Application of the Ponsonby Rule (United Kingdom) in the United States

See Ponsonby Rule (United Kingdom) – Explanatory Memoranda

In the United Kingdom, the Ponsonby Rule requires that every treaty signed by the United Kingdom subject to
ratification should be laid before Parliament for 21 sitting days (although they need not
be continuous). The FCO interprets the Ponsonby Rule as applying to acceptance,
approval and accession as well as to ratification. “Acceptance” and “approval” have the
same legal effect as ratification, and “accession” arises when the United Kingdom
Government consents to be bound by a treaty of which it was not an original signatory.
The Ponsonby Rule does not apply to treaties that enter into force on signature.
In its Response of July 1982 to the 6th Report of the Joint Committee on Statutory
Instruments (Session 1981-82), the Government confirmed that “International
agreements [i.e. treaties] (including agreements amending international agreements)
that are subject to ratification are, under the Ponsonby Rule, laid before Parliament
before they are ratified.” However, “Sometimes an international agreement is amended,
and the amendment, which may or may not be in the form of an international agreement,
though it is not subject to ratification, does require the making of a statutory instrument
for its implementation. In such a case, the Government accepts that the text of the
agreement or amendment should be made available to Parliament, preferably when the
statutory instrument is laid but in any case before it enters into force unless urgent or
other important considerations make this impracticable” [Cmnd. 8600]. Therefore, in
practice the Ponsonby Rule has also been applied to (a) amendments to multilateral
treaties which are themselves subject to ratification and (b) amendments which,
although subject to the silent procedure, require legislation.

Moreover, since January 1998 it has been the FCO’s consistent practice to apply the
Ponsonby Rule to treaties which are not subject to formal ratification (or acceptance or
approval) but simply to the mutual notification of the completion of constitutional and
other procedures by each Party. (However, the Ponsonby Rule does not apply to treaties
subject to unilateral notification of completion of procedures, where there are no
procedures or legislation required on the UK side and notification is only by the other
side.)

Exceptions to the Ponsonby Rule

On 6 May 1981 the Lord Privy Seal announced in a written answer to a parliamentary
question that: “In order to effect economies in the publication of Command Papers, it has
been decided that the texts of bilateral double taxation agreements should no longer be
tabled in Parliament as White papers in the Country Series of Command Papers. They
will however continue to be published in the Treaty Series of Command Papers after
entry into force. These new arrangements will necessitate a limited departure from the
strict terms of what has become known as the Ponsonby Rule – namely, the practice
whereby the texts of all international agreements concluded subject to ratification are
laid before Parliament for a period of 21 sitting days after signature and before
ratification. The purpose of the Ponsonby Rule is to afford Parliament the opportunity of
considering commitments which the Government of the day are proposing to enter into.
In the case of bilateral double taxation agreements, that purpose is already served by
the statutory requirement that the draft of any Order in Council providing for double
taxation relief shall be laid before the House of Commons for approval by affirmative
resolution, it being the invariable practice that the text of any bilateral double taxation
agreement falling within the scope of the Ponsonby Rule should be scheduled to the
draft Order designed to implement the agreement. It will accordingly be seen that the
new arrangements are wholly consistent with the spirit of the Ponsonby Rule.” [H.C.
Deb. (1981) 4, WA 82].
With the growth of practice over the years, the Ponsonby Rule has been understood to
allow for exceptions from its operation in special cases, when other means of consulting
or informing Parliament can be used instead. Alternative procedures are:
· adopting a Motion;
· passing a Bill;
· making an announcement in a debate;
· adopting a resolution or a Motion as part of the Affirmative Resolution procedure
for making an Order in Council;
· answering a Parliamentary Question;
· consulting leaders of the Opposition and other parliamentary parties.
However, in practice departures from the Ponsonby Rule are rare.