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

HL Deb 28 February 1996 vol 569 cc1530-64

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.

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.

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 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 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. WA152.] 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— 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 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 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 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 13russels' 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 he 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, 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 he 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 he 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.

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.

Lord Beloff

My Lords, perhaps it was my fault, but I fear that the noble Lord did not appreciate my central point: if the legislation had already been in operation, it would have been of great benefit to us when questions of uniting with Europe came along. What I argued in the first part of my speech was that in fact they have now become part of the scene, and that we cannot go back beyond that: we cannot retrospectively put ourselves in a better position than we were.

Lord Kennet

My Lords, of course, no legislation—unless it deliberately does so—can do anything retrospectively, but I would not go as far as the noble Lord in accepting that we are, in effect, already a South Dakota. I do not believe we are that. There are still many international issues which can well affect the destiny of our people in major ways, which have nothing to do with the European Union.

Clearly the House must thank the noble Lord for bringing forward the Bill. If it gets through—I hope that it will—it will provide a clear advance in the ability of the elected legislature to obtain control over the totality of British government policy. In some respects the part which the legislature does not now control—namely, the introduction of treaty law—is the most important of all. Its importance is not readily visible to the whole people simply because they know so little about what is going on in international affairs. The passage of this Bill would sharply increase what the public knows. As the noble Lord, Lord Lester, pointed out, very few states do not have parliamentary ratification in one form or another. We are an anachronism in being without it and I endorse his phrase that the British Parliament is sadly neglected in the conduct of foreign affairs.

Let us consider for a moment what would happen if this Bill were passed and how it would affect the fabric of British foreign policy and the role of Parliament towards the totality of the destiny of its people. If a proposed treaty which was under negotiation began to look a bit "dicey" for the government—began to look as though it would be unpopular with the people when it came into effect—then the Secretary of State for Foreign Affairs would have every inducement to keep Parliament in the picture throughout. Before the signature he would come back from Strasbourg, Brussels, Washington or wherever, and he would keep Parliament up to date in a narrative manner—"we have gone this far and we have gone that far"—and he would listen to what advice he could get from both Houses. This would enable him to feed British opinion—the British national will, if you like—correctly into the negotiations instead of getting it wrong, as I think everybody knows does fairly often happen.

What I have been saying is true of all treaties that this country will negotiate from now on if this Bill becomes law, but it is of course especially true of the developments from Rome and Maastricht as they come along, as they will. These are and will be the vital treaties which—here I share the view of the noble Lord, Lord Beloff—most directly impinge on British sovereignty. To put it at its lowest, I believe the passage of this Bill would allow all Foreign Secretaries from now on a much smoother ride than they have had. If it goes through, it will at last complete the control of Parliament over all those things which it began to control with increasing effect—the noble Lord will correct me if I am wrong—shall we say from the late 16th century onwards.

It would be an immense accretion—and if it had been introduced 20 years ago it would have been even more immense—but it will still be an immense accretion to the validity of parliamentary government. It will strengthen our democracy from top to bottom and will put it on a par with that of other countries. It will also lead to a great deal of public enlightenment and help us to rise out of what I myself perceive as a fairly severe degree of insularity and ignorance of world affairs which at present afflicts the British people. It is a fact that the more time you spend abroad the more you are amazed at the ignorance of foreign affairs displayed by our people, as compared with the better knowledge of British affairs that you find abroad.

I think we should go through the Bill in some detail, with a lot of probing amendments in Committee. I am not at all sure that the Bill goes far enough, particularly in Clause 4, which allows the Secretary of State to decide what he may ratify without parliamentary approval and then later face the music, or not, as the case may be. That is unjustifiable, I think. It does not take a great deal of effort to get an hour or two in both Houses of Parliament if there is a real crisis over a treaty; nor can I readily imagine a situation in which it would be so urgent to ratify a treaty. So let us try removing that one later on and try putting the entire conduct of substantial treaty-making under parliamentary control.

8.55 p.m.

Lord Bridges

My Lords, I too would like to thank the noble Lord, Lord Lester, for introducing his Bill. The subject is not one which normally attracts much attention and I rather agree when he says it is worth looking at our current practice regarding the ratification of treaties and considering the possibility of putting it on some more formal basis. I begin by examining the origins of our present procedures, which are not without interest.

The treaty-making power was originally a compact between monarchs. An emissary sent by a sovereign to negotiate abroad carried with him a letter in Latin giving him authority to act. This letter was produced and shown to the other party. It was called a "Full Power" and generally contained a promise to confirm, approve and ratify the result of the negotiations.

This practice developed rather considerably in the 17th century, particularly with the beginning of what we would now call multilateral diplomacy which preceded the signature of the Treaty of Westphalia in 1648 and which ended the Thirty Years War, and the Treaty of Nijmegen in 1697. On the latter occasion much time was spent examining the powers of the delegates, which were different. It was eventually agreed that a common form of words should be adopted, stating that the person concerned had the power to conclude the negotiation. Thereafter the Full Power given to a diplomatic representative contained words amounting to a promise to ratify the results of the negotiation.

This practice changed after the French Revolution and after American Independence. Treaties were no longer compacts between sovereign princes but became agreements between states. Thus Article 4 of the French Constitution of 1794 contained an express reservation that treaties were invalid unless they were examined, ratified and confirmed by the National Committee and the Committee of Public Safety. Just three years later, in 1797, President Adams drew up Full Powers for the American representatives in Paris and requested them to convey the agreements they reached with France, in his words, to the President of the United States for his final ratification, with the advice and consent of the Senate of the United States". This was a form of words to which much thought had evidently been given.

Thus the customary promise to ratify contained in the earlier Full Powers had given way to this formal and specific reservation. We in Britain followed suit a few years later. When a Full Power was drawn up in 1824 for the signature of a treaty in Latin America, the Foreign Secretary, Canning, himself deleted from the draft the customary promise to ratify, and minuted this in the margin: It is necessary, or may it not be expedient, in so singular a business as this, to omit this strong promise and rather to say that when ratified by us we will never suffer it to be infringed, or something of that kind. I wonder what Sir Richard Scott would make of that!

So in broad terms the current practice of regarding ratification as an act quite separate from negotiation developed with the growth of parliamentary democracies in the 19th century. At the same time it was generally agreed in Europe, but not in the United States, that the only substantial grounds on which a sovereign or president could refuse ratification was when a diplomatic agent exceeded his instructions; and that when this happened a clear statement of the reasons should be given. Palmerston said that in Parliament in 1864. But that, too, gradually gave way to a different concept, closer to the American practice where the absolute right of the Senate to make its own decisions on ratification was insisted upon. Thus we arrived at the current situation, where ratification is often perceived as part of the process of democratic control by national parliaments which the noble Lord, Lord Lester, wishes us to adopt in a more specific form in his Bill.

My impression is—and I am sure that the noble Lord, Lord Beloff, will correct me if I am wrong—that the origin of the movement in this country for more democratic control was the cession of Heligoland to Germany in 1890. That was done in recognition of the growing power of the German Reich, the desire to avoid unnecessary friction with Germany and the realisation that it would be difficult to defend that particular piece of real estate so close to the German coast.

The treaty was drawn up and ratified by the Sovereign but Parliament was not consulted. Some Members of another place did not like that use of the Crown prerogative. I understand that Mr. Gladstone himself raised an eyebrow. Those anxieties were, with good reason, greatly magnified when it was discovered at the outbreak of the war in 1914 that secret negotiations had taken place with France about the military help that we could provide in the event of German attack upon her. There was also widespread dismay and resentment at the extent of the secret undertakings made by all the great powers which had created the fatal network of obligation, misunderstanding and miscalculation which led to the outbreak of war.

