Tuesday 5 July 2022
Ordered by the House of Commons to be published on 5 July 2022.
Members present: Mr William Wragg (Chair); Ronnie Cowan; Jackie Doyle-Price; John McDonnell; Tom Randall; Lloyd Russell-Moyle; Karin Smyth; John Stevenson.
Questions 159 - 207
I: Professor Richard Gardiner, visiting academic, University College London, and former legal adviser, Foreign and Commonwealth Office; Penelope Nevill, Twenty Essex Chambers, representing the Bar Council.
Written evidence from witnesses:
Examination of Witnesses
Witnesses: Professor Richard Gardiner and Penelope Nevill.
Q159 Chair: Good morning and welcome to the Public Administration and Constitutional Affairs Committee. Today, the Committee is continuing our inquiry into the scrutiny of international treaties in the 21st century. The focus of this morning’s session will be how treaties and international obligations operate on the national level and how they are implemented into domestic legislation when it is necessary so to do. We are joined this morning by two experts in the field of international law, Professor Richard Gardiner, visiting fellow at University College London and former official at the Foreign and Commonwealth Office, and Penelope Nevill of Twenty Essex Chambers, representing the Bar Council of England and Wales. Good morning to you both. I wonder if you might introduce yourselves, just for the record.
Professor Gardiner: I am Richard Gardiner. I am an associate of the faculty of laws at University College London. I practised as a barrister. I then spent 12 years as a legal adviser at the Foreign Office and since then have been working in academic work at University College London, where my special interests have been international aviation law, foreign relations law and the law of treaties. I have written a general book on international law and a book studying the interpretation of treaties.
Penelope Nevill: Good morning. I am a barrister specialising in public international law at Twenty Essex Chambers. I am also a visiting fellow and lecturer at King’s College London, where I teach international law. I have previously taught international law and EU law at Downing College in Cambridge. I was a fellow at Downing and at the Lauterpacht Centre for International Law. I have also appeared as counsel in various international tribunals and courts, including the International Court of Justice, and at all levels of the English courts, up to the Supreme Court.
I am also a member of the international committee and a vice-chair of the international trade working group committee of the Bar Council of England and Wales and a committee member of the Commercial Bar Association. It is in my capacity as a Bar Council committee member, who has worked as an academic and practitioner for nearly 20 years in public international law, that I appear before you today. I might add that, as a member of the Bar Council’s international trade working group, I have also been involved as an industry stakeholder in negotiations concerning legal services in the TCA and other FTAs, and as a participant in TAG.
Q160 Chair: Thank you both very much indeed. My initial question is to Professor Gardiner, please. What are the mechanisms through which treaty obligations can be implemented within a state?
Professor Gardiner: The main mechanism within the United Kingdom is though legislation. There are two principal methods by which treaties are implemented in the law of this country. First is legislating the text. That is to say setting out the text in the Act of Parliament or in schedule, setting out the wording exactly as in the treaty.
An example of that is in the law of carriage by air, where there is a complete international code relating to conditions of carriage, to liability for death, injury, loss, delay and cargo. That was the Warsaw convention, initially in 1929, where the whole text was scheduled in an English translation in the Carriage by Air Act 1932. That has been progressively replaced by successive versions. It has not been completely replaced, but updated for those countries that accept it, most recently by the Montreal convention of 1999.
That system suits texts where there is a clear statement of rules that can be directly applied. It would be fair to say that most treaties do not lend themselves to the entire text being legislated in that way. Only those parts of the treaty that are capable of having direct application in the law of the United Kingdom are set out in the treaty.
Q161 Chair: Are there any other mechanisms, other than primary or indeed secondary legislation, for implementation within this country?
Professor Gardiner: If I may, I will go back to the primary legislation. The second method, distinct from scheduling the complete text, is what I describe as the transformation method. That is where the obligations in the treaty are set out in suitable language for an Act of Parliament, that method being appropriate where the statement of obligations in the treaty is not a set of rules that can be applied directly within domestic law, but some form of action is required to implement the treaty.
For example, there is the Hague convention relating to courts taking evidence from another jurisdiction. There is an Act that gives powers to the courts to make requests to courts in other jurisdictions. Then there are provisions relating to how that is actually accomplished. That is the transformation method.
I should say that both those methods, the direct textual method and the transformation method, are sometimes described as direct or indirect incorporation, but I do not find that an entirely helpful term. It is really a question of implementing the obligations, rather than incorporating a text.
Q162 Chair: That is interesting. As a follow-up, how is it determined which parts of a treaty will require that implementing legislation?
Professor Gardiner: The Committee has heard, I think at its last evidence session, that the obligation in the Vienna convention is to give full effect to the commitments in the treaty, paraphrasing. Therefore, it is really whichever of those two systems is the best system that is used for giving effect to the treaty.
As I tried to indicate, the nature of the treaty may be a set of rules, which can be directly applied, in which case the former technique of legislating the actual text is the better choice. The other method of transforming the treaty or fulfilling its obligations by legislative words, by legislative enactment, is more appropriate where the text is not suitable for direct application. In many instances, it is a bit of both.
If I may just complete, the other two, much lesser in quantity, methods of implementing treaty obligations in domestic law are where courts will take judicial notice, in effect, of a treaty that is relevant to a question of international law and that has not been brought into domestic law. The Vienna Convention on the Law of Treaties is a prime example of that. The courts have frequently made reference particularly to the rules of interpretation, but it has never been the subject of an enactment in this country.
Finally, the residual possibly of prerogative or administrative powers is very diminished now. As an example of that, the refugees convention in the early 1950s was given effect simply by the Home Office using powers to admit foreign nationals. That, of course, became the subject of immigration rules. With the 1993 Asylum and Immigration Appeals Act, that was, in effect, put on a statutory basis. There are other examples I could give of that.
