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Treaty with Columbia – What a Farce

October 4, 2014

I have recently seen comments to the effect that Parliament has ratified a treaty. This is misleading; the following illustrates the quaint procedure actually followed.

The recently ratified bilateral investment treaty with Columbia illustrates British ‘democracy’ at its finest. The text was apparently agreed by heads of government back in March 2010, but were we told? Ratification was delayed due to the Lisbon treaty, but the Columbian government ratified the treaty in 2013 and have been pressing the UK to ratify.

It was formally laid (as Command Paper 8887) before Parliament by the Foreign Secretary on 5th June 2014. Did he get on his feet to tell MPs? Not a bit of it. In order to ascertain that it was laid you have to go to Hansard for the day in question, click on Latest Business Papers/ House of Commons Business Papers/Votes and Proceedings, select the date again, go down to the Appendix and read through it.

The NGO Tradecraft picked this up and consequently, on 24th June the House of Lords Secondary Legislation Scrutiny Committee in its 3rd report of the session reported:

“this instrument sets out the terms of a reciprocal trade agreement between the UK and the Republic of Colombia which protects investment against expropriation. A letter has been received from Traidcraft which expresses a number of concerns about the level of protection for the investor and about the effect of the agreement on the human rights of certain groups within Colombia.”

On Thurs 10th July, 21 sitting days having elapsed without challenge from the date it was laid, the treaty was deemed to have been passed by parliament and the government was free to ratify. I could find no record of this in Hansard.

On 30th July the House of Lords sitting as the Grand Committee debated the treaty in a ‘motion to take note’. Concerns were expressed but it was all a bit late. Incidentally the concern raised by Lord Stevenson of Balmacara was that the treaty was worse for Columbia’s ability to regulate foreign direct investment than the massive TTIP treaty currently being negotiated. Lord Stevenson’s remarks indicate that he knows a lot more about what TTIP is likely to contain than has been made public.

According to House of Commons Library standard note SN/IA/5855 dated 8 Feb 2011,

“Parliament now has a new statutory role in ratifying treaties.  Under part 2 of the Constitutional Reform and Governance Act 2010 the government must lay most treaties subject to ratification before Parliament for 21 sitting days before it can ratify them.  If either House objects, the government must give reasons why it wants to ratify before it can proceed, but the Commons can block ratification indefinitely.   However, there is no statutory requirement for a debate or vote, and parliament cannot
amend treaties.”

This merely brings into statute a convention known as the Ponsonby Rule which has existed since the 1920s. As far as I can ascertain neither House has ever objected within the 21 days.

In 1994 the UK ratified the Marrakesh (or Marrakech) Agreement which was a multilateral treaty setting up the World Trade Organisation and including agreements on trade in services, intellectual property, investment… There was a House of Commons debate within the 21 sitting days, but it was an adjournment debate so the MPs did not vote on the subject under discussion. It was also in retrospective singularly ill informed. There was no hint of controversy to come.

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