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Constitutional Reform and Governance Bill

[Relevant documents: Report of the Joint Committee on the Draft Constitutional Renewal Bill, Session 2007-08, HC 551-I and-II, and t he Government response, Cm 7690. Tenth Report from the Public Administration Select Committee, Session 2007-08, on Constitutional Renewal: Draft Bill and White Paper, HC 499, and the Government response, Cm 7688 . Fourth Report from the Joint Committee on Human Rights, Session 2009-10, on Legislative Scrutiny: Constitutional Reform and Governance Bill; Video Recordings Bill, HC 249. ]

[3rd Allocated Day]

Considered in Committee

[Sir Alan Haselhurst in the Chair]

Clause 24

Treaties to be laid before Parliament before ratification

5 pm

Mr. Andrew Dismore (Hendon) (Lab): I beg to move amendment 114, page 12, line 38, leave out

and insert-

'(i) a copy of the treaty and, at the same time,

(ii) an explanatory memorandum explaining the background to the treaty, the Minister's reasons for proposing to ratify it, and the reasons for any reservations or interpretative declarations that the Minister intends to enter on ratification,'.

May I draw Members' attention to the report on the Bill by my Committee, the Joint Committee on Human Rights? It was published yesterday as part of our scrutiny. The Minister of State, my right hon. Friend the Member for North Swindon (Mr. Wills), mentioned all the other Committees that have considered the Bill when he spoke on the programme motion, but omitted ours from the list.

The purpose of the amendment is to give effect to part of our report on scrutiny, and in particular to try to make the scrutiny of treaties rather more effective. The new statutory procedure for the ratification of treaties is based on the Ponsonby rule. The treaty has to be laid before Parliament for a period of 21 sitting days. As a human rights Committee, our Committee has a particular interest in scrutinising international treaties prior to ratification. The problem of a lack of effective parliamentary scrutiny is particularly pressing for human rights treaties, as it is well established that UK courts will have regard to such treaties in a wide range of circumstances, regardless of whether they have been incorporated into UK law.

If a statute is capable of bearing two interpretations, the courts will presume that Parliament intended to legislate in conformity with the convention, and not in conflict with it. If the common law is uncertain, unclear or incomplete, the courts will rule, wherever possible, in a manner that conforms with the treaty. When the courts are called on to construe a domestic statute
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enacted to fulfil an obligation under a treaty, the courts will ordinarily assume that the treaty was intended to be effective to that end. Where the courts have a discretion to exercise-where they can act in one way or another-they seek to act in a way that does not violate treaties that we have signed. When, as sometimes happened, the courts are called on to decide what, in a given situation, public policy demands, it is held to be legitimate that we should have regard to our international obligations.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): I have a great deal of sympathy with what the hon. Gentleman proposes in his amendment. The one thing that puzzles me is why he has not also suggested that a memorandum should explain the consequences and effects of a treaty, because very often the draft of a treaty is rather opaque and quite difficult to understand. Might I suggest that he reflects on that? His colleagues in another place could perhaps carry forward that suggestion.

Mr. Dismore: I am grateful to the right hon. and learned Gentleman for his intervention. I shall say a little more about the nature of the amendment shortly, and I shall try to address his point when I do so.

Given the significant status that international human rights treaties have attained in our domestic legal system, I certainly believe that Parliament must be much more involved in scrutinising treaties that incur human rights obligations on our behalf. In the current Parliament, my Committee has reported on one major human rights treaty prior to ratification: the UN convention on the rights of persons with disabilities. We have also reported on treaties that, while not strictly speaking human rights treaties, have human rights implications, including the Council of Europe convention on the prevention of terrorism and, in a manner of speaking, the UK-Libya prisoner transfer agreement, to which I shall refer shortly.

When we looked at the UN convention on the rights of persons with disabilities-a major UN treaty-we conducted a detailed inquiry into the reservations and interpretive declarations put forward by the Government. We had a number of submissions from interested individuals and organisations, and oral evidence from the relevant Minister, whom we were able to question, both through correspondence and directly, on the background to those reservations. Indeed, they were somewhat modified, I think, as a result of our efforts. The report was subsequently debated in the other place.

By contrast, we were not able to report properly on the Libya treaty, as time was not made available to enable us to do so. That treaty of all treaties should have been properly examined. At the time, it had implications for the case of al-Megrahi, the Libyan who had been imprisoned in Scotland in connection with the Lockerbie bombing. In fact, his removal to Libya did not ultimately take place under the transfer treaty, but when the treaty was under consideration, that was very much an active consideration. However, we were not able to scrutinise the matter properly because we were not given the time to do so. When we come to the relevant clause later today, I hope to say a little more about the problems that we experienced. Overall, however, the principle behind the Government's proposals is welcome, in light of our experience.

