What is the Ponsonby Rule, or better yet, its modern Canadian version? Basically, it sets out the process under Canadian law for ratifying international treaties. The key part is as follows:
http://www.treaty-accord.gc.ca/procedures.aspx
For treaties that require implementing legislation before the Government can proceed to ratification, acceptance, approval or accession (“ratification”), the Government will:
- Observe a waiting period of at least twenty-one sitting days before the introduction of the necessary implementing legislation in Parliament;
- Will allow Members of Parliament the same opportunities to debate, present and vote on motions, as for those treaties which do not require implementing legislation;
- Will subsequently introduce the implementing legislation for these treaties;
- Seek, only when the legislation is adopted, the authorisation from the Governor in Council to express consent to be bound by the treaty.
So what does this mean? Well in theory it is too late for the government to stick the implementation authority for a FATCA IGA into the spring budget implementation act. Parliament is going to be going to be going on a two week recess after Friday, after tomorrow, which means the 21 sitting day waiting period only begins when Parliament comes back. In fact the soonest FATCA implementation legislation can be introduced is May 21st which is long after the budget bill will be introduced and too late for standalone legislation to be passed prior to the Summer recess.
So would the Conservatives and Flaherty break their own treaty ratification policy (the above Canadian version of the “Ponsonby” rule was actually introduced by the Conservatives in particular foreign minister Maxime Bernier in 2008)? Well shortly after introducing it in 2008 Jim Prentice “almost” broke it involving ratifying a copyright treaty but backed off after understanding the implications of doing so. All I can say is the Conservatives don’t have many good options to implement an IGA. The one easy way is to abuse power even beyond what they have done already in other areas of policy. On the other hand they have backed off from controversial legislation when they price of getting it through was too much even for them.
Does it make a difference if they don’t call it a treaty?
Its a Treaty. No getting around that. I am still in the later rather than sooner camp on when they are actually going to do something on FATCA although I think they badly want to sign an IGA. The Conservatives only hope in my opinion is to get the NDP on board with FATCA. Others with more ties to the NDP might be able to answer the odds of that happening but in my mind at least the are close to zero..
Does anyone know if a Treaty has ever been signed but not ratified by CDN legislature?
nobledreamer:
Quite a few treaties have been signed but never ratified. Typically what happens is the government of the day “signs” an agreement to make Canada’s allies happy(read: US) but then doesn’t want to burn the political capital necessary at home in Ottawa to actually bring it into effect especially when domestic law changes are required. Right now the NDP is fighting the Conservatives over another signed but not ratified treaty called ACTA. Technically there no obligation under international law to ratify a treaty after signing it. In fact there are treaties Canada signed in 1920 and 1930s that have never been ratified but never “unsigned” either.
http://www.michaelgeist.ca/content/view/6800/125/
@Tim
Sounds like FATCA is ripe for this scenario you’ve just described, but what would Canada’s obligations to the US should we sign but not ratify especially when time is of the essence?
@Tim,
Thanks, very good reading and offers some reassurance that IGA/FATCAT might never see the light of day here. Interesting how Canada seems to endlessly be involved in fighting off the US (though Harper seems to want to give them all of what we have/are).
As to treaties in general, I remember being disappointed when looking into the UN’s Convention on the Rights of Persons with Disabilities (trying to find something that might help with so-called “US Persons” such as Calgary’s son, also Recalcitrant and Cecilia in similar situations). The US had signed but of course not ratified it. Last December, the US defeated the treaty with opponents claiming it challenged America’s sovereignty.
http://www.nytimes.com/2012/12/05/us/despite-doles-wish-gop-rejects-disabilities-treaty.html?_r=0
@All
Outside of the traditional twenty-one sitting days waiting period, there is a plethora of important procedural information contained in this treaty tabling document that is most enlightening and sobering. One section, in particular, stands-out for its clear, astonishing relevance to the Canadian government’s current negotiation of a FATCA IGA with the U.S. Here it is:
“3. Normal Procedures for Policy Approval to Negotiate
The significance of creating and formalizing an international obligation on behalf of Canada should not be underestimated.
Before entering into a treaty negotiation, the initiating department or agency should ensure that it has a policy mandate to begin negotiations.
In most cases, the department or agency will submit a Memorandum to Cabinet (MC) to obtain this negotiating mandate. The following is a non-exhaustive list of examples where a MC is required prior to the commencement of negotiations.
When a treaty:
requires legislative changes;
relates to the mandate of more than one Minister;
creates new obligations for Canada;
is extremely complex;
is multilateral;
is likely to represent a significant change in Canada’s foreign policy;
will have a major impact on domestic policy;
will have a major impact on federal-provincial relations; or
will entail significant financial pressure on the fiscal framework.
or when:
Cabinet or the Prime Minister requests a MC.
The MC should set out, inter alia :
the expected purpose of the agreement, and its relation to existing agreements;
its potential foreign policy implications;
its possible domestic impact;
a preliminary outline of any financial obligation that may be incurred; and
legislative changes that may be necessary if the negotiations prove successful.
The Government will require the sponsoring department to show that other government departments, provinces and territories, aboriginal groups or NGOs and industry stakeholders have been consulted before granting a negotiating mandate.”
I believe that there is so much in just this one critical section for us to dissect and to discuss in detail that we should perhaps consider a new sticky thread about the formal, legal Canadian treaty process and contrast this with the utterly opaque, back-room secrecy of the current FATCA IGA negotiations.
