Neglecting the Treaty-Making Power in the UK: The Case for Change

Abstract

Although the treaty-making power has grown radically in significance over time, it has been surprisingly neglected in the UK by both Parliament and constitutional law scholars. A mutually reinforcing dynamic has emerged in which a lack of engagement by each constituency helps explain and reinforce neglect by the other. A key factor explaining this neglect is an outmoded faith in the capacity of dualism and parliamentary sovereignty to shield the UK legal order from treaty-making, with Parliament as the gatekeeper offering the only route for treaties to meaningfully impact on the UK. This dominant orthodoxy helps account for inadequate controls on the treaty-making power as a matter of both design and practice, while concealing the reality of an increasingly permeable constitution. The need for constitutional law scholars and Parliament to take the complex and multi-faceted ramifications of the treaty-making power for the UK more seriously is overwhelming. Drawing on comparative insights, the case is also made for stronger controls on the treaty-making power that could contribute to redressing the long-exhibited and inappropriate neglect of the treaty-making power revealed by this article.

Note: "This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in The Law Quarterly Review as: “Neglecting the Treaty-Making Power in the UK: The Case for Change” (2020) 136 L.Q.R. 630 and is reproduced by agreement with the publishers."