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Lord Beloff: My Lords, perhaps it was my fault, but I fear that the noble Lord did not appreciate my central point: if the legislation had already been in operation, it would have been of great benefit to us when questions of uniting with Europe came along. What I argued in the first part of my speech was that in fact they have now become part of the scene, and that we cannot go back beyond that: we cannot retrospectively put ourselves in a better position than we were.

Lord Kennet: My Lords, of course, no legislation--unless it deliberately does so--can do anything retrospectively, but I would not go as far as the noble Lord in accepting that we are, in effect, already a South Dakota. I do not believe we are that. There are still many international issues which can well affect the destiny of our people in major ways, which have nothing to do with the European Union.

Clearly the House must thank the noble Lord for bringing forward the Bill. If it gets through--I hope that it will--it will provide a clear advance in the ability of the elected legislature to obtain control over the totality of British government policy. In some respects the part which the legislature does not now control--namely, the introduction of treaty law--is the most important of all. Its importance is not readily visible to the whole people simply because they know so little about what is going on in international affairs. The passage of this Bill would sharply increase what the public knows. As the noble Lord, Lord Lester, pointed out, very few states do not have parliamentary ratification in one form or another. We are an anachronism in being without it and I endorse his phrase that the British Parliament is sadly neglected in the conduct of foreign affairs.

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Let us consider for a moment what would happen if this Bill were passed and how it would affect the fabric of British foreign policy and the role of Parliament towards the totality of the destiny of its people. If a proposed treaty which was under negotiation began to look a bit "dicey" for the government--began to look as though it would be unpopular with the people when it came into effect--then the Secretary of State for Foreign Affairs would have every inducement to keep Parliament in the picture throughout. Before the signature he would come back from Strasbourg, Brussels, Washington or wherever, and he would keep Parliament up to date in a narrative manner--"we have gone this far and we have gone that far"--and he would listen to what advice he could get from both Houses. This would enable him to feed British opinion--the British national will, if you like--correctly into the negotiations instead of getting it wrong, as I think everybody knows does fairly often happen.

What I have been saying is true of all treaties that this country will negotiate from now on if this Bill becomes law, but it is of course especially true of the developments from Rome and Maastricht as they come along, as they will. These are and will be the vital treaties which--here I share the view of the noble Lord, Lord Beloff--most directly impinge on British sovereignty. To put it at its lowest, I believe the passage of this Bill would allow all Foreign Secretaries from now on a much smoother ride than they have had. If it goes through, it will at last complete the control of Parliament over all those things which it began to control with increasing effect--the noble Lord will correct me if I am wrong--shall we say from the late 16th century onwards.

It would be an immense accretion--and if it had been introduced 20 years ago it would have been even more immense--but it will still be an immense accretion to the validity of parliamentary government. It will strengthen our democracy from top to bottom and will put it on a par with that of other countries. It will also lead to a great deal of public enlightenment and help us to rise out of what I myself perceive as a fairly severe degree of insularity and ignorance of world affairs which at present afflicts the British people. It is a fact that the more time you spend abroad the more you are amazed at the ignorance of foreign affairs displayed by our people, as compared with the better knowledge of British affairs that you find abroad.

I think we should go through the Bill in some detail, with a lot of probing amendments in Committee. I am not at all sure that the Bill goes far enough, particularly in Clause 4, which allows the Secretary of State to decide what he may ratify without parliamentary approval and then later face the music, or not, as the case may be. That is unjustifiable, I think. It does not take a great deal of effort to get an hour or two in both Houses of Parliament if there is a real crisis over a treaty; nor can I readily imagine a situation in which it would be so urgent to ratify a treaty. So let us try removing that one later on and try putting the entire conduct of substantial treaty-making under parliamentary control.

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8.55 p.m.

Lord Bridges: My Lords, I too would like to thank the noble Lord, Lord Lester, for introducing his Bill. The subject is not one which normally attracts much attention and I rather agree when he says it is worth looking at our current practice regarding the ratification of treaties and considering the possibility of putting it on some more formal basis. I begin by examining the origins of our present procedures, which are not without interest.

The treaty-making power was originally a compact between monarchs. An emissary sent by a sovereign to negotiate abroad carried with him a letter in Latin giving him authority to act. This letter was produced and shown to the other party. It was called a "Full Power" and generally contained a promise to confirm, approve and ratify the result of the negotiations.

This practice developed rather considerably in the 17th century, particularly with the beginning of what we would now call multilateral diplomacy which preceded the signature of the Treaty of Westphalia in 1648 and which ended the Thirty Years War, and the Treaty of Nijmegen in 1697. On the latter occasion much time was spent examining the powers of the delegates, which were different. It was eventually agreed that a common form of words should be adopted, stating that the person concerned had the power to conclude the negotiation. Thereafter the Full Power given to a diplomatic representative contained words amounting to a promise to ratify the results of the negotiation.