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On explanatory memorandums, under the new statutory regime a copy of the treaty has to be laid before Parliament. Although it is the Government's practice to lay an explanatory memorandum before Parliament, that is not provided for in the Bill. I believe that the key to effective parliamentary scrutiny is the timely provision of fully reasoned explanations and justifications by the Government-a point that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) just made. The explanatory memorandums that we have seen, generally speaking, do provide that. That, I suspect, is why we did not specify that they should do so in the amendment.

However, we are surprised that the Bill does not reflect current practice under the Ponsonby rule by requiring an explanatory memorandum to be laid before Parliament at the same time as the treaty, in order to facilitate scrutiny within the 21-day period. We asked the Government whether they would turn the practice into a requirement, but they say that they do not consider it necessary to do so. However, I would suggest that it is in the Government's interests to explain their reasons to Parliament at the earliest possible opportunity. The Government say that they intend to continue their practice of laying such memorandums before Parliament, and of course we welcome that assurance, but it is not the same as having an express requirement in the Bill, which is what my amendment would achieve.

We also asked the Government whether they would undertake to notify the relevant Select Committees when a treaty had been agreed. That was in response to an undertaking that they gave to the Procedure Committee that copies of all treaties laid before Parliament would be sent to the relevant Select Committees at the same time. This is important, because we do not have the resources systematically to monitor the laying of treaties before Parliament, and we have only 21 days in which to do our job of scrutinising them. Any time lost might therefore prevent a treaty from being scrutinised at all. That was one of the problems that we had with the prisoner transfer treaty with Libya.

Even with an undertaking to notify the Select Committees, however, there have been delays between the laying of a treaty and their being drawn to our attention. The Libyan treaty is an example. We learned that that treaty had been laid only some way into the 21-day period. I hope that the Government will consider laying these explanatory memorandums and reinforcing their undertaking to notify Select Committees when a treaty has been laid, to enable us to do our job effectively and properly, and inform Parliament as a consequence.

The Temporary Chairman (Sir Nicholas Winterton): I call Mr. Crispin Blunt.

Mr. Dominic Grieve (Beaconsfield) (Con) rose-

The Temporary Chairman: I apologise to the hon. and learned Gentleman for that inadvertent mistake.

Mr. Grieve: No apology is required, Sir Nicholas.

The hon. Member for Hendon (Mr. Dismore) has tabled an extremely sensible amendment, and I very much hope that the Government will be able to respond to his proposal in a positive way. It is clearly innocuous in its implications for the legal framework of the legislation,
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and it would be immeasurably helpful to Members when they come to consider treaties. The point raised by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) was also well made. Treaties are often very difficult to understand.

The House has a long tradition of issuing explanatory memorandums when various documents come out-particularly statutory instruments and sometimes Bills. At times those explanatory memorandums have not been very explanatory at all. In fairness to the Government, however, they have now noted the concerns that have been expressed, and my impression is that the documents are now marginally better.

There is really no excuse for not adopting this proposal. If the House is to have informed debate, an explanatory memorandum is absolutely essential. I noticed a slight nodding of the Minister's head, and I hope that it will be possible for the Government to accept the proposal. If they are unhappy about the minutiae of the drafting, perhaps the measure could be incorporated on Report-I think there is going to have to be a Report stage-or when it goes to the other place. I rather suspect that the hon. Member for Hendon does not intend to press this matter to a vote. If he were to do so, he would have our support, but I shall not encourage him to cause the Minister that amount of distress-at least, not yet.

Mr. Hogg: I should like to endorse what has been said by the hon. Member for Hendon (Mr. Dismore) and my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). The provision would make a real improvement. It is often very difficult for Members of the House-and, indeed, members of the public-fully to comprehend the reasons for and, more often, the terms of a treaty. I can see no disadvantage in adopting the process. It would be part of the process of transparency that we are all seeking to achieve, and I would very much welcome it if the Minister made it plain that he were sympathetic to the purpose of the amendment. If he were unable to accept this drafting of it, perhaps he would consider a further draft that could be tabled in another place. If the matter were put to the vote, it would have my strong support. It would represent a positive improvement, and I commend it to the House.

David Howarth (Cambridge) (LD): I also hope that the Government will respond positively to amendment 114. As I understand it-I think the hon. Member for Hendon (Mr. Dismore) mentioned this in his speech-the provision to Parliament of an explanatory memorandum alongside a treaty has been established practice since the final years of the previous Conservative Government. In addition, during the time of the present Government, it became established practice for explanatory memorandums to be sent to Select Committees, or their Chairs if Parliament is not sitting.

