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Constitutional Reform and Governance Bill

Volume 504: debated on Tuesday 19 January 2010

[Relevant documents: Report of the Joint Committee on the Draft Constitutional Renewal Bill, Session 2007-08, HC 551-I and–II, and the Government response, Cm 7690. Tenth Report from the Public Administration Select Committee, Session 2007-08, on Constitutional Renewal: Draft Bill and White Paper, HC 499, and the Government response, Cm 7688. Fourth Report from the Joint Committee on Human Rights, Session 2009-10, on Legislative Scrutiny: Constitutional Reform and Governance Bill; Video Recordings Bill, HC 249.]

[3rd Allocated Day]

Considered in Committee

[Sir Alan Haselhurst in the Chair]

Clause 24

Treaties to be laid before Parliament before ratification

I beg to move amendment 114, page 12, line 38, leave out

‘a copy of the treaty’

and insert—

‘(i) a copy of the treaty and, at the same time,

(ii) an explanatory memorandum explaining the background to the treaty, the Minister’s reasons for proposing to ratify it, and the reasons for any reservations or interpretative declarations that the Minister intends to enter on ratification,’.

May I draw Members’ attention to the report on the Bill by my Committee, the Joint Committee on Human Rights? It was published yesterday as part of our scrutiny. The Minister of State, my right hon. Friend the Member for North Swindon (Mr. Wills), mentioned all the other Committees that have considered the Bill when he spoke on the programme motion, but omitted ours from the list.

The purpose of the amendment is to give effect to part of our report on scrutiny, and in particular to try to make the scrutiny of treaties rather more effective. The new statutory procedure for the ratification of treaties is based on the Ponsonby rule. The treaty has to be laid before Parliament for a period of 21 sitting days. As a human rights Committee, our Committee has a particular interest in scrutinising international treaties prior to ratification. The problem of a lack of effective parliamentary scrutiny is particularly pressing for human rights treaties, as it is well established that UK courts will have regard to such treaties in a wide range of circumstances, regardless of whether they have been incorporated into UK law.

If a statute is capable of bearing two interpretations, the courts will presume that Parliament intended to legislate in conformity with the convention, and not in conflict with it. If the common law is uncertain, unclear or incomplete, the courts will rule, wherever possible, in a manner that conforms with the treaty. When the courts are called on to construe a domestic statute enacted to fulfil an obligation under a treaty, the courts will ordinarily assume that the treaty was intended to be effective to that end. Where the courts have a discretion to exercise—where they can act in one way or another—they seek to act in a way that does not violate treaties that we have signed. When, as sometimes happened, the courts are called on to decide what, in a given situation, public policy demands, it is held to be legitimate that we should have regard to our international obligations.

I have a great deal of sympathy with what the hon. Gentleman proposes in his amendment. The one thing that puzzles me is why he has not also suggested that a memorandum should explain the consequences and effects of a treaty, because very often the draft of a treaty is rather opaque and quite difficult to understand. Might I suggest that he reflects on that? His colleagues in another place could perhaps carry forward that suggestion.

I am grateful to the right hon. and learned Gentleman for his intervention. I shall say a little more about the nature of the amendment shortly, and I shall try to address his point when I do so.

Given the significant status that international human rights treaties have attained in our domestic legal system, I certainly believe that Parliament must be much more involved in scrutinising treaties that incur human rights obligations on our behalf. In the current Parliament, my Committee has reported on one major human rights treaty prior to ratification: the UN convention on the rights of persons with disabilities. We have also reported on treaties that, while not strictly speaking human rights treaties, have human rights implications, including the Council of Europe convention on the prevention of terrorism and, in a manner of speaking, the UK-Libya prisoner transfer agreement, to which I shall refer shortly.

When we looked at the UN convention on the rights of persons with disabilities—a major UN treaty—we conducted a detailed inquiry into the reservations and interpretive declarations put forward by the Government. We had a number of submissions from interested individuals and organisations, and oral evidence from the relevant Minister, whom we were able to question, both through correspondence and directly, on the background to those reservations. Indeed, they were somewhat modified, I think, as a result of our efforts. The report was subsequently debated in the other place.

By contrast, we were not able to report properly on the Libya treaty, as time was not made available to enable us to do so. That treaty of all treaties should have been properly examined. At the time, it had implications for the case of al-Megrahi, the Libyan who had been imprisoned in Scotland in connection with the Lockerbie bombing. In fact, his removal to Libya did not ultimately take place under the transfer treaty, but when the treaty was under consideration, that was very much an active consideration. However, we were not able to scrutinise the matter properly because we were not given the time to do so. When we come to the relevant clause later today, I hope to say a little more about the problems that we experienced. Overall, however, the principle behind the Government’s proposals is welcome, in light of our experience.

On explanatory memorandums, under the new statutory regime a copy of the treaty has to be laid before Parliament. Although it is the Government’s practice to lay an explanatory memorandum before Parliament, that is not provided for in the Bill. I believe that the key to effective parliamentary scrutiny is the timely provision of fully reasoned explanations and justifications by the Government—a point that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) just made. The explanatory memorandums that we have seen, generally speaking, do provide that. That, I suspect, is why we did not specify that they should do so in the amendment.

However, we are surprised that the Bill does not reflect current practice under the Ponsonby rule by requiring an explanatory memorandum to be laid before Parliament at the same time as the treaty, in order to facilitate scrutiny within the 21-day period. We asked the Government whether they would turn the practice into a requirement, but they say that they do not consider it necessary to do so. However, I would suggest that it is in the Government’s interests to explain their reasons to Parliament at the earliest possible opportunity. The Government say that they intend to continue their practice of laying such memorandums before Parliament, and of course we welcome that assurance, but it is not the same as having an express requirement in the Bill, which is what my amendment would achieve.

We also asked the Government whether they would undertake to notify the relevant Select Committees when a treaty had been agreed. That was in response to an undertaking that they gave to the Procedure Committee that copies of all treaties laid before Parliament would be sent to the relevant Select Committees at the same time. This is important, because we do not have the resources systematically to monitor the laying of treaties before Parliament, and we have only 21 days in which to do our job of scrutinising them. Any time lost might therefore prevent a treaty from being scrutinised at all. That was one of the problems that we had with the prisoner transfer treaty with Libya.

Even with an undertaking to notify the Select Committees, however, there have been delays between the laying of a treaty and their being drawn to our attention. The Libyan treaty is an example. We learned that that treaty had been laid only some way into the 21-day period. I hope that the Government will consider laying these explanatory memorandums and reinforcing their undertaking to notify Select Committees when a treaty has been laid, to enable us to do our job effectively and properly, and inform Parliament as a consequence.

No apology is required, Sir Nicholas.

The hon. Member for Hendon (Mr. Dismore) has tabled an extremely sensible amendment, and I very much hope that the Government will be able to respond to his proposal in a positive way. It is clearly innocuous in its implications for the legal framework of the legislation, and it would be immeasurably helpful to Members when they come to consider treaties. The point raised by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) was also well made. Treaties are often very difficult to understand.

The House has a long tradition of issuing explanatory memorandums when various documents come out—particularly statutory instruments and sometimes Bills. At times those explanatory memorandums have not been very explanatory at all. In fairness to the Government, however, they have now noted the concerns that have been expressed, and my impression is that the documents are now marginally better.

There is really no excuse for not adopting this proposal. If the House is to have informed debate, an explanatory memorandum is absolutely essential. I noticed a slight nodding of the Minister’s head, and I hope that it will be possible for the Government to accept the proposal. If they are unhappy about the minutiae of the drafting, perhaps the measure could be incorporated on Report—I think there is going to have to be a Report stage—or when it goes to the other place. I rather suspect that the hon. Member for Hendon does not intend to press this matter to a vote. If he were to do so, he would have our support, but I shall not encourage him to cause the Minister that amount of distress—at least, not yet.

I should like to endorse what has been said by the hon. Member for Hendon (Mr. Dismore) and my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). The provision would make a real improvement. It is often very difficult for Members of the House—and, indeed, members of the public—fully to comprehend the reasons for and, more often, the terms of a treaty. I can see no disadvantage in adopting the process. It would be part of the process of transparency that we are all seeking to achieve, and I would very much welcome it if the Minister made it plain that he were sympathetic to the purpose of the amendment. If he were unable to accept this drafting of it, perhaps he would consider a further draft that could be tabled in another place. If the matter were put to the vote, it would have my strong support. It would represent a positive improvement, and I commend it to the House.

