Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

Treaties and Parliament

Treaties and Parliament

Postby tulkvmoxhay » Tue Nov 28, 2017 1:39 pm

In Constitutional terms, is Parliament attempting a usurpation of the convention that the Executive negotiates treaties and Parliament ratifies?
The present brouhaha over The Select Committee's demands to see position papers that the Executive branch claims are pivotal to the negotiation of the Art 50 Treaty process, plus those various votes on the floor of the House bringing the Executive under its scrutiny and direction in advance of negotiation with a foreign nation (or in this case the EU) seem to suggest that view.
tulkvmoxhay
 
Posts: 31
Joined: Sat Nov 05, 2016 5:49 pm

Re: Treaties and Parliament

Postby atticus » Tue Nov 28, 2017 1:51 pm

As always with such questions, it is necessary to consider the underlying premise. Given the constitutional pre-eminence of Parliament, may I ask (a) for details of the convention referred to, and (b) why Parliament cannot override any such convention?
User avatar
atticus
 
Posts: 20652
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Treaties and Parliament

Postby atticus » Tue Nov 28, 2017 2:10 pm

I would also add that given the erm quality of those negotiating Brexit, Parliamentary scrutiny by those MPs not craven enough to be beholden to whips but capable of independent thought seems an excellent idea.
User avatar
atticus
 
Posts: 20652
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Treaties and Parliament

Postby tulkvmoxhay » Tue Nov 28, 2017 2:51 pm

So difficult to lay one's hands on that volume entitled the Constitution of the United Kingdom when you need it...
I would draw your attention first to the recent Commons Library Briefing of 17 February 2017 discussing the ratifying role of the legislative branch which states: "The UK Government is responsible for negotiating, signing and ratifying the 30 or so international treaties involving the UK each year."
By implication the Ponsonby Convention has established the wider point.
Then too there is a persuasive parallel in another written Constitution in the Common Law World: Art 3 S.2 Clause 2 of the US Constitution derived as it was from the jurisprudence of England and the Enlightenment view of the separation of powers.

Notwithstanding the commentariat's perspective on whether this or any other treaty was negotiated ably, deftly or poorly; that is surely neither the issue in question nor anything more than opinion. We could just as easily substitute the Treaty of Ghent for the purpose of discussion. But then again, the treaty of Ghent was only signed so that the signatories could get home for Christmas and from memory I believe it took a decade for ratification in full.
tulkvmoxhay
 
Posts: 31
Joined: Sat Nov 05, 2016 5:49 pm

Re: Treaties and Parliament

Postby tulkvmoxhay » Tue Nov 28, 2017 3:00 pm

And your point b)? Of course Parliament could override this or any other convention, but the Constitution as Dicey imagined it depended on the tortoise of legislature balancing the hare of executive excess. In the case of treaties with foreign powers the balance is a retrospective power to endorse or refuse to do so, not a power to enter into negotiation or direct the executive how so to do.
tulkvmoxhay
 
Posts: 31
Joined: Sat Nov 05, 2016 5:49 pm

Re: Treaties and Parliament

Postby atticus » Tue Nov 28, 2017 3:04 pm

It appears that you may overlook the Constitutional Reform and Governance Act 2010.

You may lay your hands on the text here: http://www.legislation.gov.uk/ukpga/2010/25/contents

Part 2 appears to cover it: http://www.legislation.gov.uk/ukpga/2010/25/part/2

I believe that this statute was considered by both the High Court and the Supreme Court in the recent Gina Miller case.
User avatar
atticus
 
Posts: 20652
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Treaties and Parliament

Postby tulkvmoxhay » Tue Nov 28, 2017 3:25 pm

Thanks for that, but my reading if its provisions suggests that seems to codify the act of ratification; laying before Parliament the "done deal" of negotiation, for Parliament to from that point endorse and empower, or not. I could not see in the Act a provision for Parliament to put forward imperatives or establish "red lines" before or during negotiation of a foreign treaty.

