Transcripts (perhaps draft) of the Article 50 ‘Brexit’ Appeal hearings at the Supreme Court

Article 2 of the accession treaty itself mandated that the accession treaty be ratified in accordance with the UK's "own constitutional requirements", obviously a familiar phrase. We say those constitutional requirements included the passing of the 1972 Act by Parliament.

Now, the correct constitutional position, so far as ratification is concerned, is clearly set out by the late Lord Templeman writing extra-judicially in 1991, in his article, "Treaty-making and the British Parliament -- Europe".

The court will find that in volume 28, tab 351, electronic, 9688, and I would ask you to turn that up, please. This is an article published in the Chicago-Kent Law Review, volume 67. You see the title page at 9688. If we go to 9689:

"Under English law the capacity to negotiate and conclude treaties falls entirely to the executive arm of the Government. Nominally Parliament plays no role at all in the process."

If we drop down a few lines:

"An understanding of how treaties are entered into and implemented in British law depends on an appreciation of the division between the international aspects of treaty-making and the domestic aspects of implementation. Parliament has very little involvement in the former but almost complete control over the latter aspect."

Then at 9690, halfway down the page:

"The theoretical powers of Parliament in relation to treaty making may be summarised as follows ...

"(2) Parliament may prevent a treaty being ratified if the Government submits the treaty to Parliament before ratification. However, if the House of Commons carried a vote against ratification, this result would also lead ... the Government.

"(3) If treaty provisions affect private rights or otherwise conflict with English common law or United Kingdom statutes, Parliament may ensure that such provisions are not effective by refusing to pass the necessary statute which gives effect to the treaty. There again the failure of the Government to retain the enactment of the necessary provisions would lead to the fall of the Government. The threat of defeat means that a Government will always do all in its power to ensure that when negotiating a treaty, the provisions of the treaty will be acceptable to the majority of the legislature into the electorate."

Then, over the page at 9691, just above the heading "(2) Negotiations and conclusion of a treaty", four lines up:

"In practice a treaty approved by a Government which retains the support of a majority in the House of Commons will be ratified and the effect of the treaty will be given if the necessary in English law by the passage through Parliament of statutory incorporation of the provisions of the treaty."

Then at 9693, under the heading "(3) Parliamentary approbation or approval of treaties":

"Broadly speaking, Parliament will need to be involved where taxation is imposed or where a grant from public funds is necessary to implement the treaty where existing domestic law is affected ..."

And then he gives a few more examples.

At 9694, under the heading "Ratification of treaties," the last line of the page:

"It is also envisaged that between the time of negotiation and the act of ratification, the legislature of a state may require to be given an opportunity to scrutinise the proposed international agreement, even in those states where legislative involvement is greater than in the UK, in order to give the necessary approval of the treaty."

There is then a reference to Article 14 of the Vienna Convention and then:

"Ratification, once an opportunity for the sovereign to confirm that the representative did in fact have full powers to conclude a treaty, is now a method of submitting the treaty making powers of the executive to some control of the legislature, so the state may give proper scrutiny to the treaty before it allows the Government to bind the state to it."

Then under the heading "The Ponsonby rule", Lord Templeman sets out on page 9695, at footnote 11, the preface by Mr Ponsonby to the Ponsonby rule, and at the beginning he says:

"It has been the declared policy of the Labour Party for some years to strengthen the control of Parliament over the conclusion of international treaties and agreements and to allow this House adequate opportunity to discuss the provisions of these instruments before their final ratification.

"As matters now stand, there is no constitutional obligation to compel the Government of the day to submit treaties to this House before ratification except in cases where a bill or financial resolution has to receive parliamentary sanction before ratification."

So there is a distinction being drawn between, on the one hand, bills where there is a constitutional obligation, treaties to put them before Parliament because they contain fiscal obligations or change the law of the land, and separately the treaties which do not require to be so put forward, but are under the new Ponsonby rule which is coming.

We had that at 9696, and at the top of the page I come therefore to the inauguration of a change in custom and procedure. Then about eight lines down, he says:

"There are two sorts of treaties. There is the present treaty out of which a bill and a financial resolution arise which necessarily comes before Parliament and in regard to which no change is necessary ... there is another sort of treaty out of which no bill arises, and that is the sort of treaty which, according to the present practice, need never have been brought before the House at all."

That then becomes the Ponsonby rule.

So we are dealing with the accession treaty with a situation where there was in our submission a constitutional obligation to bring it before Parliament so that domestic law could be changed.

There is just one further reference. My learned friend Lord Pannick took you to the green paper in relation to CRAG. There is also a relevant passage in the white paper, which is at bundle 15, tab 167. That is electronic 5213. The relevant electronic page number is -- in this document we are looking at the white paper -- 5282 and it is paragraph 119 of the white paper. Under the heading, "Treaties in domestic law":

"In the UK international treaty rights and obligations are not automatically incorporated into national law upon ratification. They are given effect in national law where necessary by primary or secondary legislation. The Government practice is not to ratify a treaty until all the necessary domestic legislation is in place, to enable it to comply with the treaty, since to do otherwise could put the UK in breach of its international obligations. Parliament, including where necessary the devolved legislatures, had the opportunity to debate enabling legislation ... this practice applies equally to all EU treaties that require enabling legislation. Most parliamentary debates take place under this process rather than the Ponsonby rule."

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