I also hope that the Government will respond positively to amendment 114. As I understand it—I think the hon. Member for Hendon (Mr. Dismore) mentioned this in his speech—the provision to Parliament of an explanatory memorandum alongside a treaty has been established practice since the final years of the previous Conservative Government. In addition, during the time of the present Government, it became established practice for explanatory memorandums to be sent to Select Committees, or their Chairs if Parliament is not sitting.

There is no extra burden on the Foreign and Commonwealth Office in having to undertake that; it should already be doing it. The only reluctance on the Government’s part seems to be about placing such an obligation in the Bill. The intention of this part of the Bill—at least, the Government’s announced intention—is precisely that procedures for dealing with treaties become a matter of statute rather than of prerogative and practice, so it is entirely consistent that that be reflected directly, and it should be required.

I agree with the sentiments of the amendment, but I have a slight problem with the timing. Where the amendment states that there should be

“a copy of the treaty and, at the same time… an explanatory memorandum”,

I would raise the issue of ratification, to which I shall return later. Ratification means different things in different constitutions. If ratification takes place after the legislation has gone through and the expression “at the same time” has not enabled the explanatory memorandum to be provided before the discussion in Parliament of the treaty and, where necessary, the legislation arising from it—this is a technical issue, but an important one—the information in the explanatory memorandum would not necessarily be available at the right time to enable people to consider whether the treaty should be ratified or whether any subsequent legislation should be passed.

This is not a difference of principle, but a matter of chronology and timing. I want the explanatory memorandum to have maximum value well before the ratification. I have tabled certain amendments, which I shall deal with indirectly, relating to whether both ratification and signature are necessary to ensuring a proper analysis of the consent required by Parliament to the proposals in a given treaty. Signature is important, but ratification could—and given the UK experience of dualism, it probably would—take place later. For reasons I have explained, more attention needs to be given to the words “at the same time”. I believe that “when the proposal first comes forward” would better ensure that we get the chronology right.

I welcome the amendment and I hope that it is pressed to a Division, because it is a modest and necessary improvement to legislation that falls a long way short of the stated intentions. Most Members welcome the idea that the former prerogative powers to make treaties should be properly scrutinised and then approved or rejected by this House.

In practice, before reform began, important treaties did need this House’s consent, and where treaties entailed legislation, the House’s consent to that certainly was required, so it would be a foolish Government who had not ensured that a treaty had our support before they signed it and ventured forward with legislation. I welcome any strengthening of the clear right and duty of this House to scrutinise and approve or reject treaties.

That is meant to be the Government’s aim, yet the Bill strongly defends the prerogative power, and in a quite extraordinary way. The Government wish clause 24 to say that

“the treaty has been published in a way that a Minister of the Crown thinks appropriate”—

so not even the collective judgment of the Government will be required. A Minister can therefore think, under his delegated authority, that a treaty is appropriate, and then tell the House what to do. If the Government have any intention of letting Parliament in on the precious business of governance, they must see that that is nonsense, and that it must, of course, be the other way round. The House must be able to decide how the Minister will report to it and what documents are appropriate for the House’s consideration, and if the Minister thinks documents are appropriate that are inappropriate, inadequate, flimsy or imperfect, or not impartial or sensibly written, I would hope that the House told the Minister so in no uncertain terms. What is the objection to the amendment, which puts this measure right by making things a bit clearer to Ministers and giving them sensible guidance?

My right hon. Friend has just used the word “appropriate”. I have been looking for it in clause 24, but I think he might instead have been referring to whether in “the opinion of” the Minister a treaty should be ratified. On the basis that that is, indeed, the case, may I just mention a special legal significance? A reference to “the opinion of” the Minister serves as a message to the courts not to interfere with the judgment of the Minister. I want to talk about that later. It is extremely important, because it can take the teeth out of what we are seeking to achieve through our amendments. We want to ensure that Parliament makes the decision, not that it is the opinion of the Minister.

My hon. Friend is slightly ahead of my argument. In the measure that I am discussing “opinion” is not used. It says that

“the treaty has been published in a way that a Minister of the Crown thinks appropriate”.

That is very weak and weasely language, and the hon. Member for Hendon (Mr. Dismore) is wise to say that it needs strengthening—supplanting, even—in order to be much clearer in respect of the Minister.

My hon. Friend probably had in mind clause 26(1), where none of this need apply because, apparently,

“if a Minister of the Crown is of the opinion that…the treaty should be ratified without the requirements of that section having been met”,

the Minister can come to such an opinion, and then, as my hon. Friend says, the special language is a warning to the courts.

We therefore have weakness upon weakness from Parliament’s point of view. Ministers envisage that some treaties will not be subject to its approval at all, because they are of the opinion that such treaties are none of Parliament’s business. They also hope that other treaties will be rushed through without Parliament expressing an opinion because the timetable is very tight for it to debate and be involved in the ratification process. Even for treaties that go the distance under the Minister’s view—those that the hon. Member for Hendon seeks to influence—we have weasel words so that reporting to the House can be anything the Minister likes and may not be very much.

I am delighted to see the Minister shaking his head. I am sure that that means that he will want to accept the amendment because its proposals offer an innocent and modest improvement.

In the consultation and the Government paper on the governance of Britain, one recommendation was to put the Ponsonby proposals on a formal basis. That would have included the Government explanatory memorandum, which provides information about the contents of the treaty along with the Government’s view of the benefits and burdens of the treaty. If that was what was originally envisaged, why is it not reflected in the Bill? Is this not another example of the original proposals being short-changed by this Bill?

The hon. Gentleman is exactly right: we do seem to be short-changed in this respect. Again, it comes down to Ministers not living the brand. They say they are bringing forward such proposals in the spirit of openness and in an attempt to strengthen the rights of parliamentarians, and therefore the people whom we represent, to some control or ability to debate such matters intelligently, but in order for Parliament to debate it, it first needs to be made more unequivocal that it is our right and duty so to do.

Secondly, as the hon. Member for Hendon says, we need to be assured that the Minister will produce reasonable information, written in sensible English that we and our constituents can understand, so that we can have an intelligent debate about it before it is scrambled through in a hurry, only for us to repent at leisure as the years go by and we discover what the complex legal language of the treaty really meant and that it had not been properly explained or debated at the time.

Any self-respecting Government who believed in openness, who believed in signing only the treaties that were in the nation’s interest and who were proud of the treaties that they wished to sign would see nothing wrong with the hon. Gentleman’s proposal and with some of the points that I am making about strengthening the scrutiny and the rights of Parliament. If the Minister cannot give any ground on this issue, that proves, once again, that the Government are not serious about having a stronger Parliament.

Sir Nicholas, it is a great pleasure to serve under your chairmanship.

The reason why I was shaking my head at the right hon. Member for Wokingham (Mr. Redwood), who knows that I have a great deal of fondness for him, was that in this particular regard he is wrong. He is wrong in two respects. The first is that the amendment would not remove any of the wording to which he was referring, about what

“a Minister of the Crown thinks appropriate”.

The amendment would not amend that element of the clause at all; it would simply add to what is published, by providing that there should be not only a copy of the treaty but an explanatory memorandum.

But then, of course, the amendment would modify the discretion of that Minister, because it specifies things that he would have to do, whether or not he was of that wish.

The right hon. Gentleman said in his speech that the amendment would remove the language about the Minister of Crown thinking something “appropriate”—but it would not. That language would still stand even if the amendment were made.

The amendment would modify the language; it would no longer mean what it means at the moment, because the amendment would add a list of factors on which the Minister would not have the discretion that the Bill describes.

Ever since this Government came to power we have always published explanatory memorandums, and we have every intention of continuing to do so. We publish them in relation not only to treaties but to a wide range of other documents that we publish, and that is the right thing to do. The hon. and learned Member for Beaconsfield (Mr. Grieve) rightly said that sometimes the explanatory memorandums are not exactly very explanatory. Indeed, sometimes a greater cloud of unknowing than before descends on one after reading the explanatory memorandum. However, there is a technical difficulty with explanatory memorandums, which is that if we enter into too much explanation, we are to some extent extemporising on the text itself, and the danger is that we are then entering into a further level of debate, rather than explaining in legal terms what the treaty does.

