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Baroness Chalker of Wallasey: My Lords, I will not be drawn down that path. I will read tomorrow what the noble Lord said but, as I understood him, he was not quite on the same wavelength, as his noble friend Baroness Blackstone has just said.
It was amazing to see that the noble Lord, Lord Bruce of Donington--who is a great friend of my noble friend Lord Beloff--found himself, for totally different reasons, in a similar position to the noble Baroness, Lady Williams of Crosby.
Then came my old boss, if I may affectionately call him that, the noble and learned Lord, Lord Howe of Aberavon. As always when listening to him--and when we read his remarks in Hansard--we understand that while he too is very much in favour of openness, he can see some downside risks in the Bill. That does not mean to say that its intent is not perfectly worthy, but he can see some downside risks and I believe that he gave us some valuable advice tonight.
The Bill provides that no treaty shall be ratified by Her Majesty's Government without its first having been approved by Parliament. The Government share the noble Lord, Lord Lester's concern that the international obligations of the United Kingdom should be the subject of a proper scrutiny by Parliament. The real question--which I am not sure that we have yet answered in the drafting of the Bill--is what is the best way for this to be carried out. We may need more thought and clarification on that.
The present arrangement for parliamentary consideration of treaties is flexible. It provides for proper opportunity for debate and, as the noble Lord, Lord Bridges, said, the system works rather well. It has worked remarkably well considering its age--but then, in this House, I am a great respecter that good things last a long while.
The Bill worries me because it would introduce fixed procedures which could impinge upon Parliament's timetable and yet do little to further the democratic scrutiny of international agreements concluded by the Government. Successive British Governments have long recognised the importance of ensuring that their international obligations and responsibilities are well understood, publicised, and that Parliament is kept fully informed. That is why this Government, like all governments before them since 1924, comply with the Ponsonby rule, as we have discussed tonight. Under that rule it is settled practice that treaties requiring ratification, acceptance, approval or accession are laid before Parliament for 21 sitting days before the Government deposit their instrument of ratification, acceptance or approval. It provides opportunities for comment and debate if Parliament so desires.
In addition, to the extent that any treaty would alter the law or require legislation for its implementation, it is settled practice to ensure that the necessary legislation has been passed before the treaty is entered into. This is exactly what my noble and learned friend Lord Howe meant when he spoke of the flexibility of the Ponsonby rule.
There are special cases in which, by convention, treaties are not entered into without parliamentary sanction. Noble Lords will remember that Parliament expressly provided in the European Assembly Elections Act 1978 that no treaty which provides for an increase in the powers of the European Parliament may be ratified by the United Kingdom unless it has been approved by an Act of Parliament. That is certainly something of which the noble Lord, Lord Bruce of Donington, definitely approves.
In addition to that special case, there are five situations where treaties are not concluded without parliamentary approval, usually in the form of statute. Those are where they require an amendment to UK law; where they affect private rights; where they create a charge on public funds; where they attribute new powers to the Crown; or where they cede British territory.
There are then other cases where Parliament sanctions in advance, by general legislation, the conclusion of bilateral treaties in particular fields within the minutes laid down. Examples here are extradition treaties, double taxation treaties, and reciprocal social security benefit treaties. Here it is often provided that the terms of the treaty take immediate effect on being scheduled to an Order in Council.
I shall turn now to some of the points raised in the debate. The noble Lord, Lord Wallace of Saltaire, was worried that parliamentary sovereignty is infringed by the Crown's prerogative to ratify treaties. I do not believe that is so, because parliamentary sovereignty requires that while the Government may make treaties without parliamentary approval, it must seek approval by means of prior legislation where existing law is affected. That is why the European Communities Act was required to give effect to the Treaty of Rome. That is why on other occasions in recent years we have had some long and interesting debates in the House which I well remember.
Whenever we are talking about bringing more information to Parliament, the reason given for it, as given by the noble Lord, Lord Lester of Herne Hill, and by others today, is that there is a democratic deficit. I am not sure whether there is a democratic deficit here, because the power to make treaties is not vested in the Crown only, it is exercised by the Secretary of State for Foreign and Commonwealth affairs. He must consult those of his colleagues whose departments are responsible for implementing the provisions of a particular treaty. The authority of the Government rests upon a democratic mandate, and effective government requires the support of the majority of the Members of the other place.