That feeling was very strongly held in the centre and Left of British politics. It led to the resignation of Lord Morley in August 1914. The apostle of democratic control was E.D. Morel, and Arthur Ponsonby was one who thought likewise. He took the opportunity of the ratification of the Treaty of Lausanne, negotiated by a different government, to expound what we know as the Ponsonby rule.

The latter is not really a rule at all; rather it is a unilateral statement of intention by a junior Minister which has come to be our accepted practice, although not binding in any formal sense. It has worked rather well, I believe. Important treaties are brought before Parliament for discussion and, where necessary, to make changes to our own law. Also, if desired, specific reservations can he made on the text.

I heard the complaint made by the noble Lord, Lord Lester, that we adopted the European human rights convention without debate, but I suggest that that occurred because the convention was not perceived, at the time, to present any difficulties: its principles were widely accepted in this country, and much of the language had been drafted by our own lawyers. It could have been debated if there had been public interest in doing so. It is, however, news to me that we have adopted Protocol 11 on the permanent right of individual petition to the court. Perhaps the Minister would be able to tell us about that.

There are a number of specific matters raised by the text of the Bill upon which I should like to comment. First, if I read Clause 2 correctly, every treaty must be submitted to the House with an Explanatory Memorandum. I suspect that that would mean a lot of paper. It would help to know the volume of the treaties which would be involved. I heard the noble Lord, Lord Lester, say that he thought that the procedure would only cover a dozen treaties, but perhaps I misunderstood what he said. Indeed, I would expect the number to be rather more.

I turn next to the definition in Clause 3(1)(a) which is very widely drawn. I would suppose that that would cover the majority of international agreements. If I am right, that would mean the passage of a considerable number of resolutions by Parliament. That being the case, as has been correctly pointed out by the noble Lord, Lord Beloff, it would probably he necessary to set up a Select Committee, either in both Houses or, indeed, a joint committee.

Then there is the question of the class of treaties about which we are talking. I do not believe that the Bill defines in any exact way the treaties to he covered. I have heard that there is a Vienna Convention which contains such a definition. If it is satisfactory, that might he included in the text. But I suspect that this is not a straightforward matter. Agreements take different forms in various countries and so do their procedures for ratification. As the noble Lord, Lord Lester, reminded us, the United States has a category of Executive Agreements which do not require ratification by the Senate, and thus do not have any binding status in American law.

An example of that which I happen to know about is the bilateral agreement on civil aviation between the United Kingdom and the United States, called Bermuda 2, which I helped to negotiate some 20 years ago. Although that is important for many commercial airlines in both countries (thus falling within Clause 3(1)(a) as proposed by the noble Lord, Lord Lester), it has not been ratified by the United States because it is an executive agreement. Thus, if we are not careful, we might, as in this case, give the American airlines rights here which our own companies might not enjoy in the United States. I think that we may need some further thought and clarification about the classes of treaty which require ratification and how that might best he expressed in a Bill.

One other potential problem exists; namely, the practice of requiring what amounts to a second round of negotiation in order to secure the ratification of a treaty by a particular foreign legislature. There have been many examples of this over the years and it may, perhaps, be unavoidable if democratic control is to be fully exercised. But I do recall difficult times in Washington in the 1970s when it was necessary to persuade Congress to ratify commercial agreements on trade issues, after those agreements had been painfully negotiated with the Administration. Further concessions often had to be made in order to secure the approval of Congress. In effect, the foreigner had to pay twice. I hope that we do not fall into that practice if we do formalise our procedure for ratification.

Something rather similar happened in Germany recently when the Bundestag ratified the Maastricht Treaty. The Bundestag passed a resolution requiring further debate before part of the treaty could enter into force. One might say that the Bundestag unilaterally inserted an opt-out clause of its own. I have long believed in that excellent German concept, Vorsprung durch Technik, but here they seem to have found a method of how to half ratify a treaty. That is also an example which I believe we should seek to avoid.

I do not wish to suggest that any of those matters cannot he dealt with in one way or another. However, if we are to proceed, I think that we need some more thought and clarification of them. As I said at the beginning, I have some sympathy with what the noble Lord, Lord Lester, proposes, but we should remember that we have at present the benefit of a system which I believe works rather well. In particular, we do not suffer from the immensely long and convoluted procedures over ratification that I have seen in other legislatures. This can take years, and I do not exaggerate. Nor do I agree with the rather disgraceful article which appeared in the Financial Times last Saturday, which comes close to accusing the Foreign Office of old style, secret diplomacy, a charge which I think is wholly unjustified. That is a rare and regrettable lapse by that newspaper. Perhaps the noble Baroness will have something to say about that.

The best advice on this subject was given to us by none other than Mr. Arthur Ponsonby in his celebrated speech on 1st April 1924. He said: I would however remind the House of the paradox that, under the British Constitution, it is rules that depend solely on practice and usage which are the most immutable. A change effected by Acts of Parliament is not likely to last so long as one effected by Ministers as a change of practice, and dependent only on the will of the Members of the Legislature for the time being". As his procedure has now lasted for 70 years, that was a prophetic remark. As the French proverb has it, rien ne dare contrite le provisoire.

9.8 p.m.

Lord Wallace of Saltaire

My Lords, I am very grateful to my noble friend Lord Lester for raising this debate. As the noble Lord, Lord Bridges, made clear, we are talking about a remnant of the medieval or at least very early modern, British monarchical constitution. It makes nonsense of the principle of the doctrine of parliamentary sovereignty that the Crown retains the right to sign and ratify treaties without submitting them to Parliament.

A number of very good points have been made about the difficulties now of defining treaties. As a former student, I hesitate to disagree with the professor who first taught me about the Ponsonby rules, but I must point out to the noble Lord, Lord Beloff, that some states within federal systems do indeed sign at least international agreements. The state of California has caused much difficulty to the British Government over a number of its international agreements in the past few years, and some of the provinces of Canada operate relatively autonomously for all kinds of purposes in international activities.

The noble Lord, Lord Bridges, is quite right to say that there are many agreements which are not quite treaties which have effects that go deep into domestic politics.

I am struck by how much more, day by day and week by week, the operations of the British Government are bound by such multilateral negotiations, not only involving the Foreign and Commonwealth Office but also many other departments of state. Indeed, increasingly they involve other agencies of the British Government. Some years ago I spoke to a conference of military officers and others and had touched on some aspects of this subject. I was told quietly over coffee by the chief constable of a provincial force that his force had just signed an agreement with its French opposite number on the conditions under which they might carry arms on each other's territory. I asked him how that had been reported to Parliament. He said, "We asked the Home Office about that, and they said they would prefer not to know officially".

There is a whole range of agreements which bind us. The problem is that if governments—not only our Government but many other governments—agree matters which are not explained to their parliaments particular suspicions grow up that bureaucrats are imposing roles which we do not ourselves understand. Usually it is assumed that they are foreign bureaucrats, although often it is British bureaucrats responsible to British Ministers who are actively engaged in negotiations.

I recall many years ago when I acted as adviser to the Treasury Committee of the other place having to explain to Members of the other House that we had signed a number of treaties of which they appeared to be unaware and which had certain consequences of limiting our freedom of action. Much of the discussion of the European Convention on Human Rights takes place in the same context—the sense that somehow or other the British Government ought not to have accepted this vast incursion into our natural sovereignty.

Perhaps I may again disagree politely with the noble Lord, Lord Beloff. He suggested that the majority of judges in the European Court of Human Rights follow a code of law which is wholly foreign to this country. I believe that I remember correctly. I suspect that the noble and learned Lord the Lord Chancellor and other Scottish lawyers might disagree with such an English statement.

