RATIFICATION OF TREATIES (Hansard, 11 March 1953)

§ LORD VANSITTART
My Lords, I beg to ask the Question which stands in my name on the Order Paper.

§ VISCOUNT SWINTON
My Lords, I am afraid the answer is rather long, but as this is an important subject I think the House would probably prefer that I should read it rather than circulate it in the OFFICIAL REPORT. The noble Lord has raised a question relating to the practice of Her Majesty's Government, but before I deal with that, it is perhaps necessary for me to restate the position in regard to the ratification of international Agreements, both in International Law and in relation to our Constitution.
Internationally, there is never any necessity for ratification unless the Agreement so provides. It is entirely for the parties to decide, in the light of their own internal constitutional and political 1283 positions, whether or not they will make the Agreement subject to ratification. If an Agreement is not made subject to ratification and is expressly to come into force at the moment of its signature, that is, internationally, perfectly valid.
So far as our own constitutional position goes, as the noble Marquess, Lord Reading, said on February 18, when the noble Lord raised this question apropos of the Sudan Agreement, ratification is part of the treaty-making power in the Prerogative and is the executive act of the Government of the day. There is, under our Constitution, nothing corresponding to the necessity for Senatorial ratification of Treaties obtaining under the United States constitution. Strictly speaking, Her Majesty's Government never have to obtain Parliamentary consent before making or ratifying a Treaty.
Having said that, I should now come down to what happens in practice, which I understand is really the main object of the noble Lord's Question. Ratification occurs in practice, and it is desirable that it should so occur, in two types of international Agreement. The first is where we should not, in fact, be able to implement the Treaty without legislation. It is then necessary to ask Parliament for the legislation, and since Her Majesty's Government cannot be certain that Parliament will grant it, it is necessary that the Treaty should be subject to ratification, and that we should get the legislation passed between the time when we signed the Treaty and the time when we propose to ratify it. The other case is that in which the political importance of a Treaty is so great that Her Majesty's Government feel obliged, as a political necessity, but not as a legal necessity, to consult Parliament about it before becoming committed. Here again, it would be customary to make the coming into force of the Treaty dependent upon ratification and to stage a debate about it in Parliament at some point after signature, so that, if Parliament clearly disapproved, it would still be open to Her Majesty's Government not to ratify the Agreement.
That is the general position. So the answer to the noble Lord's Question is that, leaving aside the cases where a Treaty requires domestic legislation to become effective, it must rest with the Government of the day to decide whether 1284 a particular Treaty should be reserved for Parliamentary approval.

§ LORD VANSITTART
I thank the noble Lord for his statement and I hope I may ask for time to digest it. In view of the repeated outbursts of General Neguib, a procedure which admitted of no discussion before we were faced with an accomplished fact might not be acceptable to some of us.

§ VISCOUNT SWINTON
It is always a matter of opinion by any individual as to whether or not the Government of the day should reserve a Treaty for Parliamentary approval before it ratifies it; but, of course, the Government of the day, and nobody else, can take that responsibility. It does so having regard to all the circumstances and with the knowledge that Parliamentary resources in relation to the Government are not exhausted, and that if Parliament disapproves of the action of the Government in advising the exercise of the Royal Prerogative, it is quite open to Parliament to pass a vote of censure on the Government, and that would be the end of the Government.

LORD STRABOLGI
The noble Viscount gave a clear account of the position legally and politically, but is it not the fact that, in recent years, in the last generation particularly, all important instruments and Treaties have been brought before Parliament? The case brought forward by the noble Lord, Lord Vansittart, surely falls into that category, and yet the Government appear to be departing from what has become an established practice.

§ VISCOUNT SWINTON
Most certainly not. The Lord Chancellor, I am sure, would confirm this. No such practice has grown up. There has been no change in recent years in the position that it must rest with the Government of the day to make the decision. There has certainly been no change.

§ LORD VANSITTART
It has been the practice that Agreements of real importance ought to be stipulated as subject to ratification. Surely some of us would not be prepared to accept this in respect to something even more important, like the impending Agreement on the Suez Canal.

§ VISCOUNT SWINTON
Whether a particular Agreement should be reserved for Parliamentary approval before ratification must be a matter of opinion, and in a general answer I am not prejudging any case that may arise as to any Agreement that may be entered into in the future. But I do not think that any constitutional lawyer, including the noble Lord, Lord Vansittart, himelf, who was in a prominent position in the Foreign Office for a long time, would dispute the constitutional position which I have laid down—namely, that the decision must rest with the Government of the day.

VISCOUNT ELIBANK
Is not the position extremely involved, according to the noble Viscount's answer, and does it not clearly call for a special review in view of present day circumstances? If the Government were to step in, as he suggests, in particular cases, would that not involve stepping in on the Royal Prerogative?

§ VISCOUNT SWINTON
In making the Treaty the Royal Prerogative is exercised. It is necessary for a Government to ratify where domestic legislation is required and where the Treaty cannot become effective unless there has been domestic legislation. Where no legislation is required it must rest with the Government of the day to decide whether it is a case reserved for the approval of Parliament before the Treaty comes into effective force. I think the two cases are simple and I have no doubt at all that I am stating the constitutional position.

