Tag Archives: Lisbon Treaty

Parliament and treaty-making: from CRAG to a meaningful vote?

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Hestermeyer (1)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’. Continue reading →

Does the Prime Minister have to trigger Brexit talks under Article 50 after a vote to leave the EU?

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In a previous blog post Alan Renwick has discussed how Article 50 of the Lisbon Treaty could lock the UK into negotiations after a vote for Brexit on terms that tilt the balance of power away from the UK and make a second in/out referendum on an improved renegotiation package, of the type floated by Boris Johnson among others, impossible. But could these problems be got round by not using Article 50, as some Leave campaigners have suggested? Here, Dr Renwick argues that the use of Article 50 would, in practice, be unavoidable.

Suddenly, the Lisbon Treaty’s Article 50 is the talk of the town. This is the legal provision setting out how a member state can leave the European Union. First, the departing state declares its intention to leave. Then negotiations are conducted between the departing state and the remaining 27. Either a deal is done and the departing state leaves on those terms, or, after two years, the departing state automatically exits (unless a unanimous vote of all the member states prolongs the window).

I spelt out the terms of Article 50 in detail in a previous post, and discussed the implications – including whether it would in practice prevent negotiation to stay in the EU on better terms in the event of a ‘Leave’ vote. In today’s Telegraph I discuss the politics around Boris Johnson’s hints of a second referendum to improve those terms. Here I focus on a narrower question that has been receiving much attention: Would the Prime Minister actually be obliged to invoke Article 50 in the event that the referendum delivers a majority for Brexit? Doing so would lock the UK into negotiations on quite disadvantageous terms. Some have suggested that Cameron could avoid this, and thus gain more flexibility for the UK in the event of a vote to leave: either in order to renegotiate Britain’s terms of membership, or to gain advantage in the negotiations for our terms of departure. But is avoiding Article 50 possible?

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What happens if we vote for Brexit?

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The EU referendum could be held as early as June so clarity is needed about what will happen in the event of a vote to leave. In this post Alan Renwick explains Article 50 of the Lisbon Treaty which sets out the procedure for leaving the EU. Under it a second in/out referendum of the type floated by Boris Johnson among others is not possible. Anybody suggesting that voters can vote to ‘leave’ safe in the knowledge that they can later change their minds is either playing with fire or manipulating voters disingenuously.

2016 looks likely to be the year in which voters get to decide whether the UK will stay in the European Union.  If David Cameron secures a deal with other EU leaders next month, we can expect to know the referendum date shortly afterwards.  Then the key players will settle their positions and decide their core arguments.  In the run-up to this crucial moment, we need clarity as to what the options are and what will happen in the event of a vote to remain or to leave.

The implications of a vote to remain are easily predicted: the UK will stay in the EU, with whatever tweaks to our terms of membership David Cameron has negotiated.  But what happens in the event of a vote to leave?  That is much less obvious.  This post sets out the processes and probes their implications.

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