There is no extra burden on the Foreign and Commonwealth Office in having to undertake that; it should already be doing it. The only reluctance on the Government's part seems to be about placing such an obligation in the Bill. The intention of this part of the Bill-at least, the Government's announced intention-is precisely that procedures for dealing with treaties become a matter of statute rather than of prerogative and practice, so it is entirely consistent that that be reflected directly, and it should be required.

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Mr. William Cash (Stone) (Con): I agree with the sentiments of the amendment, but I have a slight problem with the timing. Where the amendment states that there should be

I would raise the issue of ratification, to which I shall return later. Ratification means different things in different constitutions. If ratification takes place after the legislation has gone through and the expression "at the same time" has not enabled the explanatory memorandum to be provided before the discussion in Parliament of the treaty and, where necessary, the legislation arising from it-this is a technical issue, but an important one-the information in the explanatory memorandum would not necessarily be available at the right time to enable people to consider whether the treaty should be ratified or whether any subsequent legislation should be passed.

This is not a difference of principle, but a matter of chronology and timing. I want the explanatory memorandum to have maximum value well before the ratification. I have tabled certain amendments, which I shall deal with indirectly, relating to whether both ratification and signature are necessary to ensuring a proper analysis of the consent required by Parliament to the proposals in a given treaty. Signature is important, but ratification could-and given the UK experience of dualism, it probably would-take place later. For reasons I have explained, more attention needs to be given to the words "at the same time". I believe that "when the proposal first comes forward" would better ensure that we get the chronology right.

Mr. John Redwood (Wokingham) (Con): I welcome the amendment and I hope that it is pressed to a Division, because it is a modest and necessary improvement to legislation that falls a long way short of the stated intentions. Most Members welcome the idea that the former prerogative powers to make treaties should be properly scrutinised and then approved or rejected by this House.

In practice, before reform began, important treaties did need this House's consent, and where treaties entailed legislation, the House's consent to that certainly was required, so it would be a foolish Government who had not ensured that a treaty had our support before they signed it and ventured forward with legislation. I welcome any strengthening of the clear right and duty of this House to scrutinise and approve or reject treaties.

That is meant to be the Government's aim, yet the Bill strongly defends the prerogative power, and in a quite extraordinary way. The Government wish clause 24 to say that

so not even the collective judgment of the Government will be required. A Minister can therefore think, under his delegated authority, that a treaty is appropriate, and then tell the House what to do. If the Government have any intention of letting Parliament in on the precious business of governance, they must see that that is nonsense, and that it must, of course, be the other way round. The House must be able to decide how the Minister will report to it and what documents are appropriate for the House's consideration, and if the Minister thinks documents are appropriate that are inappropriate, inadequate, flimsy
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or imperfect, or not impartial or sensibly written, I would hope that the House told the Minister so in no uncertain terms. What is the objection to the amendment, which puts this measure right by making things a bit clearer to Ministers and giving them sensible guidance?

5.15 pm

Mr. Cash: My right hon. Friend has just used the word "appropriate". I have been looking for it in clause 24, but I think he might instead have been referring to whether in "the opinion of" the Minister a treaty should be ratified. On the basis that that is, indeed, the case, may I just mention a special legal significance? A reference to "the opinion of" the Minister serves as a message to the courts not to interfere with the judgment of the Minister. I want to talk about that later. It is extremely important, because it can take the teeth out of what we are seeking to achieve through our amendments. We want to ensure that Parliament makes the decision, not that it is the opinion of the Minister.

Mr. Redwood: My hon. Friend is slightly ahead of my argument. In the measure that I am discussing "opinion" is not used. It says that

That is very weak and weasely language, and the hon. Member for Hendon (Mr. Dismore) is wise to say that it needs strengthening-supplanting, even-in order to be much clearer in respect of the Minister.

My hon. Friend probably had in mind clause 26(1), where none of this need apply because, apparently,

the Minister can come to such an opinion, and then, as my hon. Friend says, the special language is a warning to the courts.

We therefore have weakness upon weakness from Parliament's point of view. Ministers envisage that some treaties will not be subject to its approval at all, because they are of the opinion that such treaties are none of Parliament's business. They also hope that other treaties will be rushed through without Parliament expressing an opinion because the timetable is very tight for it to debate and be involved in the ratification process. Even for treaties that go the distance under the Minister's view-those that the hon. Member for Hendon seeks to influence-we have weasel words so that reporting to the House can be anything the Minister likes and may not be very much.

The Minister for Europe (Chris Bryant) indicated dissent.

Mr. Redwood: I am delighted to see the Minister shaking his head. I am sure that that means that he will want to accept the amendment because its proposals offer an innocent and modest improvement.

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