Yesterday, the House of Lords debated three international treaties, in line with the process established by the Constitutional Reform and Governance Act 2010 (see here for the transcript of the debates). Holger Hestermeyer discusses how the process of treaty ratifaction works, how it has been affected by the meaningful vote mechanism created by Brexit, and what lessons can be learned from the way in which other countries and organisations ratify treaties.

There has hardly been a day in the last two years in which treaties have not taken centre stage in the public debate. From the Withdrawal Agreement to the future trade relationship with the EU, from discussions about leaving the European Convention on Human Rights to proposals to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) treaties have become essential for the future economic and political outlook of the UK. But as treaties have obtained a central role in the debate, the question of how treaties are made has also become a topic of discussion, in particular the role of parliament. In the UK, that role is limited: parliament can merely delay treaty ratification. It can also vote down implementing legislation, but it does not (or did not, before the Withdrawal Agreement) get a vote on the treaty itself. A separate system is in place for the scrutiny of EU treaties, but this is outside of the scope of this blogpost and will be coming to an end with Brexit.

The UK constitutional setup is somewhat unusual. In many countries, the executive needs to obtain parliamentary consent for certain types of treaties to be able to ratify. Whether and to what extent the UK system of treaty scrutiny is in need of reform is now the subject of an inquiry in the House of Lords’ Constitution Committee, but treaty scrutiny has also played an important role in the discussions on the Trade Bill 2017-2019 and is the subject of EDM 128, which was tabled on 4 July 2017 has attracted 125 supporters. This blogpost will briefly describe how treaties are made with particular regard to the UK. It will then discuss why there is a call for reform. Finally it will turn to what such a reform could look like and what lessons can be drawn from other systems, such as the US, the EU, France or Germany.

How treaties are made

The treaty-making process can vary according to a number of factors, such as whether a treaty is formally concluded as a treaty or through an exchange of notes or whether a treaty is bilateral or multilateral. In general, the parties decide to try and negotiate a treaty with a defined partner, prepare internally (e.g. though consultations) setting their objectives, and then conduct the negotiations. Once the negotiators have reached agreement, the text is finalised and the parties can sign. Usually the signature does not yet bring the treaty into force – most treaties require another formal act expressing the consent of the state to be bound, referred to as ‘ratification’.

In the UK, negotiating, signing and ratifying treaties falls under the royal prerogative. It is the government that is entrusted with these matters. Like most countries, however, the UK does provide for a domestic procedure that treaties have to undergo between signature and ratification. This procedure is laid down in the Constitutional Reform and Governance Act 2010 (CRAG), but existed before as a constitutional convention referred to as the ‘Ponsonby Rule’. Under CRAG, treaties subject to ratification have to be laid before parliament for 21 sitting days before they can be ratified. During those 21 days either House can resolve that the treaty should not be ratified. The effect of such a resolution, however, is not that the treaty cannot be ratified, but – where the government continues to pursue ratification – merely to delay ratification. The House of Commons can delay ratification repeatedly.

In addition to the CRAG procedure, where a treaty requires domestic legislation for the UK to comply with the obligations under the treaty, it is Foreign and Commonwealth Office (FCO) practice to insist that implementing legislation must be passed before ratification.

While the UK does, thus, provide for some measure of parliamentary scrutiny of treaties, the UK constitutional setup does not grant parliament a vote on the treaty itself. The EU Withdrawal Agreement has, in that regard, set out a new path: section 13 of the European Union (Withdrawal) Act 2018 provides for a ‘meaningful vote’: parliament has to approve the agreement before it can be ratified.

Criticism of the current procedure

The CRAG procedure has fallen short of expectations. In fact, as Jill Barrett, Eirik Bjorge, Ewan Smith and Arabella Lang have argued, parliament has not used its powers under CRAG. Jill Barrett has summarised current parliamentary practice as to treaty scrutiny in the following terms: ‘Most treaties receive no scrutiny at all. Few select committees have undertaken serious treaty scrutiny, a notable exception being the Joint Committee on Human Rights (JCHR). Treaties other than EU treaties are rarely debated in either House, and when they are it is at the government’s initiative, usually in the context of the legislaive process when new implementing legislation is needed.’ In fact, the committee system has not yet sufficiently adapted to treaty scrutiny, argues Arabella Lang, pointing to the ‘rollover’ process of EU treaties: while the FCO works with the Lords EU Committee on its scrutiny of the ‘rollover’ treaties there is no equivalent systematic scrutiny in the Commons for the FCO to engage with.

Voices demanding more thorough parliamentary scrutiny have become louder and refer to the fact that many other states – and the EU – provide for more thorough scrutiny. The debate has taken on a certain sense of urgency in the light of Brexit, as the power to conclude trade agreements, currently an exclusive EU domain under Article 207 of the Treaty on the Functioning of the European Union, will revert to the UK. While trade agreements are treaties like any other under international law, they differ in one respect from most other agreements: their scope. A casual glance at a table of contents of any modern free trade agreement shows that in such agreements, states bind themselves in areas ranging from tariffs to trade remedies, investment to labour law, environmental standards to services regulation and sanitary standards.

