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This issue was raised earlier, but I am not clear under what circumstances the Minister might be of the opinion that his view should take precedence over that of the House of Commons. That is what is implied by clause 24(4)(a),
which sets out a mechanism-there must be a reason for this mechanism being there-by which a Minister can simply say, "The House of Commons has voted against this treaty, but we still believe we ought to go ahead." Nothing could be a clearer indication of the shallowness of the provision before us if it would be possible for a Government to put a matter before the House of Commons, be defeated and still proceed. I know that there is a certain precedent for that-when referendums go the wrong way, they tend to be repeated until the "right" answer eventually emerges-but that should not be built into the proposal before us. I should like the Minister to explain why he believes that provision to be a necessary part of the clause and under what circumstances he believes it would be appropriate to use that mechanism.
Mr. Cash: By using the expressions contained in the Bill, we are moving to a situation where the judiciary will be increasingly drawn into such questions. If that is the case, muddying the waters-through the conjunction of, on the one hand, the phrase "of the opinion of the Minister" and, on the other, the word "exceptionally"-will draw us into a real tangle. The judiciary is notoriously anxious to avoid getting involved in treaty interpretation, if at all possible. There is therefore a serious question to be addressed-if not in this sitting, then on Report and subsequently in the House of Lords-so that much more careful consideration can be given, however useful this debate has been, and we are making progress.
Mr. Heath: I am grateful to the hon. Gentleman, who is absolutely right. The purpose of the wording is indeed to muddy the waters and to make things more difficult to adjudicate. However, I question the appropriateness of the provision being included at all, in that if the whole point is to restore to this House the right to decide whether a treaty is appropriate, it seems quite perverse then to say, "But if the Minister doesn't like that decision, he can simply carry on presenting the treaty to the House, through a long process of attrition, until eventually there aren't enough people here or people of the right persuasion are here and the treaty can get through." That is not what should be in clause 24.
The other expression that I would like the Minister to explain is the one that was touched on in our first debate in Committee this afternoon. Clause 24(1)(b) refers to the treaty having been published
"in a way that a Minister of the Crown thinks appropriate".
I just do not know what that means or why it has been included. I assume that a treaty will be published in the form in which it was signed, not in a way that a Minister thinks it appropriate for people to read. The only, very small explanation that I can conceive of is that if the treaty was signed in another language, it might be appropriate for the Minister concerned to publish it in English, for the benefit of this House and the wider British public. However, beyond that simple matter of translation, I do not understand what the Minister has in mind by insisting that a treaty can be published in a way that a Minister thinks appropriate, rather than in the form in which it was signed, in whatever proceedings
led to its being agreed. I would like the Minister to explain what is intended by that phrase, because clearly somebody has something in mind that is not obvious from a simple reading of it.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I am grateful to the hon. Member for Cambridge (David Howarth) for tabling the amendments. What he is trying to accomplish is in the spirit of what the Prime Minister sought to do in his early works, on those bright, happy days of two years ago-to see a shift in the balance of power, to restore Parliament. That was the intent behind what the Prime Minister said, and I do not doubt that that was what he had in mind, in those brief moments of joy.
However, in our constitutional arrangements and our system of government-I have reflected on this issue over many years, and it is common to more than just one Government or another-there is the concept of the Crown. From that emanates the concept of prerogative powers and the accretion of the governance of the United Kingdom. Ministers sometimes stand in this Chamber and endeavour from those concepts of the Crown to shift the great ship of state, and yet when we see the words produced by the machinery of government for those Ministers, who operate as the Crown, we see that intent become a weaker note-they do not accomplish what we understood from the brave words set out in "The Governance of Britain" or from those of the Secretary of State for Justice, the Home Secretary or the Prime Minister.
Why should we not vote? Why should that not be the automatic response on something that can affect the lives of citizens? My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) made the good point that the extradition treaty to which he referred was essentially negotiated in secrecy. We did not understand the intent and purpose behind it as we would have liked. We have been through the Lisbon process-the signing was an act of the Crown, but we had to legislate for it, because our dualist system for dealing with treaties makes it necessary to translate them into statute law for this country. That is what we have to do. However, the proposition in the Bill makes no such allowance. What the hon. Member for Cambridge and the Liberal Democrats have proposed and what my right hon. and learned Friend had to say were very well put. I have always believed that the presumption should be that laws can be made and treaties entered into only with the consent of the people as expressed through this Chamber. What is written in the Bill does not ensure that.
Mr. Shepherd: No, it does not. The decision is really at the discretion of Ministers. The hon. Member for Somerton and Frome (Mr. Heath) pointed out where clause 24 says that, notwithstanding the delay in the process, the Government can effectively go ahead and ratify.