The extent to which we have a widening gap between the unavoidably multilateral processes of Government and the continuing national discussions of Parliaments raises a real problem. From time to time it leads to an outburst of parliamentary or press anger or of popular frustration at things which are said to have been agreed in our name and about which we have not been informed. Now that we have within the European Union not only the first pillar of the European Community, but the second pillar of common, foreign and security policy, and the third pillar of justice and home affairs, the number of agreements and semi-treaties into which our Government and others are entering which are not reported back to national parliaments concerns me very much.

As regards the third pillar, the extent to which the British Government and their colleagues have gone deeply into co-operation among intelligence services and police forces, and other agencies of Government such as Customs and Immigration, ought to be more fully reported to this House and another place.

Academics of my profession now write of governments playing two-level games—of negotiating with each other, and then having to negotiate with their domestic audience. The noble Lord, Lord Bridges, pointed out that in the United States that is an explicit two level game as it is for some purposes in Germany. In this country it is only an implicit two level game because it does not evolve through a regular constitutional process. The Bill proposes that there should he a more regularised constitutional process. It is not a radical reform; it is rather a prudential measure to make the British Parliament more self conscious of the limits to sovereignty, of the advantages to Britain of operating through multilateral rules, and of the obligation which Ministers are accepting in our name. It imposes on Ministers of whatever government the obligation of explaining to Parliament what they have signed and why they have signed it.

Several noble Lords have remarked on the sheer weight of paper and the sheer number of agreements in which that might involve us. There seems considerable merit in the idea of a committee of both Houses monitoring those agreements. We all understand that in the next few years the weight of multilateral agreements encompassing this country is likely to increase as issues of international environmental law, climate change, and so on, add to all the other areas on which governments now have to accept further limitations on what was formerly their sovereignty.

This proposal suggests one step in that direction. It is a step that will help government, not hinder them. It will work to limit popular and parliamentary suspicion and, one would hope, therefore to carry greater public support. Not only in Britain, but in other countries across the world—from the United States across western Europe—we find increasingly the problem of a populist backlash against the growth of international co-operation—politicians who set themselves out to be outsiders and argue, "Your government have betrayed you. Your government should not have accepted the latest World Trade Organisation agreement, the latest European agreement", or whatever it might be. There is a real danger of a populist backlash, a nationalist backlash, against which prudential Government should guard. Greater openness in governments explaining to their parliaments what they have agreed in their name would help to limit that backlash.

9.23 p.m.

Lord Bruce of Donington

My Lords, I support the Motion for a Second Reading of the Bill which has been so ably presented by the noble Lord, Lord Lester of Herne Hill. As he indicated, this is a modest Bill and may not affect more than 10 or 12 treaties per annum. Nonetheless, it is very important.

I am most encouraged. I regard the Bill as one small effort to claw back from the Executive the powers of Parliament which have been taken away from it either by the existing domestic establishment, which regards the people as an occasionally convenient instrument of popular support, or by those in Brussels who seem to regard themselves as rather beyond the normal hoi polloi of human life and existence.

I welcome this first step. Unlike the noble Lord, Lord Beloff, I am more of an optimist because I recall—I have it on the authority of one of the most learned Lord Chancellors that we have had for a long time, the noble and learned Lord, Lord Hailsham of Saint Marylebone—that no government can bind its successors. Succeeding governments can overturn anything that a previous government has done. Ultimately, Parliament remains supreme because all members of the Government are taken from it.

I do not know that there will be any resistance because I have not had the advantage of seeing the notes of the noble Baroness, Lady Chalker. However, for the life of me I cannot understand why there should be any resistance, particularly after the observations that fell from the lips of her colleague dealing with the Scott Report. He promised in specific terms that Parliament, including its Select Committees and the public, would receive as full information as possible about the policies, decisions and actions of the Government. We were going to have far more open government. Perhaps the noble Baroness will agree with the Bill, in which case she has my felicitations in advance.

We all know that most Ministers—let alone Members of Parliament—do not even know what is in the treaties that their Government sign. We had the immortal example of the Chancellor of the Exchequer who admitted that he had not read the treaty, even though it was passed by the Cabinet. On the basis of personal experience I am bound to say that the number of Ministers who have detailed, comprehensive knowledge of the Treaty of Maastricht, for example, could almost he numbered on the fingers of one hand.

I am not so much concerned with ourselves. We are a breed that is presumably about to go into extinction, but we can at least utter a few dying words before we depart. It is in the interests of the people of the United Kingdom and the Government that as much information as possible is made available initially to Members of Parliament and, after them, the public. I see the requirements set out by the noble Lord, Lord Lester, as being a modest step in that direction. I hope to revive the enthusiasm of the noble Lord, Lord Beloff, in due course, but with him we may well take advantage of the Committee stage of the Bill to make some surprising suggestions, particularly as they affect the multilateral treaties to which one of the parties may be the European Union. That opens possibilities for discussion of some of the issues that are important to our country today.

It has been complained—though not overmuch or tendentiously—that we should have regard to the volume of paper likely to be involved if the seven or eight treaties complied with the procedures set forth in Clauses 2, 3 and 4 of the Bill. If it takes that many quires of paper to explain the treaties, it is clear that the interests of people in the country will be affected in one way or another, otherwise they would not need such detailed explanation.

When it comes to bulk of legislation, let us be adult. Week by week by week, I examine tons of paper that come from the European Commission, including its proposals, including the explanatory memoranda added by the Government—explanatory memoranda which I am quite confident in some cases, because I have a great affection for individual Members of the Government, they cannot possibly have agreed with or, if they did agree, they certainly did not understand. The explanatory memoranda issued with some of the draft legislation and proposals that cascade into the British Parliament week after week is something that has to be seen to be believed.

That suits the Establishment, although I do not mean all members of it. I do not include the noble Lord, Lord Bridges, in that category; he has the advantage of a long history. The fact is, it suits the Establishment and it suits the Civil Service for there to be such a cascade of material that people cannot even find time to read it. Over the past 20 years, in particular, the powers of the British Parliament have been progressively taken away, either by delegated legislation or by legislation from continental institutions. That has to be reversed.

I can remember a time during the war when Parliament was held in very high regard. It was at one with the people, regardless of what political party was represented there. Parliament was held in very great respect indeed. Some of our statesmen in those days held it in very high regard. Not any longer.

Our task here—and my task for the remaining years during which I may be privileged to address this House—is progressively to increase the power of Parliament; to claw back some of the powers that we have lost in order that we can really represent the people whose interests we are supposed to safeguard, however small and insignificant they may be, however literate or otherwise they may be, however poor or wealthy they may be. That is our trust. And trust is based upon truth. It does not speak with a forked tongue. The quicker we get some facts from the Government about the legislation they propose to pass or the treaties they propose to enter into, the better it will be for the country as a whole and its future.

9.28 p.m.

Lord Howe of Aberavon

My Lords, attractive though the prospect might be of following the noble Lord, Lord Bruce of Donington, and indeed my noble friend Lord Beloff, on the powers that they have explored, from Scott to South Dakota, I shall refrain from that pursuit. Indeed, I hesitate to join this debate at all because of my own past record. As I told the noble Lord, Lord Lester, when first he discussed this Bill with me, I must be on record myself with enough words in another place commending the existing system to make it embarrassing for me now to enlist under the noble Lord's banner. So I speak with some hesitation.