Chair: I think we have probably touched on those other examples, but I am grateful for those opening answers.
Q163 Lloyd Russell-Moyle: You are talking about implementing legislation when it is done. How is it drafted? Is it specific—you might have a specific Bill—or can it be part of wider pieces of legislation?
Professor Gardiner: Both possibilities can occur. If it is of the kind that I described, in 1929 the Warsaw convention was a complete new code, so that obviously lent itself to a specific piece of legislation, the Carriage by Air Act, setting out the complete text.
Many treaties are just on part of a subject or may be amending another treaty, in which case sometimes there is a combination of matters within a Bill. For example, the Carriage by Air and Road Act of 1979, as its name implies, dealt with treaty questions relating to both carriage by air and carriage by road. They were put together because there were just some small amendments needed for the implementation of certain issues in carriage by air. That was a convenient way of not taking up too much parliamentary time.
Q164 Lloyd Russell-Moyle: Is there a specific process in which it is identified to Parliament that this bit of the wording is for treaty obligation fulfilment and this bit of wording is our gold plating or our decision? Is that just something that is maybe in the explanatory notes, but there is not a formal way that that is delineated?
Professor Gardiner: There is perhaps an anterior question, which is whether it is clear that the treaty is being given effect by an Act. That is sometimes clear from the name of the Act. Therefore the Bill will indicate which treaty it is dealing with.
As regards the actual text, there are notes on clauses and the explanatory memorandum. If the treaty text and the way in which it has been reproduced in the Bill does not make it clear, that should be made clear in the explanation.
Q165 Lloyd Russell-Moyle: Penelope, please jump in if there are things that you wish to contribute here. Is it a single piece of legislation, or can you have multiple pieces of legislation enacting one treaty?
Professor Gardiner: There can be multiple and that can make the picture quite difficult, particularly if one is researching a treaty to see how it was implemented. For example, part of the Vienna Convention on Consular Relations is given effect by a specific Act, but the Act only schedules certain provisions from the convention.
There is one particular provision relating to the rights of foreign prisoners to be notified that they are entitled to have access to their consul and to have that access freely if they desire it, which is not scheduled to the Act. It was given effect by, originally, instructions to police and now the code under the Police and Criminal Evidence Act of 1984. Codes are now subject to a resolution by Parliament, but that is a point that, in preparing for this, I found very difficult to track down. The Act simply omits the relevant article of the treaty and one has to find out how it has in fact been respected.
Q166 Lloyd Russell-Moyle: My follow-up question, which you have almost just answered, is how easy it is to identify where treaties have been enacted, in which bits of legislation. Is there any central depository, archive, place, that people can ascertain this?
Professor Gardiner: I have not found it.
Penelope Nevill: I can probably jump in there. A treaty like a trade treaty is often implemented through various pieces of legislation and there might not be any implementing legislation if UK law or practice is already considered to be compliant with the treaty obligation. For example, free movement rules or obligations might already be met under existing immigration rules, or may require a change to the immigration rules.
Another example that I have come across recently is data flow and related personal protection provisions in a trade treaty. They may, for example, be implemented by an adequacy decision made under the UK GDPR. I do not know, when you looked at that treaty, whether you would be thinking that that is what you needed to look at to work out how the UK was going to comply with its obligations to protect personal data. The provision I am talking about is in article 14.8 of the CPTPP—that is the Trans-Pacific Partnership Agreement—which requires the parties to have in place provision for protection of personal data. That includes third-country transfer rules, which in the UK is dealt with by the GDPR.
To echo Richard, there is no easy way to find out how every aspect of a treaty has been or will be implemented. It often requires specialist expertise. You might need to go to a textbook written by a specialist author to really understand it. It can also change, so you cannot always rely on the books.
Q167 Lloyd Russell-Moyle: The Government might have a view that they have implemented it in one way because they have changed their practices, but is there any ability to then challenge or scrutinise that at all? Is it all just done on a wink and a nod?
Penelope Nevill: That depends on the circumstances. If a Government say, by making a decision or passing a piece of secondary legislation, that they are purporting to act in accordance with the UK’s international obligations, their failure to do so is challengeable by way of judicial review in the domestic courts. That is a route by which you might challenge the Government’s interpretation and application of their international obligations.
That is not the case with primary legislation. Primary legislation prevails over any inconsistent international obligation that the UK has assumed.
Q168 Lloyd Russell-Moyle: Is it the case that it requires someone to identify that they think the obligation is not being fulfilled in secondary legislation or action of the Executive? Then the only recourse is to test that out in the courts. The Government could then pop along and say, “You did not look at this obscure piece of thing that enacts it”. There is no way of actually telling, until you have gone to the courts and tested it. The Government do not say anywhere beforehand.
Penelope Nevill: Not necessarily, but, in a way, you could say that often industry actors will be having a dialogue with Government in advance, so things might be flushed out through that route. In a practical sense, certainly if litigation is being contemplated, you would have a pre-action protocol that ought to flush those types of issues out if they have not been flushed out in advance.
As a practitioner, we often spend quite a lot of time digging around the internet and Government websites to try to work out what the position is. If we cannot work it out, you could do it through a pre-action letter.
Q169 Lloyd Russell-Moyle: I suspect then that only things that are of serious and grave nature end up getting to that extent. There are lots of things that we just do not know about. Would that be a fair summary?
Penelope Nevill: I think that that is a safe supposition, but it would require further study. One thing the Bar Council has suggested in its evidence is a proper survey of UK treaty making and implementation in order to understand the extent to which the type of problem that you have identified arises. It may be that it does not in practice all that often.