§ LORD KILLEARN
May we be told why, in this case, it was decided not to include in the Agreement a clause providing for ratification?

§ VISCOUNT SWINTON
Because in all the circumstances the Government of the clay thought they were acting in the right way.

§ VISCOUNT HAILSHAM
No one will dispute that the noble Viscount has given a perfectly accurate summary of the legal position and has described the constitutional position as it has always appeared to the Executive of the time. But is it not an extremely questionable practice to embark on an Agreement of this character, and not merely to omit the formality of ratification but also not to 1286 seek of either House of Parliament an opportunity for discussion and advice? Does not the noble Viscount think that the experience we have had at the hands of the other party to this highly controversial Agreement ought to teach the Government next time to obtain Parliamentary approval, remembering that they depend for their continued existence as an Administration upon the continued confidence of Parliament?

§ VISCOUNT SWINTON
The noble Viscount has repeated what I have already said—that in taking a decision as to what is desirable and right Her Majesty's Government will always take into consideration the fact that if they were not supported by Parliament in the executive action they take, they would cease to be a Government. It is a matter of opinion which anybody can hold whether in relation to something that has happened in the past Her Majesty's Government have acted wisely or unwisely. I must not be led, and I am sure no such experienced Parliamentarian as the noble Viscount would expect me to be led, into the consideration of a hypothetical case in advance, and say in such a case what the decision of Her Majesty's Government would be.

LORD STRABOLGI
Is it not the simple fact here that the Government are afraid of their own supporters in both Houses?

§ VISCOUNT SWINTON
We are not afraid either of our supporters or our opponents.

§ VISCOUNT STANSGATE
Why is this described as a Treaty at all? The Sudan Agreement is an Amendment of the Agreement presented by Sir Evelyn Baring to the Khedive in 1899. Why is it therefore called a Treaty, and said to require all the procedural safeguards that a full treaty would enjoy?

§ VISCOUNT SWINTON
I am not sure that I should like to answer that question without notice. The White Paper, Cmd. 8767, is called Constitutional Documents Relative to the Sudan and the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Egyptian Government. However the thing is described—and it is described as an Agreement—it is in 1287 effect a Treaty because a Treaty is an agreement between two sovereign parties.

§ EARL JOWITT
I entirely agree with what the noble Viscount has said as to the correct constitutional practice. It is for the Government of the day to decide whether in any particular case to ask for Parliamentary approval in advance. But I do not think the noble Viscount recognises that in the last thirty or forty years a very considerable change has been accepted; and nowadays the convention has grown up that, save in exceptional cases, Parliament is asked in advance. I do not say that that is an absolute rule, and I do not dispute that the Executive have authority to decide, but in my experience the convention has altered during my political lifetime. Nowadays, Parliament is asked in advance far more than was the case in the old days.

§ VISCOUNT SWINTON
I agree with the noble and learned Earl. In the old days, probably, Parliament was seldom asked. To-day, Parliament is more frequently asked. I think that is certainly the case in very important matters. There may be cases of vital urgency where it maybe extremely desirable to make an Agreement which, had there been ample time, the Government would have submitted to Parliament. The noble Lord, I think, has himself been in that position. We are certainly always anxious to take Parliament into our confidence, and I think we have proved that in practice. But in cases such as I have indicated the Government of the day must take the decision. We have to act and then to justify to Parliament.
There is also the other side of the matter. We have entered into a very large number of Agreements in recent years—I think the noble Lord himself was concerned in many of them—where ratification was necessary, because what was done under the Treaty could not be fulfilled without domestic legislation in this country.

§ VISCOUNT HAILSHAM
If the Government are so confident of support in a matter of this kind, even if they have not time to ask Parliament before they enter into these commitments, would it not be 1288 desirable for the Government to go to Parliament and, by virtue of a Resolution, seek some approval from one House or the other of what they claim to have done?

§ VISCOUNT SWINTON
I think that would be an unusual course where action had been taken. I think the more natural course would be for a debate to take place on a Motion challenging the action of the Government, if it was challenged.

§ VISCOUNT SIMON
My Lords, confirming what the noble Earl who leads the Opposition has suggested, is it not the fact that the course which he suggests had its origin in the action of the late Lord Salisbury's Government, when they submitted to Parliament a Treaty which surrendered Heligol and to Germany, and also, I think, made some arrangements about Zanzibar?

§ VISCOUNT SWINTON
That may well be so.

§ LORD VANSITTART
Before I leave this subject may I, with great respect to the noble Viscount, say that putting down a Motion after the fact has been accomplished is not the same thing as having opportunity for amicable discussion on ratification. I for one, in this case, should not have put down a Motion on this subject, although there are points in the Agreement which I do not particularly like, because of the inevitable effect in the Sudan. I feel that it would have been a great tactlessness on my part to do such a thing. But I should have tried to put several points if we had had an opportunity of discussion on ratification.

§ VISCOUNT SWINTON
I was not at all saying that asking, after the event, for approval of something you had done, or answering after the event for something you had done, was at all the same thing as asking for approval before you do a thing. That applies in every relationship of life. But what I did say was that it must rest with the Government of the day, having regard to all the circumstances of each particular case, to decide which of the two alternatives they thought, with their full responsibility, it was right to adopt.