1 Constitutional Reform and Governance Act 2010 (C.25), Part 2 ‘Ratification of Treaties’, sections 20-25. The Act received Royal Assent on 8 April 2010. Part 2 was brought into force on 11 November 2010 by The Constitutional Reform and Governance Act 2010 (Commencement No. 3) Order 2010 (S.I. 2703 (C. 125) 2010 and announced in a Written Ministerial Statement by the Minister for Europe on 11 November 2010, reported in Hansard at: http://www.publications.parliament.uk/pa/cm/cmtoday/cmwms/archive/101111.htm#d2e53 accessed on 24 November 2010.

2 Such as war powers, which did not reach the Bill or the statute book. See ND White (2010) 59 ICLQ, 814–823.

3 New guidance on laying treaties under the Act is on the Foreign and Commonwealth Office (FCO) website at: http://www.fco.gov.uk/en/publications-and-documents/treaties/publication/ accessed on 24 November 2010.

4 See (n 13) below.

5 Sir W McKay, Erskine May Parliamentary Practice (23rd edn, LexisNexis, 2004) 264–265. Jowell and Oliver refer to it as ‘the Ponsonby rule, which Governments still accept today’ in J Jowell and D Oliver, The Changing Constitution (6^th edn, OUP, Oxford, 2007). Bradley and Ewing refer to it as the ‘Ponsonby rule’ in Constitutional & Administrative Law (15^th edition) 248, fn 99, and 317. De Smith and Brazier describe the Ponsonby rule as ‘a constitutional usage, and possibly a binding convention’ in Constitutional and Administrative Law (8^th edn, Penguin Books, London, 1998) 147.

6 In Canada, a practice based on the Ponsonby Rule was introduced in 2008: Parliamentary involvement in foreign policy, Library of Parliament, Canada, PRB 08-60E, revised 10 November 2008, on the website of the Parliament of Canada at: http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0860-e.pdf accessed on 27 November 2010. See also ‘Policy on Tabling of Treaties in Parliament’ on the Canada Treaty Information website at: http://www.treaty-accord.gc.ca/procedure.asp accessed on 27 November 2010. For examples of similar but longer-established practices in a number of other countries, see Duncan B Hollis et al (eds), National Treaty Law and Practice (ASIL & Martinus Nijhoff, 2005), esp 27–28.

7 For example, since 1997, the practice of laying an explanatory memorandum alongside treaties to explain their effect has been routine. In addition, in 2000, the Government undertook that it would normally provide the opportunity to debate any treaty involving major political, military or diplomatic issues, if the relevant select committee and the Liaison Committee of the House of Commons so requested (Government response of 31 October 2000 to the House of Commons Procedure Committee's Second Report of Session 1999–2000, Parliamentary Scrutiny of Treaties (HC210)).'. See Explanatory Notes to the Constitutional Reform and Governance Act 2010, para 33, published by Office of Public Sector Information, accessed on its website on 20 December 2010 at: http://www.legislation.gov.uk/ukpga/2010/25/notes.

8 Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic for Defence and Security Co-operation, London, 02 November 2010, France No. 01 (2010), Cm 7976; and Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic relating to Joint Radiographic/Hydrodynamics Facilities, London, 02 November 2010, France No. 02 (2010), Cm 7975. Published on the Foreign & Commonwealth Office (FCO) website at: http://www.fco.gov.uk/en/publications-and-documents/treaty-command-papers-ems/treaty-command-papers-by-subject/-, accessed on 24 November 2010.

9 For a more detailed statement of the Ponsonby Rule as it was applied up to 10 November 2010, see the FCO note on the history of the Ponsonby Rule on the FCO website at: http://www.fco.gov.uk/resources/en/pdf/3706546/23166603/TrPonsonbyRule accessed on 13 December 2010; and Governance of Britain—War Powers and Treaties: Limiting Executive Powers, Consultation Paper CP26/07, published on 25 October 2007, paras 114–155; accessed on the Ministry of Justice website on 8 November 2010 at: http://www.justice.gov.uk/consultations/docs/cp2607a.pdf.

