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19 Jan 2010 : Column 205

When I saw amendments 1, 2 and 8, I was not minded to support them, because-this certainly applies to amendment 1-they seemed to go far further than required if this House is to do its job properly. However, the hon. Gentleman makes a very important point. Because the Minister is fairly well versed in the mysteries of procedure in this House, he will know that they are woefully wanting when it comes to providing proper opportunities for scrutiny.

It is perfectly possible for the Government to slip out of considering a negative resolution in a 21-day period, if they were minded to behave in that disgraceful fashion, because they control the Order Paper. The only opportunity the Opposition have to debate such a matter if the Government will not facilitate it is an Opposition day debate. If there is no such day in that 21-day period-I am sure some of my hon. Friends will correct me if I am wrong on this-it would be impossible to get the matter debated.

I hate to say it, but we have had that problem before. On a number of occasions, we have had statutory instruments or other matters that for one reason and another we wanted to bring to the Floor of the House. I can still remember being told, with such a lovely smile from the Leader of the House, simply to bring it along on an Opposition day debate. It is quite true that we could debate a substantive motion on an Opposition day, but that is when we get our Supply day. The truth of the matter is that that is not in our control. If we are indeed to move along the lines the Government are suggesting-I assume that they are acting in all sincerity, but that as usual, the full implications of the drafting have not sunk in for them-they must show in the Bill the mechanism by which the House can ensure that, should it wish to do so, it can have a negative resolution in that 21-day period. I am sure the Minister will consider that reasonable.

If I am wrong about that-the Minister's advisers can advise him and he might persuade the House of that-I will be content with the proposed arrangements, but if I am not, they must be corrected. The question at that point would be how we are going to do that. It could happen on Report or in the other place, but we must give the Government an incentive to do something about the problem. If they cannot give us the assurances we need, I would be minded to support amendment 1 if it were pressed to a Division, not because I want an affirmative procedure-I do not think that that is in any way necessary-but because it is time the Government woke up to the deficiencies in this House's scrutiny, which, heaven knows, we have complained long and hard about, before they give us a measure that may turn out to be a damp squib when it comes to the House's effectiveness.

On that point, I hope the Minister has time to consider the matter and provide us with persuasive arguments, or at least with an assurance that something is going to be done. Otherwise, we are going to have to mark our unhappiness at the measure. The only other way we could do that is by voting against clause 24 in its totality, which I am not sure is a very good idea because, as I should like to explain to him, we support the broad thrust of what the Government are trying to do.

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Mr. Hogg: I am rather closer to the position of the hon. Member for Cambridge (David Howarth) than I am to that of my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). It is important to go back to first principles and to ask what is a treaty and what its implications often are to the citizens of our country.

A treaty is, of course, an obligation that we make to other states and sometimes to international bodies. Very often, that is then reflected in domestic legislation, which bears on the individual citizen. A good example of that is the extradition treaty with the United States, about which we have spoken. Therefore, the starting proposition should be that a treaty is debated as well as approved by the House-that seems a good starting point to me. One must then ask in what circumstances that initial presumption is to be displaced. We then come to the point made by my hon. and learned Friend, which I am sure is true to a degree, that a number of treaties are of minor significance and we should not place a burden on the House.

At this point, I have a question to which the Minister may respond in due time. Typically, how many treaties are there each year?

Chris Bryant: Thirty.

Mr. Hogg: Thirty is not a huge number. Is that the typical number or an average figure?

Chris Bryant: I do not know whether it is average mean or median.

Mr. Hogg: We are not going to fall out, Sir Nicholas. Thirty is obviously the figure the Minister has in mind. Therefore what we are talking about is a rebuttable presumption that the House both debates and approves 30 treaties. I think that the House should be obliged to approve all of them by way of some form of affirmative procedure. However, I acknowledge that the House should not be obliged to debate all of them. Therefore, we have to find a way through the conundrum of requiring the approval of the House by some affirmative procedure, but allowing it to decide not to debate. Surely it is not beyond the wit of the constitutional experts available to this House-who are numerous, although they often get it wrong-to devise a mechanism that achieves that.

I looked at today's Order Paper and I noticed a devil of a lot of motions, which the House will be asked to approve, that we will not debate-motions 4, 5, 6 and 7. That is a significant number of the 30 that we are talking about.

Mr. Grieve: My right hon. and learned Friend highlights the extent to which the House has been further disabled because motions on the Order Paper that are objected to at 10 pm never get debated unless they are agreed on both sides. They get voted on on the following Wednesday without debate. We are in a mess on this, which is why the Government's assurances are so scant.