While Parliament may not invariably have a formal role in the ratification of the treaties, unless it decides to debate them, it has every opportunity to scrutinise their provisions. Through Parliament, governments will always be democratically accountable for their actions. They include the making of international treaties.
I have been involved in a number of signings over the past 10 years. I cannot remember a case where, when there was something to be questioned, it has not been questioned. Others may differ in their view on that
Baroness Williams of Crosby: My Lords, I thank the Minister for giving way, but before she leaves the section of her speech which she is now devoting to the issue of parliamentary scrutiny, will she consider the issues raised about an explanatory memorandum, given that some treaties are complex, and that that would enable the two Houses to understand much more clearly what is at stake in some of the treaties?
Baroness Chalker of Wallasey: My Lords, I shall be coming to that matter a little later, because I see the possibility of some good practice being developed along those lines. If I may, I shall leave the point until a little later.
I remember well the concern about the European Convention on Human Rights, because the noble Lord, Lord Lester, has queried matters of that nature with me previously. It is important to note that when the European Convention on Human Rights was to be ratified, long before I came into Parliament, the convention was laid under the Ponsonby rule on 23rd January 1951. Members' attention was drawn to it on 5th February 1951 in a Written Answer from the then Minister of State for Foreign Affairs, Mr. Kenneth Younger. There were no objections raised, despite the fact that that Written Answer actually invited them, and therefore the convention was duly ratified. That seems to me a very sensible way under the existing system to proceed, to notify by Written Answer that if objections are not made within the 21 days after the convention has been laid, then it will be duly ratified. That obviously does not answer the noble Lord, Lord Lester, or the noble Lord, Lord Wallace of Saltaire.
One of the things I believe we can do is to look at these cases in a positive light: that is to say, to look at these cases and see on each occasion how it has been dealt with. The noble Lords, Lord Bridges and Lord Lester, both asked me about Protocol 11 of the European Convention on Human Rights. Once again, the protocol was laid before Parliament in the normal way. The Ponsonby rule was completely complied with and an opportunity was given for debate, though none was in fact held on that occasion.
When we come to the inevitably interesting question of the ratification of European Community treaties, which was raised by the noble Lord, Lord Lester of Herne Hill--my noble friend Lord Beloff said that his most interesting speech would be a "very academic" speech--one has to realise that all treaties amending the European Community's treaties require the government to introduce legislation. I have already given the example of the European Communities Act 1972. Any proposal for one of the communities themselves to enter into a treaty is already submitted under cover of an explanatory memorandum to the Scrutiny Committees
The noble Lord, Lord Wallace, asked me about third pillar agreements, as did a number of other noble Lords. The Government have already undertaken to provide Parliament with texts of draft third pillar conventions while they are still under negotiation. I think this is very important. Normal ratifications as at present would proceed after signature, but the very fact that there is to be prior notice while negotiation is going on is certainly a step forward. I noted what the noble Lord, Lord Wallace of Saltaire, said about the liberties of citizens. May I just say to him that common positions, joint actions or joint positions adopted under the second and third pillars, while they may impose legally binding obligations, are not normally subject to ratification. That is why they do not occur under the Ponsonby rule. Also I must point out that under this Bill they would not be subject to that process either.
The noble Baroness, Lady Blackstone, asked how many treaties might come before us if this Bill were to be given Royal Assent. That is a matter which, as we answered in a Parliamentary Question, varies from year to year, some 72 treaties having been ratified between 1st January 1991 and 31st December 1995: in other words, the number is running at between 10 and 15 a session. I should also like to point out that 280 treaties have entered into force for the United Kingdom in the same period, either on signature or by a notification contained in an exchange of diplomatic notes. Of course, neither of these two circumstances would be covered by this Bill.
