APPENDIX 5: THE PONSONBY RULE
THE PONSONBY RULE[186]
Introduction
The power to make treaties is a Prerogative power
vested in the Crown. It is exercised on the advice of the Secretary
of State for Foreign and Commonwealth Affairs, who, in turn, consults
with other Departments of Government whose responsibilities would
be engaged in executing the provisions of particular treaties.
There is no constitutional requirement for Parliament to approve
a treaty, although sometimes legislation is needed before the
Government can ratify a treaty.
Since 1924 all treaties subject to ratification (with
limited exceptions) have been laid before Parliament for 21 sitting
days in accordance with the Ponsonby Rule before ratification
(or its equivalent) is effected. The laying is done by means of
a Command Paper published in one of the following FCO series:
Country, Miscellaneous or European Communities. Since 1997 treaties
laid before Parliament in accordance with the Ponsonby Rule have
been laid together with an Explanatory Memorandum (EM). When a
treaty has entered into force for the United Kingdom (whether
on signature or following ratification etc.), it is published
in the Treaty Series of Command Papers.
The Ponsonby Rule of 1924
Since March 1892, it had been the practice to present
to Parliament the texts of treaties binding the United Kingdom.
This was done in a numbered series of Command Papers known as
the Treaty Series. But treaties were published in that series
only after they had entered into force for the United Kingdom,
so that at that stage no Parliamentary approval, tacit or express,
could be sought or given.
On 1 April 1924, during the Second Reading Debate
on the Treaty of Peace (Turkey) Bill, Mr Arthur Ponsonby (Under-Secretary
of State for Foreign Affairs in Ramsay MacDonald's first Labour
Government) made the following statement: "It is the intention
of His Majesty's Government to lay on the table of both Houses
of Parliament every treaty, when signed, for a period of 21 days,
after which the treaty will be ratified and published and circulated
in the Treaty Series. In the case of important treaties, the Government
will, of course, take an opportunity of submitting them to the
House for discussion within this period. But, as the Government
cannot take upon itself to decide what may be considered important
or unimportant, if there is a formal demand for discussion forwarded
through the usual channels from the Opposition or any other party,
time will be found for the discussion of the Treaty in question."
He warned that: "Resolutions expressing Parliamentary approval
of every Treaty before ratification would be a very cumbersome
form of procedure and would burden the House with a lot of unnecessary
business. The absence of disapproval may be accepted as sanction,
and publicity and opportunity for discussion and criticism are
the really material and valuable elements which henceforth will
be introduced"[187].
The statement responded to the demands of some of
the Government's supporters for a Parliamentary practice that
would render impossible the "secret Treaties and secret clauses
of Treaties" of the kind which were then generally supposed
to have helped bring about the First World War. Since then, the
practice of secret treaties has been largely abolished by changes
in diplomatic practice, reinforced in turn by specific obligations
in the Covenant of the League of Nations and then in the United
Nations Charter requiring all treaties to be deposited with the
United Nations once they have entered into force, which then publishes
them in the United Nations Treaty Series (UNTS) published periodically
by the UN Secretariat. Moreover, many States, including the United
Kingdom, have published Treaty Series of their own. The Ponsonby
Rule was withdrawn during the subsequent Baldwin Government, but
was reinstated in 1929 and gradually hardened into a practice
observed by all successive Governments.
Application of the Ponsonby Rule
The Ponsonby Rule requires that every treaty signed
by the United Kingdom subject to ratification should be laid before
Parliament for 21 sitting days (although they need not be continuous).
The FCO interprets the Ponsonby Rule as applying to acceptance,
approval and accession as well as to ratification. "Acceptance"
and "approval" have the same legal effect as ratification,
and "accession" arises when the United Kingdom Government
consents to be bound by a treaty of which it was not an original
signatory. The Ponsonby Rule does not apply to treaties that enter
into force on signature.
In its Response of July 1982 to the 6th Report of
the Joint Committee on Statutory Instruments (Session 1981-82),
the Government confirmed that "International agreements [i.e.
treaties] (including agreements amending international agreements)
that are subject to ratification are, under the Ponsonby Rule,
laid before Parliament before they are ratified." However,
"Sometimes an international agreement is amended, and the
amendment, which may or may not be in the form of an international
agreement, though it is not subject to ratification, does require
the making of a statutory instrument for its implementation. In
such a case, the Government accepts that the text of the agreement
or amendment should be made available to Parliament, preferably
when the statutory instrument is laid but in any case before it
enters into force unless urgent or other important considerations
make this impracticable" [Cmnd. 8600]. Therefore, in practice
the Ponsonby Rule has also been applied to (a) amendments to multilateral
treaties which are themselves subject to ratification and (b)
amendments which, although subject to the silent procedure, require
legislation.