I accept what the Minister is saying about memorandums being published at the moment, but if that is so, why is there any reluctance on his part to include in the Bill the requirement to publish memorandums in all cases? That would take away any opportunity that cynics might have to say, “Yes, that’s what’s usually done.” The Bill gives a Minister the opportunity not to publish a memorandum, because he can decide to publish the details in whichever way he “thinks appropriate”. By accepting the amendment, the Minister would be accepting that there is no option but for a treaty to be handled in this way, and he would not be leaving any discretion for a future Minister.

The hon. Gentleman seems quite angry about this issue. He says that I am opposed to this idea, but I am not—I am wholly in favour of publishing explanatory memorandums that are explanatory. My only hesitation is about whether that should be specified in a Bill, because of the simple fact that we publish explanatory memoranda on a great deal of things. I realise that I am wandering between using “memorandums” and “memoranda”. I have already been accused today of not speaking Latin, so I want to be careful. I cannot remember whether this is a gerund or a gerundive. I believe it is a gerundive. [Interruption.] Is it a gerund? [Interruption.]

Anyway, the point that I was trying to make before I interrupted myself was that because we publish explanatory memorandums in many other areas, not just in relation to treaties, it would seem to make sense that if we were going to do so, that should be for the House to decide as a matter of House business, not a matter for the Government to decide and to put in statute.

The Minister was expressing an anxiety that too much detail in an explanatory memorandum reopens the question and tends to enlarge the debate. Of course he will know that explanatory memoranda on Bills—I have one in front of me on the Crime and Security Bill—say in terms that they are strictly to “help inform debate” and do not in fact form part of the Bill. An explanatory memorandum on a treaty could be couched in similar language and would not, therefore, run the risk that clearly troubles the Minister.

The right hon. and learned Gentleman is absolutely right. I think that we have steered the right course, and I am grateful to him for his helpful contribution.

On the question of the Ponsonby rule, it is, as the Minister says, frequently—invariably, in fact—the case that a short explanatory memorandum is made available to go with the deposit under the Ponsonby rule. However, he knows that since 2000 there has been an extension of the arrangements with respect to certain departmental Select Committees, the consequence of which is that the treaty is referred to the relevant Committee, too. Obviously, an explanatory memorandum would have to be made available with adequate information at that point in time. I think that I am largely agreeing with some of the things that the Minister is saying. There is a pattern of behaviour, but for the reasons that I gave earlier, it is essential that this measure should not be tied exclusively to the normal time of ratification, which comes at the end of the process in English constitutional law. We really need to ensure that we have the explanatory memorandum available at the time when it can be most and best used.

I am glad that the Minister is nodding his head; it is most unusual for us to agree. It is important to get the chronology right and to make the most of the important point that the hon. Member for Hendon (Mr. Dismore) is making.

Order. Using my discretion, I am allowing rather lengthy interventions that appear to me to be almost speeches. I am doing so because of the complication of this matter and the need for total clarification.

I am glad that you have done so, Sir Nicholas, because I wholeheartedly agreed with what the hon. Member for Stone (Mr. Cash) just said. That is the first time that he and I have ever agreed.

I have two points for my hon. Friend. He says that there is a risk of too much detail being given, but the phrasing of the amendment does not give rise to that risk. It simply requires the background to the treaty, the reasons why we should ratify it and, most importantly, the reasons for any reservations or interpretative declarations, if there are any, to be published. That is particularly important, as we saw when we considered the convention on the rights of persons with disabilities. My hon. Friend asked why a requirement for an explanatory memorandum should be laid down in statute in this case but not in others. The short answer is: the time limit. There is a clear time limit of 21 days under the Ponsonby rule, which does not apply in the other circumstances in which explanatory memorandums are published, such as those for Bills.

No, that is not true. I am grateful to my hon. Friend—and incidentally, I am glad that he has tabled this amendment, because this is one of the significant issues in trying to ensure that we scrutinise treaties better. That is not only our aim but our determination. Other elements of the legislative process, too, are subject to time limits, and their explanatory memorandums are not required in statute. My sole objection is to writing the procedure into the Bill.

I want to respond to the point made by the right hon. Member for Wokingham (Mr. Redwood) that some treaties would be brought forward and some would not. That is not true. Arthur Ponsonby, when he was Under-Secretary of State in 1924, said:

“It is the intention of His Majesty’s Government to lay on the Table of both Houses of Parliament every Treaty, when signed, for a period of 21 days, after which the treaty will be ratified and published and circulated in the Treaty Series.”—[Official Report 1 April 1924; Vol. 171, c. 2003.]

We are not resiling from that one jot. It was a Labour member of the Foreign Office team who introduced that in 1924. When the Conservatives came to power subsequently they got rid of the Ponsonby rule, and it took a Labour Government to reinstate it afterwards.

The explanatory memorandum is obviously of value. However, what is essential—I think this is the point that was made by the hon. Member for Hendon (Mr. Dismore)—is to see the reservations or interpretive declarations that the Minister intends to enter on ratification. Without that, the House cannot form an opinion on the value of the Bill.

The Minister is not entirely right to say that this is a House matter. The House cannot require Ministers to lay anything before us, except as provided in statute. It is therefore important that if the procedure is to be put into statute, it should be laid out fully on the face of the Bill.

In the public consultation before the publication of the draft Bill, that was one of the aspects on which we expressly invited comment. We referred to the fact that the present practice of laying an explanatory memorandum with the treaty exists. There were very few comments on that, and it did not seem to be a major matter of contention. That is probably because everybody accepts that this is such a settled practice that nobody would resile from it. The only point of difference between us is whether it should be specified in the Bill.

As I understood the Minister’s anxiety, it was something like this: it is odd to impose a requirement with regard to treaties yet not to put into a Bill a requirement as regards other Bills. Surely the answer to that objection is as follows: this Bill sets out a procedure for treaties, and therefore gives us an opportunity to deal with procedure governing all treaties. If we had a Bill that dealt with Bills—for example, an interpretation of statute Bill—that would provide an opportunity to set out our desired procedures for all Bills. We now have the opportunity to regulate the procedure regarding treaties, and surely we should take it.

I can see the argument that the right hon. and learned Gentleman is making. I do not feel particularly strongly about the issue, I must say. I welcomed the fact that my hon. Friend the Member for Hendon tabled the amendment, but my judgment still leads me to the impression that it would be a mistake for the requirement to be written into the Bill, and therefore for the requirement to be in statute in relation to treaties, but not in relation to any of the other business that we do. Consequently, I urge my hon. Friend to withdraw his amendment. The issue is not necessarily closed in the Government’s mind.

I am pleased that my hon. Friend says that the issue is not closed in the Government’s mind. Although I do not plan to press the amendment to a Division today, my colleagues on the Joint Committee in the other place may well bring it back. One of the advantages of the Joint Committee is that we can operate a double act between the two Houses to follow up issues raised in one House or the other.

I am pleased that the Government have given an assurance that they will continue with the process of laying explanatory memorandums, but as my hon. Friend indicated in his response, it does not follow that a future Government would do the same. He mentioned that the Ponsonby rule was introduced under a Labour Government—very good. It was, in effect, abolished by the Conservative Government. It was a convention, not in statute.

Once the rule is in statute, it would be difficult for a future Government of whatever hue to repeal it. They would have to come to the House to do that, whereas they did not have to do so to break with a convention. There is nothing to stop a future Government saying, “We will continue with the statutory duty to lay the treaty, but not the duty—because it is not a duty, just a convention—to lay an explanatory memorandum.” This matter is important because of the timetable. This Bill proposes a very strict timetable, and we will debate later the provisions for its extension—or, as a mirror image of that, its removal. The point is that very few of the things that we do here are subject to such a tight timetable.

I mentioned earlier the problems that we had with the Libya prisoner transfer treaty, when we did not have the material in time to produce a report at all. We were able to publish only the exchange over the reasons why the treaty was not going to be extended, so this is quite an important issue.

I should also like to take further the question that I raised in my earlier intervention on the Minister. He suggested that the amendment required too much detail, but it does not require any more detail than the present arrangements. It is up to the Government to say what should or should not go into the explanatory memorandum.

There are three basic requirements in the amendment. The first two are that the explanatory memorandum should set out the background to a treaty and why it should be ratified, and I do not see the difficulty with either of those. However, the most important requirement in the amendment is its proposal that the explanatory memorandum should set out the reasons for any interpretive declarations or reservations. That is because until we see the explanatory memorandum, we cannot know what the Government may be proposing in relation to reservations. Only when we see the explanatory memorandum can we be aware of what they are proposing in that regard, or even whether there will be any reservations.

