliamentary involvement in the
ratification process
14. The Government's reference to "the parliamentary
processes for ratification" deserves fuller scrutiny.
15. Parliament's formal role in relation to the signing
and ratification of international treaties is limited. Under the
terms of the Ponsonby rule of 1924, "the Government does
not usually proceed with [ratification] until a period of 21 [sitting]
days has elapsed from the date on which the text of … a treaty
was laid before Parliament".[20]
The Government can decide to ratify treaties more quickly than
is provided for under the convention. There is no requirement
for Parliament to agree that a treaty should be ratified, or even
for Parliament to debate the matter.
16. Our predecessor Committee commented in 2004 that
there "is no mechanism for reliably scrutinising treaties
to establish whether they raise issues which merit debate or reconsideration
before they are ratified". It said this was a "particularly
pressing" problem in relation to human rights treaties because
"it is now well established that UK courts will have regard
to such treaties in a wide range of circumstances". It decided
to scrutinise all treaties which raise human rights issues, prior
to ratification, a practice we have continued.[21]
The Government welcomed this decision and has recently begun to
facilitate our scrutiny of treaties by sending us copies of treaties
which raise human rights issues, and the associated explanatory
memoranda.[22]
17. The Government published draft proposals for
enhancing parliamentary scrutiny of treaties in October 2007,
including putting the Ponsonby rule on a statutory footing.[23]
These were fully scrutinised by the Joint Committee on the Draft
Constitutional Renewal Bill, which called for the establishment
of a Joint Committee on Treaties, to "support existing select
committees in the scrutiny of treaties", for example by identifying
treaties which raise significant issues and assessing when an
extension to the 21-day period under the Ponsonby rule was necessary.[24]
The Government has yet to introduce its Constitutional Renewal
Bill, but has committed to doing so during the current parliamentary
session.[25]
18. We again draw attention to the limited extent
to which Parliament can scrutinise Government proposals to ratify
treaties. We call on the Government to bring forward its proposals
for enhancing parliamentary scrutiny of treaties as soon as possible,
whether in the Constitutional Renewal Bill, or otherwise.
19. The formal period for parliamentary scrutiny
of the Convention expires on 1 April 2009, 21 sitting days after
the Convention was laid before Parliament. Because the Convention
is also being ratified by the European Union, however, the Government
is required to make an Order in Council specifying that the Convention
is a Community Treaty under section 1(3) of the European Communities
Act 1972. This instrument is subject to approval by both Houses,
which will provide an opportunity for the Convention to be debated
in Parliament.[26] While
we welcome the fact that there will be debates in both Houses
on the Convention, this will only happen because the Convention
is to be ratified by the EU and the Commons debate is likely to
take place in a Delegated Legislation Committee. This is a further
illustration of the lack of parliamentary control over treaties
entered into by the UK. We recommend that the Government make
time for a full debate on the Convention in both Houses.
20. In oral evidence, the Minister told us that the
UK did not have to wait until the EU had ratified the Convention
before ratifying itself.[27]
The Government reply to our report suggested, however, that it
would be "necessary" to specify the Convention as a
Community Treaty prior to UK ratification. If this is the case,
UK ratification may have to wait until the EU Committees in both
Houses have scrutinised the proposal for EU ratification and discharged
their scrutiny reserves. The Government should clarify whether
specifying the Convention as a Community Treaty is a necessary
step to UK ratification and how this will affect the UK's timetable
for ratification, particularly if the scrutiny reserves of Parliament's
EU Committees are engaged.[28]
10 DRC Report, Q1. Back
11
DRC Report, Qq 13, 17 Back
12
DRC Report, para 50. Back
13
DRC Report, para 48. Back
14
DRC Reply, p9. Back
15
DRC Reply, pp9-10. Back
16
EHRC, Commission's Statement Concerning the UK Government's Explanatory
Memorandum on the UN Convention on the Rights of Persons with
Disabilities, 9 March 2009. Back
17
Memorandum submitted by NIHRC, page 40, below. Back
18
Article 4(3) Back
19
Annual Report of the UN High Commissioner for Human Rights, Thematic
Study by the Office of theUN High Commissioner for Human Rights
on enhancing awareness and understanding of the Convention on
the Rights of Persons with Disabilities, 26 January 2009,
A/HRC/10/48, para 15. Back
20
Erskine May, Parliamentary Practice, Twenty-third Edition,
page 264. For more information see Procedure Committee, Second
Report, 1999-2000, Parliamentary Scrutiny of Treaties,
HC 210. Back
21
First Report, 2004-05, Protocol No. 14 to the European Convention
on Human Rights, HL-Paper 8, HC 106, paras 5-7. Back
22
Eighth Report of 2005-06, Government Responses to Reports from
the Committee in the last Parliament, HL Paper 104, HC 850,
pp20-21. See also forthcoming Thirteenth Report of 2008-09,
Prisoner Transfer Treaty with Libya, HL Paer 71, HC 398
Back
23
The Governance of Britain: War powers and treaties: limiting
Executive powers, Cm 7239. Back
24
Report of the Joint Committee on the Draft Constitutional Renewal
Bill, 2007-08, HL Paper 166-I, HC 551-I, para 238. Back
25
HL Deb, 16 Mar 2009, Col 2 (Lord West) Back
26
Draft, The European Communities (Definition of Treaties) (UN Convention
on the Rights of Persons with Disabilities) Order 2009. DRC Reply,
p9. Back
27
DRC Report, Q49. Back
28
The 'scrutiny reserve' refers to resolutions of both Houses which
constrain Ministers from giving agreement to the Council of Ministers
to EU legislative and policy measures. See Erskine May, Parliamentary
Practice, Twenty-third Edition, pp 946-48. Back
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