Honestly, the clause does not allow that. The hon. Member for Somerton and Frome first seemed to suggest that the Government could just override the House of Commons, but the second time that he
made the point he correctly said although the Government may bring the treaty back, it would still require the consent of the Commons.
"The treaty may be ratified if-
(a) a Minister of the Crown has laid before Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why, and
(b) period B has expired without the House of Commons having resolved, within period B, that the treaty should not be ratified."
David Howarth: The language of that subsection seems clear to me: the Commons has to resolve again, in period B, not to ratify the treaty if it is to prevent ratification. However, subsection (6) says:
"A statement may be laid under subsection (4)(a) in relation to the treaty on more than one occasion",
Mr. Shepherd: But we wanted more than how it is now; that is the point. I was rolling on to the point that it is essential that we have a vote on the amendments that we are discussing, so that the House of Lords will know that the House of Commons stumbled or fought, and will know that we thought that the issue was important and needed to be discussed without the pressure of a guillotine.
Mr. Hogg: May I suggest to my hon. Friend that his point has ever greater force if one bears in mind what the Minister said about the consultation held on the treaty powers, in which, apparently, no question was raised on clause 24? If that is right-I am sure that the Minister was telling us what he thought was correct-this is the first occasion on which right hon. and hon. Members, and others, have really expressed anxiety about the proposals in clause 24.
Mr. Shepherd: I am grateful to my right hon. and learned Friend. As he will know well, the issue of when papers or documents are laid before the House is, again, at the discretion of the Executive. Many a time, important measures-those in statutory instruments, for instance-have been laid before Parliament on the very day on which the House rises for a recess. My fear as regards treaties, given the provision on 21 days and all the rest of it, is that we will not appreciate what is happening. Just before the summer recess, no one-or only some of us, sometimes-is alert and alive to what is happening.
In fact, on our expenses, I remember the redaction agreement that was reached on the Floor of the House of Commons; it was interpreted by the Secretary of State for Justice in such a way as to bring the House into disrepute. That statutory instrument was laid before the House on the very day on which Parliament rose for the summer. Perhaps I am conflating too many issues, including intent and the way in which the Government operate, but that is how they have operated.
Mr. Heath: To support the hon. Gentleman's contention, we know that the Bill does not set out a time period between the signature of a treaty and its being laid before Parliament and triggering the 21 days, so the Government can lay the treaty before Parliament at their convenience and discretion. The Minister boasted earlier that the UK-US extradition treaty was signed in March and kept absolutely secret until May, two months later, when the Government tried to sneak it through the House.
Mr. Shepherd: Absolutely. I was there, and I know that my right hon. and learned Friend the Member for Sleaford and North Hykeham was there. We watched the proceedings, and the construction of what followed, with some bemusement; we have seen the difficulties in which the treaty has placed Home Secretaries, and have seen that it raises questions of equity.
The reason why I rose to speak, Sir Nicholas-sorry, Mr. Lord. [Interruption.] I mean, Sir Michael; we will have a gamut of titles before we are finished. I rose not only to support the amendments, but to agree with the contention of my right hon. and learned Friend that it is necessary to establish, by expressing a view on the Floor of this House, that the matter is one that the House of Lords should look at most carefully.
Sammy Wilson: In debate on the clause we have seen that, despite the high principles set out in the consultation paper, the Green Paper and the White Paper, and the promises to the Joint Committee on the draft Constitutional Renewal Bill, if we actually examine the detail in the Bill we see that the powers that the House will have to stop the ratification of a treaty fall far short of the ideals that were promised at the start.
Members have outlined clearly the importance of international treaties and their impact on the lives of individuals in the United Kingdom. We want, and should have, proper scrutiny of the laws that we pass in this House, and so it should be with international treaties. However, let us look at what is in the Bill. As the hon. Member for Somerton and Frome (Mr. Heath) pointed out, the treaty will be
"published in a way that a Minister of the Crown thinks appropriate".
The Minister may well explain what that means later, but if we take that at face value, immediately we see that if a Minister wants to push a treaty through, or ratify a treaty that people have some reluctance about, the provisions relating to how it is written up and presented will make it possible for the House not to have all the information.
Secondly, the Bill requires a treaty to be put before the House, but the negative procedure is used. In other words, people will actively have to decide whether a treaty is sufficiently important, even though it may have been presented in a way that the Minister thinks appropriate, which may not alert people to the full implications of the treaty. Someone has to undertake an activity to bring the matter before the House in the first place.
