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Treaties (Parliamentary Approval) Bill [H.L.]

8.11 p.m.

Lord Lester of Herne Hill: My Lords, I beg to move that this Bill be now read a second time.

The Bill's purpose is to provide for parliamentary approval of treaties before they are ratified. It responds to the democratic deficit; the want of parliamentary control over the Executive--a deficit widened by the Maastricht Treaty, which introduced two major areas of inter-governmental co-operation with very little parliamentary accountability.

The Bill is short, simple and modest. It seeks to involve Parliament in approving, mainly by negative procedure, the dozen or so treaties a year which require ratification before they come into force for the United Kingdom. It also provides for Parliament to be given basic but essential information about the practical consequences of ratification. Exceptionally, the Secretary of State may circumvent the procedures in the Bill altogether provided that an explanation is given to Parliament.

Treaties no longer deal solely with military alliances and other matters remote from our daily lives. Commercial and financial transactions, transport and communications, internationally-protected human rights, cross-border police powers, labour, social security, environmental protection, and many other aspects of modern society are governed by treaty law, reaching into the nooks and crannies of our daily lives.

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There are very few treaties whose effects are entirely confined to the level of inter-state relations of concern only to governments. Yet as Professor Francis Jacobs QC, now British Advocate-General in the European Court of Justice, has noted,

    "by a strange legal anachronism, some States, notably the United Kingdom, still seem to consider that treaties are matters for governments alone".
It is of course the prerogative power of the Crown--that is of the Foreign and Commonwealth Office, appropriately located on King Charles Street--which gives the government exclusive power to negotiate and enter into a treaty and to decide what international obligations the United Kingdom shall undertake. This is a monopolistic power, medieval in origin. It is arbitrary in the sense that it is not governed by binding principles or rules, but is exercised entirely as a matter of executive discretion on behalf of the state. Except in the very rare case where a statute so provides, the government do not have to obtain Parliament's approval before they enter into a treaty that binds this country.

Treaties of far-reaching importance for the people of this country and its system of government, such as the European Convention on Human Rights, have been entered into by the government of the day without any parliamentary scrutiny, debate or approval, even though the effect of such conventions is to transfer important legal powers from Westminster and Whitehall to international institutions, such as the European Court of Human Rights.

When the second Wilson administration ratified the UN International Covenants on Human Rights in 1976, there was a vigorous Cabinet debate because ratification meant that a future government and Parliament would no longer be able to abolish independent schools without breaching international law. Yet Parliament was kept completely in the dark.

A year ago the Government ratified Protocol No. 11 to the European Convention, guaranteeing a permanent right of access by alleged victims of breaches, to a new, streamlined European Court of Human Rights. It was a major step forward in relation to a very important treaty; but the protocol was ratified without the Government having initiated any parliamentary debate, still less having sought parliamentary approval, for undertaking new international obligations directly affecting the rights of the governed against the state.

Even though the practical reach of treaties has so greatly increased, the use of prerogative power has scarcely changed since the heyday of the British Empire when Palmerston was Foreign Secretary and the parliamentary franchise was being gradually extended.

We are out of line with the other member states of the European Union, the majority of which involve Parliament in the treaty-making process. The European Parliament now has the right to be consulted on, and to assent in certain cases, to agreements concluded by the European Union with third countries and international organisations, unlike the British Parliament, which is sorely neglected in the conduct of domestic foreign policy.

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The dead hand of British practice has been rejected in some former British colonies, including the United States and South Africa. It is the established practice in Canada for the government to seek parliamentary approval of important treaties by way of a resolution of both Houses. Traditional British practice may well soon be rejected by Australia as well. A cogent and comprehensive report published in November 1995 by the Senate Legal and Constitutional References Committee has criticised the traditional imperial approach which leaves treaty-making entirely to the government. I have arranged for a copy of the report to be placed in the Library.

Having outlined the general mischief which the Bill is designed to tackle, I must now enter into just a little more explanation. There are various ways in which states can signify their formal assent to be bound by a treaty. Some, including most bilateral treaties, become formally binding by mere signature or by exchange of letters. However, if the bilateral treaty is an important one, or if what is involved is a multilateral treaty, it is more common to require not just signature, but a second step known as ratification. It is this latter step, the communication of a formal instrument, that constitutes the consent of the state to become bound by the treaty. In this country that is done by affixing the Great Seal. If a state which was not present at the negotiation of the treaty, or for any other reason has not signed it, subsequently wishes to become a party, the formal process by which it does so is commonly called accession or adhesion. The legal effect is the same as that of ratification.