This practice changed after the French Revolution and after American Independence. Treaties were no longer compacts between sovereign princes but became agreements between states. Thus Article 4 of the French Constitution of 1794 contained an express reservation that treaties were invalid unless they were examined, ratified and confirmed by the National Committee and the Committee of Public Safety. Just three years later, in 1797, President Adams drew up Full Powers for the American representatives in Paris and requested them to convey the agreements they reached with France, in his words,


    "to the President of the United States for his final ratification, with the advice and consent of the Senate of the United States".

This was a form of words to which much thought had evidently been given.

Thus the customary promise to ratify contained in the earlier Full Powers had given way to this formal and specific reservation. We in Britain followed suit a few years later. When a Full Power was drawn up in 1824 for the signature of a treaty in Latin America, the Foreign Secretary, Canning, himself deleted from the draft the customary promise to ratify, and minuted this in the margin:


    "It is necessary, or may it not be expedient, in so singular a business as this, to omit this strong promise and rather to say that when ratified by us we will never suffer it to be infringed, or something of that kind."

I wonder what Sir Richard Scott would make of that!

So in broad terms the current practice of regarding ratification as an act quite separate from negotiation developed with the growth of parliamentary

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democracies in the 19th century. At the same time it was generally agreed in Europe, but not in the United States, that the only substantial grounds on which a sovereign or president could refuse ratification was when a diplomatic agent exceeded his instructions; and that when this happened a clear statement of the reasons should be given. Palmerston said that in Parliament in 1864. But that, too, gradually gave way to a different concept, closer to the American practice where the absolute right of the Senate to make its own decisions on ratification was insisted upon. Thus we arrived at the current situation, where ratification is often perceived as part of the process of democratic control by national parliaments which the noble Lord, Lord Lester, wishes us to adopt in a more specific form in his Bill.

My impression is--and I am sure that the noble Lord, Lord Beloff, will correct me if I am wrong--that the origin of the movement in this country for more democratic control was the cession of Heligoland to Germany in 1890. That was done in recognition of the growing power of the German Reich, the desire to avoid unnecessary friction with Germany and the realisation that it would be difficult to defend that particular piece of real estate so close to the German coast.

The treaty was drawn up and ratified by the Sovereign but Parliament was not consulted. Some Members of another place did not like that use of the Crown prerogative. I understand that Mr. Gladstone himself raised an eyebrow. Those anxieties were, with good reason, greatly magnified when it was discovered at the outbreak of the war in 1914 that secret negotiations had taken place with France about the military help that we could provide in the event of German attack upon her. There was also widespread dismay and resentment at the extent of the secret undertakings made by all the great powers which had created the fatal network of obligation, misunderstanding and miscalculation which led to the outbreak of war.

That feeling was very strongly held in the centre and Left of British politics. It led to the resignation of Lord Morley in August 1914. The apostle of democratic control was E.D. Morel, and Arthur Ponsonby was one who thought likewise. He took the opportunity of the ratification of the Treaty of Lausanne, negotiated by a different government, to expound what we know as the Ponsonby rule.

The latter is not really a rule at all; rather it is a unilateral statement of intention by a junior Minister which has come to be our accepted practice, although not binding in any formal sense. It has worked rather well, I believe. Important treaties are brought before Parliament for discussion and, where necessary, to make changes to our own law. Also, if desired, specific reservations can be made on the text.

I heard the complaint made by the noble Lord, Lord Lester, that we adopted the European human rights convention without debate, but I suggest that that occurred because the convention was not perceived, at the time, to present any difficulties: its principles were widely accepted in this country, and much of the language had been drafted by our own lawyers. It could have been debated if there had been public interest in

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doing so. It is, however, news to me that we have adopted Protocol 11 on the permanent right of individual petition to the court. Perhaps the Minister would be able to tell us about that.

There are a number of specific matters raised by the text of the Bill upon which I should like to comment. First, if I read Clause 2 correctly, every treaty must be submitted to the House with an Explanatory Memorandum. I suspect that that would mean a lot of paper. It would help to know the volume of the treaties which would be involved. I heard the noble Lord, Lord Lester, say that he thought that the procedure would only cover a dozen treaties, but perhaps I misunderstood what he said. Indeed, I would expect the number to be rather more.

I turn next to the definition in Clause 3(1)(a) which is very widely drawn. I would suppose that that would cover the majority of international agreements. If I am right, that would mean the passage of a considerable number of resolutions by Parliament. That being the case, as has been correctly pointed out by the noble Lord, Lord Beloff, it would probably be necessary to set up a Select Committee, either in both Houses or, indeed, a joint committee.

Then there is the question of the class of treaties about which we are talking. I do not believe that the Bill defines in any exact way the treaties to be covered. I have heard that there is a Vienna Convention which contains such a definition. If it is satisfactory, that might be included in the text. But I suspect that this is not a straightforward matter. Agreements take different forms in various countries and so do their procedures for ratification. As the noble Lord, Lord Lester, reminded us, the United States has a category of Executive Agreements which do not require ratification by the Senate, and thus do not have any binding status in American law.

