Attention is focused on the ‘meaningful vote’ on the UK-EU Withdrawal Agreement, but the Agreement will also be subject to a parliamentary ratification consent procedure, under the Constitutional Reform and Governance Act 2010, notable mainly for not involving a vote.
Consent to ratification will be the third step required from Parliament if the UK is to ratify the Withdrawal Agreement, following approval of the Agreement and accompanying Political Declaration in a House of Commons motion (the ‘meaningful vote’), and passage of the necessary piece of implementing legislation (the Withdrawal Agreement Bill).
The procedure by which Parliament consents to UK ratification of a treaty is set out in the Constitutional Reform and Governance Act 2010 (the CRaG Act), which celebrates its eighth birthday this month. The CRaG Act process is the default process, and the government has confirmed that it will apply to the Withdrawal Agreement. (1)
The CRaG Act is in the spotlight not only because of the Withdrawal Agreement but also because, spurred by the potential glut of new UK treaties that may follow it (including both a further treaty or treaties with the EU, and new trade agreements further afield), the House of Lords Constitution Committee has launched an inquiry into parliamentary scrutiny of treaties. This is the first such review since the CRaG Act came into force on 11 November 2010.
The ‘Ponsonby rule’, World War I and treaty transparency
Part 2 of the CRaG Act put on a statutory footing the so-called ‘Ponsonby rule’, a convention which developed after being initiated in 1924 by Arthur Ponsonby MP, Parliamentary Under-Secretary of State for Foreign Affairs in the first, short-lived, Labour government, under Ramsay MacDonald.
The ‘Ponsonby rule’ in turn owes something to World War I, another anniversary being marked in November.
The ‘Ponsonby rule’ was that the government publishes and lays before Parliament any treaty which it intends to ratify, and then waits for at least 21 days before ratifying it.
The ‘Ponsonby rule’ is a so-called ‘negative procedure’: that is, the government can go ahead unless Parliament objects; no positive parliamentary vote is required.
In his 1915 pamphlet ‘Parliament and Foreign Policy’, Ponsonby had written that “No treaty, alliance, or commitment should be entered upon without the express consent of Parliament”, a view which might be seen as requiring a positive parliamentary vote.
Mostly, however, Ponsonby referred to a need for parliamentary ‘sanction’ for treaty ratifications, a weaker requirement.
Ponsonby’s chief concern was not so much to create a dedicated mechanism for an ‘up or down’ parliamentary vote on treaty ratifications as to ensure that Parliament at least knew about treaties that the government was planning to ratify, and had the opportunity to do something about them if it wished - even if it was just the holding of a debate. In other words, Ponsonby’s prime concern was to give Parliament information and time before the government ratified a treaty.
Ponsonby’s concerns about treaty-making transparency and the sidelining of Parliament formed part of a broad critique of what he saw as a secretive and politically detached foreign policy machinery. This critique drew on Ponsonby’s own experiences in the Foreign Office at the turn of the century, as well as his interpretation of various pre-1914 crises, and he was putting it forward it well before the start of the War.
The outbreak of the War in some ways made things harder for foreign policy reformers, by triggering a tide of pro-War sentiment.
But the War also created better conditions for making the case that pre-War foreign policy practices should be reformed and democratised. In his 1915 pamphlet, Ponsonby felt able to declare that “The secrecy of governments and the ignorance of the governed have … been one of the main contributory elements in the great disaster which has befallen Europe today”.
The War also indirectly propelled Ponsonby to office, after he switched from the Liberals to Labour via his anti-War campaigning; and it provided the immediate occasion, once Ponsonby was in government, for him to introduce his new pre-ratification procedure.
This occasion came in the shape of the second reading debate on the Treaty of Peace (Turkey) Bill, the piece of legislation needed for the UK to implement the Treaty of Lausanne, one of the series of post-War peace treaties that followed the Treaty of Versailles.
For followers of Parliament’s Brexit-era role in treaty-making, reading the Turkey Bill debate induces distinct feelings of déjà vu: one Member immediately misunderstood the procedure under discussion; matters then proceeded to the argument about the scope of the Bill - and thus the permissibility of certain amendments - that seems to come with the territory when MPs are required to pass legislation giving effect to a treaty; and when debate finally focused on the Lausanne text, one of its most contentious elements proved to be the creation of an ‘Arbitral Tribunal’ to oversee some of its provisions.
(According to his biographer Raymond A. Jones, Ponsonby knew that announcing his new procedure during the debate was out of scope of the Bill, but as a member of a radical minority government trying to pass a slew of domestic legislation while still dealing with the international fallout of the War, he feared he would have no other opportunity.) (2)
As it was, Ponsonby told the House that his new practice would:
give Parliament, not arbitrarily in this or that case, but completely in all cases, an opportunity for the examination, consideration and if need be the discussion of all Treaties before they reach the final stage of ratification.
Explaining his focus on transparency rather than any particular procedure for Parliament to express approval or disapproval, he said that “The absence of disapproval may be accepted as sanction, and publicity and opportunity for discussion and criticism are the really material and valuable elements” of the reform. (3)
CRaG Act redundancy?
Over 90 years on, with respect to pre-ratification treaty transparency the ‘problem’ for the CRaG Act is that Ponsonby succeeded too well.