I believe, too, that although there may be only 10 or 15 treaties a Session requiring resolutions from both Houses, there would be a significant additional amount of parliamentary time required under the noble Lord's Bill without necessarily demonstrably contributing to the better scrutiny of the treaty-making process. It seems to me that that scrutiny should come rather earlier in the process than when one is at the final treaty stage. Undoubtedly there are problems with a number of the elements of the Bill which, if it is given a Second Reading, I am sure your Lordships will want to go into at a later stage.
I turn now to the comments made by the noble Lord, Lord Bridges, about the article in the Financial Times of last Saturday by Mr. A Hermann, and especially the comment made by the noble Lord about secrecy. After my 10 years in the Foreign Office, I am absolutely convinced that the ratification process is not secret. A distinguished noble Lord who is a former member of the Diplomatic Service will know full well the amount of quizzing about treaties which takes place.
One of the difficulties involved is the point raised by the noble Baroness, Lady Williams of Crosby; namely, that there are complex treaties. Indeed, there are treaties which, except to experienced lawyers such as the noble Lord, Lord Lester of Herne Hill, and my noble and learned friend Lord Howe of Aberavon, are not clear. But there is no question, as the writer of the article in the Financial Times said, that it is a secret matter. The
A number of questions were asked about practice in other countries. Certainly the essentials of our practice on treaty making and the balance of responsibilities between the Executive and the legislature is actually common to most countries. In the majority of OECD countries, parliamentary approval is required for certain types of treaty. But in most other countries, unlike the UK, the treaties take effect directly in national law upon ratification.
In the United States, treaties are subject to presidential ratification and require approval by two-thirds of the Senate. But the American constitution also provides that all treaties made under the authority of the United States shall be the supreme law of the land and that the judges in every state shall be bound by them, notwithstanding anything to the contrary in the constitution or laws of any state. That is obviously not the case in the United Kingdom; treaties cannot and do not take effect in our law without implementing legislation.
There are countries, such as Denmark, where treaties are not self executing. Prior parliamentary approval is required for the ratification of treaties requiring implementation in national law in that country. The purpose of that is to prevent its government from undertaking international obligations which its parliament might refuse to implement.
However, it is the consistent practice of HMG not to ratify any treaty requiring implementation in UK law until such legislation has actually been passed. As regards the question put to me by the noble Baroness, Lady Blackstone, of how it affects other European countries, perhaps I may write to her on the matter because I do not have details of the situation in each country to hand at present. Those situations vary and it would take me a considerable amount of time to explain them.
We have heard a good deal tonight about the Australian constitution. Although there is much talk in Australia at present about a change in the matter, I am sure that neither there nor, indeed, in New Zealand or Canada are the treaties subject to parliamentary approval. We answered the noble Lord, Lord Lester, on that point in a Written Answer a short while ago.
I am happy to put in writing the detail about the Australian Federal Parliament, but it is a situation which has been very much akin to our own. The difficulty is that the Australian Parliament did not actually use the practice which it was afforded by its written constitution. The Parliament had 12 sitting days prior to ratification, but those concerned allowed their system to fall into disuse. They then overtook the practice that they had previously kept to by tabling treaties in bulk every six months, with the result that many treaties were tabled after ratification. That is why there has been a great debate in Australia. Your Lordships would be right and, indeed, would have every reason to complain had we followed such a practice of tabling treaties in bulk. We have not done that. If our Australian friends had
We are very different from the Australian Government in this. We are committed to a policy of open government. The full texts of all treaties are published. We give guidance on the treaty practice and procedures. That has been laid in both Houses, and it is available to the public on request from the Foreign and Commonwealth Office.
There has been some comment tonight about lack of information to answer the questions of the noble Lord, Lord Lester. This is a recent matter in terms of the great interest that the noble Lord, Lord Lester, has brought to the subject. We have been computerising treaty records. Some 12,000 items, dating back to 1835, are now being entered on to computer. No doubt, bit by bit, we shall be able to do an analysis of them which might answer the questions that the noble Lord, Lord Lester of Herne Hill, keeps asking me. I do not know whether I can do that quickly, but it may come.