An example of that which I happen to know about is the bilateral agreement on civil aviation between the United Kingdom and the United States, called Bermuda 2, which I helped to negotiate some 20 years ago. Although that is important for many commercial airlines in both countries (thus falling within Clause 3(1)(a) as proposed by the noble Lord, Lord Lester), it has not been ratified by the United States because it is an executive agreement. Thus, if we are not careful, we might, as in this case, give the American airlines rights here which our own companies might not enjoy in the United States. I think that we may need some further thought and clarification about the classes of treaty which require ratification and how that might best be expressed in a Bill.

One other potential problem exists; namely, the practice of requiring what amounts to a second round of negotiation in order to secure the ratification of a treaty by a particular foreign legislature. There have been many examples of this over the years and it may, perhaps, be unavoidable if democratic control is to be fully exercised. But I do recall difficult times in Washington in the 1970s when it was necessary to persuade Congress to ratify commercial agreements on trade issues, after those agreements had been painfully

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negotiated with the Administration. Further concessions often had to be made in order to secure the approval of Congress. In effect, the foreigner had to pay twice. I hope that we do not fall into that practice if we do formalise our procedure for ratification.

Something rather similar happened in Germany recently when the Bundestag ratified the Maastricht Treaty. The Bundestag passed a resolution requiring further debate before part of the treaty could enter into force. One might say that the Bundestag unilaterally inserted an opt-out clause of its own. I have long believed in that excellent German concept, Vorsprung durch Technik, but here they seem to have found a method of how to half ratify a treaty. That is also an example which I believe we should seek to avoid.

I do not wish to suggest that any of those matters cannot be dealt with in one way or another. However, if we are to proceed, I think that we need some more thought and clarification of them. As I said at the beginning, I have some sympathy with what the noble Lord, Lord Lester, proposes, but we should remember that we have at present the benefit of a system which I believe works rather well. In particular, we do not suffer from the immensely long and convoluted procedures over ratification that I have seen in other legislatures. This can take years, and I do not exaggerate. Nor do I agree with the rather disgraceful article which appeared in the Financial Times last Saturday, which comes close to accusing the Foreign Office of old style, secret diplomacy, a charge which I think is wholly unjustified. That is a rare and regrettable lapse by that newspaper. Perhaps the noble Baroness will have something to say about that.

The best advice on this subject was given to us by none other than Mr. Arthur Ponsonby in his celebrated speech on 1st April 1924. He said:


    "I would however remind the House of the paradox that, under the British Constitution, it is rules that depend solely on practice and usage which are the most immutable. A change effected by Acts of Parliament is not likely to last so long as one effected by Ministers as a change of practice, and dependent only on the will of the Members of the Legislature for the time being".

As his procedure has now lasted for 70 years, that was a prophetic remark. As the French proverb has it, rien ne dure comme le provisoire.

9.8 p.m.

Lord Wallace of Saltaire: My Lords, I am very grateful to my noble friend Lord Lester for raising this debate. As the noble Lord, Lord Bridges, made clear, we are talking about a remnant of the medieval or at least very early modern, British monarchical constitution. It makes nonsense of the principle of the doctrine of parliamentary sovereignty that the Crown retains the right to sign and ratify treaties without submitting them to Parliament.

A number of very good points have been made about the difficulties now of defining treaties. As a former student, I hesitate to disagree with the professor who first taught me about the Ponsonby rules, but I must point out to the noble Lord, Lord Beloff, that some states within federal systems do indeed sign at least international agreements. The state of California has

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caused much difficulty to the British Government over a number of its international agreements in the past few years, and some of the provinces of Canada operate relatively autonomously for all kinds of purposes in international activities.

The noble Lord, Lord Bridges, is quite right to say that there are many agreements which are not quite treaties which have effects that go deep into domestic politics.

I am struck by how much more, day by day and week by week, the operations of the British Government are bound by such multilateral negotiations, not only involving the Foreign and Commonwealth Office but also many other departments of state. Indeed, increasingly they involve other agencies of the British Government. Some years ago I spoke to a conference of military officers and others and had touched on some aspects of this subject. I was told quietly over coffee by the chief constable of a provincial force that his force had just signed an agreement with its French opposite number on the conditions under which they might carry arms on each other's territory. I asked him how that had been reported to Parliament. He said, "We asked the Home Office about that, and they said they would prefer not to know officially".

There is a whole range of agreements which bind us. The problem is that if governments--not only our Government but many other governments--agree matters which are not explained to their parliaments particular suspicions grow up that bureaucrats are imposing roles which we do not ourselves understand. Usually it is assumed that they are foreign bureaucrats, although often it is British bureaucrats responsible to British Ministers who are actively engaged in negotiations.