Q170 Lloyd Russell-Moyle: You mentioned CPTPP. With trade treaties, often there is an obligation for our Government to demonstrate to the CPTPP that we have implemented that. Does our Government then inform those international bodies, “Here is how we have implemented it”, or, again, do those international bodies just trust that the Government have implemented it and there is no check?
Professor Gardiner: I do not think that one can give a general answer that would apply in every case. The international bodies, in many instances, have committees that receive reports on how a treaty has been implemented. The OECD convention relating to bribery has a whole programme for countries to report progressively on how they have been implementing the treaty. There are obviously human rights committees. The United Nations has human rights committees that receive regular reports on how the treaty is being implemented or respected.
Q171 Lloyd Russell-Moyle: Are those reports that are submitted by our Government to those international bodies a basis that can then be used in British courts to demonstrate whether the Government have fulfilled their obligations?
Professor Gardiner: I cannot give a decisive answer on that, but I think that the position would be more likely to be that a report might prompt or instigate action, rather than actually influence the courts. The courts have increasingly taken into account international material in cases where international obligations under treaties have arisen.
Q172 Lloyd Russell-Moyle: This is very useful. Moving on to the drafting of the text in the implementing legislation, what impact does that drafting in domestic implementing legislation have on the text of the treaty itself or the interpretation of the text?
Professor Gardiner: The way in which a treaty is implemented in the first manner that I described leaves it very largely to the courts to interpret the wording of the treaty as scheduled. In the example I gave, the Carriage by Air Act and the Warsaw convention, the English text was scheduled to the Act. That posed a problem, because, in one particular article, the word “ou” in French had been translated as “and” rather than “or”. In the document of carriage, it was unclear whether four items—the weight, dimensions and so on of the item—had to be listed, or only one of the four items.
In that case the whole text had been, rather uncharacteristically, scheduled, because usually the final clauses, the last part of the treaty, are omitted from the schedule text. Because that schedule text contained the words that the text was in French, the courts felt that they should look at the French text. In the case concerning that, the judge said that, if there is an ambiguity or uncertainty in the text, the obligation of the parliamentary draftsman is to retain that ambiguity, even if they are translating it, not resolve it. Replacing the word “ou” by “and” was not the proper way to legislate that treaty and the courts looked at the French text, being told, unfortunately, by two French experts that the text was clear but had opposite meanings.
Q173 Lloyd Russell-Moyle: That is useful. The courts have sometimes gone back to what the original text said, if there is a link in the legislation that allows them to do so, but only if that link exists.
Professor Gardiner: It is not necessarily a link on the face of the legislation. There is a case, Salomon v Commissioners of Customs and Excise, where the link was purely the coincidence of the wording in the legislation and the surrounding circumstances. There was nothing that specifically linked the wording of the legislation to the particular treaty. The courts nevertheless felt that there was an irresistible connection and that they should therefore use the treaty and the international material in interpreting the legislation.
Q174 John McDonnell: We are simple people. What we were hoping for, I think, is that, when a treaty is signed, you then have a family tree that traces the obligations of that treaty into the legislation and the legislation is specific about its relationship with that. I can see that to a certain extent being simple, when it is the first element of translation, no matter what language, into the text overall. I can see some difficulty in the transformative legislation that you refer to.
Surely it is not beyond the wit of human beings to be able to develop that system. I do not understand why it is not there. Surely when the Foreign Office agrees a treaty, or a Government Department agrees a treaty, there will be a tracing of those treaty elements into legislation that could be clearly identified. I am searching for the holy grail here, am I?
Professor Gardiner: Sadly, because so many treaties involve different bits and pieces of legislation—existing legislation grafted on to the common law—it is extremely difficult to see how that could be done, unless someone was prepared to perhaps go through the treaty series, hundreds of treaties, and produce a definitive work, listing all the relevant sections of legislation. Even that would be enormously complicated, because there are parts that apply to overseas territories. There are parts that apply to different situations. The legislation is immensely complex in many cases.
Q175 Lloyd Russell-Moyle: Would it be easier to do that going forward, rather than looking backwards? Is it still a ginormous task?
Professor Gardiner: It might be easier if one were taking what has just been described, pieces of international treaty making that are the first in the series. So much nowadays is treaties that are building on earlier treaties or taking account of further developments.
John McDonnell: It sounds like your next book, Richard.
Penelope Nevill: From the perspective of a practitioner and the Bar Council, we would welcome some form of mechanism, perhaps even if it is informal, or something set up through a scrutiny committee and the information requested, that set out how a treaty was proposed to be implemented by the Government, so which parts of which treaty attach to which piece of administrative practice, immigration rules, or which piece of primary legislation.
That said, it makes sense for certain types of treaty, such as trade treaties, to have a centralising primary legislation, because the treaties are very similar. They are all implemented by the same Government Departments in certain respects, so tariffs through customs and so forth. There, it makes sense to not just have one piece of legislation but to have, in one place, an explanation of which bits are being implemented by which types of primary and secondary legislation. That would be useful.
Q176 Lloyd Russell-Moyle: Penelope, we have heard that implementing legislation for trade deals is not necessarily an adequate substitute for debate on the treaty itself. From your perspective, to what extent can debates on implementing legislation give a practical or even a mistaken understanding of what is then in the treaty?
Penelope Nevill: It depends on the treaty in question. That goes back to the points that Richard was making about the types of treaties and how they are implemented, whether it is one piece of legislation you are talking about or implementing through a range of instruments. In that case, debating one instrument, a statutory instrument, or a piece of primary legislation, perhaps might not shed much light on the agreement as a whole. In that case, you would probably want to look at it as a whole.