In many countries the Executive is not free to bind the state to a treaty without the approval of the legislature, or some part of it. In the United Kingdom, however, Parliament generally has no such role. If a treaty entails a change in the internal law of the land before it can be implemented, then legislation is needed; and in such cases the normal (but not invariable) practice of the FCO, is to delay acceptance until the necessary domestic legislation has been passed.

But in such cases the substance of the legislation required to implement the treaty obligations is determined by the substance of those obligations over which Parliament has had no say at all. There may also be other important parts of that treaty which do not entail a change in domestic law, and in respect of which the approval of Parliament is consequently not sought.

Only a minority of treaties are incorporated directly into English law. There is incorporating legislation only if, in the Government's view, the treaty demands a change in domestic law involving a cessation of territory, or requires the raising of revenue or the alteration of taxation. The mere fact that adherence to a treaty will give rise to recurring expenditure--for example, to meet the costs of or to satisfy awards of damages by the European Court of Human Rights--is not regarded by the Government as requiring incorporating legislation, but is routinely dealt with under the annual Appropriation Act. For the very many treaties which do not involve any change at all in the law of the land, Parliament has no formal role to play

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even if important international obligations and substantial limitations on the sovereignty of this country and of its legislature are involved.

It has been the practice of successive Governments to lay before Parliament as Command Papers all treaties signed by the United Kingdom, but only after their entry into force. It has also been the practice, known as the "Ponsonby Rule", to lay before Parliament, before its entry into force, any treaty which has been signed subject to ratification. Such a treaty lies on the Table in the normal case for a period of 21 sitting days, after which it is ratified.

When a treaty is laid before Parliament, only the text itself is laid. There is no accompanying White Paper or explanatory memorandum informing Parliament of the object and purpose of the treaty, the reasons for its ratification, and the likely costs and benefits for the United Kingdom and its inhabitants of the treaty entering into force. The process of laying treaties before Parliament is opaque. One has to be an expert insider to understand what is really happening.

In theory it is open to the Opposition, or to any Member, to table a resolution deploring the terms of a treaty duly laid and condemning the Government's intention to ratify. Even if the impact of the treaty were readily understood without government explanation, and even if parliamentary time were found for such a Motion, and even in the unlikely event of the Government being defeated on the Motion, the Government would not be legally obliged to heed the will of Parliament. In reality, in the well-chosen words of Professor Rosalyn Higgins QC (now the distinguished British judge at the International Court of Justice) Parliament's role on ratification is "both formal and passive".

Indeed, as the noble Baroness, Lady Chalker of Wallasey, made clear in a Written Answer on 1st November 1995, the Government do not regard themselves as precluded in what were laconically described as "appropriate cases" from proceeding to ratification (or its equivalent) without laying for 21 days in accordance with the Ponsonby Rule. When that happens, there is no obligation on the Foreign and Commonwealth Office even to inform Parliament of the reasons for dispensing with the laying of the treaty.

Arthur Ponsonby was a diplomat, a Member of both Houses and of the Liberal and Labour Parties. His experience as a diplomat at the Foreign Office made him a staunch advocate of democratic control of foreign policy in place of secret, elitist diplomacy. When he became Parliamentary Under-Secretary of State for Foreign Affairs in Ramsay MacDonald's frail, brief, minority Government in 1924, Mr. Ponsonby used a debate on the new peace treaty with the Turks as an opportunity to introduce a modicum of parliamentary control. He read out his famous memorandum during a debate in another place on 1st April 1924.

According to his biographer, Raymond Jones, Ponsonby made the statement knowing that it was out of order and raced through it to get it down in print. That was all that he could do given the difficult circumstances of the parliamentary timetable. A Bill

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was out of the question, and even a resolution of both Houses would have required two days of parliamentary time which were simply not available in the difficult, straitened circumstances of Ramsay MacDonald's minority Administration. Understandably, Ponsonby failed to achieve what he had intended as a proper partnership between government and Parliament in the making of treaties. His hastily uttered statement did not lead to the change for which he--and, I think, Ramsay MacDonald--had hoped.