Does the hon. Gentleman agree that this is where the treaty process differs from the Bill process? The ratification of a Bill effectively happens when Her Majesty the Queen gives it Royal Assent. She very rarely writes reservations or declaratory statements in the margins of a Bill.

The hon. Gentleman makes an interesting point, although I am not sure that I should extend his analogy to the modest proposal that I am making here.

My hon. Friend should not take too much advice from the Liberal Democrats, as the ratification of a treaty does not take place when Her Majesty signifies assent—

I think that the hon. Member for Somerton and Frome (Mr. Heath) said that the equivalent of ratification for a Bill happens when Her Majesty gives it Royal Assent. To that extent, he is right: a Bill becomes law only when it has been ratified by the Queen through Royal Assent, but as far as I am aware she does not enter reservations or interpretive declarations on Bills passed by Parliament.

There is a difference here. If Parliament is to discuss these matters properly, it needs to know at the very earliest opportunity whether there are going to be reservations or interpretive declarations. The best object lesson in that regard was the treaty that I mentioned earlier, the UN convention on the rights of people with disabilities. We had to do an awful lot of work on the issues involved in that, but it was only when we saw the explanatory memorandum that we knew that there were problems in the first place. Without an explanatory memorandum, the House, or a Select Committee, could discuss a matter in the abstract without knowing what problems could arise. That would be a waste of time.

I hope that my hon. Friend the Minister will think again on this amendment. I am pretty sure that my colleagues on the Committee in the other place will bring it back, so he will have time to think about it.

Does the hon. Gentleman accept that the amendment could include another type of reservation—one that covers the ratification of European treaties? Many of us consider a reservation requiring a referendum to be held to ensure that a matter such as the Lisbon treaty would have been properly discussed by the British people to be absolutely crucial.

The hon. Gentleman wants to take me down a rather different byway. His own amendments will be debated soon, so I shall hold my tongue on the point that he raises, as I think that it is something of a distraction from what we are trying to achieve with the amendment before us. As I said, I do not propose to press that amendment to a Division, so I beg to ask leave to withdraw it.

Amendment, by leave, withdrawn.

I beg to move amendment 1,  page 12, leave out lines 41 and 42 and insert—

‘(c) both Houses of Parliament have resolved that the treaty should be ratified.’.

With this it will be convenient to discuss the following:

Amendment 2, page 13, line 1, leave out subsection (2).

Amendment 3, page 13, line 3, leave out subsection (3).

Amendment 4, page 13, line 5, leave out subsection (4).

Amendment 5, page 13, line 11, leave out subsection (5).

Amendment 6, page 13, line 13, leave out subsection (6).

Amendment 7, page 13, leave out lines 15 to 20 and insert—

‘(7) Where the House of Commons has resolved that a treaty should be ratified but the House of Lords has not so resolved, and a period of 21 sitting days has elapsed since the House of Commons resolved that the treaty should be ratified, any member of the House of Commons may move that the treaty should be ratified despite the failure of the House of Lords so to resolve, and if such a resolution is carried by the House of Commons, the House of Lords shall be deemed for the purposes of subsection (1)(c) to have resolved that the treaty should be ratified.

(8) The preceding subsection does not apply where the House of Lords has resolved that the treaty should not be ratified (but defeat of a motion in favour of ratification does not count by itself as a resolution that the treaty should not be ratified).

Amendment 8, in clause 25, page 13, line 23, leave out

‘the period mentioned in section 24 (1) (c)’

and insert

‘the period of 21 days mentioned in section 24 (the period after which the House of Commons may pass a motion the effect of which is to deem that the House of Lords has resolved that the treaty should be ratified)’.

Clause 24 stand part.

The fact that we are having a stand part debate on clause 24 means that any Member can raise any issue relating to that clause.

We come to the main issue, which is about the way in which the Government have chosen to attempt to fulfil their promise, in “The Governance of Britain” Green Paper, to shift power towards the House and away from themselves. I fear that in clause 24, they have failed to do so.

There cannot be many countries where the power to ratify a treaty rests solely with the Executive branch—with the Government. There is, as the hon. Member for Stone (Mr. Cash) said, a safeguard, which the courts created—the so-called dualist theory of international law, whereby the ratification of a treaty by the Government does not by itself change the domestic law of this country. But it is still a thoroughly bad thing that the Government can, by themselves, bind this country in international law and then come to the House and say, “If you don’t incorporate the international obligations that we have just made into domestic law, this country will be in breach of international law.”

A very good example of that is the treaty that the Government entered into with the United States regarding the extradition of UK subjects to the United States.

That is an excellent example. The relevant Secretary of State—I believe that it was the Home Secretary at the time—went to Washington and negotiated a treaty without any reference to this House, and then they put this House in the position whereby, if it had not acceded to the Government’s wishes on how to implement that treaty in domestic law, this country would have been in violation of its international obligations to the United States.

The hon. Gentleman said that he would be surprised if many other countries took the dualist approach, but he will find that it applies to almost all, if not all, former colonies of the United Kingdom—with the prime exception, as it happens, of the United States of America.

Yes, it does not apply in the United States of America, and that is because of the explicit terms of its constitution. I think that article 6 incorporates treaties into domestic US law, and that is why the Senate’s consent is required to ratify treaties. The US has brought the two legal systems together as we have not.

We have our rather exclusive arrangement precisely because of the struggles, which this House itself represents, in the 17th century regarding Charles I, the constitutional settlements that followed the king’s execution and the specific constitutional arrangement that we came to. That led to our modern democracy.

The hon. Gentleman is right, but I still think that there is unfinished business from that time. The idea that the Government, representing the Crown, have such fundamental and exclusive power over the foreign relations of this country is incompatible with the democratic form of government. That is why this clause is so important. It is about, or ought to be about, putting that situation right.

I am sure that the hon. Gentleman is right, although I think that there are a large number of countries—in particular, those with presidential systems—where it is entirely for the Executive to decide such matters, including, for instance, matters of military conflict.

On treaties, however, the hon. Gentleman referred to the UK-US extradition treaty. It was signed on 31 March 2003, published and laid with an explanatory memorandum on 21 May, and the Ponsonby period ended on 30 June. There were no requests for debate at that time, and no requests for an extension of time.

I shall not anticipate my speech, but that illustrates why there ought to be an affirmative procedure, rather than a negative procedure. The negative procedure depends on the Opposition, or Government Back Benchers, noticing what is going on; with an affirmative procedure, the Government would be duty-bound to come to the House to explain what they had done. As they are in a far better position than the Opposition to know what they have done, that appears to be the right procedure.

As the Minister just illustrated, the current rules—the Ponsonby rules—are a compromise between this House having real power and the Government having all the power. However, that is only a convention, and a grace and favour convention at that; the Minister mentioned that some Governments have not recognised it. It is entirely unsatisfactory, constitutionally, for this situation to continue. There have been numerous calls for reform—I need not go through them all. The Public Administration Committee even produced a draft Bill, drafted by Rodney Brazier, which the Government rejected, seemingly on the grounds that it would mean that Ministers would have to do more work, which does not appear to be a constitutional principle.

Then we arrive at the White Paper of 2007, “The Governance of Britain”, in which—this was the new Prime Minister’s first great act as Prime Minister—the Government said that, contrary to their previous position, they would now move towards bringing into statute at least the conventions that we currently have, and promised to shift the balance between Parliament and the Government. However, the way in which clause 24 has been drafted means that it is hardly worth having. The Minister noted that part of the convention is that if an Opposition party—the main Opposition party or the third party—requests a debate and a vote on a treaty within a 21-day-period, the Government, by convention, use their power to grant that debate. Where is that stated in the Bill? It is simply not there. This is another case of the Government not wanting to be bound by statute in the exercise of their power to control the agenda of this House.

Perhaps the hon. Gentleman could help me on this point, because he knows more about it than I do. I notice that the matter will not be debated unless the House has resolved that the treaty should not be ratified. My understanding of parliamentary procedure is that it is for the Government to table a motion that it should not be ratified unless it is debated. I can see no obligation in the Bill for the Government to put down such a motion on the Order Paper of the House.

That is entirely right. That is my main point about the defects in the clause.

The Government have stipulated a negative procedure. The great defect of negative procedures is that the Government have total control over the agenda of the House. They may choose not to allow an annulling resolution to come before the House for debate for the 21-day period, as they can under the existing arrangements in Standing Order No. 14: for example, they can ensure that an Opposition day is not held in that 21-day period. If they do that, they can obtain ratification of a treaty without any parliamentary discussion.