Mr. Hogg: My hon. and learned Friend is entirely right. I have not voted in a deferred Division for many years and I propose never to vote in one again, because they are profoundly unconstitutional and I wish to have
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nothing to do with them. The serious point is that we should create the two presumptions of which I have spoken and allow the House to disapply the requirement to have a debate in appropriate circumstances.

Mr. Heath: The hon. and learned Member for Beaconsfield (Mr. Grieve) did not quite describe the position. A motion that is objected to simply returns on the next day's Order Paper until it is debated. That is the weapon that Back Benchers have to ensure the debate of something that the Government find it inconvenient to debate. If that were combined with the requirement to ratify within 21 days, it would provide an imperative for the Government to allow time to debate a ratification motion.

Mr. Hogg: These are arcane subjects for me, despite how long I have been here. I still favour the two presumptions: the House should always be asked to approve and, until it does so, ratification cannot take place, but we cannot always be required to debate the issue.

The hon. Member for Cambridge is right to suggest that the negative procedure in clause 24 is not a proper safeguard. As we know, and as my hon. and learned Friend the Member for Beaconsfield pointed out, control of the business lies in the grasp of the Government. If they choose not to put forward a resolution under the negative procedure, the resolution will not be put forward. We must not always assume that all members of the Government are men of good faith. We have to recognise that Governments can behave improperly, badly and malevolently. I do not suggest that the Minister comes into that category, but-as I have said frequently in this House-if power is given away, we can be sure that it will be abused. Therefore, we should give away the minimum of power that we can get away with and ensure that the power that is given away is set about with constraints. The protection that would be built in in this case is not sufficient. Therefore, if the hon. Gentleman pushes his amendment to a Division, I shall vote with him.

Mr. Cash: I have reservations about much of what has been discussed, but not the principle that lies behind it. I am glad to say that we have moved on from the 17th century to the 21st century and we are now seriously and properly discussing something that the Government sort of intend to achieve-that Parliament should be involved in the process of treaty making. That is a significant constitutional change in its own right. However, the trouble is that the Government have put so many caveats in clauses 24 to 26 that I am inclined to agree that there are not many options left if the Government decide, in relation to a specific treaty, that they do not want to have the full force of these provisions applied.

6.15 pm

I may be missing something, but the amendments would not delete clause 24(7) and (8). They cannot be removed from the Bill by some sort of sleight of hand by reference to clause 24(1)(c).

David Howarth: Amendment 7 would leave out lines 15 to 20 on page 13 of the Bill.

Mr. Cash: I accept that point. This is the Committee stage, in which we have to examine how amendments are presented, and I am happy to accept the fact that
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that is what amendment 7 would achieve. However, I have some reservations about what would be put in place of subsections (7) and (8). We are still left with the problem that clause 26 provides that clause 24 would not apply in exceptional cases. What criteria would apply in that case? Clause 26 states that a Minister need only be "of the opinion" that an exception should be made. As I said in an intervention on my right hon. Friend the Member for Wokingham (Mr. Redwood), once we enter that territory, we are instructing the courts that an issue is a matter of judgment for a Minister, and applying the word "exceptionally" to that muddies the waters considerably. Without wishing to impugn the motives of the Government-although I am happy to do so on most occasions-I am afraid that they have ended up with something that is almost contradictory. It says on the one hand that the courts should not interfere, but, on the other, that if a Minister decides that a treaty is an exceptional case, the courts should have some latitude in deciding whether that is so.

The drafting of these clauses worries me, and I return to my concerns about ratification versus signature. If we were to relate the questions being considered to signature rather than ratification, the provisions would contain the appropriate criteria for deciding how the consent was arrived at-because it is consent that we should be considering, not merely the mechanics of ratification.

As I have said on several occasions, in the British constitutional context, ratification tends to take place at the end of the procedure, as I found out to my cost-but not actually to my costs-when I took the Government to court over the Lisbon treaty. I sought to go to the High Court, but was turned down on the grounds that I was engaging in a political exercise-which of course was not true, was it, Sir Nicholas?

Chris Bryant: How would you know, Sir Nicholas?

Mr. Cash: I meant it in a purely rhetorical sense.

Mr. Hogg: Good job it wasn't in an affidavit.

Mr. Cash: Well quite!

My attempt to frustrate ratification on that occasion was turned down by the administrative court on the grounds that I was seeking to engage in a political exercise, but it did not award costs against me.

In 1993-I think-an important case was also brought by Lord Rees-Mogg in respect of ratification. All such cases turn on when the ratification takes place, by which time the particular Bill has gone through, and the legislation has endorsed the treaty and so on. These are fundamental questions. If the Government say in good faith that there should be a moment for Parliament properly to influence the process, that moment should come on signature, not ratification. I shall explain later why that is so important and relate it to what is contained in the Vienna convention.