I recall many years ago when I acted as adviser to the Treasury Committee of the other place having to explain to Members of the other House that we had signed a number of treaties of which they appeared to be unaware and which had certain consequences of limiting our freedom of action. Much of the discussion of the European Convention on Human Rights takes place in the same context--the sense that somehow or other the British Government ought not to have accepted this vast incursion into our natural sovereignty.

Perhaps I may again disagree politely with the noble Lord, Lord Beloff. He suggested that the majority of judges in the European Court of Human Rights follow a code of law which is wholly foreign to this country. I believe that I remember correctly. I suspect that the noble and learned Lord the Lord Chancellor and other Scottish lawyers might disagree with such an English statement.

The extent to which we have a widening gap between the unavoidably multilateral processes of Government and the continuing national discussions of Parliaments raises a real problem. From time to time it leads to an outburst of parliamentary or press anger or of popular frustration at things which are said to have been agreed in our name and about which

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we have not been informed. Now that we have within the European Union not only the first pillar of the European Community, but the second pillar of common, foreign and security policy, and the third pillar of justice and home affairs, the number of agreements and semi-treaties into which our Government and others are entering which are not reported back to national parliaments concerns me very much.

As regards the third pillar, the extent to which the British Government and their colleagues have gone deeply into co-operation among intelligence services and police forces, and other agencies of Government such as Customs and Immigration, ought to be more fully reported to this House and another place.

Academics of my profession now write of governments playing two-level games--of negotiating with each other, and then having to negotiate with their domestic audience. The noble Lord, Lord Bridges, pointed out that in the United States that is an explicit two level game as it is for some purposes in Germany. In this country it is only an implicit two level game because it does not evolve through a regular constitutional process. The Bill proposes that there should be a more regularised constitutional process. It is not a radical reform; it is rather a prudential measure to make the British Parliament more self conscious of the limits to sovereignty, of the advantages to Britain of operating through multilateral rules, and of the obligation which Ministers are accepting in our name. It imposes on Ministers of whatever government the obligation of explaining to Parliament what they have signed and why they have signed it.

Several noble Lords have remarked on the sheer weight of paper and the sheer number of agreements in which that might involve us. There seems considerable merit in the idea of a committee of both Houses monitoring those agreements. We all understand that in the next few years the weight of multilateral agreements encompassing this country is likely to increase as issues of international environmental law, climate change, and so on, add to all the other areas on which governments now have to accept further limitations on what was formerly their sovereignty.

This proposal suggests one step in that direction. It is a step that will help government, not hinder them. It will work to limit popular and parliamentary suspicion and, one would hope, therefore to carry greater public support. Not only in Britain, but in other countries across the world--from the United States across western Europe--we find increasingly the problem of a populist backlash against the growth of international co-operation--politicians who set themselves out to be outsiders and argue, "Your government have betrayed you. Your government should not have accepted the latest World Trade Organisation agreement, the latest European agreement", or whatever it might be. There is a real danger of a populist backlash, a nationalist backlash, against which prudential Government should guard.

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Greater openness in governments explaining to their parliaments what they have agreed in their name would help to limit that backlash.

9.23 p.m.

Lord Bruce of Donington: My Lords, I support the Motion for a Second Reading of the Bill which has been so ably presented by the noble Lord, Lord Lester of Herne Hill. As he indicated, this is a modest Bill and may not affect more than 10 or 12 treaties per annum. Nonetheless, it is very important.

I am most encouraged. I regard the Bill as one small effort to claw back from the Executive the powers of Parliament which have been taken away from it either by the existing domestic establishment, which regards the people as an occasionally convenient instrument of popular support, or by those in Brussels who seem to regard themselves as rather beyond the normal hoi polloi of human life and existence.

I welcome this first step. Unlike the noble Lord, Lord Beloff, I am more of an optimist because I recall-- I have it on the authority of one of the most learned Lord Chancellors that we have had for a long time, the noble and learned Lord, Lord Hailsham of Saint Marylebone--that no government can bind its successors. Succeeding governments can overturn anything that a previous government has done. Ultimately, Parliament remains supreme because all members of the Government are taken from it.

I do not know that there will be any resistance because I have not had the advantage of seeing the notes of the noble Baroness, Lady Chalker. However, for the life of me I cannot understand why there should be any resistance, particularly after the observations that fell from the lips of her colleague dealing with the Scott Report. He promised in specific terms that Parliament, including its Select Committees and the public, would receive as full information as possible about the policies, decisions and actions of the Government. We were going to have far more open government. Perhaps the noble Baroness will agree with the Bill, in which case she has my felicitations in advance.

We all know that most Ministers--let alone Members of Parliament--do not even know what is in the treaties that their Government sign. We had the immortal example of the Chancellor of the Exchequer who admitted that he had not read the treaty, even though it was passed by the Cabinet. On the basis of personal experience I am bound to say that the number of Ministers who have detailed, comprehensive knowledge of the Treaty of Maastricht, for example, could almost be numbered on the fingers of one hand.

