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19 Jan 2010 : Column 199

Amendment 6, page 13, line 13, leave out subsection (6).

Amendment 7, page 13, leave out lines 15 to 20 and insert-

'(7) Where the House of Commons has resolved that a treaty should be ratified but the House of Lords has not so resolved, and a period of 21 sitting days has elapsed since the House of Commons resolved that the treaty should be ratified, any member of the House of Commons may move that the treaty should be ratified despite the failure of the House of Lords so to resolve, and if such a resolution is carried by the House of Commons, the House of Lords shall be deemed for the purposes of subsection (1)(c) to have resolved that the treaty should be ratified.

(8) The preceding subsection does not apply where the House of Lords has resolved that the treaty should not be ratified (but defeat of a motion in favour of ratification does not count by itself as a resolution that the treaty should not be ratified).

Amendment 8, in clause 25, page 13, line 23, leave out

and insert

'the period of 21 days mentioned in section 24 (the period after which the House of Commons may pass a motion the effect of which is to deem that the House of Lords has resolved that the treaty should be ratified)'.

Clause 24 stand part.

The fact that we are having a stand part debate on clause 24 means that any Member can raise any issue relating to that clause.

David Howarth: We come to the main issue, which is about the way in which the Government have chosen to attempt to fulfil their promise, in "The Governance of Britain" Green Paper, to shift power towards the House and away from themselves. I fear that in clause 24, they have failed to do so.

There cannot be many countries where the power to ratify a treaty rests solely with the Executive branch-with the Government. There is, as the hon. Member for Stone (Mr. Cash) said, a safeguard, which the courts created-the so-called dualist theory of international law, whereby the ratification of a treaty by the Government does not by itself change the domestic law of this country. But it is still a thoroughly bad thing that the Government can, by themselves, bind this country in international law and then come to the House and say, "If you don't incorporate the international obligations that we have just made into domestic law, this country will be in breach of international law."

Mr. Hogg: A very good example of that is the treaty that the Government entered into with the United States regarding the extradition of UK subjects to the United States.

David Howarth: That is an excellent example. The relevant Secretary of State-I believe that it was the Home Secretary at the time-went to Washington and negotiated a treaty without any reference to this House, and then they put this House in the position whereby, if it had not acceded to the Government's wishes on how to implement that treaty in domestic law, this country would have been in violation of its international obligations to the United States.

Mr. Cash: The hon. Gentleman said that he would be surprised if many other countries took the dualist approach,
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but he will find that it applies to almost all, if not all, former colonies of the United Kingdom-with the prime exception, as it happens, of the United States of America.

David Howarth: Yes, it does not apply in the United States of America, and that is because of the explicit terms of its constitution. I think that article 6 incorporates treaties into domestic US law, and that is why the Senate's consent is required to ratify treaties. The US has brought the two legal systems together as we have not.

Mr. Cash: We have our rather exclusive arrangement precisely because of the struggles, which this House itself represents, in the 17th century regarding Charles I, the constitutional settlements that followed the king's execution and the specific constitutional arrangement that we came to. That led to our modern democracy.

David Howarth: The hon. Gentleman is right, but I still think that there is unfinished business from that time. The idea that the Government, representing the Crown, have such fundamental and exclusive power over the foreign relations of this country is incompatible with the democratic form of government. That is why this clause is so important. It is about, or ought to be about, putting that situation right.

Chris Bryant: I am sure that the hon. Gentleman is right, although I think that there are a large number of countries-in particular, those with presidential systems-where it is entirely for the Executive to decide such matters, including, for instance, matters of military conflict.

On treaties, however, the hon. Gentleman referred to the UK-US extradition treaty. It was signed on 31 March 2003, published and laid with an explanatory memorandum on 21 May, and the Ponsonby period ended on 30 June. There were no requests for debate at that time, and no requests for an extension of time.

David Howarth: I shall not anticipate my speech, but that illustrates why there ought to be an affirmative procedure, rather than a negative procedure. The negative procedure depends on the Opposition, or Government Back Benchers, noticing what is going on; with an affirmative procedure, the Government would be duty-bound to come to the House to explain what they had done. As they are in a far better position than the Opposition to know what they have done, that appears to be the right procedure.

As the Minister just illustrated, the current rules-the Ponsonby rules-are a compromise between this House having real power and the Government having all the power. However, that is only a convention, and a grace and favour convention at that; the Minister mentioned that some Governments have not recognised it. It is entirely unsatisfactory, constitutionally, for this situation to continue. There have been numerous calls for reform-I need not go through them all. The Public Administration Committee even produced a draft Bill, drafted by Rodney Brazier, which the Government rejected, seemingly on the grounds that it would mean that Ministers would have to do more work, which does not appear to be a constitutional principle.