I remember, at the Second Reading of the European Communities Bill, when we made the very first move down that road, spending almost a complete 24 hours under the never-exhausted chairmanship of Sir Robert Grant-Ferris, as he then was, before we even completed the points of order on that ratification process. My noble friend Lady Chalker will no doubt recollect sharing with me the burden of securing the enactment of the Single European Act in a more beneficent era, when our noble friend Lady Thatcher was happy to impose a guillotine in support of the swift enactment of those pan-European measures. Therefore I approach this modest measure pretty warily. However, there are some arguments in favour of giving it serious scrutiny. First, it is introduced by the noble Lord, Lord Lester, for whose perception and dedication to justice in this field I have high regard. Secondly, the Bill has the merit of being compact and clear. I also have enthusiasm for simplicity in legislative draftmanship. Thirdly, it appears to have limited objectives, essentially the provision of an explanatory memorandum, which is not unimportant, to back up the parliamentary approval procedure, with a sensible provision for exceptions in exceptional cases.

Parliaments elsewhere in the world have been increasingly involved in the approval of treaties in this way, notably even the European Parliament, although to some extent that may have been conceded to it as a relatively harmless addition to its diet. But there are arguments against the Bill which deserve scrutiny. First, it can be said that the Ponsonby Rules, if not more flexible, are certainly flexible enough to provide for effective parliamentary review of any significant new treaty obligation. The noble Lord, Lord Bruce of Donington, with his clamour for the clawing back by Parliament of powers long since departed, has an exaggerated view of the diminution of parliamentary authority. Anyone who has been concerned with any major measures enacting European legislation can hardly feel that he is sailing along smooth parliamentary seas. Both Houses of Parliament have a notable power for getting their teeth into significant changes which inflict treaties upon this country. One should not be too concerned about it.

The other argument that deserves some scrutiny—and worries me—is that there is a risk that the procedure proposed by the noble Lord, Lord Lester, may extend the amount of parliamentary time that perforce has to be added to the process of approving treaties. It appears to introduce a necessary separate stage. That is not decisive, although as a former Leader of the House of Commons I am always anxious not to have inescapable burdens of parliamentary procedure imposed upon our procedures. I would be content for this Bill to be examined with sympathy if it was necessary to ensure the filling of any realistic gaps in the opportunity for parliamentary scrutiny. I am not satisfied that for practical purposes there are such realistic gaps, but if there are I hope that the Government will look at the Bill with sympathetic attention.

On the other hand, I hope that the noble Lord, Lord Lester, will consider how far the range of Bills to be covered by Clause 3(1)(a) may impose a double jeopardy upon the legislative process. The noble Lord, Lord Kennet, rather blithely said that the whole process would ensure a much smoother parliamentary ride for treaties and Ministers alike. I am not sure about that. My anxiety is that it will place the passage of parliamentary approval of new treaties at risk of double jeopardy. If that were the case, I would be tempted to conclude with the simple proposition: Ponsonby Rules okay. I believe that the noble Lord, Lord Lester, has presented to the House with characteristic clarity a prima facie case. I am not sure that it deserves to go forward to the next stage of its procedure, but we ought at least to consider the possibility with sympathetic care.

9.34 p.m.

Baroness Williams of Crosby

My Lords, this has been a remarkable debate and one in which we have had some knowledgeable and wise contributions. This House has reached a level of consensus which is somewhat surprising, not only across the Floor of the House. I am delighted that it includes the support of the noble Lord, Lord Bruce of Donington. I was extremely pleased to hear his support for the Bill.

In presenting the case for this Bill, my noble friend Lord Lester outlined the very strange situation in which the United Kingdom finds itself in comparison with not only most other European countries but most other Commonwealth countries as well. He commended to the House the report of the Australian Senate. The report of that senate, which went in great detail into the whole issue of the ratification of treaties and the approval of that ratification by parliament, dealt with some of the issues raised in this debate, in particular, by commending very strongly the idea of a joint select committee of parliament. It dealt with some of the issues which concern the noble and learned Lord, Lord Howe of Aberavon, in reminding us that there could be heavy demands on parliamentary time.

The establishment of a joint committee of the two Houses of Parliament would itself go a very long way towards ensuring that there is proper scrutiny of treaties and that the Houses themselves have commended to them those treaties which deserve further observation and further debate. Many of us in this House and the other place would feel much more content if we knew that treaties were being carefully investigated in that way. It is already the case that the Select Committee on the European Communities deals with many of the directives which come forward from that quarter and which, as the noble Lord, Lord Bruce of Donington, pointed out, already involve a very considerable burden of scrutiny on that particular committee.

The burden of the treaties, to which my noble friend Lord Lester referred, is considerably less. According to a Written Answer the number of treaties needed to be ratified subject to the Ponsonby Rules—in other words, laid before Parliament—is only 72 since 1st January 1991; an average of just over 14 treaties a year. If my noble friend's example of an explanatory memorandum holds good, that would involve only a minute proportion of the kind of weight of paper that arrives in this House every week of the year as a result of secondary legislation in the form of regulations.

I should like to refer to a matter put to the House by the noble Lord, Lord Kennet, and my noble friend Lord Wallace of Saltaire; namely, the growing significance of treaties as a proportion of the legislation passed by Parliament. There are not only the treaties that we have referred to in respect of global dealing with environmental problems, and with other problems increasingly, that require an intergovernmental response to the problems established. There is also such new legislation as flows, for example, from the Anglo-Irish Treaty—an area of intense interest to this House and another place—which is nevertheless in the form of a treaty rather than domestic legislation; involving, as it does, more than one government. There are many other illustrations that I might bring forward of the way in which treaties between governments are becoming more and more crucial to the exposition and discovery of the objectives of domestic policy in all the countries of the European Union and, indeed, beyond.

If I may say so, this is intended to he a modest Bill. The noble Lord, Lord Kennet, asked whether Clause 4 allowed too great a degree of discretion to Ministers in enabling them to go ahead with urgent treaties, with an explanation to the House of why they felt obliged to ratify without going through its procedure. But that was deliberate on the part of my noble friend. He wants to ensure that there can be no reasonable objections to the modest Bill that he proposes to the House this evening.

The noble Lord, Lord Beloff, brought forward a rather strange argument—the argument that because, in his view, democracy had been limited by our membership of the European Union, it was appropriate to limit it still further by not taking the powers proposed in this Bill. I found that a strange argument. I found it even stranger that he was not willing to consider the position put forward by my noble friend Lord Wallace of Saltaire that in many ways today the German federal constitutional structure—the German Federal Government—has considerably greater influence over the pattern of the treaties of the European Union precisely because the national parliament has insisted upon debating the treaties and in some cases even attaching conditions to the passage of those treaties. The example that springs to mind is the requirement by the German Bundestag that there can be no ratification of a new treaty involving the setting up of the European Monetary Union without the full approval of the German Bundestag—incidentally, something that did not apply in the same way to most of the other countries of the European Union. It is an example which shows that both national parliaments and the European Parliament can be given greater responsibility and accountability by working together rather than fighting one another over the shrinking area for which they are found to be responsible.

The noble Lord, Lord Bridges, gave us a fascinating history of earlier treaties and raised some specific problems with which my noble friend Lord Lester will deal, but perhaps I can again mention, first, that the burden of treaties is a relatively limited one, at least up to now; secondly, that an explanatory memorandum can be brief and clear; and, thirdly, that the proposal for a Select Committee of both Houses on the lines of that proposed for the Australian Senate would go a long way indeed to give the House the assurance it needs without involving a heavy demand on parliamentary time of the kind about which the noble and learned Lord, Lord Howe, expressed concern.

