Professor Philippe Lagassé – Written Evidence (TWP0004)

Summary

Canada’s approach to the scrutiny of treaties by Parliament has few lessons for the United Kingdom. The Canadian approach to parliamentary treaty scrutiny resembles the situation in the United Kingdom prior to the enactment of the Constitutional Reform and Governance Act 2010. Parliamentary scrutiny of treaties is governed by an executive policy that resembles the Ponsonby Rule that applied in the United Kingdom prior to the passage of this 2010 act. Hence, the British Parliament has little to learn from its Canadian counterpart in this area.

I. The Treaty Power in Canada

The authority to negotiate, sign, and ratify international treaties is sourced in the royal prerogative of the Crown in right of Canada. In practice, this power can be exercised by the Prime Minister or relevant ministers. While section 10 of the Department of Foreign Affairs, Trade and Development Act, the Minister of Foreign Affairs is authorized to “conduct all diplomatic and consular relations on behalf of Canada,” the Supreme Court of Canada has found that this statute has not displaced the royal prerogative for foreign affairs.[1] Parliament, therefore, has no formal authority over treaty negotiations, signatures, or ratifications undertaken by the executive under the royal prerogative.

Parliament’s formal role in the treaty process is twofold. First, Parliament and its committee are expected to hold the government to account for the international treaties it has negotiated, has ratified, or is in the process of negotiating and ratify. This reflects Parliament’s constitutional function under Canada’s system of responsible government. Second, when changes to Canadian law are required to give effect to international treaties, implementing legislation will be introduced, scrutinized, and typically passed by Parliament following the established legislative process, which includes scrutiny by the relevant standing committees of the House of Commons and Senate.[2] Implementing legislation is only required for treaties that require changes to Canadian law to be given legal effect, and the passage of implementing legislation is separate and distinct from the ratification process done by the executive under the royal prerogative.

As a federation with a constitutional division of powers between the federal and provincial legislatures, treaties that require legal effect in areas of provincial competency must have implementing legislation passed in these provincial legislatures. The federal Parliament cannot legislate for the provinces in areas of provincial jurisdiction in order to comply with an international treaty. Accordingly, when negotiating an international treaty that requires implementing legislation in areas of provincial competency, the federal government will usually coordinate with their provincial counterparts and work to ensure that the required legislation is passed in the provincial legislatures. While the provinces may be informed of international treaties that will not require implementing legislation, there is no formal requirement to secure provincial consent in these instances.

II. Canadian Treaty Policy

In 2008, the Canadian government issued a Policy on Tabling of Treaties in Parliament. This policy sought to revive a Canadian practice in place from 1926-1966, where the executive would routinely table treaties before Parliament prior to ratification.[3] The policy also sought to mimic aspects of the British Ponsonby Rule in Canada.

For treaties that do not require implementing legislation, the Policy provides that:

the Government will observe a waiting period of at least twenty-one sitting days after a treaty is tabled before taking legal steps to bring the treaty into force.

-During this twenty-one sitting day period, Members of Parliament could initiate a debate. Members of Parliament might also request a vote on a motion regarding the treaty in the House of Commons. For example, Opposition parties may use an Opposition day to debate and to present and subsequently vote on a motion.

-The Government will not seek the legal authority to be bound by the instrument before this twenty-one day period has been observed.[4]

For treaties that require implementing legislation, the Policy holds that the government will:

-Observe a waiting period of at least twenty-one sitting days before the introduction of the necessary implementing legislation in Parliament;

-Will allow Members of Parliament the same opportunities to debate, present and vote on motions, as for those treaties which do not require implementing legislation;

-Will subsequently introduce the implementing legislation for these treaties;

-Seek, only when the legislation is adopted, the authorisation from the Governor in Council to express consent to be bound by the treaty.[5]

Treaties tabled in Parliament under this policy will be accompanied by an explanatory memorandum outlining various consideration for parliamentarians to consider.

Having tabled the treaty and explanatory memorandum, the Policy holds that the executive will consider “concerns raised by the Opposition Parties” and “then decide whether to ratify the Treaty or to introduce legislation that may be necessary before bringing the Treaty into force.”[6]

The Policy provides for exceptions to these provisions, notably when there is a need for an urgent ratification. In these cases, a Memorandum to Cabinet will be prepared to obtain policy cover for the ratification, explain the decision to forego tabling the treaty before Parliament, and secure the approval of the Prime Minister. If the exception is approved, the Minister of Foreign Affairs will “will inform the House of Commons that Canada has agreed to be bound by the instrument at the earliest opportunity following the ratification.”[7]

Finally, the Policy does not require the executive to table non-binding international instruments, such as Memorandum of Understanding, in Parliament.

III. Parliamentary Treaty Politics

In certain cases, Canadian governments have held non-binding votes in the House of Commons to seek the lower house’s support for the ratification of treaties. The decision to hold these votes is political, serving to demonstrate that the government has the Commons’ backing for a ratification, or more commonly, to force an opposition party to vote against a treaty that is considered to be popular among voters. For instance, in October 2016, the Liberal government of Prime Minister Justin Trudeau brought a vote before the Commons seeking support for the ratification of the Paris Climate Agreement. The purpose of this vote was arguably to force the opposition Conservative Party to vote against a climate change accord.

These symbolic votes should be seen for what they are: partisan tactics meant to advance the governing party’s partisan interests, rather than a mechanism of veritable parliamentary scrutiny.[8]

IV. Conclusion

Canada’s Policy on Tabling Treaties in Parliament is determined by the executive. In this sense, the Canadian Policy, while resembling the treaty tabling provisions found in the United Kingdom’s Constitutional Reform and Governance Act 2010, is a weak mechanism for ensuring parliamentary scrutiny. As a set of rules determined and promulgated by the executive, the Canadian Policy can be altered or abandoned by government at any time. It is also doubtful that the Policy would be enforced by the courts were an application for judicial review where brought against a government that failed to follow the Policy. Canadian courts have tended to defer to the executive in matters involving the royal prerogative, including the foreign affairs and treaty powers.[9]

Canada, therefore, offers few lessons for the United Kingdom in terms of parliamentary scrutiny of treaties.

2 June 2020