10 Explanatory Notes to the Constitutional Reform and Governance Act 2010, para 33, (n 7).

11 Section 20(1)(a).

12 Section 20(1)(b).

13 ‘Sitting day’ is defined by section 20(9) as ‘a day on which both Houses of Parliament sit’. This definition provides a slightly longer scrutiny period than was the practice under the Ponsonby Rule, for which a ‘sitting day’ was defined slightly differently.

14 Section 20(1)(c) and 20(2).

15 Section 23 provides that the Act is not to apply to certain categories of treaties. The reasons are explained in The Governance of Britain—Constitutional Renewal, Part 1, March 2008, Cmd 7342-1, paras 161–163, on the website of the Ministry of Justice at: http://www.justice.gov.uk/publications/docs/constitutional-renewal-white-paper.pdf accessed 17 December 2010; ‘The Governance of Britain: War Powers and Treaties (n 9) paras 130 and 165–168, and in the Explanatory Notes to the Constitutional Reform and Governance Act 2010, paras 144–148, cited in (n 7) above. The Coalition Government has introduced proposals to impose an additional requirement for a referendum before ratifying certain EU treaties. These proposals are set out in the European Union Bill currently before Parliament, which would result in consequential amendments to section 23 of the CRaG Act. The Bill is on Parliament's website at: http://www.publications.parliament.uk/pa/cm201011/cmbills/106/11106.8-11.html accessed on 19 December 2010.

16 Section 20 (4) provides that a treaty may still be ratified if, after the House of Commons has resolved that a treaty should not be ratified during period A, (a) a Minister of the Crown has laid before Parliament a statement explaining why the treaty should nevertheless be ratified, and (b) a period B having expired without the House of Commons having (again) resolved that the treaty should not be ratified. Period A is the first period of 21 sitting days, as defined in section 20(1)(c). Period B refers to any second or subsequent period of 21 sitting days, as defined by s 20(5).

17 As the ratification would remain blocked by s 20(1) and the conditions in s 20(4) would not have been met either.

18 By virtue of s 20(6).

19 By virtue of s 20(7) and (8).

20 ‘The Governance of Britain—Constitutional Renewal’ (Government White Paper), presented to Parliament March 2008, Cm 7342-I, para 158, cited in (n 15) above.

21 See Membership of the House of Lords page on Parliament's website at: http://www.parliament.uk/about/mps-and-lords/about-lords/membership/ accessed on 17 December 2010.

22 House of Lords Library Note, House of Lords Reform Since 1997: A Chronology (updated July 2009) on Parliament's website at: http://www.parliament.uk/documents/lords-library/hllreformchronology.pdf accessed on 17 December 2010; Reform and proposals for reform since 1900, House of Lords Briefing, May 2006, on Parliament's website at: http://www.parliament.uk/documents/lords-information-office/hoflbpreform.pdf accessed on 17 December 2010.

23 Section 21.

24 This is the effect of s 21(1) combined with s 20(1)(c).

25 FCO, Treaties and MOUs: Guidance On Practice And Procedures (2^nd edn) April 2000, Revised May 2004, 6–7, and 19–20 on the effects of devolution legislation, on the FCO website at: http://www.fco.gov.uk/resources/en/pdf/pdf8/fco_pdf_treatymous accessed on 18 December 2010.

26 Art 27, Vienna Convention on the Law of Treaties.

27 Bradley and Ewing (n 5) 317.

28 Section 22(2).

29 ‘The Governance of Britain: War Powers and Treaties’ (n 9) para 159–160. See also FCO note ‘The Ponsonby Rule’ dated November 2010, and Governance of Britain: War Powers and Treaties' (n 9) paras 148–155 and 160–164.

30 Its full name was The Joint Committee on the Draft Constitutional Renewal Bill. ‘Joint’ refers to the fact that the membership of the Committee was drawn from both Houses of Parliament. The Bill was renamed the Constitutional Reform and Governance Bill when it was introduced into Parliament.

31 Government response to the report of the Joint Committee on the Draft Constitutional Renewal Bill, July 2009, Cm 7690, para 155. The Government's reply is at paras 156–159. Accessed on Parliament's website on 10 November 2010 at http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/publications/docs/cm-7690.pdf.

