HC Deb 04 March 1873 vol 214 cc1309-19
MR. SINCLAIR AYTOUN,

on rising to move— That, in the opinion of this House, all Treaties with Foreign Powers ought to be made conditionally on the approval of Parliament, as was done in the case of the Commercial Treaty with France in 1860, said, the question whether it was desirable to follow in practice the change his Resolution proposed, depended upon two considerations—namely, was the existing practice with reference to the negotiation and conclusion of Treaties by the Government consistent with the Constitution of this country or not; and was the existing practice with respect to the making of Treaties beneficial in its results? If he should be able to show that the present practice was not consistent with the Constitution, that would be a perfectly sufficient reason, to his mind, for adopting the Resolution. He was not unaware that the feeling which prevailed in the House and in the country upon this question was, that any existing practice which proved to be beneficial in its results should be continued, without reference to theoretical considerations. What was the practice always followed by the Government in making a Treaty? No information was given to the House with regard to these Treaty obligations until after they were settled. When a question was asked in the House, they were told that they should wait until the Treaty was concluded, and then express their opinion as to the conduct of the Government. In accordance with this practice, the Under Secretary for the Colonies declined, a Session or two ago, to lay on the Table a Treaty with Holland before it had been ratified. Then, however, it was too late either to reject a Treaty or to obtain any modification of its terms. He maintained that this practice was inconsistent with one of the well-ascertained rights of the people of this country. One of the best known provisions of the Bill of Rights was that all taxation by Prerogative was illegal; and it followed that the practice which allowed the Government to enter into engagements which would have the effect of imposing an immense amount of taxation on people must be unconstitutional. They were told that the House did maintain its control over foreign Treaties, because the Ministers were responsible to it; but cases might occur in which it would be impossible for the House to interfere until after a Treaty was concluded and ratified. A Government which had a large majority in Parliament on a domestic question might not be in harmony with the opinion of the country on questions of foreign policy. They had also had cases where a Government did not actually possess a majority in the House; and it was, therefore, possible for a Government not having a majority, and not supported by the public, to enter into engagements during the Recess, of the gravest character. The safeguard of Ministerial responsibility was perfectly illusory. They were told that the effect of such a change as that which he proposed would be to take the conduct of foreign negotiations out of the hands of Her Majesty's Government. He denied that the change proposed would lessen Ministerial responsibility, and remit the management of Treaties to Parliament, for the position of a Government with regard to a Treaty would be analogous to that with regard to an important Bill, the defeat of which might involve resignation; and just as the House was anxious to pass even a tolerably framed measure without factious opposition, so it would hesitate to reject or modify a Treaty except on the strongest grounds, and with a great preponderance of public opinion. It could not be contended that the country should be bound to a Treaty guaranteeing territory or involving a large outlay, if it was not approved by public opinion, and the rejection of a Treaty by the House would show that it ought not to have been concluded. At present, the only thing that Members could do to prevent the conclusion of a prejudicial Treaty was to raise a debate in this House, and obtain a decision adverse to the Government; but if it was the practice to lay Treaties before Parliament then all motive for raising premature discussion on the subject would be at an end. They could best test the merits of the existing system by seeing whether, at certain periods of our history, it was not in the highest degree probable that the practice of making Treaties conditional, on the approval of Parliament, would not have proved beneficial. He would refer to one of two Treaties which had been concluded during the last 30 years. In 1852, a Treaty was concluded between this country and France, Prussia, Austria, and Denmark regulating the succession to the Duchies of Schleswig and Holstein. The King of Denmark was Sovereign of Denmark by one law of succession, and of the Duchies by another; and to prevent the separation of the Duchies from Denmark, the diplomatists concluded a Treaty by which they should remain attached to the Crown of Denmark. This was a high-handed, tyrannical, and unjust proceeding; and, when the Treaty was concluded, probably not one man in the country knew anything of the merits of the case. Twelve years subsequently a question arose under that Treaty, and the Government of the day were in favour of going to war to enforce it. Fortunately, however, the Government of France were disinclined to assist us in carrying on a war which, had it been begun, would have been one of the most expensive and sanguinary in which this country ever took part. But, had it been waged, not one man in ten thousand would have known anything whatever of the merits of the dispute. Then, again, a Treaty was entered into between this country and the United States in reference to the boundary between their territory and ours, and it was agreed that, pursuing the 49th parallel of latitude, the boundary should be a line dividing the channel between Vancouver's Island and the main land. The House was familiar with the difficulty which had arisen as to the interpretation of that Treaty, and nothing could have been more unskilful and bungling than the manner in which the negotiations in reference to it had been conducted by the Government. The negotiators, ignorant as it would seem of the geography of the locality, did not know that there were, not one channel, but three channels, and a question arose between the two countries, the Americans claiming that the line should be drawn through the channel, which would give them the Island of San Juan. So ambiguous were the terms of the Treaty found to be that to ascertain its meaning and effect it was necessary to have recourse to the Arbitration of the Emperor of Germany. It was only necessary to refer to one further Treaty—namely, that under which the Geneva Arbitration had been conducted. It was impossible to imagine anything displaying greater want of care and attention which ought to characterize the proceedings of negotiators of International Treaties, than the Treaty in question evidenced. Not only was its wording obscure, but by it we gave up important rights as to the fisheries and navigation which the Canadians had theretofore exercised, and in return we undertook to guarantee £2,500,000 sterling for the construction of a great line of railway through the Dominion. Not only that, but we agreed to have our conduct judged and our liability decided in accordance with Rules then agreed upon, which were to have a retrospective operation, which we undertook to recommend to foreign nations for their adoption; but our interpretation of which was completely at variance with that put upon them by the majority of the Arbitrators. Surely, had it been referred to a Committee of that House to frame a Treaty, it could not have been drawn in so unskilful a manner as it was by the professional diplomatists who were engaged to negotiate it. But it might be said, that it was open to the House to discuss a Treaty after it had been entered into. No doubt it was; but they all knew that when a Treaty was once concluded, it would be hopeless to attempt to have anything like a full discussion of its provisions. The only reason that he ever heard given for dealing in this exceptional manner with Commercial Treaties was that they related to questions of taxation, and that, therefore, it would be contrary to the Constitution of this country if they were dealt with by the Prerogative of the Crown. The Commercial Treaty of 1860 had not the effect of imposing any taxes on the people of this country; but it had the indirect effect of putting on extra taxes, so that it was perfectly right that the Treaty should be made conditionally with the sanction of Parliament. But if they said it was not constitutional to make a Treaty except conditionally on the approval of Parliament, as a Commercial Treaty, how could it be positively said that it was constitutional without the sanction of Parliament, when the country was led into an outlay of £100,000,000? In one case, the Commercial Treaty dealt with the taxation of this country; in the other case, the Treaty dealt in a manner which might not come into operation for many years, and which might possibly never come at all into operation with the taxation of the country. But he held that if it wore unconstitutional to deal directly with the taxation of the country, it must be also unconstitutional to enter into Treaty engagements which might, at a remote and uncertain period, have the effect of introducing an infinitely greater amount of popular burdens. Having endeavoured to show, in the first place, that to bind this country by Treaties, over which Parliament had no control, was unconstitutional; having endeavoured to show that if the House adopted the practice he recommended, at all events, they could not be worse off than they were at present, and that, in some respects, they would be infinitely the gainers, he would conclude by moving the Resolution which stood in his name.