Ponsonby's statement expressly envisaged that, in the case of important treaties, the Government would submit them to each House during the 21 sitting days not just as a formality, but for parliamentary discussion. The Government, he said,

    "desire that Parliament should ... exercise supervision over agreements ... by which the nation may be bound in certain circumstances".

He also said that,

    "if there is a formal demand for discussion forwarded through the usual channels from the Opposition or any other party, time will be found for the discussion of the Treaty in question".--[Official Report, Commons, 1/4/24; col. 2003-2004.]

Yet again and again important treaties have been ratified without being submitted to Parliament for discussion or supervision. The noble Lord, Lord Chesham, kindly made clear in a Written Answer on 20th December 1995 that there is no question of Ponsonby's statement being a binding convention or rule. In his words, the present Government

    "do not consider themselves bound by a statement made over 70 years ago by a member of an Administration of a different political persuasion".--[Official Report, 20/12/95; col. WA 152.]

In a Written Answer on 1st November 1995 the Minister admitted that there had been departures from the Ponsonby Rule during the past 15 years, but stated that such departures had been rare. The noble Baroness also stated that there would be disproportionate cost in listing the departures and the reasons for them. In another Written Answer on 19th December 1995, the noble Lord, Lord Chesham, explained that there are no fixed criteria for determining which treaties are debated in Parliament for discussion. The Government decide the matter case by case.

I asked the Government which of the other member states of the Council of Europe require parliamentary approval to be given for the ratification of treaties. In another Written Answer on 19th December 1995-- I apologise for cluttering Hansard with so many Questions--the noble Lord, Lord Chesham, stated that this information is not readily available and could only be obtained at disproportionate cost.

So I have done some research of my own. Naturally there are variations from country to country. But all of them (other than former British colonies)--whether the countries are monarchical or republican, whether "dualist" (like the Nordic countries) or "monist" (like most European states)--are legally bound to obtain parliamentary approval for entering into important treaties.

I have not discovered any European country which excludes Parliament from the treaty-making process. Ireland comes closest to the British position, for

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historical reasons, but even Ireland has a constitutional guarantee of parliamentary consultation--of a rather rudimentary kind. Most OECD countries also require parliamentary approval of at least some categories of treaty. Their position contrasts starkly with our own Parliament which, as I have explained, has no function in treaty-making properly speaking. It may occasionally, and entirely on the Government's initiative, be consulted beforehand, but there is no requirement for approval by Parliament of treaties before they are ratified. Unless the treaty has to be woven directly into the fabric of our law, the treaty is treated as government property.

The Australian Senate Committee, whose inquiry took extensive evidence, found that in countries which require some form of parliamentary approval for entering into treaties, the pursuit of foreign policy objectives is not necessarily restricted or delayed. It recommended that Parliament should be involved before ratification, so that it can make a free choice without the possibility of a potential breach of treaty obligations. The Australian Senate Committee proposed legislation requiring that all treaties be tabled before ratification together with a treaty impact statement, with special exceptions for urgent treaties and sensitive treaties (such as those whose early publication would threaten the safety of people or the effectiveness of law enforcement operations). The committee also proposed the creation of a joint parliamentary treaties committee to keep Parliament informed about the implications of treaties and to consult the public and interested groups about them; and a government duty to report annually to Parliament on actions taken during the previous year to implement treaties to which Australia is a party. I would hope that both those proposals might commend themselves to our Government and our Parliament.

The present Bill is deliberately modest and, I hope, easy to operate. It applies only to treaties as defined in Clause 6, that is to those, mainly multilateral treaties which are subject to ratification or to equivalent acts of consent such as accession or approval. The Bill does not apply at all to the very many bilateral treaties which require only the signature of contracting states or an exchange of notes for them to become binding in international law upon the states parties. This deliberately leaves a wide latitude to the FCO and line departments concerned with the particular subject matter of such treaties. In practical terms, only some 14 treaties a year out of about 70 treaties would become subject to parliamentary scrutiny under the provisions of the Bill.

