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Sammy Wilson (East Antrim) (DUP): In the consultation and the Government paper on the governance of Britain, one recommendation was to put the Ponsonby proposals on a formal basis. That would have included the Government explanatory memorandum, which provides information about the contents of the treaty along with the Government's view of the benefits and burdens of the treaty. If that was what was originally envisaged,
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why is it not reflected in the Bill? Is this not another example of the original proposals being short-changed by this Bill?

Mr. Redwood: The hon. Gentleman is exactly right: we do seem to be short-changed in this respect. Again, it comes down to Ministers not living the brand. They say they are bringing forward such proposals in the spirit of openness and in an attempt to strengthen the rights of parliamentarians, and therefore the people whom we represent, to some control or ability to debate such matters intelligently, but in order for Parliament to debate it, it first needs to be made more unequivocal that it is our right and duty so to do.

Secondly, as the hon. Member for Hendon says, we need to be assured that the Minister will produce reasonable information, written in sensible English that we and our constituents can understand, so that we can have an intelligent debate about it before it is scrambled through in a hurry, only for us to repent at leisure as the years go by and we discover what the complex legal language of the treaty really meant and that it had not been properly explained or debated at the time.

Any self-respecting Government who believed in openness, who believed in signing only the treaties that were in the nation's interest and who were proud of the treaties that they wished to sign would see nothing wrong with the hon. Gentleman's proposal and with some of the points that I am making about strengthening the scrutiny and the rights of Parliament. If the Minister cannot give any ground on this issue, that proves, once again, that the Government are not serious about having a stronger Parliament.

Chris Bryant: Sir Nicholas, it is a great pleasure to serve under your chairmanship.

The reason why I was shaking my head at the right hon. Member for Wokingham (Mr. Redwood), who knows that I have a great deal of fondness for him, was that in this particular regard he is wrong. He is wrong in two respects. The first is that the amendment would not remove any of the wording to which he was referring, about what

The amendment would not amend that element of the clause at all; it would simply add to what is published, by providing that there should be not only a copy of the treaty but an explanatory memorandum.

Mr. Redwood: But then, of course, the amendment would modify the discretion of that Minister, because it specifies things that he would have to do, whether or not he was of that wish.

Chris Bryant: The right hon. Gentleman said in his speech that the amendment would remove the language about the Minister of Crown thinking something "appropriate"-but it would not. That language would still stand even if the amendment were made.

Mr. Redwood: The amendment would modify the language; it would no longer mean what it means at the moment, because the amendment would add a list of factors on which the Minister would not have the discretion that the Bill describes.


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Chris Bryant: Ever since this Government came to power we have always published explanatory memorandums, and we have every intention of continuing to do so. We publish them in relation not only to treaties but to a wide range of other documents that we publish, and that is the right thing to do. The hon. and learned Member for Beaconsfield (Mr. Grieve) rightly said that sometimes the explanatory memorandums are not exactly very explanatory. Indeed, sometimes a greater cloud of unknowing than before descends on one after reading the explanatory memorandum. However, there is a technical difficulty with explanatory memorandums, which is that if we enter into too much explanation, we are to some extent extemporising on the text itself, and the danger is that we are then entering into a further level of debate, rather than explaining in legal terms what the treaty does.

Sammy Wilson: I accept what the Minister is saying about memorandums being published at the moment, but if that is so, why is there any reluctance on his part to include in the Bill the requirement to publish memorandums in all cases? That would take away any opportunity that cynics might have to say, "Yes, that's what's usually done." The Bill gives a Minister the opportunity not to publish a memorandum, because he can decide to publish the details in whichever way he "thinks appropriate". By accepting the amendment, the Minister would be accepting that there is no option but for a treaty to be handled in this way, and he would not be leaving any discretion for a future Minister.

Chris Bryant: The hon. Gentleman seems quite angry about this issue. He says that I am opposed to this idea, but I am not-I am wholly in favour of publishing explanatory memorandums that are explanatory. My only hesitation is about whether that should be specified in a Bill, because of the simple fact that we publish explanatory memoranda on a great deal of things. I realise that I am wandering between using "memorandums" and "memoranda". I have already been accused today of not speaking Latin, so I want to be careful. I cannot remember whether this is a gerund or a gerundive. I believe it is a gerundive. [Interruption.] Is it a gerund? [Interruption.]

Anyway, the point that I was trying to make before I interrupted myself was that because we publish explanatory memorandums in many other areas, not just in relation to treaties, it would seem to make sense that if we were going to do so, that should be for the House to decide as a matter of House business, not a matter for the Government to decide and to put in statute.

Mr. Hogg: The Minister was expressing an anxiety that too much detail in an explanatory memorandum reopens the question and tends to enlarge the debate. Of course he will know that explanatory memoranda on Bills-I have one in front of me on the Crime and Security Bill-say in terms that they are strictly to "help inform debate" and do not in fact form part of the Bill. An explanatory memorandum on a treaty could be couched in similar language and would not, therefore, run the risk that clearly troubles the Minister.