32 Letter from Andrew Dismore MP, Chair of the Joint Committee on Human Rights, to the Lord Chancellor and Secretary of State for Justice dated 26 October 2009 about the Bill.

33 Letter to Andrew Dismore MP from Rt Hon Michael Wills MP Minister of State, Ministry of Justice, dated 17 November 2009.

34 Report of the JCHR Legislative scrutiny: Constitutional Reform and Governance Bill, 18 January 2010; para 1.48. Accessed on Parliament's website on 11 November 2010 at http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/33/33.pdf

35 The Governance of Britain—War Powers and Treaties: (n 9) paras 148–155. Only six examples are cited, dating back to 1942. Aside from a few prior to 1942, these examples were the only clear instances identified by FCO treaty officers from office records. This does not necessarily mean that other examples do not exist. However, as there has never been any statutory or official requirement for the FCO to maintain records of such instances it is difficult to be certain. For treaties ratified many years ago it is not easy to research the date of laying and count the number of sitting days that elapsed before ratification.

36 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, signed at Dublin on 22 March 2007; Cm 7078, Ireland No 1 (2007), published on the FCO website at: http://www.fco.gov.uk/resources/en/pdf/pdf16/fco_ref_cm7078_irishagreement accessed on 20 December 2010. The Government's explanation of its decision to truncate the normal 21 sitting day scrutiny period was given in a Written Ministerial Statement published in Hansard, HC 9 col 14 WS (9 May 2007) on Parliament's website at: http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm070509/wmstext/70509m0001.htm#07050989 accessed on 18 December 2010.

Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland establishing the Independent Commission for the Location of Victims' Remains, signed at Dublin on 27 April 1999, Cm 4473, Treaty Series No. 70 (1999), on the FCO website at: http://www.fco.gov.uk/resources/en/pdf/pdf16/fco_ref_cm4473_irelandcommission accessed on 20 December 2010. For the Minister's explanation to the House of Commons of the Government's proposal to ratify that agreement before 21 sitting days had elapsed, see Hansard HC col 43 (10 May 1999). In the ensuing debate there was no comment on the truncation of the laying period.

37 Agreement between the Government of the United Kingdom and the Government of the Kingdom of the Netherlands concerning a Scottish trial in the Netherlands, signed at The Hague, 18 September 1998, Treaty Series TS 043/1999: Cm 4378, on the FCO website at: http://www.fco.gov.uk/resources/en/pdf/pdf16/fco_ref_cm4378_scottishtrial-1 accessed on 18 December 2010.

38 Iraq No. 1 (2009), Cm 7707. Accessed on the FCO's website on 11 November 2010 at: http://www.fco.gov.uk/resources/en/pdf/3706546/3892733/10149409/TrIraq1.2009ForcesTraining.

39 Written Ministerial Statements were made by the Minister for the Armed Forces (Bill Rammell) to the House of Commons and by the Minister for International Defence and Security (Baroness Taylor of Bolton) to the House of Lords on 22 October 2009, Hansard HL col 68WS (22 October 2009) and col WS81 (22 October 2009) respectively.

40 Copies of the Agreement had been placed in the Libraries of both Houses on 26 July 2009. The Government had also written to the Shadow Foreign Secretary, the Shadow Defence Secretary, the Chairman of the House of Commons Defence Committee, the Leader of the House of Lords and the Liberal Party Defence spokesperson in the Commons.

41 Debate took place on a question tabled by Lord Astor of Hever: ‘To ask Her Majesty's Government what progress they have made in securing a legal agreement for British troops to conduct training in Iraq’. Hansard HL col 803 (22 October 2009).

42 For an explanation of the process of ‘wash-up’ see House of Lords Library note Wash-Up: Bills Receiving Royal Assent, 1987–2005, 30th March 2010 LLN 2010/011 on Parliament's website at: http://www.parliament.uk/pagefiles/10493/LLN2010_011.pdf accessed on 29 November 2010.

43 A guide to the production of EMs, including details on content, is provided in ch 3 of Treaties and MoUs: Guidance on Practice and Procedures (n 25).