For instance, it could be argued that the government’s one meagre idea of consultation with stakeholders was to quietly create an understaffed web portal that may very well be little more than a one-way conduit to the nearest digital waste receptacle. All it takes to see the disconnect between our country’s supposed democratic institutions and the reality of our centralized, micro-managed, dictatorial majority government is to read the treaty policy itself and then visualize comparing it to the phantom press release that we understand will come out any day now. This is an unfolding procedural and legal travesty which shall ultimately morph into a gigantic national tragedy.
I would love to see some direct participation by Allison Christians who can perhaps lead us through some of the actual nuts and bolts of the treaty process. I would like to know more about how our government might distort or outright ignore these legal frameworks to ram-through an IGA, regardless of the many grave risks and unintended consequences of doing so.
Another even weirder possibility is even if Flaherty was to get the IGA implementation legislation passed an MP lets say like Elizabeth May could introduce a private members bill to undo the IGA and their is nothing Flaherty could do to stop it other than voting against it personally. (By “tradition” individual Conservative MPs like John Weston lets say could vote for the May Private Members Bill to undue FATCA and Flaherty, the banks, the IRS can’t do anything to stop it). That is why I say we are only in the fifth inning of this.
Deckard1138
It is my belief that the Department of Finance did not get approval from full cabinet(an MC) to do this. Instead they are proceeding under their existing “standing” authority to negotiate tax treaties and tax information exchange agreements without prior DFAIT, Treasury Board, and Privy Council Office approval. This in itself is quite a dangerous act given the FATCA IGA’s are unlike any existing tax treaty or information exchange agreement.
@Tim
Unprecedented. History is truly being written, not just here, but worldwide. I get vertigo just thinking about it.
How can such fundamental changes to a country’s banking system, taxation system, citizenship and immigration system and national sovereignty possibly be rationalized as being covered under existing tax treaties? Which ones? Has Treasury Board actually had jurisdiction over every one of these areas in the past and simply forgotten to tell us all about it?
What happens in Canada if Canada ratifies it but USA does not?
MarkTwain
The USA doesn’t have to. The agreement is specifically structured that it imposes no new obligations on the US.
Deckard1138
The government very well might play this straight up so to speak. I just want to be prepared that come mid April if they abuse power even above and beyond that we throw everything we have at them.
The one example where the perhaps had not followed their own treaty ratification rules was back in 2008 and in its own way is insightful. Jean Chretien back in the late 1990s signed a bunch of copyright treaties to make the US happy basically. Included in these treaties was that Canada would introduce digital locks and other US style copyright holder protections. Chretien and later Martin though didn’t wan’t to burn the political capital necessary to bring them into ratification and Canadian domestic law. So they just sat there singed but unratified. In 2007/2008 the Conservatives though starting to get more heat from the US to ratify these treaties so them Industry Minister Jim Prentice started to bring forward legislation to do so(February 2008).
In January 2008 then FM Maxime Bernier announced this new Canadian version of Ponsonby Rule. Shortly afterwards Prentice claimed that it didn’t apply to these already signed copyright treaties.(One issue was even if the copyright treaties had been signed many years prior no explanatory memorandum had been tabled in the House of Commons). In the end Prentice backed off and did introduce the copyright legislation until June of 2008 which caused it at the that point to die on the order paper with the fall of 2008 election.
@Deckhard, re; …”Before entering into a treaty negotiation, the initiating department or agency should ensure that it has a policy mandate to begin negotiations.
In most cases, the department or agency will submit a Memorandum to Cabinet (MC) to obtain this negotiating mandate.”…
@all, is this Memorandum to Cabinet something that could be obtained via an FOI ( Freedom of Information) request?
quote from Paul Wells
This retreat is highly characteristic of Stephen Harper. He likes the reputation he enjoys among his opponents, as a bruising fighter who single-mindedly pursues a lonely and extremist political vision. That reputation, frankly, helps him among his supporters, who wish he were that guy more often. (For all the fights the 2012 budget sought to pick with the Yankees and the environmentalists, there were a lot of hangdog expressions at Hy’s that night among Conservatives who had hoped for real small-government conservatism from a majority government and thought Flaherty had delivered thin gruel.) But in fact, Harper’s normal reaction to controversy is to seek calmer waters.
In 2005, he used the first policy convention of the then-new Conservative Party to take potentially divisive social-conservative issues like abortion off the party’s agenda. In November 2008, within 48 hours after Flaherty’s fall update sparked an opposition attempt to form a coalition that could take power from the Conservatives, Harper had sent his ministers to announce the cancellation of everything in the update that had upset the opposition — party financing, pay equity and more. It’s one of Harper’s best-kept secrets: if you push him, he steps back.
We need to be ready to push him back.
Treaty puts the T in FATCAT.
@Badger
The Access to Information Act (s 69) does not apply to Confidences of the Queen’s Privy Council for Canada, i.e. cabinet confidences. So no, any memorandum to cabinet would not be available through the AIA.
Thanks @Nothern Shrike.
Could the opposition parties request such a document if it existed? In other words, do the other parties have the right to know the contents?
Thanks for all of the insight you provide here, Tim — and for your further astute analysis, questions to ponder and comments, Deckard, badger and Northern Shrike. We must know what we’re dealing with and all of this immensely helps my visualization.
Tory backbenchers rebel against Prime Ministers Office control — freedom of speech, but looks like they’ve now fallen back into line. This ‘control policy’ likely applies re the FATCA IGA the Conservative government is said to soon sign. To me, there is relevance to this news story: Conservative MPs complain of control over member’s statements, motions
@Badger
The usual approach is for opposition parties to ask for such information in question period in the House of Commons. I don’t know whether they can demand the information.