I am not so much concerned with ourselves. We are a breed that is presumably about to go into extinction, but we can at least utter a few dying words before we depart. It is in the interests of the people of the United Kingdom and the Government that as much information as possible is made available initially to Members of Parliament and, after them, the public. I see the requirements set out by the noble Lord, Lord Lester, as being a modest step in that direction. I hope to revive

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the enthusiasm of the noble Lord, Lord Beloff, in due course, but with him we may well take advantage of the Committee stage of the Bill to make some surprising suggestions, particularly as they affect the multilateral treaties to which one of the parties may be the European Union. That opens possibilities for discussion of some of the issues that are important to our country today.

It has been complained--though not overmuch or tendentiously--that we should have regard to the volume of paper likely to be involved if the seven or eight treaties complied with the procedures set forth in Clauses 2, 3 and 4 of the Bill. If it takes that many quires of paper to explain the treaties, it is clear that the interests of people in the country will be affected in one way or another, otherwise they would not need such detailed explanation.

When it comes to bulk of legislation, let us be adult. Week by week by week, I examine tons of paper that come from the European Commission, including its proposals, including the explanatory memoranda added by the Government--explanatory memoranda which I am quite confident in some cases, because I have a great affection for individual Members of the Government, they cannot possibly have agreed with or, if they did agree, they certainly did not understand. The explanatory memoranda issued with some of the draft legislation and proposals that cascade into the British Parliament week after week is something that has to be seen to be believed.

That suits the Establishment, although I do not mean all members of it. I do not include the noble Lord, Lord Bridges, in that category; he has the advantage of a long history. The fact is, it suits the Establishment and it suits the Civil Service for there to be such a cascade of material that people cannot even find time to read it. Over the past 20 years, in particular, the powers of the British Parliament have been progressively taken away, either by delegated legislation or by legislation from continental institutions. That has to be reversed.

I can remember a time during the war when Parliament was held in very high regard. It was at one with the people, regardless of what political party was represented there. Parliament was held in very great respect indeed. Some of our statesmen in those days held it in very high regard. Not any longer.

Our task here--and my task for the remaining years during which I may be privileged to address this House--is progressively to increase the power of Parliament; to claw back some of the powers that we have lost in order that we can really represent the people whose interests we are supposed to safeguard, however small and insignificant they may be, however literate or otherwise they may be, however poor or wealthy they may be. That is our trust. And trust is based upon truth. It does not speak with a forked tongue. The quicker we get some facts from the Government about the legislation they propose to pass or the treaties they propose to enter into, the better it will be for the country as a whole and its future.

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9.28 p.m.

Lord Howe of Aberavon: My Lords, attractive though the prospect might be of following the noble Lord, Lord Bruce of Donington, and indeed my noble friend Lord Beloff, on the powers that they have explored, from Scott to South Dakota, I shall refrain from that pursuit. Indeed, I hesitate to join this debate at all because of my own past record. As I told the noble Lord, Lord Lester, when first he discussed this Bill with me, I must be on record myself with enough words in another place commending the existing system to make it embarrassing for me now to enlist under the noble Lord's banner. So I speak with some hesitation.

I remember, at the Second Reading of the European Communities Bill, when we made the very first move down that road, spending almost a complete 24 hours under the never-exhausted chairmanship of Sir Robert Grant-Ferris, as he then was, before we even completed the points of order on that ratification process. My noble friend Lady Chalker will no doubt recollect sharing with me the burden of securing the enactment of the Single European Act in a more beneficent era, when our noble friend Lady Thatcher was happy to impose a guillotine in support of the swift enactment of those pan-European measures. Therefore I approach this modest measure pretty warily. However, there are some arguments in favour of giving it serious scrutiny. First, it is introduced by the noble Lord, Lord Lester, for whose perception and dedication to justice in this field I have high regard. Secondly, the Bill has the merit of being compact and clear. I also have enthusiasm for simplicity in legislative draftmanship. Thirdly, it appears to have limited objectives, essentially the provision of an explanatory memorandum, which is not unimportant, to back up the parliamentary approval procedure, with a sensible provision for exceptions in exceptional cases.

Parliaments elsewhere in the world have been increasingly involved in the approval of treaties in this way, notably even the European Parliament, although to some extent that may have been conceded to it as a relatively harmless addition to its diet. But there are arguments against the Bill which deserve scrutiny. First, it can be said that the Ponsonby Rules, if not more flexible, are certainly flexible enough to provide for effective parliamentary review of any significant new treaty obligation. The noble Lord, Lord Bruce of Donington, with his clamour for the clawing back by Parliament of powers long since departed, has an exaggerated view of the diminution of parliamentary authority. Anyone who has been concerned with any major measures enacting European legislation can hardly feel that he is sailing along smooth parliamentary seas. Both Houses of Parliament have a notable power for getting their teeth into significant changes which inflict treaties upon this country. One should not be too concerned about it.