44 House of Commons Library research paper, ‘Constitutional Reform and Governance, Bill: Committee stage report’ [Bill No 68 of 2009-10] Research Paper 10/18 25 February 2010, p.10 on Parliament's website at: http://www.parliament.uk/documents/commons/lib/research/rp2010/rp10-018.pdfaccessed on 29 November 2010. Andrew Dismore MP's amendment 114 and the debate on it is at House of Commons; Hansard HC col 187 (19 January 2010) on Parliament's website at: http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm100119/debtext/100119-0008.htm accessed on 18 December 2010.

45 The legislative history of the Constitutional Reform and Governance Bill 2008-09 and 2009-10 is on Parliament's website at: http://services.parliament.uk/bills/2009-10/constitutionalreformandgovernance.html accessed on 29 November 2010.

46 Existing statutory definitions are only partial, eg s 1 (4) of the European Communities Act 1972 provides: ‘For purposes of subsections (2) and (3) above, ‘treaty’ includes any international agreement, and any protocol or annex to a treaty or international agreement.'

47 See A Aust, Modern Treaty Law and Practice, (2^nd edn, CUP, Cambridge, 2007) 17–18.

48 In the international law of treaties, the rules on conclusion and entry into force of treaties generally apply to treaty amendments; see article 39 of the VCLT.

49 Treaty amendments have been laid under the Ponsonby Rule on the same basis as new treaties since 1982, according to the FCO note on the history of the Ponsonby Rule, November 2010, on the FCO website, (n 9) above.

50 They are covered by the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986 (ratified by the United Kingdom but not yet in force).

51 ‘War Powers and Treaties’ (n 9) para 114.

52 For example, Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland and the International Organization for Migration, Cm 7443, Miscellaneous No. 4 (2008), was laid under the Ponsonby rule in July 2008. Other examples are listed on the FCO treaty website under ‘International Organisations’ at: http://www.fco.gov.uk/en/publications-and-documents/treaty-command-papers-ems/treaty-command-papers-by-subject/international-organisations accessed on 24 November 2010.

53 Anthony Aust, in his evidence to the Joint Committee on the Draft Constitutional Renewal Bill. See Report of the Joint Committee, Volume I, para 230.

54 War Powers and Treaties: Limiting Executive Powers (n 9) para 114.

55 See reply of Jack Straw, Lord Chancellor and Secretary of State for Justice, to a question by Lord Williamson of Horton on why ‘treaty-like documents’ were not covered by the Bill: Joint Committee on the Draft Constitutional Renewal Bill, Volume II: Evidence, Session 2007-8, Q752, 331Google Scholar.

56 See Aust (n 47) 21 and generally chs 2 and 3. In this article the abbreviation ‘MOU’ is used to refer to any kind of non-legally binding instrument entered into by a State, however it may be named. Examples of titles commonly used are arrangement, understanding, memorandum, declaration, statement, recommendation, guidelines, commitments, agreed minutes, political agreement.

57 This is explained in Aust (n 47) 53–55.

58 For example, a Memorandum of Understanding between the United Kingdom and Jordan signed on 10 August 2005 containing assurances about the treatment of returned persons was treated by the court as part of the relevant facts in assessing the risk of treatment which would breach Article 3 of the European Convention on Human Rights in OO (Jordan) v Secretary of State for the Home Department [House of Lords] 18 February 2009, [2009] UKHL 10.

59 Advising on the difference between treaties and MOUs is one of the most frequent tasks of FCO Legal Advisers. FCO Treaty Section have published their internal guidance on practical aspects of the distinction in Treaties AND MOUs: Guidance On Practice And Procedures (n 25); see also Duncan Hollis on the practice in other countries (n 6) 15–16.

60 This is acknowledged by Aust, a former Deputy Legal Adviser at the FCO, in Modern Treaty Law and Practice (n 47) 55.

61 Joint Committee on the Draft Constitutional Renewal Bill, Volume II: Evidence, Session 2007-8, Q752,332. By ‘disclosable’ the Secretary of State presumably meant not confidential for reasons such as national security, international relations, personal or commercial privacy, etc. Select Committees work in both Houses of Parliament. They scrutinize the work of government departments and specialist subjects. The results of these inquiries are public and many require a response from the government. For further information on select committees, see Parliament's website at: http://www.parliament.uk/about/how/committees/select/ accessed on 19 December 2010.