Q177 Lloyd Russell-Moyle: Do you think that there should be a requirement for a treaty as a whole to be debated before implementing legislation is considered or introduced? At the moment, it seems like it is often the other way round.
Penelope Nevill: It is difficult to argue that there should be a requirement. In fact, it might not always be useful. What may be more useful is to consider the text of the treaty together with the implementing instruments at the same time. I do not think that there is necessarily any one right way of doing it, but perhaps that is something that could be looked at in a further study of, say, comparative practice of other jurisdictions, which could take into account practice within the UK itself and see what works and what does not in order to achieve the optimum outcome. I do not think that there is necessarily an argument for having one firm rule that it should be considered in advance or not.
Professor Gardiner: This may touch on a broader issue that is of concern to the Committee, which is the various stages in the life of a treaty. The idea of its conception, which may be a matter of foreign relations and interaction between states, is part of the general work of Parliament in observing what is going on.
During the course of negotiation, it is clear that it is very difficult to have scrutiny of negotiations while they are taking place, although there may be opportunities for some input, as there is for specialist bodies to have some input into negotiations as they go along.
The third stage is when there is a final text and there is to be consideration of whether that is acceptable and something that the United Kingdom wishes to become a party to. All that precedes the question of how to implement the treaty. Because the stage of whether to become a party and implementing the treaty is at the legislative stage, what seems to happen is that those two get rolled up. The opportunity for scrutiny of the treaty comes at the stage when the treaty is proposed to be implemented and when legislation is being considered.
Q178 Lloyd Russell-Moyle: There is a lack there of some of the pre-processes that you might see in other places. Hopefully our trip to Norway will start that comparison of other areas.
Penelope Nevill: I was going to add one point to that. There are a number of treaties, particularly at the UN level, in which there are, if you like, a negotiating mandate set out by the UN itself, which is public. There are various versions of the text, for example, of the Paris agreement that were public earlier in 2015, before the final text was agreed. There are other ways and means for Parliament to become informed of what is going on and perhaps inform the negotiating mandate, aside from sitting down with officials.
Q179 Lloyd Russell-Moyle: In the UN processes, there are very often spaces for observers, including the IPU in environmental law, the major groups, major stakeholders, whatever you want to call them, through civil society, and other important people. Is that model appropriate for bilateral treaty series? I can see it works at the UN, because you have people with observer status. There is an accreditation process. People get through the door. Could you ever implement that in a bilateral kind of forum?
Penelope Nevill: That depends on the treaty and the circumstances.
Q180 Lloyd Russell-Moyle: It requires treaty-by-treaty analysis on some of these things.
Professor Gardiner: In my experience, on the bilateral treaties that I was involved in negotiating, in, as it were, the backgrounds, there were often advisory committees in which the Departments had contacts with people in the relevant industry or other bodies. If it was a staged negotiation, which it very often was—that is to say with two or three sessions spaced apart—at the end of each session there would be a, quite often confidential, communication of what was going on to ascertain the views of this body that was advising in the background, to see whether things were going in the right direction and whether there were any particular points that they could help with. One consideration in my mind was whether, if there is a possibility of a confidential communication as the negotiations are going on with a body of that kind, there could be some link with a parliamentary scrutiny body in that way.
Lloyd Russell-Moyle: I do not want to go into other areas that we are going to debate, but the European Parliament and the US Senate have some sorts of mechanisms for that confidential sharing of documents. Maybe that is an idea that you pose.
Q181 Chair: Ms Nevill, when looking at legislation that implements an international obligation, to what extent is the intent of Parliament looked at, as opposed to the international intent, should the matter come before a domestic court?
Penelope Nevill: The parliamentary intent is the governing intent in statutory interpretation and it prevails. In principle, under the dualist system, the court is not implementing international law. It is implementing domestic law, which may have incorporated a treaty obligation or treated customary international law as a source of the domestic law.
In terms of principles of statutory implementation, that means that, where there is an outright conflict between a provision in the treaty and the domestic legislation, the domestic legislation prevails. However, where more than one interpretation is reasonably possible, one is consistent with the treaty obligation and one is not, and there is no suggestion that Parliament’s intent was not to comply with the UK’s international treaty obligations, that treaty-compliant interpretation will be preferred.
Q182 Chair: Building from what you have just said, where existing legislation is used to implement an international obligation, how is that interpreted?
Penelope Nevill: That is a good question. Where the legislation is later in time, that does not pose a problem. I think that your question relates to the situation where the legislation predates the treaty. Then the presumption may still be applied, but you will be looking much more closely at all the circumstances to ascertain Parliament’s intent.
For example, where you have an FTA implemented under the new trade legislation, the parliamentary intent would be clear that it is intended to be applied under statutory instrument under that legislation, or by some other means under that legal framework. However, where you have perhaps unrelated pieces of legislation, the parliamentary intent might be more difficult to ascertain, but in principle—and this is for very good reason—the trend of the courts is otherwise to comply with the international obligations.
Professor Gardiner: The courts at present have largely moved to the position where, if they are interpreting a treaty, they will interpret the treaty. The principle, which was described by Lord Hoffmann in a case about 15 years ago, is that they are actually interpreting the statute. There seems to be a variance between the judges as to whether they are in fact interpreting a statute or the treaty that the statute implements. Since there are different sets of rules for interpretation, that is a question that needs clearer resolution.
Q183 Jackie Doyle-Price: We are getting deeply technical. To expand on that series of questions, we have related it to where there is a conflict between statutes and treaties. Perhaps in a broader context, what role do the courts play in interpreting international law in a domestic context? To what extent does the domestic court system have regard to international law?
