Best ' s law
Sir: Your reference to 'Ponsonby's Law' (The Spectator's Notebook, January 8) is misleading. The ' law ' (more frequently described as a ' rule ') does not, as you suggest, provide authority for ministers to sign treaties in advance of parliamentary approval and subsequent legislation, for that authority derives from the Crown. Further, "treaties are Acts of State and do not, in general, require Parliamentary sanction " (0. Hood Phillips, Constitutional and Administrative Law, 1967 edn., p. 265). However, "where treaties require ratification by the Crown, it has been the practice since 1924 to lay them before Parliament for twenty-one days before they are submitted to the Sovereign (' The Ponsonby Rule')." I suppose that the rule is called after Lord Ponsonby of Shulbrede (1871-1946), the son of Queen Vic'toria's Private Secretary, who published at least two books before the first world war in which he argued that Parliament should have more say in questions of foreign policy. In 1924 he was UnderSecretary at the Foreign Office in the first Socialist government, and, as Ramsay Macdonald was Foreign Secretary as well as Prime Minister, had considerable authority. There is also the fact that he had himself been a foreign office official earlier in his career, which may have made the idea of 'Ponsonby's Rule' more acceptable. Nevertheless it is not altogether clear, as Hood Phillips implies, that the rule has been continuously in operation since 1924, for when the Conservatives returned to power it was expressly disavowed, contemporaneously with the Russian treaties, which had been concluded by Ponsonby just before the summer recess. Although it was re-affirmed in 1929 with the return of Labour to office, Sir Ivor Jennings, in the second edition of his book Cabinet Government, did not seem to be sure whether it had been consistently observed during the 'thirties, though I am rather inclined to think that it was. The earliest reference I have seen to it under the name 'Ponsonby's Rule' is in E.C.S. Wade and G. Godfrey Philips's Constitutional Law (1955 edn, p. 214). Of course the rule only applies to treaties which the sovereign must ratify for them to take effect, not to agreements of a technical character between officials which are not subject to ratification (Hansard, col. 2003, April 1, 1924). As already explained, in United Kingdom law treaty-making is a prerogative of the Crown. However, whereas Parliament "has no power to invalidate or rescind a treaty regularly concluded by the Crown, it may dismiss or impeach the ministers by whose advice it has been ratified." Further "although it is not provided by law that treaties must be submitted to Parliament before their ratification . . a treaty which lays a pecuniary burden on the people or which alters the law of the land needs Parliamentary sanction." Consequently, when such treaties are being negotiated the tacit or express., consent of Parliament is secured -before the King is advised to ratify (F. 0. Wilcox, The Ratification of International Conventions, 1935, pp. 78-81, quoting Anson's Law and Custom of the Constitution). In a footnote the author added that treaties involving the cession of territory also require the approval of Parliament. Although Wilcox's book was written over thirty-five years ago, I have reason to believe that the passage quoted is still a pretty accurate statement of the law today. Consequently, there may be something in your point that in the absence of an officially authorised English translation of the Rome treaty duly laid before Parliament, ratification should be postponed until such a text has been laid. As a Conservative and a supporter, on balance, of our entry into the EEC I should probably not be raising legal quibbles of this nature: I do so only because I believe that the depth of the opposition to our accession to the treaty is such that it would be dangerous to ignore any seemingly valid argument for delay, however ill-founded it may turn out to be.
G. Chowdharary-Best 174 Clay Hill Road, Basildon, Essex
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