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Arthur Ponsonby and the Canadian DMCA

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Sunday January 27, 2008
Arthur Ponsonby, the British Under-Secretary of State for Foreign Affairs in the 1920s, is best known for establishing a principle regarding Parliamentary oversight of international treaties.  In what later became known as the Ponsonby Rule of 1924, he indicated that his government would table every international treaty before both Houses of Parliament for 21 sitting days before moving forward with ratification (ie. in the period between signing a treaty and ratifying it, Parliament would be given 21 sitting days to review and debate the treaty before formal ratification).

On Friday, Canadian Foreign Minister Maxime Bernier announced that the Conservative government was, effective immediately, implementing the Ponsonby Rule into Canadian practice.  The release notes that under the new policy, the House of Commons will be given the chance to examine, debate, or vote on new treaties before ratification and that "the government intends to table all international treaties in the House of Commons before taking further steps to bring these treaties into force."  Citing with approval the UK model, the release notes that the Clerk of the House will distribute the treaty and an explanatory memorandum to every MP.  It will then observe a waiting period of 21 sitting days before taking any action to bring the treaty into effect.  When legislative change is required, the release says that "the government is committed to delaying the legislation until the 21-sitting-day period has passed."

I mention this welcome policy because it would seemingly apply to the WIPO Internet Treaties and the move to ratify them via Industry Minister Jim Prentice's Canadian DMCA. 

Prentice has consistently stated that the primary purpose behind the legislation is to bring Canada into compliance with the WIPO Internet Treaties.  Those treaties have never been put before the House of Commons and this new policy commits the Conservative government to do so before ratification. 

I am not an international law expert, but it appears that the government may have just committed itself to presenting the WIPO Internet treaties and an explanatory memorandum before it proceeds with the Canadian DMCA (at a minimum it has committed to delaying the effective date of the legislation until after the House of Commons has had the chance to review the treaties).  The UK guidance on treaties notes that the treaty is presented before the Parliament along with an Explanatory Memorandum (EM) that "includes details of any legislation required to be enacted before the treaty can be ratified." This suggests that treaty, the EM, and the 21 sitting-day waiting period come before the introduction of legislation that enables ratification.  If the government stands by its just announced policy, it should delay the Canadian DMCA until after it has complied with its new commitment to House of Commons review of international treaties.

Update: The new policy was raised during Question Period in the House of Commons yesterday.  Foreign Minister Maxime Bernier appeared to limit the policy to new treaties, yet that is not what the Conservatives promised in 2006.  According to their election platform, "a Conservative government will place international treaties before Parliament for ratification."  That is precisely what is at play with WIPO as the government moves forward with plans for ratification. 

Comments (5)add comment

H said:

...
...Or could this instead be more focused on political cover for the U.S-Canada-Mexico 'Security and Prosperity Partnership' framework updating NAFTA?
January 27, 2008

Serge said:

...
I didn't see where it said the policy would have retroactive effect. On what basis do you assume that?
January 28, 2008

Frank B said:

WIPO
@Serge

Canada agreed to WIPO, but hasn't ratified it yet. So, in theory, this policy doesn't need to be retroactive in order to commit the govt to review WIPO.
January 28, 2008

Adam said:

...
Hopefully this does result in the delay of the bill, and the eventual throwing-out of the whole WIPO, but for the moment the copyright bill is once again back up on the order papers for the day.
January 28, 2008

Adam said:

...
haha. Ok, I'm a bit new at watching the order papers to tell what's going on, and didn't notice that they just haven't taken the copyright bill off the website, since the date for the copyright bill is showing as December 7th.

January 28, 2008

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