The UK operates under a dualist legal system meaning international treaties have no domestic legal effect unless incorporated into UK law through an Act of Parliament. In theory, therefore, the Agreement cannot directly affect UK citizens’ rights unless Parliament enacts legislation to give it effect domestically.
Treaty Ratification Process (Constitutional Reform Governance Act 2010 (“CRAG”)
Pursuant to the CRAG, international treaties must be laid before Parliament for twenty-one sitting days. During this period, Parliament may object but there is no automatic requirement for a debate or vote. If no resolution is passed against the treaty, it is deemed ratified.
Consequently, unless an MP actively pushes for a debate and sufficient political will exists, the agreement could be ratified without detailed public scrutiny or open Parliamentary discussion.
UK MPs do not automatically vote on treaties (unlike in the United States, where the Senate must ratify treaties by a two-thirds majority). In the UK, only if Parliament formally objects during the twenty-one day period can the Government be forced to delay ratification.
Once the Agreement is open for signature (after the PABS annex is adopted), the UK government could do one of the following:
- Sign the Agreement;
- Lay it before Parliament under CRAG;
- Ratify it without debate if no MP raises an objection or if any objection fails.
However, to give the agreement legal force domestically, particularly if it affects individual rights (e.g., health mandates or business obligations), Parliament would still need to pass new legislation.
Is Section 45B(1)(c) A Legal Loophole?
A key concern in this context is Section 45B(1)(c) of the Public Health (Control of Disease) Act 1984. This provision is, potentially, one of the key legal levers that could be exploited to quietly implement aspects of the Agreement thereby cutting out a full Parliamentary debate or primary legislation.
This provision states:
“The appropriate Minister may by regulations make provision…
(c) for giving effect to any international agreement or arrangement relating to the spread of infection or contamination.”
This empowers the Health Secretary (or other relevant minister) to make secondary legislation (statutory instruments) to implement international agreements on infectious disease without a new Act of Parliament.
Given the Pandemic Agreement clearly relates to “the spread of infection,” Section 45B(1)(c) could be used to implement parts of it.
These could be enacted via statutory instruments, which are seldom debated and rarely voted down thus bypassing both Parliament and public scrutiny.
Important Limitations
Despite these concerns, there are important legal and political constraints:
- Subordinate legislation cannot exceed primary legislation: Section 45B does not permit ministers to override core constitutional rights.
- Subject to judicial review: Any attempt to use Section 45B to implement sweeping measures without clear legislative authority could be challenged in court as ultra vires (beyond legal powers) especially if rights are impacted.
- Political and public pressure matters: Ministers are not compelled to use Section 45B. Sustained public concern and media coverage can force Parliamentary debate especially if MPs or Lords raise concerns about the democratic process.
Conclusion
It should be apparent that, while the UK system technically protects national sovereignty, the actual safeguards against treaties being adopted with democratic scrutiny are concerningly thin. Unless Parliament chooses to debate the Agreement or the public demands the same, it is possible the Agreement could be ratified quietly. Any subsequent domestic legislation could be passed in a piecemeal fashion under the guise of public health alignment rather than a full debate on the merits or otherwise of the Agreement.
There is a lack of transparency around the implementation of the Agreement. Several letters to MPs and government legal departments have failed to provide clarity. As it is plausible that Section 45B(1)(c) could be used to implement aspects of the Agreement without full Parliamentary debate, it is critical that the people do one or more of the following:
- Pressure MPs to demand a debate on the Agreement;
- Challenge legislative shortcuts that bypass democratic processes;
- Demand clarity on the domestic implementation of the Agreement;
- Campaign for the repeal of Section 45B(1)(c) of the Public Health (Control of Disease) Act 1984.
Call To Action
Write to your MP to obtain clarity around incorporation into UK domestic law. You can find the contact details for your MP here. You can download this template letter by clicking here – please do amend as you see fit.
Dear [MP’s Name],
Re: Clarity Requested on Use of Public Health Act 1984 to Implement WHO Pandemic Agreement
I am writing as a concerned constituent regarding the World Health Organisation’s Pandemic Agreement, which was adopted at the 78th World Health Assembly (subject to agreement on Annex A – PABS).
I am deeply concerned about how its provisions may be introduced into UK domestic law without proper Parliamentary scrutiny.
In particular, I am seeking urgent clarification on whether the government intends to rely on Section 45B(1)(c) of the Public Health (Control of Disease) Act 1984, which allows ministers to make regulations:
“…for giving effect to any international agreement or arrangement relating to the spread of infection or contamination.”
This section appears to grant broad powers to implement international agreements via statutory instruments, bypassing full debate and primary legislation. Given the serious implications of the Pandemic Agreement, it is imperative that such measures receive robust democratic oversight.
Accordingly, I respectfully request that you raise the following questions on my behalf with the relevant minister:
- Will the government bring the WHO Pandemic Agreement before Parliament for a full debate and vote prior to ratification?
- Does the government intend to rely on s.45B(1)(c) of the Public Health (Control of Disease) Act 1984 to give domestic effect to any part of the agreement or its implementation framework?
- What steps will be taken to ensure that any obligations arising from the Pandemic Agreement do not override UK sovereignty or fundamental rights without Parliamentary approval?
The unprecedented use of secondary legislation during the Covid-19 period has left many citizens deeply concerned about democratic accountability. I believe it is essential that UK government provide clear, advance assurances that no future international agreement affecting domestic public health policy will be implemented through delegated powers alone.
I look forward to your response and would appreciate any actions you take to ensure this matter receives the scrutiny it deserves.
Yours sincerely,
[Your Name]
[Constituency]