62 A number of these can be found on Government and Parliament websites. For example, the Memorandum of Understanding between the General People's Committee for Foreign Liaison and International Co-operation of the Great Socialist People's Libyan Arab Jamahiriya and the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland concerning the provision of assurances in respect of persons subject to deportation, signed on 18 October 2005, is published on Parliament's website at: http://www.publications.parliament.uk/pa/cm200607/cmselect/cmfaff/269/7020708.htm Accessed on 19 December 2010.

63 Section 25(3) and (4) provide: ‘(3) In this Part a reference to ratification of a treaty is a reference to an act of a kind specified in subsection (4) which establishes as a matter of international law the United Kingdom's consent to be bound by the treaty. (4) The acts are—

1. (a)

   (a) deposit or delivery of an instrument of ratification, accession, approval or acceptance;

2. (b)

   (b) deposit or delivery of a notification of completion of domestic procedures.’

64 Art 11 provides: ‘The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.’

65 War Powers and treaties: (n 9) paras 117–118.

66 See the Joint Committee's Call for Evidence in Draft Constitutional Renewal Bill, Volume I: Report, Appendix 3, p127, and the reply on this point in Memorandum by Sir Michael Wood, KCMG (Ev 18) in Volume II: Evidence, 433.

67 See information on the European Scrutiny Committee of the House of Commons and the European Union Committee of the House of Lords on Parliament's website at: http://www.parliament.uk/

68 See I Brownlie, Principles of Public International Law (7^th edn, OUP, Oxford, 2003) 691–693 and P Sands and P Klein, Bowett's Law of International Institutions (6^th edn, Sweet & Maxwell, London, 2009).

69 Under art IX of the Convention on the Conservation of Antarctic Marine Living Resources 1980. The text of the Convention is on the Commissions' website at: http://www.ccamlr.org/pu/e/e_pubs/bd/pt1.pdf and the Conservation Measures currently in force are at: http://www.ccamlr.org/pu/e/e_pubs/cm/drt.htm accessed on 25 November 2010.

70 See, in particular, art VIII of the Convention.

71 For example, parliamentary scrutiny of the UK's obligations under UN Security Council resolutions falls within the remit of the Foreign Affairs Committee of the House of Commons and, depending on their subject-matter, may be scrutinized by other committees; and see (n 67) above regarding scrutiny of European Union legislation. See also s 6 of the European Union (Amendment) Act 2008, which subjects certain decisions of the European Council or the Council under the Treaty on European Union and the Treaty on the Functioning of the Union to parliamentary control. The European Union Bill, currently before Parliament, would subject certain of these decisions to a range of more stringent requirements. See (n 15) above.

72 Section 25(2).

73 See Aust (n 47) 121–124. However Aust does not distinguish in this section between acts of international organizations and secondary law-making by States under treaties.

74 For example, recommendations adopted under article 13 of the Convention for the Protection of the Marine Environment of The North-east Atlantic 1992 (the ‘OSPAR Convention’) do not have binding force; Cm 4278, Treaty Series No. 14 (1999).

75 Art 13.2 of the OSPAR Convention.

76 So for example the Kyoto Protocol to the UN Framework Convention on Climate Change, Cm 6485, Treaty Series No. 6 (2005), was laid under the Ponsonby Rule—see explanatory memorandum presented to Parliament in March 2002 on the FCO's website at: http://www.fco.gov.uk/en/publications-and-documents/treaty-command-papers-ems/explanatory-memoranda/explanatory-memoranda-2002/kyotoun

If a similar protocol were proposed for ratification now, it would be subject to the Act. The Kyoto Protocol was concluded ‘under’ the Convention in the sense that only parties to the Convention may join the Protocol and some of the provisions of the former govern the latter, but it has the status of a treaty in international law.

77 War Powers and Treaties: Limiting Executive Powers, Consultation Paper CP26/07, published on 25 October 2007, para 126. See also text to (n 48) and (n 49) above.