The other argument that deserves some scrutiny--and worries me--is that there is a risk that the procedure proposed by the noble Lord, Lord Lester, may extend the amount of parliamentary time that perforce has to be added to the process of approving treaties. It appears to introduce a necessary separate stage. That is not decisive, although as a former Leader of the House of

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Commons I am always anxious not to have inescapable burdens of parliamentary procedure imposed upon our procedures. I would be content for this Bill to be examined with sympathy if it was necessary to ensure the filling of any realistic gaps in the opportunity for parliamentary scrutiny. I am not satisfied that for practical purposes there are such realistic gaps, but if there are I hope that the Government will look at the Bill with sympathetic attention.

On the other hand, I hope that the noble Lord, Lord Lester, will consider how far the range of Bills to be covered by Clause 3(1)(a) may impose a double jeopardy upon the legislative process. The noble Lord, Lord Kennet, rather blithely said that the whole process would ensure a much smoother parliamentary ride for treaties and Ministers alike. I am not sure about that. My anxiety is that it will place the passage of parliamentary approval of new treaties at risk of double jeopardy. If that were the case, I would be tempted to conclude with the simple proposition: Ponsonby Rules okay. I believe that the noble Lord, Lord Lester, has presented to the House with characteristic clarity a prima facie case. I am not sure that it deserves to go forward to the next stage of its procedure, but we ought at least to consider the possibility with sympathetic care.

9.34 p.m.

Baroness Williams of Crosby: My Lords, this has been a remarkable debate and one in which we have had some knowledgeable and wise contributions. This House has reached a level of consensus which is somewhat surprising, not only across the Floor of the House. I am delighted that it includes the support of the noble Lord, Lord Bruce of Donington. I was extremely pleased to hear his support for the Bill.

In presenting the case for this Bill, my noble friend Lord Lester outlined the very strange situation in which the United Kingdom finds itself in comparison with not only most other European countries but most other Commonwealth countries as well. He commended to the House the report of the Australian Senate. The report of that senate, which went in great detail into the whole issue of the ratification of treaties and the approval of that ratification by parliament, dealt with some of the issues raised in this debate, in particular, by commending very strongly the idea of a joint select committee of parliament. It dealt with some of the issues which concern the noble and learned Lord, Lord Howe of Aberavon, in reminding us that there could be heavy demands on parliamentary time.

The establishment of a joint committee of the two Houses of Parliament would itself go a very long way towards ensuring that there is proper scrutiny of treaties and that the Houses themselves have commended to them those treaties which deserve further observation and further debate. Many of us in this House and the other place would feel much more content if we knew that treaties were being carefully investigated in that way. It is already the case that the Select Committee on the European Communities deals with many of the directives which come forward from that quarter and

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which, as the noble Lord, Lord Bruce of Donington, pointed out, already involve a very considerable burden of scrutiny on that particular committee.

The burden of the treaties, to which my noble friend Lord Lester referred, is considerably less. According to a Written Answer the number of treaties needed to be ratified subject to the Ponsonby Rules--in other words, laid before Parliament--is only 72 since 1st January 1991; an average of just over 14 treaties a year. If my noble friend's example of an explanatory memorandum holds good, that would involve only a minute proportion of the kind of weight of paper that arrives in this House every week of the year as a result of secondary legislation in the form of regulations.

I should like to refer to a matter put to the House by the noble Lord, Lord Kennet, and my noble friend Lord Wallace of Saltaire; namely, the growing significance of treaties as a proportion of the legislation passed by Parliament. There are not only the treaties that we have referred to in respect of global dealing with environmental problems, and with other problems increasingly, that require an intergovernmental response to the problems established. There is also such new legislation as flows, for example, from the Anglo-Irish Treaty--an area of intense interest to this House and another place--which is nevertheless in the form of a treaty rather than domestic legislation; involving, as it does, more than one government. There are many other illustrations that I might bring forward of the way in which treaties between governments are becoming more and more crucial to the exposition and discovery of the objectives of domestic policy in all the countries of the European Union and, indeed, beyond.

If I may say so, this is intended to be a modest Bill. The noble Lord, Lord Kennet, asked whether Clause 4 allowed too great a degree of discretion to Ministers in enabling them to go ahead with urgent treaties, with an explanation to the House of why they felt obliged to ratify without going through its procedure. But that was deliberate on the part of my noble friend. He wants to ensure that there can be no reasonable objections to the modest Bill that he proposes to the House this evening.

The noble Lord, Lord Beloff, brought forward a rather strange argument--the argument that because, in his view, democracy had been limited by our membership of the European Union, it was appropriate to limit it still further by not taking the powers proposed in this Bill. I found that a strange argument. I found it even stranger that he was not willing to consider the position put forward by my noble friend Lord Wallace of Saltaire that in many ways today the German federal constitutional structure--the German Federal Government--has considerably greater influence over the pattern of the treaties of the European Union precisely because the national parliament has insisted upon debating the treaties and in some cases even attaching conditions to the passage of those treaties. The example that springs to mind is the requirement by the German Bundestag that there can be no ratification of a new treaty involving the setting up of the European Monetary Union without the full approval of the German Bundestag--incidentally, something that did

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not apply in the same way to most of the other countries of the European Union. It is an example which shows that both national parliaments and the European Parliament can be given greater responsibility and accountability by working together rather than fighting one another over the shrinking area for which they are found to be responsible.