Perhaps I may make one or two brief references to the suggestions made by my noble friend Lord Wallace of Saltaire and the noble Lord, Lord Kennet, regarding the extent to which we might widen the educational understanding of this country in international affairs if treaties were required to be ratified by Parliament. That seems to me to be an extremely important point; that is, that Parliament might create its own backlash against treaties signed in its name.

Perhaps I can give a precise example of what we have in mind. The danger of backlash can be met to a great extent by what the architect of the German constitution, the famous Karl Joachin Friedrick, referred to as the "law of anticipated reactions". He said that in drawing up treaties governments would be constrained by the very fact that those treaties had to be approved by the legislature and would therefore bear in mind the interests of the people in the very ways in which they negotiated treaties. That seems to me to be a serious and important point.

The noble Lord, Lord Bruce of Donington, referred to the accountability of the Executive to Parliament and in particular to the dangers of Executive prerogative, widening in such a way that Parliament became increasingly ineffective. I am bound to say that I have some sympathy with his point. Parliament has allowed itself to be sidelined, though it must be said that perhaps earlier this week and last week were good examples of the way in which Parliament is once again beginning to reassert its independence and its conscience.

I conclude by referring to the speech of the noble and learned Lord, Lord Howe of Aberavon, and perhaps I can again draw attention to the point made by the noble Lord, Lord Beloff, and my noble friend Lord Wallace of Saltaire. I refer to the extension of the European Treaty into what were called the second and third pillars; the common, foreign and security policy being the second pillar and the third pillar with its concern and interest in matters of internal security.

Accountability, particularly in the case of the third pillar, falls between the two stools of national parliaments and the European Parliament. There is no adequate accountability, as my noble friend Lord 'Wallace pointed out, for matters concerned with the issues under the third pillar. Yet it is the treaties under that pillar that most demand to be carefully scrutinised, for in many cases they directly affect the liberties of individual citizens of the European Union.

I therefore believe that my noble friend's Bill will bring those matters to the attention of the House; will hopefully bring them to the attention of a Joint Select Committee of this Parliament and in so doing will go a considerable way to try to provide democratic accountability and scrutiny over an area of policy that is important, that is widening, and that is insignificantly scrutinised by a democratic institution. I am proud to support it.

9.45 p.m.

Baroness Blackstone

My Lords, like other speakers, I should like to begin by thanking the noble Lord, Lord Lester, for introducing this Bill. I admire his initiative not just in identifying a gap in our procedures, but also in undertaking the historical research on the Ponsonby Rule and how it is operated, and other matters, and in investigating what happens in other countries as well.

I have to admit that, unlike other speakers, I am no expert on either parliamentary procedure or international law. I am not sure whether that is an adequate excuse for my failure to have noticed that there is in fact a democratic deficit with respect to consideration of treaties by Parliament. I am very grateful therefore to the noble Lord, Lord Lester, for drawing it to my attention and for drafting this Bill which, if enacted, will help to rectify it.

There may be details in this Bill on which further work is needed. I believe the noble Lord, Lord Beloff, drew our attention to one or two omissions and, with the noble Lord, Lord Bridges, to some problems of definition. However, the arguments of the noble Lord, Lord Lester, are in my view persuasive on the need for changes to our procedures in order to deal with this democratic deficit.

We have had an extremely interesting debate on this Bill this evening; in fact, it had some of the qualities of an academic seminar, but perhaps I may say to the noble Lord, Lord Beloff" that I do not believe that it has been impractically academic in any way.

We are debating this Bill in the same week as a major debate in this House and in another place on the Scott Report. As my noble friend Lord Bruce of Donington has already indicated, in that debate the Government accepted the need for a number of changes in both Whitehall and Westminster governing the export of arms. Some of these changes concern greater openness and transparency, including the consideration of policy guidelines and how they are arrived at in Parliament and reporting to Parliament on their implementation.

In acknowledging the importance of ministerial accountability to Parliament in this area, like my noble friend and the noble Baroness, Lady Williams, I hope that the Government might also be willing to accept that there needs as well to he an improved system in place for the Executive to obtain parliamentary approval in this rather different area of multilateral treaties which is before us today. I very much look forward to the Minister's reply and in particular ask whether she can throw some light on the number of treaties likely to come before Parliament each year, if this Bill were enacted, and on which there appears to be some dispute this evening.

Quite rightly, the noble Lord, Lord Lester, drew our attention to the fact that most treaties today have considerable ramifications for domestic policy. They are rarely about alliances which commit us to send gunboats or their modern equivalent. They are instead about a very wide range of matters which he mentioned at the beginning of his speech. In the past treaties largely about military alliances and diplomatic relations had relatively little direct impact on people's lives because for the most part they never had to be activated. By contrast, many of today's treaties reach deeply into our daily lives and do so on a continuing basis—in other words, treaties which cover such subjects as environmental protection, have an ongoing effect from the very day on which they are ratified. Because of that they are obviously not a matter for governments alone and should be approved by Parliament even if it means that there is a bit more paper—to use my noble friend's term—cascading" into both our Houses.

Moreover, as the noble Lord, Lord Lester, has pointed out, our membership of the European Union means that there will be an increase in the number of treaties likely to require ratification. In that context, it is interesting, (is it not?) that there appears, as the noble Lord, Lord Lester, has already said, to be no other European country which excludes Parliament from the treaty-making process in the way that Britain does.

I was a little surprised that the Foreign and Commonwealth Office was unable to answer the noble Lord's Written Question on the practice of other countries. Perhaps the Minister could confirm tonight that we are out of line with the rest of Europe in that respect. If we are out of line and the Government are prepared either to accept the Bill or to introduce their own legislation to rectify the situation, we may be faced with one of those rare occurrences where Euro-philes and Euro-sceptics can agree. Those in favour of greater integration will presumably welcome the UK coming into line with other European countries on this matter and, despite the argument of noble Lord, Lord Beloff, which I too found a little perlexing, those who are against it may favour more opportunity for Parliament to consider European Union treaties and, indeed, treaties that may be made with other parts of the world. Incidentally, I was delighted to find myself in agreement with my noble friend Lord Bruce of Donington. On many such matters he is usually on the side of the noble Lord, Lord Beloff, rather than on mine.

When my attention was first drawn to the need for this Bill, I was concerned about potential delays in getting agreement to important treaties. However, my anxieties have been allayed by subsections (1) and (2) of Clause 4, where the Secretary of State is able to cite exceptional circumstances requiring rapid ratification of a treaty, and therefore the bypassing of the Act. It is right that, as the Bill proposes, reasons for urgency should be given to Parliament. Therefore, I am afraid that I am not in agreement with what my noble friend Lord Kennet said on that.

The Minister may say that all treaties which require domestic legislation are considered by Parliament anyway. She may also, following the noble Lord, Lord Bridges, say that the Ponsonby Rule (under which, as we have already heard, treaties subject to ratification are left on the Table for 21 sitting days after which they are ratified) provides for satisfactory parliamentary scrutiny. However, I think that the noble Lord, Lord Lester, has made the case for rejecting the view that those provisions are entirely adequate. I do not need to repeat all his arguments.

I have looked at the Report of the Senate Legal and Constitutional References Committee of the Australian Parliament, to which the noble Lord, Lord Lester, and the noble Baroness, Lady Williams, have already referred. It is an interesting report, and I commend it to the Minister if she has not already seen it. However, I am not entirely clear about what the position of the Australian Government now is. Have they indicated that they will accept the recommendations? I assume that they have not yet decided. If, however, Australia goes ahead, the UK will become even more unusual in its failure to provide for proper parliamentary scrutiny and approval of treaties in law.