78 For example, the UN Framework Convention on Climate Change (UNFCCC) (1992) provides in Article 15 for amendments to be adopted by the Conference of Parties, and to be subject to acceptance by all Parties (Instruments of acceptance to be deposited with the Depositary.) Any such amendment to the Convention would come within the definition of ‘treaty’ in s 25. Another example is the Liability Annex to the Environmental Protocol to the Antarctic Treaty, which was adopted by a Measure adopted under article IX of the Treaty (Measure 1 (2005). This measure will be subject to the Act, because the Liability Annex has treaty status. The Annex was published with the Draft Antarctic Bill in November 2009, Cm 7635, 57–65, published on the FCO website at: http://www.fco.gov.uk/resources/en/pdf/about-us/our-publications/draft-antarctic-bill accessed on 20 December 2010.

79 Signed on 12 February 1986. Cmnd 1827, Treaty Series No. 15 (1992).

80 In accordance with art IX, para 4, of the Antarctic Treaty, the Measures adopted at Consultative Meetings become effective upon approval by all Contracting Parties whose representatives were entitled to participate in the meeting at which they were adopted (i.e. all the Consultative Parties). The practice is for each Consultative Party to deposit a note with the Depositary stating that it approves the measure. Deposit of an approval note is within the definition of ‘ratification’ provided in s 25(3) and (4).

81 For example, the Channel Tunnel (Safety) Order 2007-SI 2007 No. 3531 (which gives effect to the bi-national regulation of 24-1-07 adopted under the Treaty of Canterbury (n 79). A Parliamentary scrutiny history is shown in Annex B to the Explanatory Memorandum to this Order, on the Government's legislation website at: http://www.legislation.gov.uk/uksi/2007/3531/pdfs/uksiem_20073531_en.pdf accessed on 20 December 2010.

82 For example, Measure 4 (2004) on Insurance and Contingency Planning for Tourism and non-Governmental Activities in the Antarctic Treaty Area, adopted under art IX of the Antarctic Treaty, was published with the Draft Antarctic Bill in November 2009, Cm 7635, 66, published on the FCO website at: http://www.fco.gov.uk/resources/en/pdf/about-us/our-publications/draft-antarctic-bill accessed on 24 November 2010.

83 R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409, para 15; and see R Stanley de Smith and R Brazier, Constitutional and Administrative Law (8^th edn, Penguin Books, London, 1998) ch 6, 134–145 and ch 7, 146–147. See also AV Dicey, writing in 1908 in AV Dicey, Law of the Constitution (10^th edn, Macmillan, London, 1959) 119 and 421.

84 S de Smith and R Brazier ibid 134.

85 The general principles are neatly stated in de Smith and Brazier (n 83) 139. See also Ministry of Justice, Review of the Executive Royal Prerogative Powers: Final Report, 15 October 2009, on the Ministry of Justice website at: http://www.justice.gov.uk/publications/royal-prerogative.htm accessed on 20 December 2010.

86 [2008] EWHC 1409, para 15.

87 Statement by Jack Straw in response to Q171, Joint Committee on the Draft Constitutional Renewal Bill, Session 2007-08, Volume II: Evidence, 323.

88 A command paper is a document issued by the Government and presented to Parliament, so-called because they are presented to Parliament formally ‘By Her Majesty's Command’.

See Glossary on Parliament's website as viewed on 3 November 2010 at: http://www.parliament.uk/site-information/glossary/command-papers/.

89 ‘An Act paper is laid before Parliament because an Act of Parliament requires it.’ Glossary on Parliament's website, as viewed on 3 November 2010 at: http://www.parliament.uk/site-information/glossary/act-paper/.

90 Command papers may be presented at any time during the existence of a Parliament, including non-sitting days, recesses and prorogation (the period between sessions of a Parliament). Act papers may only be presented to Parliament when it is sitting. Clearly the laying period required by section 20 will not start to run until the next sitting day, so legally it makes no difference which type of paper is laid. One practical advantage of a Command Paper is that if a treaty is ready for laying during a recess it can be laid straight away thus making the text available to Parliamentarians earlier.

90a Film Co-Production Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the State of Israel, Jerusalem, 3 November 2010, Cm 7994, Israel No. 1 (2010); Film Co-Production Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Palestinian Liberation Organisation for the benefit of the Palestinian Authority, Ramallah, 3 November 2010, Cm 7995, Miscellaneous No. 6 (2010); both treaties were laid before Parliament on 22 December 2010 and are available on the FCO website.

