The latest controversy to meet the Government in its attempts to pass the Safety of Rwanda Bill is a slightly arcane one: whether or not the House of Commons should have the chance to delay ratification of the UK’s new treaty with Rwanda.
Following the House of Lords’ decision to advise delay in ratifying the agreement, due to come into force on January 31, ministers have been criticised for not setting aside time for the Commons to debate it. The Government argues that the debate on the SoR Bill has been an adequate opportunity for MPs to debate the overall deal.
In response, the Public Administration and Constitutional Affairs Committee has yesterday called for all international treaties to require a vote in the Commons before ratification, arguing that: “scrutiny of international agreements is a core constitutional function of Parliament, but finds that current arrangements ‘do not deliver a constitutionally sufficient level of scrutiny’”.
This broader claim is not really true. Historically, the right to make treaties fell, like the power to make war, under the royal prerogative, the executive powers exercised by the Cabinet on behalf of the Crown. It was only in 2010, with the passage of the Constitutional Reform and Governance (CRAG) Act, that ministers had to lay a prospective treaty before Parliament at all.
But times change. Does PACAC have a point?
In this case, not a compelling one. The new treaty with Kigali falls squarely within the traditional ambit of foreign policy. If governments are to be able to negotiate international agreements, they need (at least in general) to be empowered to make decisions on behalf of the nation. Parliament cannot be, so to speak, in the room as well. Otherwise, ministers and diplomats would not be able to engage credibly with their counterparts from other countries.
(The same is true of Tony Blair’s woeful decision to start seeking votes in the Commons before committing to military action.)
Moreover, even well-briefed MPs are simply not going to be across the details of the negotiations to the extent those negotiating it have to be – not just completely across the provisions of the treaty, but familiar with the lie of the land with the other parties, any side-deals struck to smooth things over, and so on.
To that extent, then, this looks like another attempt by the Commons, like votes on military deployment, to muscle in on high-profile, less time-consuming duties that have not been historically part of its remit. Since Robin Cook slashed its sitting hours, it no longer does the sort of detailed debate and scrutiny of legislation that used to be the point. Grandstanding in the odd big debate on foreign affairs must seem a more congenial, if much less useful, way of bolstering MPs’ prestige.
Yet as I have argued before, there is a limit to this argument – because increasingly, international treaties extend far beyond the traditional sphere of foreign affairs and into the domestic governance of Britain.
These can be huge, pseudo-constitutional agreements, such as the European Convention on Human Rights, or smaller affairs such as the Aarhus Convention, which caps costs for people mounting legal challenges against infrastructure and housebuilding and thus fuels this country’s economic malaise.
Here, there is a real democratic deficit, for several reasons.
First, such agreements have the effect of domestic law but without a fraction of the democratic input we expect of domestic legislation. PACAC proposes a vote, but that is a very poor substitute for the succession of debates and committee stages, across both Houses, to which any Bill is subject.
Second, the future development of these laws is sometimes set by authorities over which there is no democratic political control at all. Here the ECHR is the obvious example: since we signed it, the European Court of Human Rights has been established, and transformed an agreed text into an ever-metastasizing body of law whilst expanding both the Court’s own power and the Convention’s remit. Yet no further input from the voter is sought or required.
Third, the attitude of many in this country towards international law means that it risks becoming, de facto, a species of superior law to domestic statute. A core principle of our constitution is that one parliament cannot bind its successors; any Act of Parliament can be amended or repealed.
In theory, our system ensures this in the case of international treaties. As I explained previously, we have a so-called dualist system, whereby international law only becomes domestic law is Parliament legislates to that effect.
A substantial section of political opinion believes, however, that Parliament actually exercising that right is fundamentally at odds with the rule of law. It also takes a dim view of the idea of withdrawing from international agreements altogether.
Yet if both those options are beyond the pale, international agreements end up as a form of law that is simultaneously more powerful and less democratic than ordinary domestic statute – a fundamental breach of both the principles of our parliamentary constitution and, indeed, of democratic government.
If PACAC wants to make a useful contribution to the debate around international law, this is the thorny problem to which it should apply itself. Not merely seeking more opportunities for MPs to engage in a bit of participation theatre.