Chris Bryant: The right hon. and learned Gentleman is absolutely right. I think that we have steered the right course, and I am grateful to him for his helpful contribution.


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Mr. Cash: On the question of the Ponsonby rule, it is, as the Minister says, frequently-invariably, in fact-the case that a short explanatory memorandum is made available to go with the deposit under the Ponsonby rule. However, he knows that since 2000 there has been an extension of the arrangements with respect to certain departmental Select Committees, the consequence of which is that the treaty is referred to the relevant Committee, too. Obviously, an explanatory memorandum would have to be made available with adequate information at that point in time. I think that I am largely agreeing with some of the things that the Minister is saying. There is a pattern of behaviour, but for the reasons that I gave earlier, it is essential that this measure should not be tied exclusively to the normal time of ratification, which comes at the end of the process in English constitutional law. We really need to ensure that we have the explanatory memorandum available at the time when it can be most and best used.

Chris Bryant indicated assent.

Mr. Cash: I am glad that the Minister is nodding his head; it is most unusual for us to agree. It is important to get the chronology right and to make the most of the important point that the hon. Member for Hendon (Mr. Dismore) is making.

The Temporary Chairman: Order. Using my discretion, I am allowing rather lengthy interventions that appear to me to be almost speeches. I am doing so because of the complication of this matter and the need for total clarification.

Chris Bryant: I am glad that you have done so, Sir Nicholas, because I wholeheartedly agreed with what the hon. Member for Stone (Mr. Cash) just said. That is the first time that he and I have ever agreed.

Mr. Dismore: I have two points for my hon. Friend. He says that there is a risk of too much detail being given, but the phrasing of the amendment does not give rise to that risk. It simply requires the background to the treaty, the reasons why we should ratify it and, most importantly, the reasons for any reservations or interpretative declarations, if there are any, to be published. That is particularly important, as we saw when we considered the convention on the rights of persons with disabilities. My hon. Friend asked why a requirement for an explanatory memorandum should be laid down in statute in this case but not in others. The short answer is: the time limit. There is a clear time limit of 21 days under the Ponsonby rule, which does not apply in the other circumstances in which explanatory memorandums are published, such as those for Bills.

Chris Bryant: No, that is not true. I am grateful to my hon. Friend-and incidentally, I am glad that he has tabled this amendment, because this is one of the significant issues in trying to ensure that we scrutinise treaties better. That is not only our aim but our determination. Other elements of the legislative process, too, are subject to time limits, and their explanatory memorandums are not required in statute. My sole objection is to writing the procedure into the Bill.

I want to respond to the point made by the right hon. Member for Wokingham (Mr. Redwood) that some treaties would be brought forward and some would not.
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That is not true. Arthur Ponsonby, when he was Under-Secretary of State in 1924, said:

We are not resiling from that one jot. It was a Labour member of the Foreign Office team who introduced that in 1924. When the Conservatives came to power subsequently they got rid of the Ponsonby rule, and it took a Labour Government to reinstate it afterwards.

5.30 pm

Mr. Heath: The explanatory memorandum is obviously of value. However, what is essential-I think this is the point that was made by the hon. Member for Hendon (Mr. Dismore)-is to see the reservations or interpretive declarations that the Minister intends to enter on ratification. Without that, the House cannot form an opinion on the value of the Bill.

The Minister is not entirely right to say that this is a House matter. The House cannot require Ministers to lay anything before us, except as provided in statute. It is therefore important that if the procedure is to be put into statute, it should be laid out fully on the face of the Bill.

Chris Bryant: In the public consultation before the publication of the draft Bill, that was one of the aspects on which we expressly invited comment. We referred to the fact that the present practice of laying an explanatory memorandum with the treaty exists. There were very few comments on that, and it did not seem to be a major matter of contention. That is probably because everybody accepts that this is such a settled practice that nobody would resile from it. The only point of difference between us is whether it should be specified in the Bill.

Mr. Hogg: As I understood the Minister's anxiety, it was something like this: it is odd to impose a requirement with regard to treaties yet not to put into a Bill a requirement as regards other Bills. Surely the answer to that objection is as follows: this Bill sets out a procedure for treaties, and therefore gives us an opportunity to deal with procedure governing all treaties. If we had a Bill that dealt with Bills-for example, an interpretation of statute Bill-that would provide an opportunity to set out our desired procedures for all Bills. We now have the opportunity to regulate the procedure regarding treaties, and surely we should take it.

Chris Bryant: I can see the argument that the right hon. and learned Gentleman is making. I do not feel particularly strongly about the issue, I must say. I welcomed the fact that my hon. Friend the Member for Hendon tabled the amendment, but my judgment still leads me to the impression that it would be a mistake for the requirement to be written into the Bill, and therefore for the requirement to be in statute in relation to treaties, but not in relation to any of the other business that we do. Consequently, I urge my hon. Friend to withdraw his amendment. The issue is not necessarily closed in the Government's mind.