91 Bradlaugh v Gossett (1884) 12 QBD 271 and de Smith and Brazier (n 83) 325. See also R v Chaytor and others (Appellants) [2010] UKSC 52.

92 Blackburn v A-G [1971] 1WLR 1037, McWhirter v A-G [1972] CMLR 882 (cited in de Smith (n 83) 137).

93 [1985] AC 374, at p29.

94 ibid, per Lord Roskill, at 29.

95 [1994] 2 WLR 115.

96 [1994] 2 WLR 115, 7.

97 Section 1(2) of the European Communities (Amendment) Act 1993.

98 [1994] 2 WLR 115, 13.

99 [2008] EWHR 1409.

100 [2008] EWHR 1409, 10.

101 [2008] EWHR 1409, 14.

102 See D McGoldrick, The Boundaries of Justiciability' (2010) 59 ICLQ 4, 981–1019.

103 Aust (n 47) 119–121.

104 Art 27 of the Vienna Convention on the Law of Treaties.

105 Art 46 of the Vienna Convention on the Law of Treaties. See Aust (n 47) 312–315.

106 As announced by Gordon Brown in his first speech to the House of Commons as Prime Minister. Hansard HC col 815 (3 July 2007).

107 The Governance of Britain' Green Paper Cm 7170 July 2007, para 33.

108 FCO, Treaties and MOUs: Guidance On Practice And Procedures (2^nd edn) April 2000, Revised May 2004, (n 25) 7.

109 Evidence of Jack Straw, Lord Chancellor and Secretary of State for Justice, to the Joint Committee on the Draft Constitutional Renewal Bill, in response to Q711, Draft Constitutional Renewal Bill, Volume II: Evidence, 323.

110 The list is published every Friday in the Publications and Records section of Parliament's website at: http://www.publications.parliament.uk/pa/cm/cmsilist/cmsilist.htm accessed on 20 December 2010.

111 Evidence of Jack Straw, Lord Chancellor and Secretary of State for Justice, to the Joint Committee on the Draft Constitutional Renewal Bill, in response to Q751, Draft Constitutional Renewal Bill, Volume II: Evidence, 331.

112 ibid.

113 House of Commons Library, Reform of the House of Commons: The establishment of a Backbench Business Committee, Standard Note: SN/PC/05269, Last updated: 17 June 2010, on Parliament's website at: http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-05269.pdf accessed on 20 December 2010.

114 ‘Rebuilding the House’, House of Commons Reform Committee, First report of session 2008-09, HC 1117, p31. Standing Order 14 was amended in June 2010 to read: ‘(3C) Backbench business comprises all proceedings in the Chamber relating to any motion or order of the day except: (a) government business, that is proceedings relating to government bills, financial business, proceedings under any Act of Parliament, or relating to European Union Documents, or any other motion in the name of a Minister of the Crown;’ See Amendments to Standing Order No. 14 (Arrangement of Public Business) and new Standing Orders No. 122D (Election of Backbench Business Committee), No. 152J (Backbench Business Committee) in the Addendum to the Standing Orders of the House of Commons, 23 June 2010, on Parliament's website at: http://www.publications.parliament.uk/pa/cm200910/cmstords/3977/add_3977.pdf accessed on 29 November 2010.

115 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, Session 2007–2008, Vol I: Report, para 238, 65–66.

116 For a summary of previous proposals to establish a committee on treaties in the Lords, or in both Houses jointly, see War powers and treaties: Limiting Executive Powers, paras 131–147, cited in (n 9) above.

117 JCHR report, ‘Legislative scrutiny: Constitutional Reform and Governance Bill; Fourth Report of Session 2009-10’ 18 January 2010, on Parliament's website at: http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/33/33.pdf accessed on 28 November 2010. See in particular the JCHR's comment that committees do not necessarily have the resources systematically to monitor the laying of treaties before Parliament, at para 1.42, and also the debate on Andrew Dismore MP's amendment 114 to the CRaG Bill, cited in (n 44) above.

118 The Government has observed this practice since October 2000, following its undertaking to the House of Commons Procedure Committee. See FCO historical note ‘The Ponsonby Rule’ November 2010, cited in (n 9) 4.