Motion made, and Question proposed, That, in the opinion of this House, all Treaties with Foreign Powers ought to be made conditionally on the approval of Parliament, as was done in the case of the Commercial Treaty with France in 1860."—(Mr. Aytoun.)

VISCOUNT ENFIELD

said, he should have hoped, after the exhaustive reply given the other day by his right hon. Friend at the head of the Government to the Motion of the hon. Member for Warrington (Mr. Rylands), that the present Motion would not have been pressed—especially as the feeling expressed on both sides of the House on that occasion was decidedly adverse to so great an innovation on the Constitution. The hon. Member for the Kirkcaldy Burghs (Mr. Aytoun) had passed over very lightly a main and fundamental objection to his proposal, and that was that his Motion would, if carried, not only make this great innovation on the Constitution, but affect most seriously the right, power, and privileges of the Crown, which, in matters of Treaties, had, at all events during the last 100 years, been always exercised in a constitutional spirit towards Parliament and the country. He thought the allusion made by the hon. Member to the Commercial Treaty of 1860 was scarcely a good one, because it was admitted that when Treaties made any fiscal alterations, or imposed any fresh taxation, it was necessary that they should be submitted to Parliament. Article 14 in that Treaty said— The present Treaty shall be binding for the United Kingdom of Great Britain and Ireland so soon as the necessary sanction shall have been given by Parliament, with the reserve made in Article 6 respecting wines.

And Article 20— The present Treaty shall not be valid unless Her Majesty shall be authorized by the assent of Parliament to execute the engagements contracted by her in the Articles of the present Treaty.