The hon. Gentleman is making an important point. When I looked at the clause my first instinct was that there was some point in having a negative procedure, because some treaties will not concern or bother the House at all. However, he is right to highlight the fact that if we are to have such a procedure, there must be a system to ensure that the Government cannot prevent the negative resolution from being tabled and debated in the 21-day period.

Yes, that would be an alternative to the method that I propose. Amendment 1 would introduce an affirmative procedure, for two reasons that have already been discussed: first, because the Government are in a much better position to know what they have done; and secondly, because that would guarantee a vote—not a debate, but a vote.

Actually, now that I think about it, the Ponsonby rule was developed at a time when the Government did not have control over the agenda of the House every day. I suspect that they had control over three days out of the five in the week. Earlier, they had control over only two. I suspect that they could not have prevented a private Member’s notice to disapprove of a treaty from being brought forward. We are in an entirely different situation now with regard to what the House can do about a treaty that the Government simply show they intend to ratify without yet having done so.

Does the hon. Gentleman agree that as we feel our way towards some kind of understanding and solution on this matter, part of the problem is categorisation? It is well established that the Government normally give time for debate and sometimes a vote on what are described as “important treaties”. The problem is what is described as important. Perhaps an answer to the question whether there should be a negative or affirmative procedure is that there should be criteria to determine what is important and what is not so important. Those criteria could determine which categories of treaties should be regarded as essential for debate and a vote. That could include memorandums of understanding and other matters that fall into the category of being of incredible importance for discussion. That raises the question of signature, about which I shall speak later.

That might be a way forward, but my preference is to say that there should be an affirmative procedure unless the requirement to do otherwise is proven. That should be the default option.

If I understand clause 24 correctly, it is even more extraordinary than it first appears. It seems to suggest that if by some miracle the House of Commons votes against a treaty in a resolution, the Government then get another go. They can say that they disagree with the House, then wait another 21 days and ratify anyway. If the House votes against the treaty again within that 21-day period, the Government get another 21 days. They can keep disagreeing with the Commons until the Commons gives up. That seems quite appalling. The Government should not be allowed to defy the Commons at all, not even once. When it has voted not to ratify a treaty, that should be it.

If we go further into the clause, we get to the powers of the House of Lords, which is in an even worse position than the Commons. If it votes against a treaty, it can be overridden by mere ministerial fiat. A Minister can simply sign a declaration stating that he disagrees with the House of Lords. The clause seems to be a mere show—a shadow play, a simulacrum of change. If we look through the whole clause, we see that no real power is being transferred to the House at all.

What should we do about that farce? Our amendments are intended to put the situation right in three different ways. As I have mentioned, amendment 1 would replace the negative procedure with the affirmative so that treaties would not be ratified unless both Houses of Parliament had positively approved them. There would be no get-out clause whereby the Government could simply override a House of Parliament. That is the second point of the amendments—the Government would not have a second go in the Commons.

I am slightly perplexed. Is the hon. Gentleman really suggesting that every single treaty that is agreed should have to go through a positive vote in this House and the Lords?

What happens with affirmative statutory instruments is precisely that. There is not a debate on every one, but there is an order to be taken in the House after 10 o’clock, and if anyone wants to vote against it we end up with a deferred Division on a Wednesday lunchtime. There is at least a vote.

The hon. Gentleman is right, but of course one problem with statutory instruments is that they operate until they are negatived, whereas the difficulty with a treaty is that once it is ratified, it exists as an international obligation. As we know from our discussions on the Lisbon treaty, Parliament cannot do much about it afterwards. That is why the key response that the Government have to provide in this debate—I am sure that he is right about this—is on how there can be a guarantee that the House will be in a position to bring forward a negative resolution and debate it within the 21-day period, and that the Government will not use a sleight of hand to wriggle out of their obligation in that respect. If they cannot provide that response, my sympathies will switch entirely to the hon. Gentleman and I will say that the clause is not worth the paper it is written on. At the moment, I take it at face value that the Government are well intentioned.

My hon. Friend the Member for Somerton and Frome (Mr. Heath) said in the debate on the programme motion that this was a constitutional Bill. One principle when debating constitutional matters is that one should assume that the powers granted by the law will be operated by people who are not well intentioned, even though those proposing them might well be. That is why I strongly prefer the guarantees of the affirmative procedure. How to deal with that procedure would be a matter for the House, and the Government would not have to hold a debate on each and every treaty, but there would at least be the opportunity of a vote, perhaps by deferred Division.

Does the hon. Gentleman accept that some of the problems could be overcome if we were to go down the route of attaching the approval of Parliament to the signing of a treaty, rather than to ratification, which tends to take place at the end of the process? That would be the right sequence. If I may go back to the 17th century for a moment, I have in mind the fact that King Charles II brought forward the secret treaty of Dover precisely to avoid Parliament being involved, so that he could carry on with subsidies from Louis XIV. That is not just an historical allusion, because we wish to bring forward the whole process to ensure that Parliament is involved. That is a really important proposal that has to be got right. I suggest that the signature consenting to a treaty is more important than the ratification that takes place at the end of the process.

The hon. Gentleman raises two points. I agree that having some sort of control over the negotiating of a treaty before it is signed is important. However, Parliament having control of ratification through a vote would be an important deterrent that would work its way backwards through the entire procedure.

The hon. Gentleman’s reference to the treaty of Dover raises in my mind another reason to ensure that there is an affirmative procedure in the Bill. One problem with the Treasury’s alignment project, which he will have come across, is that future estimates will come to the House in net, not gross, form. The previous procedure of limiting a Department’s income through the appropriation-in-aid procedure will be got rid of, which will mean that Departments can collect money from other places without parliamentary control and present Parliament with only the net amount that they require from us. The hon. Gentleman provides yet another reason for having the affirmative procedure, because we must maintain control over expenditure.

Might I suggest to the hon. Gentleman that what is clearly troubling a number of hon. Members is the fact that some treaties will be of relatively minor importance and will not require debate? Is not a sensible way forward to agree to the amendment in his name, with a modification to be made in the other place, so that generally speaking, treaties will be both debated and approved before ratification, unless the House resolves that debate is unnecessary, in which case a resolution will suffice—in other words, to create the presumption that there is debate and approval with a disapplying mechanism?

Yes. That would be a way of resolving the problem of having a debate. Amendment 1 would require only a vote. It does not cover the question whether there should be a debate, which can be dealt with later.

The third improvement—the final one I shall mention—that amendments 1, 2 and 8 seek to achieve is to the position of the Lords. We are trying to achieve an analogous situation to what happens with statutory instrument in the Lords. Very often when the Lords discusses a statutory instrument, it has the power to bring it down—to annul it or refuse its approval—with the effect that it does not come into law. However, it rarely uses that power, by convention. Instead, it has what it calls a non-fatal resolution, under which it says that it disapproves of the statutory instrument the Government propose, but does not exercise its technical power to refuse legal force. The amendments on the Lords would merely reproduce that system. In the end, the Commons would be more important in the procedure, and the Lords would be able to say it disapproves of a treaty without bringing it down.

It seems to me that clause 24 is seriously defective, because the Government’s intention appears to have been to write a clause that looks as if it transfers power when it does not. The intention of the amendments is to fulfil the Government’s promise in reality, and change the system for the ratification of treaties so that real power comes back to this place.

The amendments tabled by the hon. Member for Cambridge (David Howarth) seem to me to have some considerable force. The key issue is that Parliament should be able to express its view on treaties in the way the Government appear to intend. As I have indicated, I differ from him because I think the idea that we have affirmative resolutions for every treaty the Government sign is a burden that this House need not take on. If we did, it would gradually dawn on the House just how irrelevant the vast majority of such treaties would in fact be regarding many of the issues we must consider.

When I saw amendments 1, 2 and 8, I was not minded to support them, because—this certainly applies to amendment 1—they seemed to go far further than required if this House is to do its job properly. However, the hon. Gentleman makes a very important point. Because the Minister is fairly well versed in the mysteries of procedure in this House, he will know that they are woefully wanting when it comes to providing proper opportunities for scrutiny.

It is perfectly possible for the Government to slip out of considering a negative resolution in a 21-day period, if they were minded to behave in that disgraceful fashion, because they control the Order Paper. The only opportunity the Opposition have to debate such a matter if the Government will not facilitate it is an Opposition day debate. If there is no such day in that 21-day period—I am sure some of my hon. Friends will correct me if I am wrong on this—it would be impossible to get the matter debated.