Lessons for reform

While it is clear that some parts of treaty-making cannot reasonably be submitted to intense parliamentary scrutiny – negotiations in particular would not be effective if conducted in the glare of publicity – most calls for reform in particular with regard to trade agreements focus on three ways to ensure proper scrutiny: requiring parliament to give a mandate for the negotiations, ensuring that parliament is kept informed about the negotiation process and finally granting parliament an up or down vote. A similar process exists in the EU, where the European Council adopts a decision authorising the Commission to open negotiations, the Council and the European Parliament is kept informed of negotiations and – after the Council decides to sign the agreement – the European Parliament gets an up or down vote on the Agreement. Criticism that this supranational process cannot be transposed to the national level misses the point that states have similar procedures in place. In the US, trade agreements are commonly negotiated under the so-called Trade Promotion Authority (TPA) or ‘fast track’. That statutory procedure relies on the fact that under the US constitution trade agreements generally require implementing legislation. TPA lays down objectives trade agreements have to pursue, ensures that Congress and other stakeholders are informed and consulted during the negotiations and limits Congress’ action for an implementing bill that follows these requirements to an up or down vote. This contribution will not suggest any particular route of reform, but instead draws four lessons from a comparative law exercise

Lesson one: The need to be realistic

States sign many agreements. Most of them are of a technical nature that does not raise particular interest in parliament. Submitting all of them to a requirement of parliamentary approval would impose an unrealistic workload on parliament for no perceivable benefit. States have imposed different criteria for selecting which treaties require parliamentary approval. Article 59 of the German Grundgesetz states that ‘Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment.’ Article 53 of the French Constitution provides that ‘Peace Treaties, Trade agreements, treaties or agreements relating to international organization, those committing the finances of the State, those modifying provisions which are the preserve of statute law, those relating to the status of persons, and those involving the ceding, exchanging or acquiring of territory, may be ratified or approved only by an Act of parliament.’ Art. 80 of the Italian Constitution reads ‘Parliament shall authorise by law the ratification of such international treaties as have a political nature, require arbitration or a legal settlement, entail change of borders, spending or new legislation.’ The European Parliament needs to consent to treaties before the Council can conclude them for association agreements, EU accession to the ECHR, agreements establishing a specific institutional framework by organising cooperation procedures, agreements with important budgetary implications for the EU and agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required – in other cases it just needs to be consulted (Article 218 of the Treaty on the Functioning of the European Union).

The U.S. Constitution seems to be an outlier in this regard, as Article II, Section 2, Clause 2 provides that the President ‘shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur’, at first sight seemingly requiring a vote in the Senate for any and all international agreement. This, however, does not reflect the American constitutional reality, which brings us to the next lesson.

Lesson two: governments do not like parliamentary scrutiny

It is hardly a surprise that governments are not particularly fond of parliamentary scrutiny of executive action, including treaty-making. Any body of law in this regard needs to be not only realistic (or else reality will pass it by), but also needs to make sure that the government will be effectively submitted to control. The US system illustrates this lesson. Article II Treaties require a supermajority in the Senate in order to receive congressional approval. For most international agreements, such a burdensome scrutiny procedure would simply imply a breakdown in badly needed cross-border coordination. US constitutional reality has established ‘executive agreements’, signed by the President alone, and ‘congressional-executive agreements’, concluded pursuant to a statute enacted by Congress, besides Article II treaties. The latter come in two flavours: either an agreement is approved ‘ex post’ after the negotiations or a statute contains authority to negotiate a treaty ‘ex ante’. It is probably no surprise that the more heavily scrutinized Article II treaties have become outdated. By December 2018 the Trump administration had submitted just one Article II Treaty to the Senate. ‘Ex post’ congressional-executive agreements, which provide a good opportunity for scrutiny, are also rare. The reality is, accordingly, that in the US most treaties do not receive or require congressional approval after the negotiations.

Lesson three: changes have knock-on effects

Finally, drafters of constitutional change should be aware that any change will bring knock-on effects. The MEP Jude Kirton-Darling described this phenomenon with regard to the EU. Originally, the European Parliament could not reject treaties. The Lisbon Treaty changed the scrutiny procedure, giving the European Parliament the power described above to accept or reject (some) treaties and creating an obligation to keep the parliament informed at all stages of the treaty-making process. The other institutions did not immediately react to these changes, failing to realise the effect of the large power handed to parliament. Only when MEPs rejected and thereby effectively killed the Anti-Counterfeiting Trade Agreement (ACTA), did the other institutions realize that they could not continue to work as before, effectively sidelining the directly elected parliament. The new power and its exercise led to the development of a system of formal and informal ways to exchange information and have an impact on agreements from the mandate through the negotiations to accepting the agreement.

One is tempted to draw a parallel to the meaningful vote process established in the EU (Withdrawal) Act 2018. The government at first did not realise the impact of such a vote, considering that its governmental majority would assure approval of the Withdrawal Agreement. The creation of the meaningful vote by itself accordingly did not have an impact on how the agreement was negotiated. Parliament did not play a larger role because of the Act. After the Withdrawal Agreement was first rejected in parliament, however, the government started to look into ways how parliamentary buy-in to the agreement could be created. Unfortunately this process is taking place with regard to an agreement that is far more important to the UK and the EU than ACTA was.

About the author 

Holger Hestermeyer is British Academy Mid-Career Fellow and Shell Reader in International Dispute Resolution at King’s College London. The author supports the Lords EU Select Committee’s scrutiny of international agreements as Specialist Adviser and writes in his personal capacity only.