May I suggest to the hon. Gentleman that there is a further problem? The negative procedure can, generally speaking, be triggered only by Front Benchers. If they think that the negative procedure is not required,
that excludes the ability of Back Benchers to object to the treaty, whereas the affirmative procedure enables everybody to play a part, if the treaty is brought to the Floor of the House.
Sammy Wilson: I thank the right hon. and learned Gentleman for that intervention, which was very useful. If a full role is to be played by all Members of the House, and not just the Front Benchers, the negative procedure is not a satisfactory way forward. The Government have the opportunity to present the treaty as they wish, and the negative procedure is to be used, but if the Government still do not like the outcome, subsection (4) allows the Minister to have another go at it, and to say, "Despite what I've heard, I still think you're wrong." There is then a further period in which the treaty can be looked at. As has been pointed out, if he gets the "wrong" answer again, he can bring the treaty forward time and again, until attrition or weariness means that the Government get their way. Is that what is meant by giving the House a greater say on international treaties? It falls short of what we would want, ideally. The easy way round that is to support the amendment requiring treaties to be subject to the affirmative procedure.
Mr. Cash: I simply want to come back to the question of signing, as compared to ratifying, the treaty. All our discussions have revolved around assumptions to do with the word "ratification" in the clause. However much progress is being made towards a general objective, we have not yet dealt with the question of whether, in light of the Government's apparent intentions, it would be preferable-I would be interested to hear what the Minister has to say about this-to relate the entire process to signature rather than ratification. Article 11 of the Vienna convention lists various ways in which a state can express its consent to be bound. These include signature, exchange of instruments constituting a treaty and, among others, ratification, acceptance or approval. I do not want to turn this intervention into a speech, but I must point out that it is terribly important, if we are to get this right, to link consent to signature rather than to ratification in this context.
Adopting the affirmative resolution procedure in this process, as the amendment proposes, would remove many of the objections that I have raised. The only argument that I have heard against doing so is that it would take up far too much time. It has been pointed out by the hon. Member for Cambridge (David Howarth) who moved the amendment, however, that not every treaty would have to have extensive debate in the House. Furthermore, the Minister has said that there are not that many treaties anyway. He mentioned an average of only 30 a year. So the contention that dealing with every treaty using the affirmative resolution procedure would take up too much time does not seem to have been effectively argued in the Minister's responses so far. For that reason, if the matter is pressed to a Division, I shall certainly vote to enable the House to have a say on every treaty that the Government bring forward.
Chris Bryant: I should like to make one preliminary remark. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) referred to the question of whether Governments were of good faith or not. I think that it is an assumption in this House that all Members are people of good faith.
There has been an excess of suspicious minds on this clause today. We are intent on ensuring that more of the power that has thus far resided with the royal prerogative is transferred to Parliament. That is the bottom line.
Mr. Hogg: I am making absolutely no criticism of the hon. Gentleman, but it is a very dangerous assumption that all Governments comprise people of good faith at all times. One must actually assume the contrary.
Mr. Grieve: I have no reason to doubt what the Minister says, but he will have to concentrate on the point that the Government's intentions, as set out in the Bill, do not necessarily marry up with the Standing Orders of the House. The Government might not therefore be able to deliver what they appear to be promising in the clause.
"in a way that a Minister of the Crown thinks appropriate".
This simply means that one could publish a treaty as a Command Paper, or by depositing it in the Library of the House. Equally, one could publish it on the Order Paper, or as a White Paper. There is no way in which a treaty could be published in a way that was secretive, or designed to mislead the House. These are simply the customary words-they are used in many other pieces of legislation as well-that allow Ministers to decide whether a Command Paper or a White Paper is appropriate. I am certain of that.
It will be sad when the hon. Member for Cambridge (David Howarth) is no longer a Member of this House. He has done a great service to the House in many ways. He raised the question of whether the affirmative resolution procedure should be used in both Houses. My own suspicion is that that would be too cumbersome for the two Houses. The process that is used in the House of Lords is somewhat different from what happens in this Chamber.
The hon. Member for Stone (Mr. Cash) pointed out that there are many different kinds of treaty. The vast majority of them are very technical and relatively minor, and they do not detain or concern the House very often. It should not be for the Government to decide which do and which do not, however. It should be for the House to decide which treaties it wants to investigate, debate and vote on. We would absolutely guarantee that a motion would be debated and voted on, if the House so wished. The question was asked earlier: who is the House, in this context? If Members-whether Front Benchers or Back Benchers-sought to debate a motion, the Government would ensure that there was a debate within the time. The other thing that the Government could do is extend the time.
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