I hate to say it, but we have had that problem before. On a number of occasions, we have had statutory instruments or other matters that for one reason and another we wanted to bring to the Floor of the House. I can still remember being told, with such a lovely smile from the Leader of the House, simply to bring it along on an Opposition day debate. It is quite true that we could debate a substantive motion on an Opposition day, but that is when we get our Supply day. The truth of the matter is that that is not in our control. If we are indeed to move along the lines the Government are suggesting—I assume that they are acting in all sincerity, but that as usual, the full implications of the drafting have not sunk in for them—they must show in the Bill the mechanism by which the House can ensure that, should it wish to do so, it can have a negative resolution in that 21-day period. I am sure the Minister will consider that reasonable.

If I am wrong about that—the Minister’s advisers can advise him and he might persuade the House of that—I will be content with the proposed arrangements, but if I am not, they must be corrected. The question at that point would be how we are going to do that. It could happen on Report or in the other place, but we must give the Government an incentive to do something about the problem. If they cannot give us the assurances we need, I would be minded to support amendment 1 if it were pressed to a Division, not because I want an affirmative procedure—I do not think that that is in any way necessary—but because it is time the Government woke up to the deficiencies in this House’s scrutiny, which, heaven knows, we have complained long and hard about, before they give us a measure that may turn out to be a damp squib when it comes to the House’s effectiveness.

On that point, I hope the Minister has time to consider the matter and provide us with persuasive arguments, or at least with an assurance that something is going to be done. Otherwise, we are going to have to mark our unhappiness at the measure. The only other way we could do that is by voting against clause 24 in its totality, which I am not sure is a very good idea because, as I should like to explain to him, we support the broad thrust of what the Government are trying to do.

I am rather closer to the position of the hon. Member for Cambridge (David Howarth) than I am to that of my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). It is important to go back to first principles and to ask what is a treaty and what its implications often are to the citizens of our country.

A treaty is, of course, an obligation that we make to other states and sometimes to international bodies. Very often, that is then reflected in domestic legislation, which bears on the individual citizen. A good example of that is the extradition treaty with the United States, about which we have spoken. Therefore, the starting proposition should be that a treaty is debated as well as approved by the House—that seems a good starting point to me. One must then ask in what circumstances that initial presumption is to be displaced. We then come to the point made by my hon. and learned Friend, which I am sure is true to a degree, that a number of treaties are of minor significance and we should not place a burden on the House.

At this point, I have a question to which the Minister may respond in due time. Typically, how many treaties are there each year?

We are not going to fall out, Sir Nicholas. Thirty is obviously the figure the Minister has in mind. Therefore what we are talking about is a rebuttable presumption that the House both debates and approves 30 treaties. I think that the House should be obliged to approve all of them by way of some form of affirmative procedure. However, I acknowledge that the House should not be obliged to debate all of them. Therefore, we have to find a way through the conundrum of requiring the approval of the House by some affirmative procedure, but allowing it to decide not to debate. Surely it is not beyond the wit of the constitutional experts available to this House—who are numerous, although they often get it wrong—to devise a mechanism that achieves that.

I looked at today’s Order Paper and I noticed a devil of a lot of motions, which the House will be asked to approve, that we will not debate—motions 4, 5, 6 and 7. That is a significant number of the 30 that we are talking about.

My right hon. and learned Friend highlights the extent to which the House has been further disabled because motions on the Order Paper that are objected to at 10 pm never get debated unless they are agreed on both sides. They get voted on on the following Wednesday without debate. We are in a mess on this, which is why the Government’s assurances are so scant.

My hon. and learned Friend is entirely right. I have not voted in a deferred Division for many years and I propose never to vote in one again, because they are profoundly unconstitutional and I wish to have nothing to do with them. The serious point is that we should create the two presumptions of which I have spoken and allow the House to disapply the requirement to have a debate in appropriate circumstances.

The hon. and learned Member for Beaconsfield (Mr. Grieve) did not quite describe the position. A motion that is objected to simply returns on the next day’s Order Paper until it is debated. That is the weapon that Back Benchers have to ensure the debate of something that the Government find it inconvenient to debate. If that were combined with the requirement to ratify within 21 days, it would provide an imperative for the Government to allow time to debate a ratification motion.

These are arcane subjects for me, despite how long I have been here. I still favour the two presumptions: the House should always be asked to approve and, until it does so, ratification cannot take place, but we cannot always be required to debate the issue.

The hon. Member for Cambridge is right to suggest that the negative procedure in clause 24 is not a proper safeguard. As we know, and as my hon. and learned Friend the Member for Beaconsfield pointed out, control of the business lies in the grasp of the Government. If they choose not to put forward a resolution under the negative procedure, the resolution will not be put forward. We must not always assume that all members of the Government are men of good faith. We have to recognise that Governments can behave improperly, badly and malevolently. I do not suggest that the Minister comes into that category, but—as I have said frequently in this House—if power is given away, we can be sure that it will be abused. Therefore, we should give away the minimum of power that we can get away with and ensure that the power that is given away is set about with constraints. The protection that would be built in in this case is not sufficient. Therefore, if the hon. Gentleman pushes his amendment to a Division, I shall vote with him.

I have reservations about much of what has been discussed, but not the principle that lies behind it. I am glad to say that we have moved on from the 17th century to the 21st century and we are now seriously and properly discussing something that the Government sort of intend to achieve—that Parliament should be involved in the process of treaty making. That is a significant constitutional change in its own right. However, the trouble is that the Government have put so many caveats in clauses 24 to 26 that I am inclined to agree that there are not many options left if the Government decide, in relation to a specific treaty, that they do not want to have the full force of these provisions applied.

I may be missing something, but the amendments would not delete clause 24(7) and (8). They cannot be removed from the Bill by some sort of sleight of hand by reference to clause 24(1)(c).

I accept that point. This is the Committee stage, in which we have to examine how amendments are presented, and I am happy to accept the fact that that is what amendment 7 would achieve. However, I have some reservations about what would be put in place of subsections (7) and (8). We are still left with the problem that clause 26 provides that clause 24 would not apply in exceptional cases. What criteria would apply in that case? Clause 26 states that a Minister need only be “of the opinion” that an exception should be made. As I said in an intervention on my right hon. Friend the Member for Wokingham (Mr. Redwood), once we enter that territory, we are instructing the courts that an issue is a matter of judgment for a Minister, and applying the word “exceptionally” to that muddies the waters considerably. Without wishing to impugn the motives of the Government—although I am happy to do so on most occasions—I am afraid that they have ended up with something that is almost contradictory. It says on the one hand that the courts should not interfere, but, on the other, that if a Minister decides that a treaty is an exceptional case, the courts should have some latitude in deciding whether that is so.

The drafting of these clauses worries me, and I return to my concerns about ratification versus signature. If we were to relate the questions being considered to signature rather than ratification, the provisions would contain the appropriate criteria for deciding how the consent was arrived at—because it is consent that we should be considering, not merely the mechanics of ratification.

As I have said on several occasions, in the British constitutional context, ratification tends to take place at the end of the procedure, as I found out to my cost—but not actually to my costs—when I took the Government to court over the Lisbon treaty. I sought to go to the High Court, but was turned down on the grounds that I was engaging in a political exercise—which of course was not true, was it, Sir Nicholas?

Well quite!

My attempt to frustrate ratification on that occasion was turned down by the administrative court on the grounds that I was seeking to engage in a political exercise, but it did not award costs against me.

In 1993—I think—an important case was also brought by Lord Rees-Mogg in respect of ratification. All such cases turn on when the ratification takes place, by which time the particular Bill has gone through, and the legislation has endorsed the treaty and so on. These are fundamental questions. If the Government say in good faith that there should be a moment for Parliament properly to influence the process, that moment should come on signature, not ratification. I shall explain later why that is so important and relate it to what is contained in the Vienna convention.

Those are serious matters. For some of the reasons given by the hon. Member for Cambridge (David Howarth), the procedure proposed by the Government in clauses 24 to 26 is a smokescreen. The Government—I accused them of this in the debate on the programme motion—are engaged in a process of hypocrisy. The idea of good governance, the ideas in the Green Paper and all the other things that have been referred to give the impression that the Government want the British people and Parliament to be fully involved in the making of treaties. I am afraid, however, that the way they are doing that gives them far too much of a get out.