Those are serious matters. For some of the reasons given by the hon. Member for Cambridge (David Howarth), the procedure proposed by the Government in clauses 24 to 26 is a smokescreen. The Government-I accused them of this in the debate on the programme motion-are engaged in a process of hypocrisy. The idea of good governance, the ideas in the Green Paper and all the
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other things that have been referred to give the impression that the Government want the British people and Parliament to be fully involved in the making of treaties. I am afraid, however, that the way they are doing that gives them far too much of a get out.

As Mr. Bowman of the Nottingham treaty centre said, the Bill contains a significant loophole in respect of memorandums of understanding, which I mentioned earlier. Many treaty-like documents do not fall within the framework of the provisions and, as with the Ponsonby rule, only treaties requiring ratification or similar are covered. For example, excluded, but covered by special procedures, would be double taxation agreements and European treaties-no doubt we will come to that later. I have in mind arrangements under European parliamentary legislation and special procedures applied under the European Communities Act 1972, as amended. Many other types of treaty, such as defence treaties, including-interestingly enough-not unimportant treaties on the stationing of ballistic missiles, would not be included. Indeed, many international lawyers regard memorandums of understanding as actual treaties.

There is a certain disingenuousness in the Government's proposals-they go so far but not far enough-and an element of what I have described as hypocrisy in how they have presented them. However, I do not want to be too critical because basically they are moving in the right direction. Between the amendments tabled by the hon. Member for Cambridge, the remarks by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) and the Government's proposals, we are making some progress. However, I do not think that the drafting is good enough nor the intentions sufficiently comprehensive. We are moving in the right direction but not achieving enough.

Sammy Wilson: The hon. Gentleman is making an important point. Although the intentions might have been good-all the earlier documentation indicates that they were-the reality might not be reflecting that. However, is the simple answer not to go along with the amendment, which would mean that all treaties would be subject to affirmative resolutions in the House?

Mr. Cash: That would present problems. I have some sympathy with the Government, given the number of documents, including treaty-like amendments, that I would have in mind for inclusion in such arrangements. I have already mentioned ballistic missile agreements and memorandums of understanding. Once we have established a category for the kind of treaties included in such arrangements, they should be categorised into different types of important treaty-that takes us back to something that I said earlier.


Mr. Hogg rose-

Mr. Cash: Before I give way to my right hon. and learned Friend, I would add that some believe strongly that there should be what is called the non-statutory soft mandating mechanism allowing Parliament to have some influence on the negotiation of a treaty, at least immediately before signature, which is why I tabled my amendment.

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Mr. Hogg: I am grateful to my hon. Friend. He will know that I do not normally encourage him to go on longer than he feels that he wants to, but I seek his view on one matter. He has made an important point about memorandums of understanding falling outside the definition of a treaty. He also said the same thing about missile siting agreements. However, on the face of it-I am not an international lawyer-the definition of a treaty in clause 28(1) would include a memorandum of understanding, if it is

I ask myself why, if a memorandum of understanding is binding, does it not come within the statutory definition of a treaty? I would welcome my hon. Friend's guidance.

Mr. Cash: I think that the short answer can be found in clause 28(2), which states that

It is accepted that that needs to be more explicit. That is where the problem lies and clarification is needed. I do not depart from the point that my right hon. and learned Friend is making. At the moment, the clause refers to a written agreement, but the memorandum of understanding is not necessarily an agreement. We will need further clarification on that. The commentators whom I have had the opportunity to read are clearly of the opinion that what is referred to in the Bill, including clause 28, does not go far enough. Furthermore-I make this point yet again-the reference to ratification does not appear early enough in the process.

My right hon. and learned Friend is right to ask the question that he did but, as with so much of the debate, we will need greater clarification. That is why I will find it difficult simply to agree with the amendment put forward by the hon. Member for Cambridge.

Treaties do not come out of thin air, but they sometimes go up in a puff of smoke. That is the problem that we have to be careful about. If the Government really want to include the right kind of arrangements between states, they will have to clarify the provisions. I would be interested to hear from the Minister why the provisions are not sufficiently comprehensive-he may argue that they are sufficiently comprehensive, but it is quite clear that all the distinguished commentators and jurists whose works I have been reading do not believe that to be the case. I would like to hear what the Minister has to say about that.

6.30 pm

Mr. Heath: I do not want to reiterate any of the arguments so ably made by my hon. Friend the Member for Cambridge (David Howarth). We have put a strong proposition before the House and it needs an appropriate response from the Minister. If that ministerial response is insufficiently strong, I hope that my hon. Friend will push the matter to a vote. However, we are also dealing with clause 24 stand part, and in that context I want briefly to touch on two points, both of which depend on the opinion of the Minister.

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