Before being put on a statutory footing in the CRaG Act, and apart only from a brief period under the 1924-1929 Conservative government that followed the collapse of the first Labour administration, the ‘Ponsonby rule’ was followed for 80 years apparently without major controversy, as a convention.
All governments essentially adhered to the rule that they should publish and lay before Parliament treaties that they were intending to ratify, and then wait at least 21 days before doing so.
The evidence presented when the CRaG Act was being prepared and passed, before the 2010 general election, suggested that, on the rare occasions when the government ratified a treaty without waiting 21 days, it did not necessarily mean that a treaty was not laid before Parliament at all prior to ratification, nor that alternative means of informing Parliament about a planned ratification were not used. In other words, even without the CRaG Act, it seemed generally accepted that there could be no reversion to the pre-1924 possibility that the UK might ratify a treaty without Parliament officially knowing of the treaty’s existence, or of the government’s plans to ratify.
From January 1997, the original Ponsonby convention was supplemented with a government practice of laying an Explanatory Memorandum with each treaty being laid before Parliament.
Given what proved to be the durability of his non-statutory reform, Ponsonby showed notable prescience in telling the House when introducing it that:
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. If this new system works well, then it will endure; if it does not work, then there is no reason why it should continue.
In respect of pre-ratification treaty transparency, therefore, the CRaG Act made little difference.
The further problem for the CRaG Act, however, is that - on the basis of our current research into Parliament’s role in treaty-making - we are hard pushed to see that it made much difference in any other respect either.
Apart from putting the transparency requirements of the ‘Ponsonby rule’ onto a statutory footing, the other main effect achieved by the CRaG Act was to give statutory force to any House of Commons motion against ratification of a treaty.
Before the CRaG Act, either House could always have passed a motion expressing opposition to a planned treaty ratification, but the government would legally have been free to ignore such a motion and ratify anyway, using prerogative powers.
With the CRaG Act in force, under its section 20(3), (4) and (5), if the House of Commons - within the 21-day scrutiny period - passes a motion against the ratification of a treaty laid under the Act, in law the government may not ratify the treaty for at least a further 21 days.
Writing soon after passage of the Act, Jill Barrett, the lead FCO lawyer on the CRaG Bill, suggested that by making “the legal effects of a negative vote … clear and certain”, the CRaG Act “may provide a greater incentive for those opposed to a treaty to demand a debate and vote”. (4)
But, eight years after the CRaG Act came into force, no motion against ratification of a treaty has ever been passed, by either House. As far as we have been able to discover, no such motion has even been debated.
One explanation for this points to formal procedural arrangements.
One shortcoming of current UK parliamentary ratification consent arrangements is that, certainly in the House of Commons, the route to a debate and vote on a ratification disapproval motion is not clear or guaranteed, and is certainly largely untested. The CRaG Act made no difference here.
It seems to have been assumed, both before the CRaG Act and since, that for backbench MPs a chief potential route to a possible House of Commons resolution against a ratification lay via an Early Day Motion (EDM).
As the Hansard Society has documented exhaustively with respect to negative statutory instruments (SIs), EDMs carry no entitlement to a House of Commons debate or vote within the scrutiny period.
It might therefore be argued that MPs, in particular, do not engage with treaty ratifications because procedures are unclear and their involvement might make no difference anyway.
An alternative, ‘politics-first’, argument would say that parliamentarians mostly do not get engaged on treaty ratifications because UK treaty ratifications are largely uncontroversial; and that if there ever were serious political opposition to a ratification, parliamentary vehicles could and would be found for its expression.
The problem is that we might find out that formal procedural arrangements for Parliament’s pre-ratification consent are inadequate only once a politically controversial treaty is upon us.
In thinking about the potential for political conflict over a treaty ratification, it is worth noting that, of the three EDMs against treaty ratifications tabled since the CRaG Act came into force in 2010, two were signed by the now-Leader of the Opposition.
Of course, ratification is only the last stage of the treaty-making process. Our research confirms that most new UK treaties require implementing legislation, a process which gives parliamentarians debates and votes related to a treaty before the UK may ratify it.
However, the Withdrawal Agreement will be one of the most controversial treaties Parliament has ever considered. It is unlikely, but not inconceivable, that if the Withdrawal Agreement makes it to the final, ratification, stage, its opponents could seek to block it at that point.
It would be constitutionally unfortunate to discover in the first quarter of 2019 that, thanks partly to Ponsonby’s prime concern for transparency rather than a parliamentary vote 100 years ago, the procedures governing parliamentary consent to ratification of a contested treaty are unclear, controversial or inadequate.
Parliamentary ratification consent arrangements may thus need to be added to the list of practices which Brexit has placed under strain.
- Department for Exiting the EU, Legislating for the Withdrawal Agreement between the United Kingdom and the European Union, Cm 9674, July 2018
- Raymond A. Jones, Arthur Ponsonby. The Politics of Life (London: Christopher Helm, 1989)
- HC Deb 1 April 1924 cc2002-2004
- Jill Barrett, ‘The United Kingdom and parliamentary scrutiny of treaties: Recent reforms’, International and Comparative Law Quarterly, Vol. 60, No. 1, January 2011, pp. 225-245
Banner image: The signing of the Treaty of Versailles in the Hall of Mirrors, Versailles, 28 June 1919, by Sir William Orpen (PD-1923)
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