As Mr. Bowman of the Nottingham treaty centre said, the Bill contains a significant loophole in respect of memorandums of understanding, which I mentioned earlier. Many treaty-like documents do not fall within the framework of the provisions and, as with the Ponsonby rule, only treaties requiring ratification or similar are covered. For example, excluded, but covered by special procedures, would be double taxation agreements and European treaties—no doubt we will come to that later. I have in mind arrangements under European parliamentary legislation and special procedures applied under the European Communities Act 1972, as amended. Many other types of treaty, such as defence treaties, including—interestingly enough—not unimportant treaties on the stationing of ballistic missiles, would not be included. Indeed, many international lawyers regard memorandums of understanding as actual treaties.

There is a certain disingenuousness in the Government’s proposals—they go so far but not far enough—and an element of what I have described as hypocrisy in how they have presented them. However, I do not want to be too critical because basically they are moving in the right direction. Between the amendments tabled by the hon. Member for Cambridge, the remarks by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) and the Government’s proposals, we are making some progress. However, I do not think that the drafting is good enough nor the intentions sufficiently comprehensive. We are moving in the right direction but not achieving enough.

The hon. Gentleman is making an important point. Although the intentions might have been good—all the earlier documentation indicates that they were—the reality might not be reflecting that. However, is the simple answer not to go along with the amendment, which would mean that all treaties would be subject to affirmative resolutions in the House?

That would present problems. I have some sympathy with the Government, given the number of documents, including treaty-like amendments, that I would have in mind for inclusion in such arrangements. I have already mentioned ballistic missile agreements and memorandums of understanding. Once we have established a category for the kind of treaties included in such arrangements, they should be categorised into different types of important treaty—that takes us back to something that I said earlier.


Before I give way to my right hon. and learned Friend, I would add that some believe strongly that there should be what is called the non-statutory soft mandating mechanism allowing Parliament to have some influence on the negotiation of a treaty, at least immediately before signature, which is why I tabled my amendment.

I am grateful to my hon. Friend. He will know that I do not normally encourage him to go on longer than he feels that he wants to, but I seek his view on one matter. He has made an important point about memorandums of understanding falling outside the definition of a treaty. He also said the same thing about missile siting agreements. However, on the face of it—I am not an international lawyer—the definition of a treaty in clause 28(1) would include a memorandum of understanding, if it is

“a written agreement…between States or…international organisations, and…binding under international law.”

I ask myself why, if a memorandum of understanding is binding, does it not come within the statutory definition of a treaty? I would welcome my hon. Friend’s guidance.

I think that the short answer can be found in clause 28(2), which states that

“‘treaty’ does not include a regulation, rule, measure, decision or similar instrument made under a treaty”.

It is accepted that that needs to be more explicit. That is where the problem lies and clarification is needed. I do not depart from the point that my right hon. and learned Friend is making. At the moment, the clause refers to a written agreement, but the memorandum of understanding is not necessarily an agreement. We will need further clarification on that. The commentators whom I have had the opportunity to read are clearly of the opinion that what is referred to in the Bill, including clause 28, does not go far enough. Furthermore—I make this point yet again—the reference to ratification does not appear early enough in the process.

My right hon. and learned Friend is right to ask the question that he did but, as with so much of the debate, we will need greater clarification. That is why I will find it difficult simply to agree with the amendment put forward by the hon. Member for Cambridge.

Treaties do not come out of thin air, but they sometimes go up in a puff of smoke. That is the problem that we have to be careful about. If the Government really want to include the right kind of arrangements between states, they will have to clarify the provisions. I would be interested to hear from the Minister why the provisions are not sufficiently comprehensive—he may argue that they are sufficiently comprehensive, but it is quite clear that all the distinguished commentators and jurists whose works I have been reading do not believe that to be the case. I would like to hear what the Minister has to say about that.

I do not want to reiterate any of the arguments so ably made by my hon. Friend the Member for Cambridge (David Howarth). We have put a strong proposition before the House and it needs an appropriate response from the Minister. If that ministerial response is insufficiently strong, I hope that my hon. Friend will push the matter to a vote. However, we are also dealing with clause 24 stand part, and in that context I want briefly to touch on two points, both of which depend on the opinion of the Minister.

This issue was raised earlier, but I am not clear under what circumstances the Minister might be of the opinion that his view should take precedence over that of the House of Commons. That is what is implied by clause 24(4)(a), which sets out a mechanism—there must be a reason for this mechanism being there—by which a Minister can simply say, “The House of Commons has voted against this treaty, but we still believe we ought to go ahead.” Nothing could be a clearer indication of the shallowness of the provision before us if it would be possible for a Government to put a matter before the House of Commons, be defeated and still proceed. I know that there is a certain precedent for that—when referendums go the wrong way, they tend to be repeated until the “right” answer eventually emerges—but that should not be built into the proposal before us. I should like the Minister to explain why he believes that provision to be a necessary part of the clause and under what circumstances he believes it would be appropriate to use that mechanism.

By using the expressions contained in the Bill, we are moving to a situation where the judiciary will be increasingly drawn into such questions. If that is the case, muddying the waters—through the conjunction of, on the one hand, the phrase “of the opinion of the Minister” and, on the other, the word “exceptionally”—will draw us into a real tangle. The judiciary is notoriously anxious to avoid getting involved in treaty interpretation, if at all possible. There is therefore a serious question to be addressed—if not in this sitting, then on Report and subsequently in the House of Lords—so that much more careful consideration can be given, however useful this debate has been, and we are making progress.

I am grateful to the hon. Gentleman, who is absolutely right. The purpose of the wording is indeed to muddy the waters and to make things more difficult to adjudicate. However, I question the appropriateness of the provision being included at all, in that if the whole point is to restore to this House the right to decide whether a treaty is appropriate, it seems quite perverse then to say, “But if the Minister doesn’t like that decision, he can simply carry on presenting the treaty to the House, through a long process of attrition, until eventually there aren’t enough people here or people of the right persuasion are here and the treaty can get through.” That is not what should be in clause 24.

The other expression that I would like the Minister to explain is the one that was touched on in our first debate in Committee this afternoon. Clause 24(1)(b) refers to the treaty having been published

“in a way that a Minister of the Crown thinks appropriate”.

I just do not know what that means or why it has been included. I assume that a treaty will be published in the form in which it was signed, not in a way that a Minister thinks it appropriate for people to read. The only, very small explanation that I can conceive of is that if the treaty was signed in another language, it might be appropriate for the Minister concerned to publish it in English, for the benefit of this House and the wider British public. However, beyond that simple matter of translation, I do not understand what the Minister has in mind by insisting that a treaty can be published in a way that a Minister thinks appropriate, rather than in the form in which it was signed, in whatever proceedings led to its being agreed. I would like the Minister to explain what is intended by that phrase, because clearly somebody has something in mind that is not obvious from a simple reading of it.

I am grateful to the hon. Member for Cambridge (David Howarth) for tabling the amendments. What he is trying to accomplish is in the spirit of what the Prime Minister sought to do in his early works, on those bright, happy days of two years ago—to see a shift in the balance of power, to restore Parliament. That was the intent behind what the Prime Minister said, and I do not doubt that that was what he had in mind, in those brief moments of joy.

However, in our constitutional arrangements and our system of government—I have reflected on this issue over many years, and it is common to more than just one Government or another—there is the concept of the Crown. From that emanates the concept of prerogative powers and the accretion of the governance of the United Kingdom. Ministers sometimes stand in this Chamber and endeavour from those concepts of the Crown to shift the great ship of state, and yet when we see the words produced by the machinery of government for those Ministers, who operate as the Crown, we see that intent become a weaker note—they do not accomplish what we understood from the brave words set out in “The Governance of Britain” or from those of the Secretary of State for Justice, the Home Secretary or the Prime Minister.

Why should we not vote? Why should that not be the automatic response on something that can affect the lives of citizens? My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) made the good point that the extradition treaty to which he referred was essentially negotiated in secrecy. We did not understand the intent and purpose behind it as we would have liked. We have been through the Lisbon process—the signing was an act of the Crown, but we had to legislate for it, because our dualist system for dealing with treaties makes it necessary to translate them into statute law for this country. That is what we have to do. However, the proposition in the Bill makes no such allowance. What the hon. Member for Cambridge and the Liberal Democrats have proposed and what my right hon. and learned Friend had to say were very well put. I have always believed that the presumption should be that laws can be made and treaties entered into only with the consent of the people as expressed through this Chamber. What is written in the Bill does not ensure that.