Several times I have spoken about openness and have mentioned the explanatory memorandum. It is the practice of the Foreign Office to be as open as possible to the public and, of course, Parliament. There has been a massive increase in openness in the last 10 years since I first went to the Foreign Office. I hasten to add that that has nothing to do with me, although I am very much in favour of it. Ministerial speeches and correspondence are a growing feature of government business. In 1994 the Foreign Office exchanged 11,000 letters with Members of Parliament. That is a much higher figure than ever before. We make available verbatim copies of all ministerial speeches. I have already mentioned the treaty series, which is published by the Foreign Office.
However, that may not be enough. That was the point that the noble Baroness, Lady Williams of Crosby, made. The suggestion concerning explanatory memoranda is one that is worthy of further consideration whether or not this Bill becomes law. We should try to see that suggestion in the positive light in which I know it has been proposed. I shall want to examine it further with my colleagues before giving a definitive answer, but it seems a sensible way to proceed.
Certainly, I can assure your Lordships that if an MP or one of the Select Committees ever writes asking for an explanation, not only of a treaty but of anything else, they receive one. Frequently it is in memorandum form. I can assure the noble Lord, Lord Bruce of Donington, that I will not sign any explanatory memorandum without having not only read it but also learnt to understand it. Sometimes that takes a little more work than may at first sight be apparent.
As the noble Lord, Lord Bridges, says, it is more than 70 years since Arthur Ponsonby put the case forcefully against a measure such as that which the noble Lord, Lord Lester of Herne Hill, wishes to introduce. I believe that the noble Lord, Lord Bridges, used the same quotation that I had picked out from that speech. Arthur Ponsonby said:
It is clear that the Ponsonby rule, as it has been applied consistently over many years, has the great merit of allowing flexibility. My noble and learned friend Lord Howe said that the Bill of the noble Lord, Lord Lester, might impose inescapable burdens. That is a matter that your Lordships need to examine very carefully at a later stage in the Bill. We want not only the flexibility but the efficiency of the Ponsonby rule, while preserving the sovereignty and prerogatives of Parliament. Parliament has ample opportunity, whenever necessary, to examine and discuss new international responsibilities. But administrative and procedural costs must be minimised as well as making sure that the information is always available. We want parliamentary control which is effective. We want scrutiny maintained. It is not, as many noble Lords seemed to imply tonight, that the Foreign and Commonwealth Office or any other government department would feel greatly hampered by the Bill. What we must not do is to burden Parliament in such a way that Parliament cannot cope with the Bill. That is why I do not have an open-handed welcome for the Bill but a little scepticism (if I may so put it) about whether this is the best way for Parliament to go.
The Government will not seek to impede the progress of the Bill of the noble Lord, Lord Lester of Herne Hill, in this House. What we shall ask your Lordships to do is to give it strict scrutiny. It is in those terms that I welcome the debate that we have had tonight. However, as my noble and learned friend Lord Howe of Aberavon said, we should investigate the realistic gaps which may exist and see what can best be done about them.
Lord Lester of Herne Hill: My Lords, I am extremely grateful to all noble Lords who have taken part in what for me has been a remarkably interesting debate. I am particularly grateful to the noble and learned Lord, Lord Howe of Aberavon, for his over-generous personal remarks about me and for his participation as the most experienced former Minister in this area in the House.
The debate has already been summed up by the preceding three speakers. At this late hour your Lordships will not wish me to do so again. If I do not deal with all the points raised, I hope that your Lordships will not think that it is out of lack of courtesy to anyone.
I am extremely encouraged by several aspects of the debate. First, the noble Lord, Lord Beloff, paid me, I think, the doubtful compliment of describing me as though I were a professor. I would reply that to my mother I might be a professor, but to a professor I certainly would not be. Apart from the remark of the noble Lord, Lord Beloff, at the outset of his speech, every noble Lord has spoken with the same objective. Indeed, I believe the noble Lord, Lord Beloff, has the same objective. It is that there should be effective parliamentary scrutiny combined with flexibility and
Secondly, it is generally recognised that this country lags behind in practice compared with other Parliaments--that there is a democratic deficit. That deficit was brought home to me as a member of the IGC Sub-committee of the Select Committee of this House in the evidence given by such experienced people as the noble and learned Lord, Lord Howe of Aberavon, and Sir Leon Brittan who emphasised the need to enhance the role of national parliaments especially in the context of the European Union.