By virtue of Clauses 1 and 2, the Government are obliged to lay before each House every treaty to which the Bill applies, before ratification, together with an explanatory memorandum informing Parliament of the treaty's object and purpose, the reasons for the proposed ratification, and the likely benefits and costs for the UK and its inhabitants.

Clause 3 prescribes two familiar methods of approval; by affirmative or negative procedure. Where the treaty would affect existing laws or private rights, or lay a pecuniary burden upon the people, or cede any part of the territory of this country, ratification would be by affirmative procedure. In most of these cases, some form

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of domestic implementing legislation will, in any event, be required. The order authorising ratification will, however, enable the general impact of the treaty to be debated and not merely those parts, which may not be the most important parts, requiring legislative implementation. In other cases, approval would be by negative procedure, within a period of 21 sitting days, as under the present Ponsonby arrangements.

Clause 4 empowers the Secretary of State, in exceptional circumstances, to circumvent the procedure for parliamentary approval altogether. If the Secretary of State decided to use this special, fast-track procedure, he would be obliged by Clause 4(2) to notify Parliament of his decision and of the reasons for it, so as to ensure transparency and accountability.

Some may think that the Bill is timorous in narrowly limiting the categories of treaty whose ratification requires the positive approval of both Houses. But Clause 3(3) empowers the Secretary of State to add to those categories by statutory instrument. The existence of such a power would be useful in concentrating minds, both in the FCO and in Parliament, on whether the limited degree of scrutiny provided for in the Bill is sufficient, reconciling the need of the Government to act speedily and efficiently in concluding treaties with the need for Parliament to exercise real oversight and control over the Executive in an area of ever greater importance to us and our fellow citizens.

Your Lordships' House has been in the vanguard of promoting more effective scrutiny of European Community legislation and British delegated legislation. This Bill provides a further opportunity for the Upper House to secure more effective parliamentary accountability by enabling Parliament to approve treaties before they are ratified. I very much hope--and I am an optimist by nature-that the Government will not strive officiously to preserve intact their ancient but outmoded citadel of unlimited prerogative power on grounds of administrative convenience. The whole House will surely wish to endorse the modern democratic principles of transparency, consultation and parliamentary accountability upon which the Bill is based. It would be excellent too if we eventually had the benefit of a Select Committee to facilitate the Bill's procedures, along the lines of that proposed by the Australian Senate Committee. I respectfully commend the Bill to your Lordships. I beg to move.

Moved, That the Bill be now read a second time.--(Lord Lester of Herne Hill.)

8.35 p.m.

Lord Beloff: My Lords, the noble Lord, Lord Lester of Herne Hill, is not only a natural optimist, as he has told us, but also a man of great kindness. He has perceived that I am afflicted by an increasing nostalgia for the academic world that I have left, and therefore has given a very good academic lecture of the kind I used to hear.

I say "academic" because, whatever the merits of the Bill might have been in Ponsonby's time--and I remember that event--it is wholly out of touch with the present situation. It refers to a Britain which had

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national sovereignty, the authority of whose Parliament was unchallenged, and it is peculiar that Parliament at the time of its greatest influence did not go into the field to which the noble Lord refers.

The situation is very different today. At Question Time we were assured by the representative of Her Majesty's Government that we had no option but to accept decisions of the European Court of Human Rights and to alter our legislation accordingly, despite the fact that that court must naturally have a large majority of members who are trained in a wholly different legal tradition to our own.

But much more important, of course, to those who have not got the misfortune of running into a human rights problem, is the fact that through the Treaties of Rome and Maastricht the legislative functions of this Parliament have been reduced to a very considerable extent. Only the other day I heard the right honourable gentleman, the Minister for Agriculture, Fisheries and Food say that only 30 per cent. of the decisions that he had to make emanated from British policy; 70 per cent. had to do with the implementation of policy formed in Brussels. One could take other areas of national life where the same is true. As the noble Lord, Lord Lester of Herne Hill, reminded us, the Maastricht Treaty itself brings further possibilities of encroachment.

So what is left? After all, the noble Lord, Lord Lester, belongs to a political party--he sits on its Front Bench at the moment--which is dedicated to continuing that process of sacrificing British sovereignty by making Britain part of a European federation. That is how I interpret the speeches of his political leader, Mr. Paddy Ashdown, and others of the party. If Britain became, as they wish, a member of a European federal system, it would not have any treaties to make at all. South Dakota has no treaty-making power. So we must regard this as an exercise in the might have been, rather as though one could say what would have happened in the Battle of Hastings if King Harold had had a Kalashnikov.