The noble Lord introducing the Bill has made a very persuasive case for it. Perhaps the Minister will make an equally persuasive case for rejecting it. On the face of it, I believe that she will find that difficult, but I greatly look forward to hearing the Government's position after a debate in which, apart from the noble Lord, Lord Beloff, who opposed the Bill, there has been considerable support for it—in fact, from noble Lords on all sides of the House, including interestingly from the noble and learned Lord, Lord Howe, who, as a distinguished former Foreign Secretary, has more experience of these matters than most of us speaking tonight. Like the noble and learned Lord, I hope that the Government will look sympathetically at the Bill.

9.59 p.m.

The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey)

My Lords, the noble Lord, Lord Lester of Herne Hill, has brought an interesting Bill to Parliament tonight. It has been a fascinating debate for those of us concerned with procedure and concerned to see greater openness, as are those of us on the Government Front Bench.

It was interesting to see the new alliances that have been formed tonight between the noble Lord, Lord Bruce of Donington, and the noble Lord, Lord Lester of Herne Hill. I felt sorry for the noble Lord, Lord Kennet, who was rather out on his own in the debate tonight. He may he a supporter of the Bill but he was not arguing from quite the same basis.

Lord Kennet

My Lords, may I ask the Minister to specify the respect in which I was out on my own?

Baroness Chalker of Wallasey

My Lords, I will not be drawn down that path. I will read tomorrow what the noble Lord said but, as I understood him, he was not quite on the same wavelength, as his noble friend Baroness Blackstone has just said.

It was amazing to see that the noble Lord, Lord Bruce of Donington—who is a great friend of my noble friend Lord Beloff—found himself, for totally different reasons, in a similar position to the noble Baroness, Lady Williams of Crosby.

Then came my old boss, if I may affectionately call him that, the noble and learned Lord, Lord Howe of Aberavon. As always when listening to him—and when we read his remarks in Hansard—we understand that while he too is very much in favour of openness, he can see some downside risks in the Bill. That does not mean to say that its intent is not perfectly worthy, but he can see some downside risks and I believe that he gave us some valuable advice tonight.

The Bill provides that no treaty shall be ratified by Her Majesty's Government without its first having been approved by Parliament. The Government share the noble Lord, Lord Lester's concern that the international obligations of the United Kingdom should be the subject of a proper scrutiny by Parliament. The real question—which I am not sure that we have yet answered in the drafting of the Bill—is what is the best way for this to be carried out. We may need more thought and clarification on that.

The present arrangement for parliamentary consideration of treaties is flexible. It provides for proper opportunity for debate and, as the noble Lord, Lord Bridges, said, the system works rather well. It has worked remarkably well considering its age—but then, in this House, I am a great respecter that good things last a long while.

The Bill worries me because it would introduce fixed procedures which could impinge upon Parliament's timetable and yet do little to further the democratic scrutiny of international agreements concluded by the Government. Successive British Governments have long recognised the importance of ensuring that their international obligations and responsibilities are well understood, publicised, and that Parliament is kept fully informed. That is why this Government, like all governments before them since 1924, comply with the Ponsonby rule, as we have discussed tonight. Under that rule it is settled practice that treaties requiring ratification, acceptance, approval or accession are laid before Parliament for 21 sitting days before the Government deposit their instrument of ratification, acceptance or approval. It provides opportunities for comment and debate if Parliament so desires.

In addition, to the extent that any treaty would alter the law or require legislation for its implementation, it is settled practice to ensure that the necessary legislation has been passed before the treaty is entered into. This is exactly what my noble and learned friend Lord Howe meant when he spoke of the flexibility of the Ponsonby rule.

There are special cases in which, by convention, treaties are not entered into without parliamentary sanction. Noble Lords will remember that Parliament expressly provided in the European Assembly Elections Act 1978 that no treaty which provides for an increase In the powers of the European Parliament may be ratified by the United Kingdom unless it has been approved by an Act of Parliament. That is certainly something of which the noble Lord, Lord Bruce of Donington, definitely approves.

In addition to that special case, there are five situations where treaties are not concluded without parliamentary approval, usually in the form of statute. Those are where they require an amendment to UK law; where they affect private rights; where they create a charge on public funds; where they attribute new powers to the Crown; or where they cede British territory.

There are then other cases where Parliament sanctions in advance, by general legislation, the conclusion of bilateral treaties in particular fields within the minutes laid down. Examples here are extradition treaties, double taxation treaties, and reciprocal social security benefit treaties. Here it is often provided that the terms of the treaty take immediate effect on being scheduled to an Order in Council.

I shall turn now to some of the points raised in the debate. The noble Lord, Lord Wallace of Saltaire, was worried that parliamentary sovereignty is infringed by the Crown's prerogative to ratify treaties. I do not believe that is so, because parliamentary sovereignty requires that while the Government may make treaties without parliamentary approval, it must seek approval by means of prior legislation where existing law is affected. That is why the European Communities Act was required to give effect to the Treaty of Rome. That is why on other occasions in recent years we have had some long and interesting debates in the House which I well remember.

Whenever we are talking about bringing more information to Parliament, the reason given for it, as given by the noble Lord, Lord Lester of Herne Hill, and by others today, is that there is a democratic deficit. I am not sure whether there is a democratic deficit here, because the power to make treaties is not vested in the Crown only, it is exercised by the Secretary of State for Foreign and Commonwealth affairs. He must consult those of his colleagues whose departments are responsible for implementing the provisions of a particular treaty. The authority of the Government rests upon a democratic mandate, and effective government requires the support of the majority of the Members of the other place.

While Parliament may not invariably have a formal role in the ratification of the treaties, unless it decides to debate them, it has every opportunity to scrutinise their provisions. Through Parliament, governments will always be democratically accountable for their actions. They include the making of international treaties.

I have been involved in a number of signings over the past 10 years. I cannot remember a case where, when (here was something to he questioned, it has not been questioned. Others may differ in their view on that matter. Others may say that the Bill is a safeguard. But I believe that this is something about which the Foreign and Commonwealth Office is a good deal more diligent, as the noble Lord, Lord Bridges, intimated, than the House may have assumed from having listened to the debate.

Baroness Williams of Crosby

My Lords, I thank the Minister for giving way, but before she leaves the section of her speech which she is now devoting to the issue of parliamentary scrutiny, will she consider the issues raised about an explanatory memorandum, given that some treaties are complex, and that that would enable the two Houses to understand much more clearly what is at stake in some of the treaties?

Baroness Chalker of Wallasey

My Lords, I shall be coming to that matter a little later, because I see the possibility of some good practice being developed along those lines. If I may, I shall leave the point until a little later.

I remember well the concern about the European Convention on Human Rights, because the noble Lord, Lord Lester, has queried matters of that nature with me previously. It is important to note that when the European Convention on Human Rights was to be ratified, long before I came into Parliament, the convention was laid under the Ponsonby rule on 23rd January 1951. Members' attention was drawn to it on 5th February 1951 in a Written Answer from the then Minister of State for Foreign Affairs, Mr. Kenneth Younger. There were no objections raised, despite the fact that that Written Answer actually invited them, and therefore the convention was duly ratified. That seems to me a very sensible way under the existing system to proceed, to notify by Written Answer that if objections are not made within the 21 days after the convention has been laid, then it will be duly ratified. That obviously does not answer the noble Lord, Lord Lester, or the noble Lord, Lord Wallace of Saltaire.