Thirdly, I share the distaste expressed by the noble Lord, Lord Beloff (I think that it was distaste) of the excessive scrutiny given by the American Senate in this area. The last thing that I should like to see are telephone directory-sized explanatory memoranda, coupled with Senator Bricker style amendments, and all the other gadgets built into the American process. However, we are far from that in the Bill.
Fourthly, even though we appreciate the explanatory documents that we receive from the Foreign and Commonwealth Office and other departments, one should not overestimate the problems of parliamentarians in understanding what is going on. Perhaps I may give one brief example. We considered the Europol Convention in Sub-committee E. It was impossible to obtain an authoritative text of the treaty. It was a bad English translation of a German text. The result was that we were never able properly to understand what the treaty was about. There were endless arguments about what the German text meant, and so on.
A group of extremely able experts was on the committee dealing with the treaty. I believe that lack of information provided at the right time is at the heart of the problem. Therefore, I have sought to balance the need of Parliament to be properly informed with the need of the Executive to get on with the necessary business of government and move speedily.
I take full personal responsibility for the policy of the Bill but I have been greatly assisted by advice from much greater experts than myself: Professor Maurice Mendelson, Professor James Crawford and Mrs. Eileen Denza, who is well known to this House. They all scrutinised my Bill. The definition of "treaties" comes from the Vienna Convention and I believe is correct.
The reason for including Clause 3(1)(c), dealing with the cession of any part of the territory of the United Kingdom, in that form is that the definition of the United Kingdom includes overseas dependent territories of the United Kingdom. It is not necessary to say so on the face of the Bill, it is in the Interpretation Act.
The noble and learned Lord, Lord Howe of Aberavon, raised the point on double jeopardy. It will need to be carefully examined because one does not wish to clog the business of the House or both Houses with unnecessary procedures. On the other hand, not many treaties cede parts of a territory of the UK or "lay a pecuniary burden" on the inhabitants of the UK, in the
As a practical person who has to read too many pieces of paper in my professional life, I am convinced that it is not beyond the wit of civil servants to produce explanatory memoranda of the kind that they produce for their own Ministers. They would explain to Ministers the object, purpose and likely impact of the treaty, to brief Ministers when they come to both Houses of Parliament to explain. It seems to me that just as Notes on Clauses for Bills are widely provided to Parliament so that we can understand what is in the Bills, so it should be possible to find a practical way of supplying timely and concise explanatory memoranda. They should not be enormous documents, but well-focused and practical, provided at the time when the treaty is being laid, during the 21 days.
Your Lordships should be well aware that the negative procedure which would be the main procedure under the Bill is used by both Houses for all British delegated legislation, but using 40 sitting days instead of the 21 under the Ponsonby rule. To use the same period of 21 days with negative procedure for almost all treaties would not in any way burden the House, any more than the thousands of subordinate instruments which we already have.
As regards the late Arthur Ponsonby, several noble Lords suggested that he was against legislation. That is what he said during the debate, but if noble Lords borrow from the Library Arthur Ponsonby: The Politics of Life by Raymond Jones, they will find that on the day of the debate he wrote to his wife Dolly. In that letter he said that he really would have liked to have legislation but it was not possible. He knew his friend E. D. Morell was very disappointed about that, but it was the most that he could do. He probably put a brave face on it in the course of the debate.
I am in no way wedded to the precise form of the Bill and I would welcome strict scrutiny in Committee. If the Government came up with a practical administrative scheme that did not require legislation at all, I should be delighted to take the consequences into account in looking at the future progress of the Bill.
It is ironic that the position with regard to treaty-making remains undemocratic, to some extent, in this country. Her Majesty the Queen graciously consented to my humble request that her Prerogative might not stand in the way of the Bill being considered. I am a firm supporter of the ancient monarchical system of government that we have in this country because it has a unique capacity to evolve in response to changing needs and contemporary values. I am not a republican. I respect our constitutional heritage. But that does not mean--and I know that the noble Baroness the Minister agrees with this--that Ministers should cling to Royal Prerogative powers without effective accountability.