The Constitutional Reform and Governance Act 2010 Commencement Order No.3 was made today 11 November, 2010. This brings into force part 2 of the Constitutional Reform and Governance Act 2010 (CRaG Act) which deals with the ratification of treaties. The Foreign and Commonwealth Office has overall responsibility for the conclusion of treaties, and leads on policy in this respect. Part 2 of the CRaG Act is the new basis for treaty scrutiny by Parliament, and replaces the former constitutional practice dating from 1924, known as “The Ponsonby Rule”, with statutory provisions.
The effects of part 2 of the Act may be summarised as follows:
Section 20 provides that a treaty that is subject to ratification or its equivalent, is to be published and laid before Parliament for a period of 21 sitting days, during which both Houses have the opportunity to resolve that the treaty should not be ratified. If the 21 sitting days expire with no such resolution being passed by either House, the Government can proceed to ratify the treaty. It also defines the legal effect of a negative vote by either House.
Section 21 provides a mechanism for Parliament to request extensions to the 21 sitting day period, in blocks of up to 21 sitting days, at the discretion of the relevant Minister.
Section 22 provides an “alternative procedure” in exceptional cases where a Minister is of the opinion that it should be ratified without following the procedures in section 20.
Section 23 makes provision for classes of treaties that are to be dealt with differently because they are scrutinised by other means, notably—(i) under the European Parliamentary Elections Act 2002 or the European Union (Amendment) Act 2008, (ii) agreements and arrangements relating to taxation, or (iii) because scrutiny of them is not for the UK Parliament that is, treaties concluded by overseas territories, the Channel Islands and the Isle of Man as authorised by HMG.
Section 24 requires that treaties laid before Parliament under section 20 shall be accompanied by an explanatory memorandum explaining the provisions of the treaty, the reasons for HMG seeking ratification of the treaty, and other relevant information.
Section 25 defines “treaty” and “ratification” for the purposes of the Act.
The Act changes the Ponsonby rule in several respects:
Part 2 gives legal effect to a vote against ratification in the Commons or Lords. It prevents the Government from moving immediately to ratify a treaty if either House votes against ratification.
If the Government nevertheless wish to proceed to ratification, the Minister must lay a statement giving reasons why. If the Commons voted against, a further 21 sitting day period must expire before ratification can take place. If the Commons vote against ratification during this subsequent 21 sitting days, the Government are prevented from ratifying the treaty. However, a statement can be laid more than once and therefore this process can continue. If the Lords vote against ratification, but the Commons do not, then a ministerial statement must be laid before Parliament explaining why the treaty should nevertheless be ratified.
The definition of “sitting days” is limited to days on which both Houses sit.
Part 2 also provides that the Minister can extend the sitting period by 21 sitting days or less (and votes against ratification will continue to have legal effect in this period).
Part 2 also requires the Minister, if the “alternative procedure” in clause 23 is being used in exceptional circumstances, to lay a statement giving reasons.[Official Report, 13 December 2010, Vol. 520, c. 3MC.]
Guidance on the ratification of treaties and part 2 of the Constitutional Reform and Governance Act 2010 is published by the Foreign and Commonwealth Office on its website (www.fco.gov.uk/treaty).