Professor Gardiner: The observation that I made a few moments ago is at the heart of it. The courts have increasingly come to recognise that, when they are interpreting treaties, the appropriate set of rules for interpretation is the international law set of rules for interpreting treaties. Unless there is a clear indication, in what I described as a transforming statute, as to what meaning should be given to the treaty, the courts will attempt to interpret the treaty in the sense in which an international treaty should be interpreted.
Penelope Nevill: That principle of statutory interpretation has been well established by Lord Diplock in a case called Fothergill v Monarch Airlines Ltd, dating back to 1981. When we act in these cases, there are fairly clear principles of statutory interpretation that we work with.
In all practical terms, when you are sitting in the courtroom or drafting pleadings, it might look as though a domestic court is interpreting an international treaty by reference to the rules of international law for interpreting treaties. That is because that is what English rules of statutory interpretation require.
Equally, if the case raises an issue where one of the parties alleges that there is a rule of customary international law that has a bearing on their case, customary international law is considered to be a source of the common law, at which point again the domestic courts are into working out whether the alleged rule is a rule of customary international law. They will be using the rules for identifying rules of customary international law in order to make that determination.
That determination is obviously a decision of a domestic court. It is binding only within the UK legal system. That said, persuasive interpretations of a treaty obligation, or determination or identification of a customary rule of international law, will be considered state practice, which is relevant on the international level as state practice for interpreting a treaty or going to the identification of custom. They can also be hugely influential statements for international practitioners on a provision of a treaty or a rule of custom.
Q184 Jackie Doyle-Price: We are having this discussion in a very legalistic way, but the elephant in the room is the politics, of course, with all these things. In the Bar Council’s evidence, you say that, where a treaty is not incorporated into domestic law, courts may interpret the law to avoid placing the UK in breach of international obligations. Are there any limits to what the courts may do in that regard?
Penelope Nevill: Yes. One particular limit has come through, which has developed in case law. That is where a decision-maker is exercising a discretion. There is no obligation to exercise the discretion in accordance with a treaty obligation assumed by the UK that has not been incorporated into domestic law. They can take it into account, but they are not required to do so.
There is also authority for the proposition that, in circumstances where it is obvious that Parliament could have implemented a treaty but has not done so for various reasons, the common law should not be interpreted to evolve in line with the treaty. In that context and those circumstances, it is not clear that that would be in line with Parliament’s intent. It depends on the circumstances of the case, but certainly there is authority that, in certain situations, the outcome is not determined by the international treaty obligation.
Q185 Jackie Doyle-Price: I guess the crucial thing there is this word that keeps coming up between the two of you: intent. Again, it relates to these conflicts between Parliament and the courts where intent may be perhaps in question. What is your reflection on the Supreme Court’s position in the Miller case that the Crown cannot enact, amend or repeal legislation by agreeing to treaty and perhaps, vice versa, that, having agreed treaty obligations, further legislation cannot be used to amend that?
Penelope Nevill: The Miller decision was in line with well-developed case law of the English courts dating back to, I think, the Parlement Belge in the 19th century. Richard will correct me if I am wrong. Where an individual has rights and obligations under domestic law, whether or not they flow from a treaty that has been incorporated, those rights and obligations, that law, cannot be changed except by an Act of Parliament. The Miller decision was, in my view, consistent with that well-established constitutional principle.
Q186 Jackie Doyle-Price: What are the domestic implications if the UK were to breach international law obligations?
Penelope Nevill: In principle, there are none, because they operate on two different levels. The breach might put the UK in breach of international law, but that does not necessarily sound in the domestic legal system.
That said, the UK’s breach of international law might have practical consequences for individuals and residents within the United Kingdom, because the counterparties to a treaty may use that breach as a basis to take countermeasures in response, which might have practical implications for people within the UK. Also, in serious cases of alleged material breach, it might cause the other state to terminate that treaty with the UK, or its participation in that treaty with the UK. The consequences take place on the international level.
Q187 Jackie Doyle-Price: In those circumstances, can the UK courts enforce international law?
Penelope Nevill: In that case, in accordance with the dualist system, they are enforcing the domestic law. In this scenario, I think you are suggesting that it is clear on the domestic law that what the law is at the domestic level does not reflect what the obligation is at the international level.
Q188 Jackie Doyle-Price: That would presumably be reflected in judgment. I guess that you are telling us here that, ultimately, it is domestic law that trumps, but international law is context. That is oversimplifying it. For a layman politician like me who is trying to analyse what is happening with our legislation vis-à-vis international obligations, that is the meat of what we are getting to. It is domestic law that trumps. International law gives context. The courts could give a judgment that highlighted where there was a conflict, presumably.
Penelope Nevill: That may well be the case
Q189 Jackie Doyle-Price: Professor Gardiner, do you have any reflections on that, where domestic law and international law conflict and what the action of the courts should be?
Professor Gardiner: I do not really have anything useful to add to what has already been said. There have been some instances where the question has been one of development of common law by reference to international obligations, but in treaties that have not been brought into domestic law. There was a case concerning young people and the test of recklessness where the UN Convention on the Rights of the Child was taken into account by some of the judges in whether the test of recklessness should be moderated in the case of children, because of their lesser ability to perceive the consequences of their actions. Other than situations of that kind, I do not think that there is anything I can add.
Q190 Karin Smyth: Can we move to another layer of complexity, perhaps, with devolved Administrations? When international agreements are reached that touch on areas of devolved competencies, can you talk us through how they are implemented and what sort of discretion devolved Administrations may have in producing implementing legislation?
