Source · Select Committees · Public Administration and Constitutional Affairs Committee
Recommendation 10
10
Rejected
Paragraph: 63
CRAG Act 2010 provides insufficient treaty scrutiny and parliamentary approval mechanisms.
Conclusion
It is clear from the evidence we received that the arrangements set out in the Constitutional Reform and Governance Act 2010 are unsatisfactory in a modern democratic society. We identified three main areas of concern. First, the legislation provides a passive role for Parliament which need only be notified of a new treaty and has only a limited power (in practice) to delay ratification. These arrangements do not provide Parliament with the opportunity to approve a treaty or not, and do not create the space for the level of scrutiny necessary for genuine democratic oversight and authorisation. Second, while many treaties are captured by the current legislation, there are several categories of treaty that are not. We firmly believe that all treaties need express parliamentary approval. Third, while we understand the historic origin of the 21-sitting day period, and accept that for some treaties it may be sufficient time for scrutiny, we are of the view that it is an arbitrary and, in many cases, insufficient period of time for the scrutiny of treaties, given their increasing complexity, and should therefore not be the default scrutiny period. In light of these findings, it is clear to us that, in order for the arrangements for entering into treaties to respect the core constitutional principle of parliamentary sovereignty, and to bring them into line with international comparators, Parliament must give its express approval to all treaties before they can be ratified or enter into force.
Government Response Summary
The Government rejects the committee's conclusion, stating it does not accept that Parliament requires further powers to scrutinise treaty-making. It argues that Part 2 of CRaG strikes the appropriate balance, aligns with other dualist states, and maintains the Royal Prerogative, concluding that Parliament already has sufficient scrutiny mechanisms.
Paragraph Reference:
63
Government Response
Rejected
HM Government
Rejected
Disagree. The Government does not accept the Committee’s conclusion that Parliament requires further powers to scrutinise the Government’s exercise of Royal Prerogative powers in its treaty making. Part 2 of CRaG strikes the appropriate balance. When scrutinising a treaty subject to CRaG, either House may object to its ratification. Parliamentary approval of treaties is more commonly found in monist States, where treaties automatically become part of domestic law. UK practice is consistent with that of other dualist states such as Canada, Australia and New Zealand – in some respects the Government’s commitments to Parliament go beyond what is provided in other systems. The current practice therefore provides the flexibility, the necessity of which the Committee has recognised, to ensure that Government can continue the important business of doing deals in the national interest while providing a mechanism for Parliament to oppose if the strength of feeling is there. Significantly, the House of Commons has never resolved against ratification using the power it already has under CRaG. To give Parliament binding votes – or vetoes – over treaties would be to fundamentally undermine the Royal Prerogative of treaty making and limit the flexibility needed to negotiate and enter into the deals that will best serve UK interests. As the Committee has noted, the government is accountable to Parliament and holds office by virtue of its ability to command the confidence of the elected House of Commons. The consequence of these principles is not that further legislation is required. Rather, it is that Parliament has the mechanisms to properly scrutinise the Government’s treaty making powers already.