Moreover, since January 1998 it has been the FCO's
consistent practice to apply the Ponsonby Rule to treaties which
are not subject to formal ratification (or acceptance or approval)
but simply to the mutual notification of the completion of constitutional
and other procedures by each Party. (However, the Ponsonby Rule
does not apply to treaties subject to unilateral notification
of completion of procedures, where there are no procedures or
legislation required on the United Kingdom side and notification
is only by the other side.)
Exceptions to the Ponsonby Rule
On 6 May 1981 the Lord Privy Seal announced in a
written answer to a parliamentary question that: "In order
to effect economies in the publication of Command Papers, it has
been decided that the texts of bilateral double taxation agreements
should no longer be tabled in Parliament as White papers in the
Country Series of Command Papers. They will however continue to
be published in the Treaty Series of Command Papers after entry
into force. These new arrangements will necessitate a limited
departure from the strict terms of what has become known as the
Ponsonby Rulenamely, the practice whereby the texts of
all international agreements concluded subject to ratification
are laid before Parliament for a period of 21 sitting days after
signature and before ratification. The purpose of the Ponsonby
Rule is to afford Parliament the opportunity of considering commitments
which the Government of the day are proposing to enter into. In
the case of bilateral double taxation agreements, that purpose
is already served by the statutory requirement that the draft
of any Order in Council providing for double taxation relief shall
be laid before the House of Commons for approval by affirmative
resolution, it being the invariable practice that the text of
any bilateral double taxation agreement falling within the scope
of the Ponsonby Rule should be scheduled to the draft Order designed
to implement the agreement. It will accordingly be seen that the
new arrangements are wholly consistent with the spirit of the
Ponsonby Rule."[188]
With the growth of practice over the years, the Ponsonby
Rule has been understood to allow for exceptions from its operation
in special cases, when other means of consulting or informing
Parliament can be used instead. Alternative procedures are:
- adopting a Motion;
- passing a Bill;
- making an announcement in a debate;
- adopting a resolution or a Motion as part of
the Affirmative Resolution procedure for making an Order in Council;
- answering a Parliamentary Question;
- consulting leaders of the Opposition and other
parliamentary parties.
However, in practice departures from the Ponsonby
Rule are rare.
Explanatory Memoranda
Following an undertaking by Ministers on 16 December
1996,[189] all treaties
signed after 1 January 1997 and laid before Parliament under the
Ponsonby Rule are now accompanied by an Explanatory Memorandum
(EM). It contains a description of the subject matter of the treaty
and an account of the reasons why it is proposed that the United
Kingdom should become a party to the treaty. It further highlights
the benefits for the United Kingdom from participation in the
treaty as well as any burdens which would result. Guidelines on
Explanatory Memoranda for Treaties are published on the Treaties
page of the FCO web site at http://www.fco.gov.uk/directory/treaty.asp
The FCO sends two copies of a Command Paper with
its accompanying EM to the Clerk in Charge, Votes and Proceedings
Office at the House of Commons for laying. A further copy of the
Command Paper and 25 copies of its accompanying EM are sent to
the Vote Office at the House of Commons for distribution to Members.
Arrangements for the House of Lords are as follows: Two copies
of a Command Paper and its accompanying EM are sent to the Clerk
of the Parliaments at the House of Lords. One set is stamped for
the attention of the 'Printed Paper Office', which also receives
2 copies of the EM direct for distribution to Members. In addition,
EMs are published on the Treaties page of the FCO web site.
In its Response of 31 October 2000 to the House of
Commons Procedure Committee's Second Report of Session 1999-2000,
Parliamentary Scrutiny of Treaties (HC 210), the Government stated
that: "The FCO will ensure that a copy of each Command Paper
and accompanying Explanatory Memorandum (EM) for treaties laid
before Parliament under the Ponsonby Rule is sent to what the
FCO judges to be the relevant departmental select committee. It
would then be for the lead committee to decide whether the Command
Paper and EM might be more relevant to another committee or relevant
to more than one committee and to pass it on accordingly."
This practice was implemented at the start of November 2000.
Extension of the Ponsonby Period
The Government Response to the Procedure Committee
further stated that: "In accordance with the Ponsonby Rule
time for consideration of a treaty by a select committee should
normally be within 21 sitting days, but in cases where a committee
wished to conduct an inquiry that was likely to take more than
21 days, it is open to a committee to ask for an extension. The
Government would aim to respond positively to such requests provided
circumstances permit and cases are justified."
Foreign and Commonwealth Office
January 2001
186 Downloaded from the FCO website: http://www.fco.gov.uk/Files/kfile/ponsonbyrule,0.pdf Back
187
HC Deb. (1924) 171, c. 1999-2005 Back
188
H.C. Deb. (1981) 4, WA 82 Back
189
H.C. Deb. (1996) 287, WA 94302; H.L. Deb. (1996) 576, WA 101 Back
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