Professor Gardiner: I am afraid that is not an area that I have any first-hand experience of. There are some analogies perhaps, not very good ones, with work I did in relation to overseas territories, where there needs perhaps to be analysis in the terms that I suggested earlier. The question of consultation at the pre-negotiation and the negotiation stage, the question of whether to become a party to a treaty and the question of implementation, to my mind, are all are separate stages and present parallel difficulties, perhaps, in the case of devolved Administrations to those that I have encountered in the past in relation to overseas territories.
I have looked at the work of the Foreign, Commonwealth and Development Office in the memoranda that it produces. I have one that I looked at recently, the explanatory memorandum on the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence. When one looks at the consultation section, one sees that the consultations were tiggered, in effect, by the regular progress reports that were being made on progress towards implementation of preparations for becoming a party to the convention. That triggered consultation with the devolved Administrations, as is reported here.
Penelope Nevill: In the preparation of our written evidence, the Bar Council identified the 2013 concordat on international relations between the UK Government and devolved nations, which stipulates that the UK Government will consult with the devolved Administrations about its negotiating position as regards both devolved matters and non-devolved matters that impact on devolved matters. However, we were not able to ascertain how well that is working in practice.
The discretion that a devolved Administration may have in implementing a treaty that falls within its devolved competence will depend, to an extent, on the terms of the treaty provisions we are talking about. Some of them are obligations of result, rather than very prescriptive, in which case there is more than one way of meeting the treaty obligation. You could anticipate in that case that a devolved Administration might do it or look at doing it slightly differently. It all depends on the circumstances of each case.
Q191 Karin Smyth: Doing it differently would be acceptable.
Penelope Nevill: That is a question I cannot answer, as regards the relationship between the Governments within the UK. Certainly, as a matter of international law, it would be acceptable.
Q192 Karin Smyth: It would be considered a domestic issue around implementation. Is that right?
Penelope Nevill: Yes. The UK’s position internationally would be that the devolved Administration is meeting its obligations through this route.
Karin Smyth: I appreciate that we might not be able to go much further on this, but can we talk about conventions around negotiations? Are either of you aware of a similar convention for the requirement of devolved Administrations to comply with international law? Are you aware of similar conventions for treaty negotiations? If not, is that something that might be of use for us domestically?
Chair: If that is not necessarily the panel’s area of expertise, I will come to their aid and say that we may have had another witness lined up. I think that we are going to enter into correspondence with them with some of these questions. If the panel feels uncomfortable answering those questions, it is nothing to be embarrassed about.
Q193 John McDonnell: Can we run through the process of ratification and ask some questions on that—just some of the basics? What is the significance of ratification for domestic law?
Penelope Nevill: The significance of ratification for domestic law is that, at the international level, the treaty does not become binding until it has been ratified, where ratification is required by the treaty. The significance of ratification in domestic law is, as I believe you have heard in earlier sessions, that that engages section 20 of CRaG, which applies to treaties that require ratification. There is that aspect.
Another one that occurs to me is that the commencement date for implementing legislation may be specified by reference to the date of ratification. It would follow that some of the rules of statutory interpretation we were talking about may also engage in a different way depending on whether a treaty has been ratified by the United Kingdom.
Professor Gardiner: It might assist the Committee to consider the question perhaps in a broader term, which is what ratification is the actual commitment. One problem with scrutinising treaties is that, when you get to ratification, it then becomes too late, obviously, to scrutinise the treaty.
One situation in which one can illustrate the problem of scrutiny in relation to the timing of ratification is the process of ratification of protocol 11 to the European Convention on Human Rights. The protocol was completed in 1994 and I think ratified fairly promptly by this country the following year, and came into force some years later, fully, completely, I think, in 2000. That process of ratification occurred after only a very summary, if I may, without disrespect, debate in the House of Lords on the protocol, and yet that was a protocol that abolished the Commission of Human Rights.
It marked the culmination of the process of change of the European convention from one where the commission, as originally envisaged, would take cases to the court, or would refer cases to the Committee of Ministers, essentially a political body, to one of having a court with direct access in all cases by individuals. Therefore, that was a potentially rather significant protocol, where ratification took place without there being an opportunity for full scrutiny. If you contrast that with protocol 15, the Joint Committee on Human Rights was able to give that full scrutiny at the time.
Q194 John McDonnell: Don’t worry about being diplomatic. That leads on to one of the questions we have listed. Do you think that Parliament fully grasps the detail and implication of the treaties that it ratifies? If it does not, why not?
Professor Gardiner: This in part goes back to the suggestion I was making earlier that scrutiny really needs to afford opportunities at the successive stages of the life of the treaty. Therefore, Parliament may not have had an opportunity to examine in great detail the nature of the treaty before it comes to Parliament to legislate. I can see that that could present difficulties for having a complete picture of what is happening.
In terms of scrutiny, to follow the history and development of the treaty may be an important part of understanding what the treaty’s purport is. If I may go back to the example I have just given, in some people’s eyes protocol 11 was the culmination of a quite significant change to the way in which the European Convention on Human Rights operated from its original concept of the court being the last avenue and only accessible via the commission. That was something that had changed over a good many years, but I am not sure that it would have been obvious what the implications were of protocol 11 without having a scrutiny system that availed itself of access to those with a very detailed knowledge.
Any scrutiny system would need to have some assistance of those with knowledge of the details of the treaties. Taking it on a step further than that, I suppose that the question may arise as to whether a scrutiny committee on treaties would have more of a sifting and residual function, in the sense that treaties in particular areas, where other committees had the specialist capabilities, could be diverted in that direction. Only those that had no proper home would be the subject of scrutiny by the scrutiny committee of treaties.