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5.45 pm

Then we arrive at the White Paper of 2007, "The Governance of Britain", in which-this was the new Prime Minister's first great act as Prime Minister-the Government said that, contrary to their previous position, they would now move towards bringing into statute at least the conventions that we currently have, and promised to shift the balance between Parliament and the Government. However, the way in which clause 24 has been drafted means that it is hardly worth having. The Minister noted that part of the convention is that if an Opposition party-the main Opposition party or the third party-requests a debate and a vote on a treaty within a 21-day-period, the Government, by convention, use their power to grant that debate. Where is that stated in the Bill? It is simply not there. This is another case of the Government not wanting to be bound by statute in the exercise of their power to control the agenda of this House.

Mr. Hogg: Perhaps the hon. Gentleman could help me on this point, because he knows more about it than I do. I notice that the matter will not be debated unless the House has resolved that the treaty should not be ratified. My understanding of parliamentary procedure is that it is for the Government to table a motion that it should not be ratified unless it is debated. I can see no obligation in the Bill for the Government to put down such a motion on the Order Paper of the House.

David Howarth: That is entirely right. That is my main point about the defects in the clause.

The Government have stipulated a negative procedure. The great defect of negative procedures is that the Government have total control over the agenda of the House. They may choose not to allow an annulling resolution to come before the House for debate for the 21-day period, as they can under the existing arrangements in Standing Order No. 14: for example, they can ensure that an Opposition day is not held in that 21-day period. If they do that, they can obtain ratification of a treaty without any parliamentary discussion.

Mr. Grieve: The hon. Gentleman is making an important point. When I looked at the clause my first instinct was that there was some point in having a negative procedure, because some treaties will not concern or bother the House at all. However, he is right to highlight the fact that if we are to have such a procedure, there must be a system to ensure that the Government cannot prevent the negative resolution from being tabled and debated in the 21-day period.

David Howarth: Yes, that would be an alternative to the method that I propose. Amendment 1 would introduce an affirmative procedure, for two reasons that have already been discussed: first, because the Government are in a much better position to know what they have done; and secondly, because that would guarantee a vote-not a debate, but a vote.

Actually, now that I think about it, the Ponsonby rule was developed at a time when the Government did not have control over the agenda of the House every day. I suspect that they had control over three days out of the five in the week. Earlier, they had control over only two. I suspect that they could not have prevented a private
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Member's notice to disapprove of a treaty from being brought forward. We are in an entirely different situation now with regard to what the House can do about a treaty that the Government simply show they intend to ratify without yet having done so.

Mr. Cash: Does the hon. Gentleman agree that as we feel our way towards some kind of understanding and solution on this matter, part of the problem is categorisation? It is well established that the Government normally give time for debate and sometimes a vote on what are described as "important treaties". The problem is what is described as important. Perhaps an answer to the question whether there should be a negative or affirmative procedure is that there should be criteria to determine what is important and what is not so important. Those criteria could determine which categories of treaties should be regarded as essential for debate and a vote. That could include memorandums of understanding and other matters that fall into the category of being of incredible importance for discussion. That raises the question of signature, about which I shall speak later.

David Howarth: That might be a way forward, but my preference is to say that there should be an affirmative procedure unless the requirement to do otherwise is proven. That should be the default option.

If I understand clause 24 correctly, it is even more extraordinary than it first appears. It seems to suggest that if by some miracle the House of Commons votes against a treaty in a resolution, the Government then get another go. They can say that they disagree with the House, then wait another 21 days and ratify anyway. If the House votes against the treaty again within that 21-day period, the Government get another 21 days. They can keep disagreeing with the Commons until the Commons gives up. That seems quite appalling. The Government should not be allowed to defy the Commons at all, not even once. When it has voted not to ratify a treaty, that should be it.

If we go further into the clause, we get to the powers of the House of Lords, which is in an even worse position than the Commons. If it votes against a treaty, it can be overridden by mere ministerial fiat. A Minister can simply sign a declaration stating that he disagrees with the House of Lords. The clause seems to be a mere show-a shadow play, a simulacrum of change. If we look through the whole clause, we see that no real power is being transferred to the House at all.

What should we do about that farce? Our amendments are intended to put the situation right in three different ways. As I have mentioned, amendment 1 would replace the negative procedure with the affirmative so that treaties would not be ratified unless both Houses of Parliament had positively approved them. There would be no get-out clause whereby the Government could simply override a House of Parliament. That is the second point of the amendments-the Government would not have a second go in the Commons.

Chris Bryant: I am slightly perplexed. Is the hon. Gentleman really suggesting that every single treaty that is agreed should have to go through a positive vote in this House and the Lords?

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David Howarth: What happens with affirmative statutory instruments is precisely that. There is not a debate on every one, but there is an order to be taken in the House after 10 o'clock, and if anyone wants to vote against it we end up with a deferred Division on a Wednesday lunchtime. There is at least a vote.