One of the things I believe we can do is to look at these cases in a positive light: that is to say, to look at these cases and see on each occasion how it has been dealt with. The noble Lords, Lord Bridges and Lord Lester, both asked me about Protocol 11 of the European Convention on Human Rights. Once again, the protocol was laid before Parliament in the normal way. The Ponsonby rule was completely complied with and an opportunity was given for debate, though none was in fact held on that occasion.

When we come to the inevitably interesting question of the ratification of European Community treaties, which was raised by the noble Lord, Lord Lester of Herne Hill—my noble friend Lord Beloff said that his most interesting speech would be a "very academic" speech—one has to realise that all treaties amending the European Community's treaties require the government to introduce legislation. I have already given the example of the European Communities Act 1972. Any proposal for one of the communities themselves to enter into a treaty is already submitted under cover of an explanatory memorandum to the Scrutiny Committees of both Houses, so in a sense part of what the noble Lord, Lord Lester, is asking for is actually carried out in that case.

The noble Lord, Lord Wallace, asked me about third pillar agreements, as did a number of other noble Lords. The Government have already undertaken to provide Parliament with texts of draft third pillar conventions while they are still under negotiation. I think this is very important. Normal ratifications as at present would proceed after signature, but the very fact that there is to be prior notice while negotiation is going on is certainly a step forward. I noted what the noble Lord, Lord Wallace of Saltaire, said about the liberties of citizens. May I just say to him that common positions, joint actions or joint positions adopted under the second and third pillars, while they may impose legally binding obligations, are not normally subject to ratification. That is why they do not occur under the Ponsonby rule. Also I must point out that under this Bill they would not be subject to that process either.

The noble Baroness, Lady Blackstone, asked how many treaties might come before us if this Bill were to he given Royal Assent. That is a matter which as we as answered in a Parliamentary Question, varies from year to year, some 72 treaties having been ratified between 1st January 1991 and 31st December 1995: in other words, the number is running at between 10 and 15 a session. I should also like to point out that 280 treaties have entered into force for the United Kingdom in the same period, either on signature or by a notification contained in an exchange of diplomatic notes. Of course, neither of these two circumstances would be covered by this Bill.

I believe, too, that although there may be only 10 or 15 treaties a Session requiring resolutions from both Houses, there would be a significant additional amount of parliamentary time required under the noble Lord's Bill without necessarily demonstrably contributing to the better scrutiny of the treaty-making process. It seems to me that that scrutiny should come rather earlier in the process than when one is at the final treaty stage. Undoubtedly there are problems with a number of the elements of the Bill which, if it is given a Second Reading, I am sure your Lordships will want to go into at a later stage.

I turn now to the comments made by the noble Lord, Lord Bridges, about the article in the Financial Times of last Saturday by Mr. A Hermann, and especially the comment made by the noble Lord about secrecy. After my 10 years in the Foreign Office, I am absolutely convinced that the ratification process is not secret. A distinguished noble Lord who is a former member of the Diplomatic Service will know full well the amount of quizzing about treaties which takes place.

One of the difficulties involved is the point raised by the noble Baroness, Lady Williams of Crosby; namely, that there are complex treaties. Indeed, there are treaties which, except to experienced lawyers such as the noble Lord, Lord Lester of Herne Hill, and my noble and learned friend Lord Howe of Aberavon, are not clear. But there is no question, as the writer of the article in the Financial Times said, that it is a secret matter. The Foreign Office has no interest in keeping secret things which can be shared. I believe that that is the right way to proceed.

A number of questions were asked about practice in other countries. Certainly the essentials of our practice on treaty making and the balance of responsibilities between the Executive and the legislature is actually common to most countries. In the majority of OECD countries, parliamentary approval is required for certain types of treaty. But in most other countries, unlike the UK, the treaties take effect directly in national law upon ratification.

In the United States, treaties are subject to presidential ratification and require approval by two-thirds of the Senate. But the American constitution also provides that all treaties made under the authority of the United States shall be the supreme law of the land and that the judges in every state shall be bound by them, notwithstanding anything to the contrary in the constitution or laws of any state. That is obviously not the case in the United Kingdom; treaties cannot and do not take effect in our law without implementing legislation.

There are countries, such as Denmark, where treaties are not self executing. Prior parliamentary approval is required for the ratification of treaties requiring implementation in national law in that country. The purpose of that is to prevent its government from undertaking international obligations which its parliament might refuse to implement.

However, it is the consistent practice of HMG not to ratify any treaty requiring implementation in UK law until such legislation has actually been passed. As regards the question put to me by the noble Baroness, Lady Blackstone, of how it affects other European countries, perhaps I may write to her on the matter because I do not have details of the situation in each country to hand at present. Those situations vary and it would take me a considerable amount of time to explain them.

We have heard a good deal tonight about the Australian constitution. Although there is much talk in Australia at present about a change in the matter, I am sure that neither there nor, indeed, in New Zealand or Canada are the treaties subject to parliamentary approval. We answered the noble Lord, Lord Lester, on that point in a Written Answer a short while ago.

I am happy to put in writing the detail about the Australian Federal Parliament, but it is a situation which has been very much akin to our own. The difficulty is that the Australian Parliament did not actually use the practice which it was afforded by its written constitution. The Parliament had 12 sitting days prior to ratification, but those concerned allowed their system to fall into disuse. They then overtook the practice that they had previously kept to by tabling treaties in bulk every six months, with the result that many treaties were tabled after ratification. That is why there has been a great debate in Australia. Your Lordships would be right and, indeed, would have every reason to complain had we followed such a practice of tabling treaties in bulk. We have not done that. If our Australian friends had used something like the Ponsonby rule on treaties effectively one by one they would not be in the situation in which they now find themselves.

We are very different from the Australian Government in this. We are committed to a policy of open government. The full texts of all treaties are published. We give guidance on the treaty practice and procedures. That has been laid in both Houses, and it is available to the public on request from the Foreign and Commonwealth Office.

There has been some comment tonight about lack of infon-nation to answer the questions of the noble Lord, Lord Lester. This is a recent matter in terms of the great interest that the noble Lord, Lord Lester, has brought to the subject. We have been computerising treaty records. Some 12,000 items, dating back to 1835, are now being entered on to computer. No doubt, hit by hit, we shall be able to do an analysis of them which might answer the questions that the noble Lord, Lord Lester of Herne Hill, keeps asking me. I do not know whether I can do that quickly, but it may come.

Several times I have spoken about openness and have mentioned the explanatory memorandum. It is the practice of the Foreign Office to be as open as possible to the public and, of course, Parliament. There has been a massive increase in openness in the last 10 years since I first went to the Foreign Office. I hasten to add that that has nothing to do with me, although I am very much in favour of it. Ministerial speeches and correspondence are a growing feature of government business. In 1994 the Foreign Office exchanged 11,000 letters with Members of Parliament. That is a much higher figure than ever before. We make available verbatim copies of all ministerial speeches. I have already mentioned the treaty series, which is published by the Foreign Office.

However, that may not he enough. That was the point that the noble Baroness, Lady Williams of Crosby, made. The suggestion concerning explanatory memoranda is one that is worthy of further consideration whether or not this Bill becomes law. We should try to see that suggestion in the positive light in which I know it has been proposed. I shall want to examine it further with my colleagues before giving a definitive answer, but it seems a sensible way to proceed.

Certainly, I can assure your Lordships that if an MP or one of the Select Committees ever writes asking for an explanation, not only of a treaty but of anything else, they receive one. Frequently it is in memorandum form. I can assure the noble Lord, Lord Bruce of Donington, that I will not sign any explanatory memorandum without having not only read it but also learnt to understand it. Sometimes that takes a little more work than may at first sight be apparent.