The Commons Library note is very clear on this point, taking into account CRGA 2010:-
Box 1: Outline of treaty-making in the UK
• The Government negotiates a treaty, which for multilateral treaties is often a lengthy process
involving a series of inter-governmental meetings.
• The Government signs the finalised treaty. Signing usually shows only that the State agrees with
the text and puts it under an obligation to refrain from acts that would defeat the object and
purpose of the treaty. The UK does not usually sign a treaty unless it has a reasonably firm
intention of ratifying it. Sometimes, however, a treaty itself provides that it enters into force on
signature alone.
• Parliament makes any necessary domestic legislative changes.
• The Government lays the signed treaty before Parliament, along with an Explanatory
Memorandum. It may not ratify the treaty during the following 21 sitting days.
• Parliament does not have to do anything, but if either House resolves against ratification
during that period, the Government must explain why it wants to ratify anyway. The House of
Commons can effectively block ratification by passing repeated resolutions.
• If there are no outstanding resolutions, the Government can ratify the treaty. Ratifying is when a
State confirms that it is bound by a treaty that it had already signed.
• The treaty enters into force for the UK according to the provisions in the treaty – for example
six months after ratification, or once the treaty has been ratified by 20 States.
tulkvmoxhay
 
Posts: 31
Joined: Sat Nov 05, 2016 5:49 pm

Re: Treaties and Parliament

Postby atticus » Tue Nov 28, 2017 3:49 pm

isn't the simple answer that the whole Brexit thing is truly exceptional? That it is so exceptional as to warrant close Parliamentary attention?
User avatar
atticus
 
Posts: 20652
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Treaties and Parliament

Postby tulkvmoxhay » Tue Nov 28, 2017 4:49 pm

Why is it truly exceptional? As a nation we have conquered territories, annexed territories, made war, made peace, made alliances, withdrawn from alliances, sat around tables and divided up Europe and the world with other nations as equals. For various reasons exceptions prove the rule; the Falklands campaign was exceptional, The American Marshall Plan was exceptional, Suffragism was exceptional, Victorian feats of civil engineering were exceptional, Wilberforce and the British government's crusading attitude to combat international slavery was exceptional, Magna Carta was exceptional. This is not something of any order of magnitude different to the run-of-the-mill Macmillan's "events, dear boy".
It may be different because the voluntary act of subsuming sovereign nation status has been something new for UK, but not so truly exceptional for many other countries who gained or regained independent sovereign nation status. And after all it's decades not centuries since Britain chose that path.
Nothing in that decision to remove ourselves from a trading group reforging itself as a new country invites Parliament to take over running the convention-established Treaty powers of the nation.
So the "truly exceptional" argument could be viewed as nothing more than a cloak under which hides the usurpation of a power of the Executive on this one partisan issue but whose unintended consequence will stand from this time forward. I envisaged this as a discussion on constitutional principles, not Remain vs Vote Leave
We elect cabinet government in the UK not a cabal of local representatives who have won their respective seats through buggin's turn, privilege of class (Labour in Labour safe seats, Tories in Conservative). They are cut off from the real power base and sheet anchor in this country, the Civil Service. Now that is "truly exceptional".
tulkvmoxhay
 
Posts: 31
Joined: Sat Nov 05, 2016 5:49 pm

Re: Treaties and Parliament

Postby atticus » Tue Nov 28, 2017 5:16 pm

May I ask the purpose of this discussion? Parliament is doing what it is doing. Even if that is a departure from previous practice, I am not aware of any basis to stop it.

That surely is the constitutional position.

The UK constitution is flexible, and sometimes evolves quite quickly. For example the apparent convention that Parliament is consulted before another country is bombed deveveloped in the Blair years.
User avatar
atticus
 
Posts: 20652
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Next

Return to Constitutional Law

Who is online

Users browsing this forum: No registered users and 1 guest