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Current Developments: Public International Law

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick
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Extract

The process of constitutional reform in the United Kingdom instituted by the present Labour government has been considerable but it has proceeded on a piecemeal basis. Its aim is to reinforce accountability for the exercise of public power but, in the absence of a comprehensive scheme of reform, the achievement of this ambition has the same lack of coherence as the reform programme itself. Some matters remain untouched by the process, centrally and crucially the domination of the House of Commons and therefore effectively the legislature, by the Executive, a condition exaggerated by the massive majority enjoyed by the government.1 The justification for this arrangement, which so infringes the separation of powers, lies in the claim that it produces effective, stable and accountable government. This is not the place to assess the accuracy of these claims but to note the importance of recognising the particular relationship between executive and legislature which characterises the British Constitution when considering the likely impact of proposals for its reform.

Type
Current Developments, Public International Law
Information
International & Comparative Law Quarterly , Volume 49 , Issue 4 , October 2000 , pp. 944 - 953
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. Recently, the partially reformed House of Lords has been asserting its negative role in the legislative process by refusing to endorse government legislation, an indication that established generalisations are coming into question as the reform process proceeds.

2. Mann, F.A., Foreign Affairs in English Courts (1986), Ch.1.Google Scholar

3. R. v. Secretary of State for. Foreign and Commonwealth Affairs, exp. Everett [1989] 1 All E.R. 655.

4. Attorney-General v. Nissan [1969] 1 All E.R. 629, 657.

5. R. v. Secretary of State for Foreign Affairs, ex p. Butt C.A. (1999) (unreported).

6. R. v. Secretary of State for Foreign Affairs, ex p. World Development Movement [1995] 1 W.L.R. 386.

7. 1 Blackstone's Commentaries (14th ed) 256.Google Scholar

8. Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All E.R. 935, per Lord Roskill at 956e.

9. R. v. Secretary of State for Foreign and Commonwealth Affairs, ex p. Rees-Mogg [1994] 1 All E.R. 457; on which, Rawlings, R., “Legal Politics: the United Kingdom and the Ratification of the Treaty on European Union”, (1994) Public Law 254, 367.Google Scholar

10. See, for instance, Bennedoun v. France E.Ct.H.R. A/284 on the collusiveness of executive certification in civil proceedings.

11. A more significant issue is the complete absence of accountability for non-binding instruments, such as memoranda of understanding (MOUs), on the procedures for which see, Aust, A., Modern Treaty Law and Practice, Ch.3.Google Scholar

12. On the Ponsonby Rule, see below pp.947–948.

13. George's letter was accompanied by one from Donald Anderson MP, Chairman of the Select Committee on Foreign Affairs, who had similar concerns but suggested slightly different remedies, sec Procedure Committee of the House of Commons, Minutes of Evidence, 1 February 2000 at www.publications.parliamcnt.uk/cm199900/cmselect/cmproced/210/0020102.htm (afterwards “Evidence”).

14. See, Higgins, R., “United Kingdom”, in Jacobs, F.G. and Roberts, S. (eds), The Effect of Treaties in Domestic Law (1987) 123, 131–135.Google Scholar

15. Hunt, M., Using Human Rights Law in English Courts (1997), Ch.1.Google Scholar

16. See Lester, Lord, “UK Acceptance of the Strasbourg Jurisdiction: What went on in Whitehall in 1965” (1998) Public Law 237.Google Scholar

17. HL debs, vol.569, col.1530, 26 Feb. 1996.

18. Ibid.

19. Though Lord Lester's point would apply to the negotiation of any treaty.

20. In fact, there provision for parliamentary, pre-conclusion scrutiny with respect to EU agreements is much more developed than treaties in general, see “Evidence [of the Foreign and Commonwealth Office] to the Royal Commission on the Reform of the House of Lords, Part IV at www.files.fco.gov.uk/treaty/aug99pdf, (afterwards “FCO Evidence”).

21. The government's response is reproduced in “United Kingdom Materials on International Law”, lxvii British Yearbook of International Law (1996), pp.746–751.Google Scholar

22. Historically, the unwillingness of the House of Lords to approve the London Treaty on Naval Warfare is the example usually cited of parliament denying a government its treaty, see Bowles, T.G., Sea Law A Sea Power (1910).Google Scholar

23. There is inconsistency as to whether the practice is a “convention”—see Chesham, Lord, Debs, HL, vol.567, col.152 (WA), 20 12. 1995.Google Scholar

24. HC Debs, vol.171 (5th series), col. 1999, 1 April 1924.

25. See “FCO Evidence”, above n.20, Parts II and III.

26. Ibid.

27. Second Report of the House of Commons Select Committee on Procedure—Parliamentary Scrutiny of Treaties, para.6, www.publications.parliament.uk/cm19990/cmselect/cmproced/210/2)003htm, afterwards “Report”.

28. “Evidence”, above n.13, para. 39. This was endorsed by the Royal Commission, below n.30, para.8.38.

29. HL Debs, vol.601, cols. 947–962, 9 June 1999.

30. Royal Commission, “A House of Lords for the Future”, Cm.4534, para.8.42.

31. Home Office, “Raising Standards and Upholding Integrity: the Prevention of Corruption”, para.2.19, www.official-documents.co.uk/document/cm47/4759/4759.htm.

32. For the treaty, see Siddle, J., “Anglo-American Co-operation in the Suppression of Drug Smuggling” (1982) 31 I.C.L.Q. 762.CrossRefGoogle Scholar

33. H.C.Debs., vol.339, col.361, 22 Nov. 1999.

34. “Evidence” above n.13, Minister's reply to qu.101.

35. A-G for Canada v. AC for Ontario [1937] A.C. 326.

36. For example, Commonwealth of Australia v. State of Tasmania (1983) 158 C.L.R. 1.Google Scholar

37. E.g. Scotland Act 1998, Sch.5, para.7(l).

38. E.g. Scotland Act, Sch.5, para.7(2).

39. E.g. “Concordat on International Relations-Scotland” and Ibid., “Common Annex”, www.scotland.gov.uk/library2/memorandum/mous-08.htm, Ibid., mous-10.

40. “Report”, above n.27.

41. Ibid., qus.111, 112.

42. Ibid., qu.104

43. Ibid., qu.122.

44. Ibid., qu.112.

45. “Report”, above n.27, para.33.

46. Ibid.

47. Chitty, J., Prerogatives of the Crown (1820), pp.39–40.Google Scholar

48. “Evidence”, above n.13, qu.87.