Q195 John McDonnell: You have given us a good example of a significant piece of new law that had maybe not been considered effectively. I was going to come on to ask you what improvements you wanted to see or you think would be worthwhile in the system. Richard, you mentioned some there. At the moment, does the Constitutional Reform and Governance Act give us enough powers, or do we need reform of that legislation to enable us to introduce improvements in the system?
Professor Gardiner: I would not want to hammer on about my feeling that the successive stages in the life of the treaty are essential if one is going to have effective scrutiny of the treaty. The CRaG Act happens to allow consideration of a treaty at a particular time and not at the various stages that I have referred to.
Q196 John McDonnell: Do you think that the method of scrutiny you are suggesting, which is much earlier and at different stages, would require legislative change?
Professor Gardiner: I am not sure that it would necessarily. It might require involvement of the kind that I described. There will be cases where there is a body advising on the treaty in a particular sense of expertise, bringing in an opportunity for Parliament to have some involvement at that stage. It is very difficult to lay down a general rule, since the formation of treaties through the processes I have described is very different in different cases.
Q197 John McDonnell: Is there any legislation that we can rely upon if we have a Government that do not necessarily want to be as amenable as some?
Penelope Nevill: I do not have anything more to add around CRaG than what Richard has already said. In our written evidence, we suggest that it would be useful to have a treaty scrutiny committee that has the relevant expertise, as Richard has already pointed out, about international law and, in particular, treaty law. You could see the ability then to identify what specialist expertise needs to be brought in, the committees around Parliament that should be brought in and whether any additional expertise on subject matter or international law is required. We also envisage or propose that one of the functions of such a committee could be to identify those treaties where more or further scrutiny is required, which could include at an earlier stage in the process.
Q198 John Stevenson: Following on from that, we have talked a lot about treaties being implemented and the legislation that is required. We have heard from previous witnesses that treaties are rarely static and they are continuously changing. How does the legislation therefore address that and take into account the potential changes that there could be?
Professor Gardiner: Speaking in general terms, there has been a tendency to make greater provision to allow for change by statutory instrument, where it is foreseeable that a treaty will have a succession of changes over its life. That is perhaps a different question from evolution of treaties in the sense of their interpretation and international bodies, which may have powers to develop the treaty in a way that has some effect on the domestic scene.
Q199 John Stevenson: How can Parliament be then involved and consulted? It is all very well coming along with the secondary legislation for change, but, effectively, it is a done deal. How can Parliament be involved at an earlier stage?
Professor Gardiner: Parliament has to make the assessment of whether the proposed evolution of a treaty, one that is likely to evolve, is one that is acceptable, is foreseeable and can be allowed to take place without prospective involvement of Parliament.
One example, with which I was slightly involved, was the convention on protection of habitats of bats. The European convention on that subject was amended by a process that was subject to ratification, but the amendment allowed for amendments to the schedule by a vote of the body that was monitoring that convention.
Changes to the body of the treaty are subject to ratification if the United Kingdom proposes to become a party, but amendments to the schedule that deals with species of bats that are protected take place on the vote of the committee. I would understand that Parliament is concerned if the treaty changes, but, although it is a subject that has become controversial since I was first involved with it, it would seem that Parliament is not so concerned with the amendments to the schedule to the convention.
Q200 John Stevenson: Is there a way for Parliament to therefore have a threshold? There are certain things that should come back to Parliament and certain things that maybe are not necessary.
Professor Gardiner: That is a determination that has to be made at the stage of legislating to implement the treaty.
Q201 John Stevenson: That should be the first stage and not at a later stage.
Professor Gardiner: It is difficult to change it at a later stage without legislation.
John Stevenson: Penelope, do you have any observations?
Penelope Nevill: There are binding decisions made under the decision-making process in an international treaty like the one that Richard was referring to. Other treaties like this—CITES and the IMO treaties, such as MARPOL—are very common and they do not fall within the definition of treaties within CRaG, as you have already heard in earlier sessions. There is an issue around that. Whether or not, or to what extent, it is useful to wrap scrutiny of those types of decisions into a committee process is something that could be usefully explored.
Q202 John Stevenson: Do you think that Parliament should be consulted at an earlier stage, rather than just secondary legislation?
Penelope Nevill: It depends very much on the treaty. There would be a large number of changes that are made or decisions taken under international treaties that Parliament might not have much interest in at the relevant time. An industry sector might, so it might be working with Government, feeding into the negotiations, which then feed into a binding decision taken on the international level, which then might be implemented through secondary legislation here, which of course would have some kind of scrutiny process attached to it. It all depends on the circumstances, but perhaps that is the type of issue that could be identified as part of a new scrutiny process, as to which types of provisions or which types of decisions you would like to have more engagement with.
Q203 Tom Randall: I wondered if I could ask some questions about memorandums of understanding—MOUs. Essentially, why do we have them and how significant are they? What impact do they have on domestic law and policy?
Professor Gardiner: I will preface my observations with the remark that there is no category of MOUs as a legal instrument that one can define or classify. We are concerned here, I think, with instruments that are of a non-binding character. There is a considerable body of reference to MOUs as if they were an international instrument like a treaty. In fact, different states use the term in different senses. To my mind, it is rather dangerous to try to think of a classification of instruments as MOUs.
Sometimes, memoranda of understanding are more or less records of international interdepartmental discussions. Sometimes, they are statements of intent. There is a whole range of possibilities. Having said that, perhaps there is one category that one can identify. That is MOUs, using that as a loose description, that are instruments of a non-binding character relating to treaties. There may be questions there for whether these should be scrutinised.