The noble Lord, Lord Bridges, gave us a fascinating history of earlier treaties and raised some specific problems with which my noble friend Lord Lester will deal, but perhaps I can again mention, first, that the burden of treaties is a relatively limited one, at least up to now; secondly, that an explanatory memorandum can be brief and clear; and, thirdly, that the proposal for a Select Committee of both Houses on the lines of that proposed for the Australian Senate would go a long way indeed to give the House the assurance it needs without involving a heavy demand on parliamentary time of the kind about which the noble and learned Lord, Lord Howe, expressed concern.

Perhaps I may make one or two brief references to the suggestions made by my noble friend Lord Wallace of Saltaire and the noble Lord, Lord Kennet, regarding the extent to which we might widen the educational understanding of this country in international affairs if treaties were required to be ratified by Parliament. That seems to me to be an extremely important point; that is, that Parliament might create its own backlash against treaties signed in its name.

Perhaps I can give a precise example of what we have in mind. The danger of backlash can be met to a great extent by what the architect of the German constitution, the famous Karl Joachin Friedrick, referred to as the "law of anticipated reactions". He said that in drawing up treaties governments would be constrained by the very fact that those treaties had to be approved by the legislature and would therefore bear in mind the interests of the people in the very ways in which they negotiated treaties. That seems to me to be a serious and important point.

The noble Lord, Lord Bruce of Donington, referred to the accountability of the Executive to Parliament and in particular to the dangers of Executive prerogative, widening in such a way that Parliament became increasingly ineffective. I am bound to say that I have some sympathy with his point. Parliament has allowed itself to be sidelined, though it must be said that perhaps earlier this week and last week were good examples of the way in which Parliament is once again beginning to reassert its independence and its conscience.

I conclude by referring to the speech of the noble and learned Lord, Lord Howe of Aberavon, and perhaps I can again draw attention to the point made by the noble Lord, Lord Beloff, and my noble friend Lord Wallace of Saltaire. I refer to the extension of the European Treaty into what were called the second and third pillars; the common, foreign and security policy being the second pillar and the third pillar with its concern and interest in matters of internal security.

Accountability, particularly in the case of the third pillar, falls between the two stools of national parliaments and the European Parliament. There is no

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adequate accountability, as my noble friend Lord Wallace pointed out, for matters concerned with the issues under the third pillar. Yet it is the treaties under that pillar that most demand to be carefully scrutinised, for in many cases they directly affect the liberties of individual citizens of the European Union.

I therefore believe that my noble friend's Bill will bring those matters to the attention of the House; will hopefully bring them to the attention of a Joint Select Committee of this Parliament and in so doing will go a considerable way to try to provide democratic accountability and scrutiny over an area of policy that is important, that is widening, and that is insignificantly scrutinised by a democratic institution. I am proud to support it.

9.45 p.m.

Baroness Blackstone: My Lords, like other speakers, I should like to begin by thanking the noble Lord, Lord Lester, for introducing this Bill. I admire his initiative not just in identifying a gap in our procedures, but also in undertaking the historical research on the Ponsonby Rule and how it is operated, and other matters, and in investigating what happens in other countries as well.

I have to admit that, unlike other speakers, I am no expert on either parliamentary procedure or international law. I am not sure whether that is an adequate excuse for my failure to have noticed that there is in fact a democratic deficit with respect to consideration of treaties by Parliament. I am very grateful therefore to the noble Lord, Lord Lester, for drawing it to my attention and for drafting this Bill which, if enacted, will help to rectify it.

There may be details in this Bill on which further work is needed. I believe the noble Lord, Lord Beloff, drew our attention to one or two omissions and, with the noble Lord, Lord Bridges, to some problems of definition. However, the arguments of the noble Lord, Lord Lester, are in my view persuasive on the need for changes to our procedures in order to deal with this democratic deficit.

We have had an extremely interesting debate on this Bill this evening; in fact, it had some of the qualities of an academic seminar, but perhaps I may say to the noble Lord, Lord Beloff,, that I do not believe that it has been impractically academic in any way.

We are debating this Bill in the same week as a major debate in this House and in another place on the Scott Report. As my noble friend Lord Bruce of Donington has already indicated, in that debate the Government accepted the need for a number of changes in both Whitehall and Westminster governing the export of arms. Some of these changes concern greater openness and transparency, including the consideration of policy guidelines and how they are arrived at in Parliament and reporting to Parliament on their implementation.