However, as it would be unfair to the noble Lord not to consider his Bill as it stands, I propose that we overlook the fact that it is no longer relevant and go into some imaginary situation. Let us suppose that Europe tires of the Franco-German domination enshrined in the Brussels' institutions; let us suppose that the European Union in its present form explodes, as a result of the attempt to introduce a single currency or other scenarios. Let us suppose then that we would clearly have to make, as other countries would have to make, a new series of treaties to regulate relations between European countries. Would we, if we had to embark upon that process, want Parliament to be involved?

There the noble Lord has a good case, because one of the lessons, perhaps, of what has happened in the diminution of this country's democracy, has been a lack of attention, except intermittently, to the positions being created by the exercise of a treaty power.

Even supposing that the Government on that future date were a government of extraordinary competence, intelligence, and far-sightedness, so that all the treaties they proposed were admirably suited to the problem,

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there is still the argument that the public discussion and debate in a legislature of a treaty has an important educative function.

The country which seems to me to be much more interesting in that respect than the countries of the European continent, where parliaments, though they may be formally associated with the treaty-making power, have in many instances a rather restricted command of the political scene, is the USA.

The record of the role of the American Senate in the treaty-making power of the USA is, perhaps, from our point of view a mixed one. It was, after all, the need to obtain legislative consent which prevented the USA from joining the League of Nations. Many people would think that that was perhaps one of the root causes of the subsequent instability of Europe and the world. On the other hand, it was the debates in the American Senate about the North Atlantic Treaty that helped to bring America into the position of the guardian of Western interests in which it remained for the duration of the Cold War.

Whether it means that one cannot do something which perhaps in retrospect one should have done, or whether one takes the advantage of public discussion, one would have to look in depth at America's experience rather than the experience of other countries on the Continent. Although in some cases, of which perhaps the German Federal Republic is at the moment the most obvious, there is clearly an inherent power in their legislature, perhaps partly because it is a federal one.

When we look at the Bill in that respect it seems, on the whole, to classify correctly the kind of treaties where it would be especially desirable for the approval of ratification to rest with Parliament. I am slightly surprised that in Clause 3, which sets out the treaties where it is thought that positive approval should be sought, the noble Lord refers to the secession of UK territory among those examples. It is of course true that there is a foreign country with which we are endeavouring to act which in its constitution lays claim to an important part of the UK. That is an exception which we may hope will vanish in due course.

I am surprised though that the noble Lord did not include possessions of the British Crown overseas. It is much more likely that some government might be pressured to have a treaty ceding the Falkland Islands to Argentina or Gibraltar to Spain. I should have thought that in those cases the need to secure the assent of Parliament would be essential.

The noble Lord referred, in relation to the Australian proposals, to the need for a select committee of some kind. Clearly Parliament, as at present organised and constructed, especially the other place, is not particularly well suited to the kind of detailed work which the scrutiny of an important multilateral treaty would demand. Therefore there would clearly have to be a procedure which would involve a committee, with perhaps committee hearings on the American model. It may be desirable, given the distribution of experience as between the two Houses, that it should be a joint committee of both Houses of our Parliament.

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There are many interesting hares which the noble Lord has raised which one could pursue. I rather like being propelled into this kind of imaginary world. Together with other noble Lords, we owe some thanks to the noble Lord, Lord Lester, for having put us on that road.

8.47 p.m.

Lord Kennet: My Lords, the noble Lord, Lord Beloff, had many wise things to say in the second half of his speech, and I agree with them. But in the first part of his speech, he contended that this is all pure theory and not practical politics. He had the argument upside down. Let us suppose that at the time of the signature of the Treaties of Rome and Maastricht this Bill had been law, would he not have welcomed the opportunity to state his views, (had he been in the British Parliament at the time of the first treaty) as fully as he has done now, and also the opportunity of putting them to the vote to see which way this country would have gone?

If that had been possible, we should have been spared, I believe, 25 years of destructive and exhausting political strife within both the major parties, which became necessary just because Parliament had not had the opportunity to sort out its views when it would still have had an effect.

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