Mr. Grieve: The hon. Gentleman is right, but of course one problem with statutory instruments is that they operate until they are negatived, whereas the difficulty with a treaty is that once it is ratified, it exists as an international obligation. As we know from our discussions on the Lisbon treaty, Parliament cannot do much about it afterwards. That is why the key response that the Government have to provide in this debate-I am sure that he is right about this-is on how there can be a guarantee that the House will be in a position to bring forward a negative resolution and debate it within the 21-day period, and that the Government will not use a sleight of hand to wriggle out of their obligation in that respect. If they cannot provide that response, my sympathies will switch entirely to the hon. Gentleman and I will say that the clause is not worth the paper it is written on. At the moment, I take it at face value that the Government are well intentioned.

David Howarth: My hon. Friend the Member for Somerton and Frome (Mr. Heath) said in the debate on the programme motion that this was a constitutional Bill. One principle when debating constitutional matters is that one should assume that the powers granted by the law will be operated by people who are not well intentioned, even though those proposing them might well be. That is why I strongly prefer the guarantees of the affirmative procedure. How to deal with that procedure would be a matter for the House, and the Government would not have to hold a debate on each and every treaty, but there would at least be the opportunity of a vote, perhaps by deferred Division.

Mr. Cash: Does the hon. Gentleman accept that some of the problems could be overcome if we were to go down the route of attaching the approval of Parliament to the signing of a treaty, rather than to ratification, which tends to take place at the end of the process? That would be the right sequence. If I may go back to the 17th century for a moment, I have in mind the fact that King Charles II brought forward the secret treaty of Dover precisely to avoid Parliament being involved, so that he could carry on with subsidies from Louis XIV. That is not just an historical allusion, because we wish to bring forward the whole process to ensure that Parliament is involved. That is a really important proposal that has to be got right. I suggest that the signature consenting to a treaty is more important than the ratification that takes place at the end of the process.

David Howarth: The hon. Gentleman raises two points. I agree that having some sort of control over the negotiating of a treaty before it is signed is important. However, Parliament having control of ratification through a vote would be an important deterrent that would work its way backwards through the entire procedure.

The hon. Gentleman's reference to the treaty of Dover raises in my mind another reason to ensure that there is an affirmative procedure in the Bill. One problem with the Treasury's alignment project, which he will have
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come across, is that future estimates will come to the House in net, not gross, form. The previous procedure of limiting a Department's income through the appropriation-in-aid procedure will be got rid of, which will mean that Departments can collect money from other places without parliamentary control and present Parliament with only the net amount that they require from us. The hon. Gentleman provides yet another reason for having the affirmative procedure, because we must maintain control over expenditure.

Mr. Hogg: Might I suggest to the hon. Gentleman that what is clearly troubling a number of hon. Members is the fact that some treaties will be of relatively minor importance and will not require debate? Is not a sensible way forward to agree to the amendment in his name, with a modification to be made in the other place, so that generally speaking, treaties will be both debated and approved before ratification, unless the House resolves that debate is unnecessary, in which case a resolution will suffice-in other words, to create the presumption that there is debate and approval with a disapplying mechanism?

6 pm

David Howarth: Yes. That would be a way of resolving the problem of having a debate. Amendment 1 would require only a vote. It does not cover the question whether there should be a debate, which can be dealt with later.

The third improvement-the final one I shall mention-that amendments 1, 2 and 8 seek to achieve is to the position of the Lords. We are trying to achieve an analogous situation to what happens with statutory instrument in the Lords. Very often when the Lords discusses a statutory instrument, it has the power to bring it down-to annul it or refuse its approval-with the effect that it does not come into law. However, it rarely uses that power, by convention. Instead, it has what it calls a non-fatal resolution, under which it says that it disapproves of the statutory instrument the Government propose, but does not exercise its technical power to refuse legal force. The amendments on the Lords would merely reproduce that system. In the end, the Commons would be more important in the procedure, and the Lords would be able to say it disapproves of a treaty without bringing it down.

It seems to me that clause 24 is seriously defective, because the Government's intention appears to have been to write a clause that looks as if it transfers power when it does not. The intention of the amendments is to fulfil the Government's promise in reality, and change the system for the ratification of treaties so that real power comes back to this place.

Mr. Grieve: The amendments tabled by the hon. Member for Cambridge (David Howarth) seem to me to have some considerable force. The key issue is that Parliament should be able to express its view on treaties in the way the Government appear to intend. As I have indicated, I differ from him because I think the idea that we have affirmative resolutions for every treaty the Government sign is a burden that this House need not take on. If we did, it would gradually dawn on the House just how irrelevant the vast majority of such treaties would in fact be regarding many of the issues we must consider.

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