The fact was, there were various duties which in the interest of France the Sovereign undertook to recommend to Parliament to repeal, and a Bill was therefore necessary to secure to France these advantages by the formal and express assent of the Legislature. Again, the Reciprocity Treaty of 1854 reserved in the same way the assent of the Parlia- ment of Great Britain and that of the British North American colonies. The Motion of the hon. Member required all Treaties to be conditional on the approval of Parliament. What would be the result? Tinder the plan proposed by the hon. Member in the case of a Commercial Treaty every clause, every paragraph, every reduction, every addition of imports or duties would be discussed on the floor of the House, bandied backwards and forwards from the Assembly in one country to the Assembly of the other, and would probably only pass, if at all, after a long and vexatious delay. He would say nothing about our other House of Parliament; but the House of Lords would have an equal right to discuss, amend, or reject these Treaties. Evils still greater would arise in discussing the terms of Treaties of peace with all the publicity demanded by the hon. Member while war was going on; it might prolong the war, at additional cost of lives and money, till Parliament could be called together to decide upon the terms of peace. As a proof of that, he might allude to the fact that many Treaties of peace had been concluded abroad. For instance, the Treaty of peace with China of August 29, 1842, was signed at Nankin; the Treaty of peace with China, of October 24, 1860, was signed at Pekin. If these Treaties had been submitted to Parliament before they were ratified, he apprehended that the war would have been prolonged. Again, many Treaties were made with articles in them contingent on the assent of Parliament being given. The following Treaties between Great Britain and foreign Powers since 1815 contained articles the execution of which was made contingent upon their confirmation by the British Parliament:—On May 19, 1815; a Treaty with Russia relating to payment of dividend of Russian-Dutch Loan; November 17, 1823, a Convention with Austria about Loan; November 16, 1831, a Convention with Russia about Russian-Dutch Loan-continuance of payment; May 7, 1832, a Convention with France and Russia relating to Greek Loan; August 2, 1839, a Convention with France dealing with Channel Fisheries; May 28, 1852, a Convention with France about Extradition; January 25, 1855, a Convention with Sardinia about Loan Guarantee; June 27, 1855, a Convention with France and Turkey relative to gua- rantee of Loan raised by the Sultan; June 3, 1856, a Convention with Sardinia relating to Loan; January 14, 1857, a Convention with France about Newfoundland Fisheries; March 5, 1864, a Convention with Prussia relating to the subject of Extradition; March 29, 1864, a Treaty with France, Russia, and Greece relating to Greek Loan and Pension to the King of the Hellenes; and April 30, 1868, a Convention with Austria, Italy, Turkey, Prussia, and France, to guarantee Loan to complete works on the Danube. There was no special Article in the Treaty of March 29, 1864, stating that the sanction of Parliament would be required for its execution, but an Act was passed for that purpose; and in the cases of the Convention of May 28, 1852, the Convention with France in January, 1857, and the Convention with Russia in 1864, Parliament exercised its powers and rejected the provisions which were submitted to it. But other engagements less important than Treaties or Conventions had been constantly entered into by the British Government, and these engagements did not require the ratification of either the Sovereign or of Parliament. Such agreements related, for instance, to postal arrangements, agreements for the settlement of claims of British subjects against foreign States, independence of certain places, such as the Sandwich Islands and other Islands in the Pacific, loans, national treatment of vessels, sugar refining, trade marks, emigration, joint-stock companies, boundary maps, and duties on patterns and samples. Sometimes an exchange of Notes occurred between the representatives of two Powers, as when Notes were exchanged between Great Britain and Portugal relating to the Treaty of Commerce and Navigation of July 3, 1842. There were also cases in which Treaties were the final results of conferences and negotiations extending over very many years. Foreign Powers would not have gone into these Treaties, in all probability, if they knew that the consent of Parliament would be required to their agreements. Of this kind were—the territorial arrangements of Europe, the succession to foreign Thrones, the questions of Sound dues, Stadt tolls, and others. Parliament could address the Sovereign with respect to treaties and negotiations. This was done in February 20, 1700, when an Address was moved to the King, asking that His Majesty would be pleased— To enter into such negotiation in concert with the States-General of the United Provinces and other potentates as might most effectually conduce to the mutual safety of the British Dominions and the States-General, and the preservation of the peace of Europe, and giving his Majesty assurances of support and assistance in performance of the Treaty made with the States-General on March 3, 1677.