In acknowledging the importance of ministerial accountability to Parliament in this area, like my noble friend and the noble Baroness, Lady Williams, I hope that the Government might also be willing to accept that there needs as well to be an improved system in place for the Executive to obtain parliamentary approval in

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this rather different area of multilateral treaties which is before us today. I very much look forward to the Minister's reply and in particular ask whether she can throw some light on the number of treaties likely to come before Parliament each year, if this Bill were enacted, and on which there appears to be some dispute this evening.

Quite rightly, the noble Lord, Lord Lester, drew our attention to the fact that most treaties today have considerable ramifications for domestic policy. They are rarely about alliances which commit us to send gunboats or their modern equivalent. They are instead about a very wide range of matters which he mentioned at the beginning of his speech. In the past treaties largely about military alliances and diplomatic relations had relatively little direct impact on people's lives because for the most part they never had to be activated. By contrast, many of today's treaties reach deeply into our daily lives and do so on a continuing basis--in other words, treaties which cover such subjects as environmental protection, have an ongoing effect from the very day on which they are ratified. Because of that they are obviously not a matter for governments alone and should be approved by Parliament even if it means that there is a bit more paper--to use my noble friend's term--"cascading" into both our Houses.

Moreover, as the noble Lord, Lord Lester, has pointed out, our membership of the European Union means that there will be an increase in the number of treaties likely to require ratification. In that context, it is interesting, (is it not?) that there appears, as the noble Lord, Lord Lester, has already said, to be no other European country which excludes Parliament from the treaty-making process in the way that Britain does.

I was a little surprised that the Foreign and Commonwealth Office was unable to answer the noble Lord's Written Question on the practice of other countries. Perhaps the Minister could confirm tonight that we are out of line with the rest of Europe in that respect. If we are out of line and the Government are prepared either to accept the Bill or to introduce their own legislation to rectify the situation, we may be faced with one of those rare occurrences where Euro-philes and Euro-sceptics can agree. Those in favour of greater integration will presumably welcome the UK coming into line with other European countries on this matter and, despite the argument of noble Lord, Lord Beloff, which I too found a little perlexing, those who are against it may favour more opportunity for Parliament to consider European Union treaties and, indeed, treaties that may be made with other parts of the world. Incidentally, I was delighted to find myself in agreement with my noble friend Lord Bruce of Donington. On many such matters he is usually on the side of the noble Lord, Lord Beloff, rather than on mine.

When my attention was first drawn to the need for this Bill, I was concerned about potential delays in getting agreement to important treaties. However, my anxieties have been allayed by subsections (1) and (2) of Clause 4, where the Secretary of State is able to cite exceptional circumstances requiring rapid ratification of a treaty, and therefore the bypassing of the Act. It is right that, as the Bill proposes, reasons for urgency

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should be given to Parliament. Therefore, I am afraid that I am not in agreement with what my noble friend Lord Kennet said on that.

The Minister may say that all treaties which require domestic legislation are considered by Parliament anyway. She may also, following the noble Lord, Lord Bridges, say that the Ponsonby Rule (under which, as we have already heard, treaties subject to ratification are left on the Table for 21 sitting days after which they are ratified) provides for satisfactory parliamentary scrutiny. However, I think that the noble Lord, Lord Lester, has made the case for rejecting the view that those provisions are entirely adequate. I do not need to repeat all his arguments.

I have looked at the Report of the Senate Legal and Constitutional References Committee of the Australian Parliament, to which the noble Lord, Lord Lester, and the noble Baroness, Lady Williams, have already referred. It is an interesting report, and I commend it to the Minister if she has not already seen it. However, I am not entirely clear about what the position of the Australian Government now is. Have they indicated that they will accept the recommendations? I assume that they have not yet decided. If, however, Australia goes ahead, the UK will become even more unusual in its failure to provide for proper parliamentary scrutiny and approval of treaties in law.

The noble Lord introducing the Bill has made a very persuasive case for it. Perhaps the Minister will make an equally persuasive case for rejecting it. On the face of it, I believe that she will find that difficult, but I greatly look forward to hearing the Government's position after a debate in which, apart from the noble Lord, Lord Beloff, who opposed the Bill, there has been considerable support for it--in fact, from noble Lords on all sides of the House, including interestingly from the noble and learned Lord, Lord Howe, who, as a distinguished former Foreign Secretary, has more experience of these matters than most of us speaking tonight. Like the noble and learned Lord, I hope that the Government will look sympathetically at the Bill.

9.59 p.m.

The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the noble Lord, Lord Lester of Herne Hill, has brought an interesting Bill to Parliament tonight. It has been a fascinating debate for those of us concerned with procedure and concerned to see greater openness, as are those of us on the Government Front Bench.

It was interesting to see the new alliances that have been formed tonight between the noble Lord, Lord Bruce of Donington, and the noble Lord, Lord Lester of Herne Hill. I felt sorry for the noble Lord, Lord Kennet, who was rather out on his own in the debate tonight. He may be a supporter of the Bill but he was not arguing from quite the same basis.

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