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

31 Pages Posted: 22 Oct 2020

See all articles by Mario Mendez

Mario Mendez

Queen Mary, University of London

Date Written: October 21, 2020

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."

Suggested Citation

Mendez, Mario, Neglecting the Treaty-Making Power in the UK: The Case for Change (October 21, 2020). Queen Mary Law Research Paper No. 343. 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. , Available at SSRN: https://ssrn.com/abstract=3716107

Mario Mendez (Contact Author)

Queen Mary, University of London ( email )

Mile End Road
London, London E1 4NS
United Kingdom

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