In the case of, for example, air services agreements, bilateral treaties in very large numbers were made, which set out the general principles. Then there were what were described in my day as confidential memoranda of understanding. They were not totally confidential, but they gave implementing detail to the treaty. For example, the treaty had a principle that would establish how many flights and what aircraft would be used by the airlines of each side. That was set out in this memorandum of understanding. Of course, it was known to the airlines. In later practice, I believe it became, under the Freedom of Information Act, an instrument that you could access as a member of the public by requesting it.
That sort of memorandum that specifically relates to the manner in which a treaty is implemented might constitute a class that could be usefully examined and scrutinised. Having said that, one of the supporting reasons for that is that there was an arbitration over the Heathrow user charges, where the status of a memorandum of understanding came in issue. The tribunal found that, although it was not a legally binding instrument, it was relevant to the interpretation of the binding instrument that the tribunal had to consider. That is one category.
More generally, in the area of non-binding instruments, going back to what was mentioned earlier, it would probably take a degree of expertise to know whether the instrument was of significance or not. That would be something, perhaps, for the specialist committees. I take as an example perhaps the recent Artemis Accords on the development of space exploration and exploitation of the resources of outer space. That is a non‑binding instrument that a number of states hope might lead to development of clearer rules in that area.
It would be difficult to pick that up, if one were a treaty‑scrutinising Committee, as an instrument that needed scrutiny by a general body. That set of accords, the Artemis Accords, has been mentioned in written evidence to the Science and Technology Committee on another matter. That committee might therefore pick it up as a non-binding instrument that is a matter that it should scrutinise.
Q204 Tom Randall: Do you think that the number of these non-binding instruments has increased over time? If so, is there a particular reason for that?
Professor Gardiner: I am afraid that I have no evidence. I do not know of any study of that in relation to the aviation ones that I was referring to earlier. I suspect that the number of those instruments has declined, but I would not take that as any indication that in other areas it has not increased.
Tom Randall: Ms Nevill, do you have any further comments on those specific points before I move on?
Penelope Nevill: I do not have much to add to what Richard said, other than that the Bar Council noted in its evidence that, during the passing of CRaG, the then Lord Chancellor, Jack Straw, accepted that such non-legally binding instruments might be examined by a Select Committee on an ad hoc basis. That reflects some of what Richard has already said occurs in practice in some instances.
Our view was that such a specific undertaking would be welcome. We would welcome guidance identifying the criteria that the Government apply when deciding in what circumstances Parliament could or would be informed about such non-legally binding exchanges or understandings, which may have significant domestic effects, or may simply be an understanding that Parliament would want to be informed of. I believe that, in the exchange I was referring to with Jack Straw, it was the placing of US missiles on UK territory that was the issue.
Q205 Tom Randall: What are the domestic implications of breaking an obligation or commitment under a memorandum of understanding or non‑binding instrument, however you are going to classify it?
Penelope Nevill: As a matter of international law, they are non-legally binding, so there is no breach of an international obligation. It may have a political impact, which may be responded to with a political response by an opposing state.
As a matter of domestic law, it very much depends on the circumstances. I believe that, in an earlier session, reference was made to the Rwanda MOU, which was, in any event, scrutinised, or at least Parliament was informed of it and it was debated. What is interesting about that MOU is that I think that the Government’s position would be that it was relevant to the exercise of the Secretary of State’s powers, which were conferred by legislation by Parliament, in particular paragraph 17 to schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. It is very difficult to predict in advance what impact a non-legally binding arrangement or instrument might have and whether there is already a legislative basis for it.
Q206 Tom Randall: In practice, how is a breach of an obligation under international law worse than that same commitment under a memorandum of understanding? We have this example in the papers. If it was a mutual defence treaty versus a mutual defence memorandum of understand, how much worse would that be?
Penelope Nevill: A breach of international law gives rise to obligations, whether under the specific treaty, or, as a matter of custom, an obligation of cessation and non-repetition and to make reparations. Immediately, there are consequences that flow from a breach of a legal obligation. They do not flow from a breach of a non-legally binding obligation.
Q207 Tom Randall: If the House of Commons is to develop its capacity to effectively scrutinise international agreements, what resources do you think it would need to do this effectively?
Professor Gardiner: In some ways, I may have already given an indication. In order to understand the implications of the development and implementation of a treaty, specialist expertise is often required, even beyond that of a general international lawyer. One may need a person with specialist knowledge of the law in that particular area and of the subject matter.
Perhaps the trend of my observations has been that, where a treaty and associated instruments are in an area of particular specialisation that is the subject of a specialist committee of Parliament, there should be some mechanism for directing the matter in that direction. The expertise should be called on, either by written and oral evidence of this kind or by appointing a specialist to advise the committee.
Penelope Nevill: I do not have anything much to add to that. The Bar Council laid out some proposals in its written evidence. Again, we agree that there needs to be specialist international expertise, a means for bringing that together with the subject matter expertise in various committees and a triage function to work out which treaties are most apt for scrutiny.
We also suggested, which I think would feed into how such a committee might be set up and what resources it might need, a proper study of UK treaty practice, including some of the questions raised here over the last five years or so. That is so that there could be an understanding of what precisely is happening in practice, including with non-legally binding instruments, what is being implemented through secondary legislation, as opposed to primary legislation, and a number of issues you have raised, so that there can be a more precise understanding of how such a committee might operate.
Chair: Can I thank you both, Professor Gardiner and Ms Nevill, for your attendance at Committee this morning and for furnishing us with your valuable thoughts and expertise? We are most grateful. If there is anything that you think is relevant that we should know as a Committee and you wish to write to us following this session, you would be most welcome to do so. Can I place on record our thanks for your attendance? We look forward to continuing with our inquiry.