Mr. Dismore: I am pleased that my hon. Friend says that the issue is not closed in the Government's mind. Although I do not plan to press the amendment to a
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Division today, my colleagues on the Joint Committee in the other place may well bring it back. One of the advantages of the Joint Committee is that we can operate a double act between the two Houses to follow up issues raised in one House or the other.

I am pleased that the Government have given an assurance that they will continue with the process of laying explanatory memorandums, but as my hon. Friend indicated in his response, it does not follow that a future Government would do the same. He mentioned that the Ponsonby rule was introduced under a Labour Government-very good. It was, in effect, abolished by the Conservative Government. It was a convention, not in statute.

Once the rule is in statute, it would be difficult for a future Government of whatever hue to repeal it. They would have to come to the House to do that, whereas they did not have to do so to break with a convention. There is nothing to stop a future Government saying, "We will continue with the statutory duty to lay the treaty, but not the duty-because it is not a duty, just a convention-to lay an explanatory memorandum." This matter is important because of the timetable. This Bill proposes a very strict timetable, and we will debate later the provisions for its extension-or, as a mirror image of that, its removal. The point is that very few of the things that we do here are subject to such a tight timetable.

I mentioned earlier the problems that we had with the Libya prisoner transfer treaty, when we did not have the material in time to produce a report at all. We were able to publish only the exchange over the reasons why the treaty was not going to be extended, so this is quite an important issue.

I should also like to take further the question that I raised in my earlier intervention on the Minister. He suggested that the amendment required too much detail, but it does not require any more detail than the present arrangements. It is up to the Government to say what should or should not go into the explanatory memorandum.

There are three basic requirements in the amendment. The first two are that the explanatory memorandum should set out the background to a treaty and why it should be ratified, and I do not see the difficulty with either of those. However, the most important requirement in the amendment is its proposal that the explanatory memorandum should set out the reasons for any interpretive declarations or reservations. That is because until we see the explanatory memorandum, we cannot know what the Government may be proposing in relation to reservations. Only when we see the explanatory memorandum can we be aware of what they are proposing in that regard, or even whether there will be any reservations.

Mr. Heath: Does the hon. Gentleman agree that this is where the treaty process differs from the Bill process? The ratification of a Bill effectively happens when Her Majesty the Queen gives it Royal Assent. She very rarely writes reservations or declaratory statements in the margins of a Bill.

Mr. Dismore: The hon. Gentleman makes an interesting point, although I am not sure that I should extend his analogy to the modest proposal that I am making here.


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Chris Bryant: My hon. Friend should not take too much advice from the Liberal Democrats, as the ratification of a treaty does not take place when Her Majesty signifies assent-

Mr. Heath: That is not what I said.

Chris Bryant: In which case, I misheard the hon. Gentleman.

Mr. Dismore: I think that the hon. Member for Somerton and Frome (Mr. Heath) said that the equivalent of ratification for a Bill happens when Her Majesty gives it Royal Assent. To that extent, he is right: a Bill becomes law only when it has been ratified by the Queen through Royal Assent, but as far as I am aware she does not enter reservations or interpretive declarations on Bills passed by Parliament.

There is a difference here. If Parliament is to discuss these matters properly, it needs to know at the very earliest opportunity whether there are going to be reservations or interpretive declarations. The best object lesson in that regard was the treaty that I mentioned earlier, the UN convention on the rights of people with disabilities. We had to do an awful lot of work on the issues involved in that, but it was only when we saw the explanatory memorandum that we knew that there were problems in the first place. Without an explanatory memorandum, the House, or a Select Committee, could discuss a matter in the abstract without knowing what problems could arise. That would be a waste of time.

I hope that my hon. Friend the Minister will think again on this amendment. I am pretty sure that my colleagues on the Committee in the other place will bring it back, so he will have time to think about it.

Mr. Cash: Does the hon. Gentleman accept that the amendment could include another type of reservation-one that covers the ratification of European treaties? Many of us consider a reservation requiring a referendum to be held to ensure that a matter such as the Lisbon treaty would have been properly discussed by the British people to be absolutely crucial.

Mr. Dismore: The hon. Gentleman wants to take me down a rather different byway. His own amendments will be debated soon, so I shall hold my tongue on the point that he raises, as I think that it is something of a distraction from what we are trying to achieve with the amendment before us. As I said, I do not propose to press that amendment to a Division, so I beg to ask leave to withdraw it.

Amendment, by leave, withdrawn.

David Howarth: I beg to move amendment 1, page 12, leave out lines 41 and 42 and insert-

'(c) both Houses of Parliament have resolved that the treaty should be ratified.'.

The Temporary Chairman: With this it will be convenient to discuss the following:

Amendment 2, page 13, line 1, leave out subsection (2).

Amendment 3, page 13, line 3, leave out subsection (3).

Amendment 4, page 13, line 5, leave out subsection (4).

Amendment 5, page 13, line 11, leave out subsection (5).


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