03/08/2012
In the first two parts of this section, we looked at bringing the legislative process under the control of the people. First to
Acts of Parliament , and then to
secondary legislation, we introduced the concept of public assent. This becomes the over-riding requirement for laws to come into or remain in force.
However, as long experience with EU treaties demonstrates, a back door into the system is the international treaty, by-passing our own internal systems. Not all are of the magnitude of the Versailles Treat (signing pictured) But, at worst, they become a way of making rules which bind us, although some just involve us in spending money.
Thus, we enormous variation from the full-blown EU treaties, at one end of the scale, to the 2010 treaty on "Film Co-Operation Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Palestine Liberation Organisation for the Benefit of the Palestinian Authority".
Another example is the "Agreement for the Establishment of the International Anti-corruption Academy as an International Organization (IACA)" which entered into force in March last year.
Also included are many of agreements which are in protocol format, such as that "establishing the Fishing Possibilities and Financial Compensation provided for in the Agreement between the European Economic Community and the Government of the Republic of Cote d'Ivoire on Fishing off the coast of Cote d'Ivoire from 1 July 1994 to 30 June 1997".
Treaties are a major issue and few people are aware of the sheer volume of agreements. Currently, there are
over 14,000 treaties in force and more enter into force each year, as witness
this list produced by the FCO. And are all agreed by the government, using the prerogative power vested in the Crown.
Most treaties require ratification but, under current rules - as the
FCO explains - there is no requirement for treaties to be approved by Parliament. In many instances, though, legislation is required to put them into effect.
Nevertheless, since 1924, all treaties subject to ratification (with limited exceptions) have been laid before Parliament for 21 sitting days in accordance with the
Ponsonby Rule. During that period, a formal demand may be made for a debate and, in certain circumstances, a vote might be held.
Absence of criticism is taken as approval, making the procedure very similar to that used for "negative assent" for statutory instruments.
Thus, the most logical way to secure direct democratic approval is to adopt the same procedures that should apply to legislation. Firstly, there has to be a requirement that no treaty (of any nature) can take effect until it has received public assent.
Then, those such as EU agreements, which affect and add to constitution, will require positive assent before they can take effect. This will invariably mean a referendum.
For the rest, the negative assent procedure might apply, with time given to lodge a sufficient number of objections, following which â if that number is reached â a referendum might be held.
Whether this is wholly appropriate for all treaties though, I am not certain â some are just administrative provisions of relatively little importance. But if the objection threshold is set relatively high, there should be few spurious or unnecessary calls.
The same should apply to existing treaties, although again there are complications. Under international law, once a treaty is agreed and ratified, it remains in force unless there is specific provision for expiry. There is no provision for ending a treaty by public demand.
Despite this, the system has to change. It cannot continue to be the case that the use of the ancient Crown prerogative should be used to bind and obligate a free people. Agreements with the British state should only be valid if the British people are party to them.
