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A couple of hon. Members referred to the 21-day period. The hon. Member for Aldridge-Brownhills (Mr. Shepherd), who is not in his place at the moment, said that the material might be tabled on the last day before a recess. Actually, one of the provisions in the clause has not been mentioned. At present the Ponsonby rule applies only to days when either House is sitting, whereas under our proposal, the term "sitting day" would mean a day on which both Houses are sitting. That will effectively extend the period of time available. This is in response to one of the Committees that examined the Public Administration Committee's report on the draft Bill. We have sought to extend the period in that way.
Mr. Cash: On the question of determining which documents are important and which are not-be they treaties or treaty-like instruments-will the Minister tell us whether the term "written agreement" is wide enough to cover that? Also, under the conventions relating to the Ponsonby rule, it has been open to the Government since 2001 to refer treaties to departmental Select Committees, and they normally do. It is at that point that some of the problems of categorisation could arise. A departmental Select Committee could decide that a treaty was important and ought to be debated and voted on. The crucial question is not merely whether we have a debate on a "take note" motion, but whether we have a substantive motion on which a vote can take place. Those are areas that require further clarification, are they not?
Chris Bryant: The hon. Gentleman is right to say that if there is a desire for a vote, there has to be a vote on a substantive motion. If such a motion were to fall, the Government could, as the hon. Member for Somerton and Frome (Mr. Heath) has pointed out, try to bring the issue back to the House. My suspicion, however, is that the politics of the moment would probably determine that if a Government had lost, in the House of Commons, a treaty that they had signed, there would be a real danger that the Government would fall-although that is not what happened to President Wilson when he lost the Versailles treaty in the United States of America. That situation was rather different, of course, because the Executive there are completely separate from the legislature. None the less, it is pretty unlikely that Governments would want to continue to bring such a matter back again and again.
Because there would be circumstances in which one would want to return to such an issue. It will be a political judgment for the Government. They may decide "No, it's clearly dead; we'll have to leave it," but in other circumstances they may believe that it is in the interest of national security, or whatever, to return to the issue and try to make the argument again. The
key point is that the Government would not be able to proceed without the House of Commons having either voted in favour or decided to let the matter rest.
As for my saying that it did not matter that the clause had not been raised in general public consultation, several matters were raised, and there has been a Joint Committee on the Bill, which broadly agreed with the provisions in the clause. It felt that the previous version had not been properly drafted, which is why we redrafted the provisions this time, and we believe that we have made them clearer.
Mr. Hogg: If I did not say this earlier I apologise, but the point that I wanted to make is that the Minister said that no criticism had been made of clause 24, yet this is the opportunity for us to make criticism, and the other place needs to know about the fact of our criticism.
The hon. Member for Stone asked why the procedures do not apply to treaty-like documents, and he referred to memorandums of understanding. Such procedures would apply to such memorandums if they were legally binding in international law, but memorandums of understanding are not legally binding in international law, which is why those procedures do not apply. That is the clear distinction that we are trying to draw here.
The hon. Gentleman is right to say that there are some circumstances in which we have to enact certain elements of a treaty before ratification, in order to bring ourselves into line with it. On other occasions we have already substantially legislated in the field, so there is no need for further legislation and the only process left is approval followed by ratification. There are a few instances where ratification happens by virtue of signature, mainly in cases where negotiation is developing fast so that revealing the Government's hand in public-in the UK and therefore to the wider world-would undermine our negotiating stance with another Government. There is, I think, an element of wanting to maintain that distinction.
I hope that I have reassured the House that the Commons would always have the right of veto, should it choose to implement it. The Government would always make sure that where a debate and vote were requested, they would be made available within the allotted time-or if they were not, we would extend the time in order to allow that provision.
Chris Bryant: No, I am not giving way, as we have already had quite a lengthy debate. [Interruption.] The hon. Member for Rayleigh (Mr. Francois) is sighing at me, but he was not here and he did not listen to my response to his party's questions. Without further ado, I urge the Committee to reject the amendment and to carry the clause.
David Howarth: We have had a good debate, and I thank the Minister for his kind remarks. A series of interesting points have been raised about a wide range of issues. I do not want to go through all of them. I am particularly grateful to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) for his suggestions about how to develop further the proposals on which treaties should or should not be debated in the House, but the proposal before us now-amendment 1-is simply to reverse the negative procedure and introduce the affirmative procedure as the default option, and as the fundamental way in which this House deals with treaties.
Mr. Grieve: I have had the opportunity of listening to the Minister, and although I do not doubt his sincerity, it seems to me that he has not provided an explanation of how Standing Orders can enable the House to consider a negative resolution against a Government who do not wish to provide one. I believe that that is a serious flaw that needs to be addressed and will have to be looked at further in the context of the Bill, even though I support a negative resolution in principle.
The Government's defence has two aspects. First, the procedure is said to be cumbersome, but the response to that point was provided by the hon. Member for East Antrim (Sammy Wilson). The Government have said that there are only 30 treaties a year, and that they will be dealt with in fundamentally the same way as we deal with affirmative resolutions for statutory instruments, of which we deal with several a day-there is one about income tax on the Order Paper today-so this does not seem to be at all a good point for the Government to make. The procedure is not cumbersome in the least.
For the second part of the Government's defence, the Minister gave a guarantee that in certain circumstances, if complaints were made about a treaty on the Floor of the House, the Government would use their power over the agenda of the House to make sure that a debate and a vote took place. The trouble with that defence is that it was later reduced to absurdity when the Minister said that he would accede even to the requests of Back Benchers, which immediately starts to contradict his first point. If anything would be cumbersome, it would be a system under which any Back Bencher could get 90 minutes on the Floor of the House any time they wanted to complain about something. I am afraid that that part of the defence does not work either.
It seemed to me that the Minister was thrown back on to what might be called the "good chap" theory of the constitution-that we are all good chaps together and no one will exploit the power that this particular way of implementing intentions gives the Government. I am afraid that it is too late for the good chap theory of
the constitution. If the whole purpose of the clause, and this part of the Bill, is to transfer power from the Government to Parliament, that transfer itself must be part of the Bill. What the Government cannot do is transfer a little bit so that the proposal does not work in reality-even though one wants it to work-and then say that otherwise Parliament can rely on the Government's good will. That is precisely the form of Government that we are trying to move away from; it relies on the use of the very prerogative that we are trying to undermine.
Mr. Cash: Does the hon. Gentleman accept the central idea-I put it to the Minister, but he would not take the point-that to get the objectives right, it is signature rather than ratification that we need to get right, because under the UK constitutional arrangements ratification tends to take place at the end of the procedure?
David Howarth: I think that the hon. Gentleman is half right. I agree that it would be a good idea to develop proposals to deal with signature, but that does not mean that ratification is irrelevant; indeed, I think it is very important.
To return to the central issue of the Government's control over the House, that is precisely what makes clause 24 ineffective as a way of transferring power. If the Wright Committee's proposals were to be accepted by the Government, that situation might change. Unfortunately, however, we have no sign yet that the Government intend to bring those proposals to the Floor of the House and accept them in full. At this point, if the Minister would like to spring to his feet to contradict me, I would be grateful-but I would also be surprised. In the absence of any guarantees to change the House's procedure, the point still stands that the negative procedure achieves very little, if anything. On that basis, I shall press amendment 1 to the vote.
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