On November 21, 1739, an Address was moved by the Commons to George II., beseeching His Majesty— Never to admit of any Treaty of Peace with the Crown of Spain, unless the acknowledgement of the British natural and indubitable right to navigate in the American seas to and from any part of His Majesty's dominions, without being seized, searched, visited, or stopped, under any pretence whatsoever, should have been first obtained as a preliminary thereto.

In December, 1743, an Address was moved, asking the King not to engage the nation any further on the Continent in favour of the Queen of Hungary. In 1752, another Address was presented, asking His Majesty not to engage into any more Treaties of Subsidy. Parliament refused its sanction to a Treaty, after ratification, in 1864—namely, a Convention with Prussia for the surrender of fugitive criminals. Apart from the precedents on this subject, there were grave constitutional objections to the Motion. Kent, in his Commentary on International Law, said— In England, as the sole prerogative of making war or peace is vested in the Crown, so also is it the Crown's prerogative to make treaties, leagues, and alliances with Foreign States and Princes; and though this power has in theory no limits, yet practically it is controlled by the authority of Parliament, and the contingency of its abuse is checked by means of Parliamentary impeachment for the punishment of such Ministers as from criminal motives advise or conclude any treaty derogatory to the honour and interest of the nation

Blackstone added— It is by the law of nations essential to the goodness of a league that it be made by the sovereign power, and then it is binding upon the whole community; and in England the sovereign power quoad hoc is vested in the King.

Do Lolme also alluded to the King as being the representative and the depository of all the power and collective majesty of the nation with regard to foreign nations. He must ask the House to reject this Motion on three grounds—first, because it made a great constitutional change which was not required by the spirit of the time; secondly, because, he believed, it would practically fetter the Ministry in the conduct of negotiations which were often of a comprehensive and delicate character; and, thirdly, because, anxious as the Government often were to conclude Treaties with foreign Governments, in which very important considerations of a mercantile character and affecting commercial interests were concerned, yet if the assent and—if he might use the word—the dissection of Parliament were required to everyone of these Treaties before they were finally ratified by the Sovereign, instead of affecting the good which the hon. Member desired, it would in many cases lead to entangling embarrassments and international distrust.

MR. MONTAGU CHAMBERS

said, that we lived in strange times, and for his own part he would wish that hon. Members who desired to make these experiments would first be kind enough to read the History of England, in order that they might learn what the English Constitution really was. He had listened, on more than one occasion, with utter astonishment to the ideas put forth on this subject. In his professional studies and in his historical readings he had been taught that the Constitution was composed of Queen, Lords, and Commons, and that certain duties and Prerogatives belonged to the Crown of these Realms, and that one of these Prerogatives was the power of making peace or war, which also involved the Prerogative of making Treaties. They knew that the Sovereign could do no wrong, and if the Ministry of the day gave the Sovereign corrupt advice they might be impeached; or if they acted indiscreetly, might be obliged to resign their offices by a vote of the House of Commons. He was determined to lay down and abide by constitutional principles, because he had seen that the usurpation of the rights of the Executive by deliberative Assemblies had been leading other States to destruction. He would assure the House that he was utterly surprised at the indifference with which constitutional principles were passed over in modern times—"just as if"—to use an expression of the last century—"they had been Turnpike Bills." Would the House call upon a Ministry to lay before it the successive steps of a negotiation? Would any commercial man, in making a bargain with another, like to submit the consideration of the question to be agitated and controverted in a public assembly? The true motto in such matters was—"Strike the iron while it is hot"—and that was a very good adage in peace and war, and also in making Treaties. The responsible parties were the Government of the clay, and nothing was less desirable than to shift the responsibility of making treaties from the Ministry to the House of Commons. He was sorry the Under Secretary for Foreign Affairs had been obliged to resort to precedents, which were dangerous things, as they were not always understood. As to the principles on which those precedents were founded he might remark that since the period of the Revolution a distinction had always been drawn between the power of the House of Commons, the Prerogative of the Crown, and the responsibility of Ministers. In those instances where Ministers had thought it their duty to lay a proposed Commercial Treaty before the House of Commons it would generally be found that in reality they wanted the advice of the House, and required the aid of the Legislature, with regard to that particular Treaty. This was essential where customs duties were to be repealed, changed, or regulated, and in the case of Extradition Treaties, Ministers were powerless to alter the common law of England, and, consequently, such Treaties were always sanctioned and confirmed by Act of Parliament, and could not be properly quoted as precedents. In conclusion, he protested against all endeavours to give to the House of Commons an authority which they had no right to usurp, and impose a duty which they could not satisfactorily discharge.

Question put, and negatived.