As the noble Lord, Lord Bridges, says, it is more than 70 years since Arthur Ponsonby put the case forcefully against a measure such as that which the noble Lord, Lord Lester of Herne Hill, wishes to introduce. I believe that the noble Lord, Lord Bridges, used the same quotation that I had picked out from that speech. Arthur Ponsonby said: Resolutions expressing Parliamentary approval of every Treaty before ratification would be a very cumbersome form of procedure and would burden the House with a lot of unnecessary business". Today, I would not use the word "unnecessary". It is probably quite time consuming, but your Lordships might deem it necessary.

It is clear that the Ponsonby rule, as it has been applied consistently over many years, has the great merit of allowing flexibility. My noble and learned friend Lord Howe said that the Bill of the noble Lord, Lord Lester, might impose inescapable burdens. That is a matter that your Lordships need to examine very carefully at a later stage in the Bill. We want not only the flexibility but the efficiency of the Ponsonby rule, while preserving the sovereignty and prerogatives of Parliament. Parliament has ample opportunity, whenever necessary, to examine and discuss new international responsibilities. But administrative and procedural costs must be minimised as well as making sure that the information is always available. We want parliamentary control which is effective. We want scrutiny maintained. It is not, as many noble Lords seemed to imply tonight, that the Foreign and Commonwealth Office or any other government department would feel greatly hampered by the Bill. What we must not do is to burden Parliament in such a way that Parliament cannot cope with the Bill. That is why I do not have an open-handed welcome for the Bill but a little scepticism (if I may so put it) about whether this is the best way for Parliament to go.

The Government will not seek to impede the progress of the Bill of the noble Lord, Lord Lester of Herne Hill, in this House. What we shall ask your Lordships to do is to give it strict scrutiny. It is in those terms that I welcome the debate that we have had tonight. However, as my noble and learned friend Lord Howe of Aberavon said, we should investigate the realistic gaps which may exist and see what can best be done about them.

10.21 p.m.

Lord Lester of Herne Hill

My Lords, I am extremely grateful to all noble Lords who have taken part in what for me has been a remarkably interesting debate. I am particularly grateful to the noble and learned Lord, Lord Howe of Aberavon, for his over-generous personal remarks about me and for his participation as the most experienced former Minister in this area in the House.

The debate has already been summed up by the preceding three speakers. At this late hour your Lordships will not wish me to do so again. If I do not deal with all the points raised, I hope that your Lordships will not think that it is out of lack of courtesy to anyone.

I am extremely encouraged by several aspects of the debate. First, the noble Lord, Lord Beloff, paid me, I think, the doubtful compliment of describing me as though I were a professor. I would reply that to my mother I might he a professor, but to a professor I certainly would not be. Apart from the remark of the noble Lord, Lord Beloff, at the outset of his speech, every noble Lord has spoken with the same objective. Indeed, I believe the noble Lord, Lord Beloff, has the same objective. It is that there should be effective parliamentary scrutiny combined with flexibility and efficiency with no unnecessary overloading of Parliament. I believe that that is the common view on all sides of the House.

Secondly, it is generally recognised that this country lags behind in practice compared with other Parliaments—that there is a democratic deficit. That deficit was brought home to me as a member of the IGC Sub-committee of the Select Committee of this House in the evidence given by such experienced people as the noble and learned Lord, Lord Howe of Aberavon, and Sir Leon Brittan who emphasised the need to enhance the role of national parliaments especially in the context of the European Union.

Thirdly, I share the distaste expressed by the noble Lord, Lord Beloff (I think that it was distaste) of the excessive scrutiny given by the American Senate in this area. The last thing that I should like to sec are telephone directory-sized explanatory memoranda, coupled with Senator Bricker style amendments, and all the other gadgets built into the American process. However, we are far from that in the Bill.

Fourthly, even though we appreciate the explanatory documents that we receive from the Foreign and Commonwealth Office and other departments, one should not overestimate the problems of parliamentarians in understanding what is going on. Perhaps I may give one brief example. We considered the Europol Convention in Sub-committee E. It was impossible to obtain an authoritative text of the treaty. It was a had English translation of a German text. The result was that we were never able properly to understand what the treaty was about. There were endless arguments about what the German text meant, and so on.

A group of extremely able experts was on the committee dealing with the treaty. I believe that lack of information provided at the right time is at the heart of the problem. Therefore, I have sought to balance the need of Parliament to he properly informed with the need of the Executive to get on with the necessary business of government and move speedily.

I take full personal responsibility for the policy of the Bill but I have been greatly assisted by advice from much greater experts than myself: Professor Maurice Mendelson, Professor James Crawford and Mrs. Eileen Denza, who is well known to this House. They all scrutinised my Bill. The definition of "treaties" comes from the Vienna Convention and I believe is correct.

The reason for including Clause 3(1)(c), dealing with the cession of any part of the territory of the United Kingdom, in that form is that the definition of the United Kingdom includes overseas dependent territories of the United Kingdom. It is not necessary to say so on the face of the Bill, it is in the Interpretation Act.

The noble and learned Lord, Lord Howe of Aberavon, raised the point on double jeopardy. It will need to be carefully examined because one does not wish to clog the business of the House or both Houses with unnecessary procedures. On the other hand, not many treaties cede parts of a territory of the UK or "lay a pecuniary burden" on the inhabitants of the UK, in the words of subsections 3(1)(b) or (c). As the Minister confirmed, one is talking about 15 treaties a year at most.

As a practical person who has to read too many pieces of paper in my professional life, I am convinced that it is not beyond the wit of civil servants to produce explanatory memoranda of the kind that they produce for their own Ministers. They would explain to Ministers the object, purpose and likely impact of the treaty, to brief Ministers when they come to both Houses of Parliament to explain. It seems to me that just as Notes on Clauses for Bills are widely provided to Parliament so that we can understand what is in the Bills, so it should he possible to find a practical way of supplying timely and concise explanatory memoranda. They should not be enormous documents, but well-focused and practical, provided at the time when the treaty is being laid, during the 21 days.

Your Lordships should be well aware that the negative procedure which would be the main procedure under the Bill is used by both Houses for all British delegated legislation, but using 40 sitting days instead of the 21 under the Ponsonby rule. To use the same period of 21 days with negative procedure for almost all treaties would not in any way burden the House, any more than the thousands of subordinate instruments which we already have.

As regards the late Arthur Ponsonby, several noble Lords suggested that he was against legislation. That is what he said during the debate, but if noble Lords borrow from the Library Arthur Ponsonby: The Politics of Life by Raymond Jones, they will find that on the day of the debate he wrote to his wife Dolly. In that letter he said that he really would have liked to have legislation but it was not possible. He knew his friend E. D. Morell was very disappointed about that, but it was the most that he could do. He probably put a brave face on it in the course of the debate.

I am in no way wedded to the precise form of the Bill and I would welcome strict scrutiny in Committee. If the Government came up with a practical administrative scheme that did not require legislation at all, I should be delighted to take the consequences into account in looking at the future progress of the Bill.

It is ironic that the position with regard to treaty-making remains undemocratic, to some extent, in this country. Her Majesty the Queen graciously consented to my humble request that her Prerogative might not stand in the way of the Bill being considered. I am a firm supporter of the ancient monarchical system of government that we have in this country because it has a unique capacity to evolve in response to changing needs and contemporary values. I am not a republican. I respect our constitutional heritage. But that does not mean— and I know that the noble Baroness the Minister agrees with this— that Ministers should cling to Royal Prerogative powers without effective accountability.

I am, as I say, very encouraged. I am very grateful to all noble Lords. I commend the Bill to the House and respectfully ask that it be given a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.