No, it does not. The decision is really at the discretion of Ministers. The hon. Member for Somerton and Frome (Mr. Heath) pointed out where clause 24 says that, notwithstanding the delay in the process, the Government can effectively go ahead and ratify.

Honestly, the clause does not allow that. The hon. Member for Somerton and Frome first seemed to suggest that the Government could just override the House of Commons, but the second time that he made the point he correctly said although the Government may bring the treaty back, it would still require the consent of the Commons.

All right; I will accept that point, but that was not my understanding of subsection (4), which I thought was quite clear. It says:

“The treaty may be ratified if—

(a) a Minister of the Crown has laid before Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why, and

(b) period B has expired without the House of Commons having resolved, within period B, that the treaty should not be ratified.”

I was lost in the language.

The language of that subsection seems clear to me: the Commons has to resolve again, in period B, not to ratify the treaty if it is to prevent ratification. However, subsection (6) says:

“A statement may be laid under subsection (4)(a) in relation to the treaty on more than one occasion”,

so the Government can just go through the process again, and can keep on doing so until the Commons gives up. [Interruption.]

But we wanted more than how it is now; that is the point. I was rolling on to the point that it is essential that we have a vote on the amendments that we are discussing, so that the House of Lords will know that the House of Commons stumbled or fought, and will know that we thought that the issue was important and needed to be discussed without the pressure of a guillotine.

May I suggest to my hon. Friend that his point has ever greater force if one bears in mind what the Minister said about the consultation held on the treaty powers, in which, apparently, no question was raised on clause 24? If that is right—I am sure that the Minister was telling us what he thought was correct—this is the first occasion on which right hon. and hon. Members, and others, have really expressed anxiety about the proposals in clause 24.

I am grateful to my right hon. and learned Friend. As he will know well, the issue of when papers or documents are laid before the House is, again, at the discretion of the Executive. Many a time, important measures—those in statutory instruments, for instance—have been laid before Parliament on the very day on which the House rises for a recess. My fear as regards treaties, given the provision on 21 days and all the rest of it, is that we will not appreciate what is happening. Just before the summer recess, no one—or only some of us, sometimes—is alert and alive to what is happening.

In fact, on our expenses, I remember the redaction agreement that was reached on the Floor of the House of Commons; it was interpreted by the Secretary of State for Justice in such a way as to bring the House into disrepute. That statutory instrument was laid before the House on the very day on which Parliament rose for the summer. Perhaps I am conflating too many issues, including intent and the way in which the Government operate, but that is how they have operated.

To support the hon. Gentleman’s contention, we know that the Bill does not set out a time period between the signature of a treaty and its being laid before Parliament and triggering the 21 days, so the Government can lay the treaty before Parliament at their convenience and discretion. The Minister boasted earlier that the UK-US extradition treaty was signed in March and kept absolutely secret until May, two months later, when the Government tried to sneak it through the House.

Absolutely. I was there, and I know that my right hon. and learned Friend the Member for Sleaford and North Hykeham was there. We watched the proceedings, and the construction of what followed, with some bemusement; we have seen the difficulties in which the treaty has placed Home Secretaries, and have seen that it raises questions of equity.

The reason why I rose to speak, Sir Nicholas—sorry, Mr. Lord. [Interruption.] I mean, Sir Michael; we will have a gamut of titles before we are finished. I rose not only to support the amendments, but to agree with the contention of my right hon. and learned Friend that it is necessary to establish, by expressing a view on the Floor of this House, that the matter is one that the House of Lords should look at most carefully.

In debate on the clause we have seen that, despite the high principles set out in the consultation paper, the Green Paper and the White Paper, and the promises to the Joint Committee on the draft Constitutional Renewal Bill, if we actually examine the detail in the Bill we see that the powers that the House will have to stop the ratification of a treaty fall far short of the ideals that were promised at the start.

Members have outlined clearly the importance of international treaties and their impact on the lives of individuals in the United Kingdom. We want, and should have, proper scrutiny of the laws that we pass in this House, and so it should be with international treaties. However, let us look at what is in the Bill. As the hon. Member for Somerton and Frome (Mr. Heath) pointed out, the treaty will be

“published in a way that a Minister of the Crown thinks appropriate”.

The Minister may well explain what that means later, but if we take that at face value, immediately we see that if a Minister wants to push a treaty through, or ratify a treaty that people have some reluctance about, the provisions relating to how it is written up and presented will make it possible for the House not to have all the information.

Secondly, the Bill requires a treaty to be put before the House, but the negative procedure is used. In other words, people will actively have to decide whether a treaty is sufficiently important, even though it may have been presented in a way that the Minister thinks appropriate, which may not alert people to the full implications of the treaty. Someone has to undertake an activity to bring the matter before the House in the first place.

May I suggest to the hon. Gentleman that there is a further problem? The negative procedure can, generally speaking, be triggered only by Front Benchers. If they think that the negative procedure is not required, that excludes the ability of Back Benchers to object to the treaty, whereas the affirmative procedure enables everybody to play a part, if the treaty is brought to the Floor of the House.

I thank the right hon. and learned Gentleman for that intervention, which was very useful. If a full role is to be played by all Members of the House, and not just the Front Benchers, the negative procedure is not a satisfactory way forward. The Government have the opportunity to present the treaty as they wish, and the negative procedure is to be used, but if the Government still do not like the outcome, subsection (4) allows the Minister to have another go at it, and to say, “Despite what I’ve heard, I still think you’re wrong.” There is then a further period in which the treaty can be looked at. As has been pointed out, if he gets the “wrong” answer again, he can bring the treaty forward time and again, until attrition or weariness means that the Government get their way. Is that what is meant by giving the House a greater say on international treaties? It falls short of what we would want, ideally. The easy way round that is to support the amendment requiring treaties to be subject to the affirmative procedure.

I simply want to come back to the question of signing, as compared to ratifying, the treaty. All our discussions have revolved around assumptions to do with the word “ratification” in the clause. However much progress is being made towards a general objective, we have not yet dealt with the question of whether, in light of the Government’s apparent intentions, it would be preferable—I would be interested to hear what the Minister has to say about this—to relate the entire process to signature rather than ratification. Article 11 of the Vienna convention lists various ways in which a state can express its consent to be bound. These include signature, exchange of instruments constituting a treaty and, among others, ratification, acceptance or approval. I do not want to turn this intervention into a speech, but I must point out that it is terribly important, if we are to get this right, to link consent to signature rather than to ratification in this context.

I know that the hon. Gentleman has tabled an amendment on this matter. I take his point, and I would be quite happy to see the provision relate to signature rather than ratification.

Adopting the affirmative resolution procedure in this process, as the amendment proposes, would remove many of the objections that I have raised. The only argument that I have heard against doing so is that it would take up far too much time. It has been pointed out by the hon. Member for Cambridge (David Howarth) who moved the amendment, however, that not every treaty would have to have extensive debate in the House. Furthermore, the Minister has said that there are not that many treaties anyway. He mentioned an average of only 30 a year. So the contention that dealing with every treaty using the affirmative resolution procedure would take up too much time does not seem to have been effectively argued in the Minister’s responses so far. For that reason, if the matter is pressed to a Division, I shall certainly vote to enable the House to have a say on every treaty that the Government bring forward.

I should like to make one preliminary remark. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) referred to the question of whether Governments were of good faith or not. I think that it is an assumption in this House that all Members are people of good faith.

There has been an excess of suspicious minds on this clause today. We are intent on ensuring that more of the power that has thus far resided with the royal prerogative is transferred to Parliament. That is the bottom line.

I am making absolutely no criticism of the hon. Gentleman, but it is a very dangerous assumption that all Governments comprise people of good faith at all times. One must actually assume the contrary.

I have no reason to doubt what the Minister says, but he will have to concentrate on the point that the Government’s intentions, as set out in the Bill, do not necessarily marry up with the Standing Orders of the House. The Government might not therefore be able to deliver what they appear to be promising in the clause.

I hope that I shall be able to satisfy the hon. and learned Gentleman on that matter.

I shall deal with some of the smaller issues that some hon. Members have raised in what I described as a somewhat over-suspicious manner. Attention has been drawn to the words

“in a way that a Minister of the Crown thinks appropriate”.

This simply means that one could publish a treaty as a Command Paper, or by depositing it in the Library of the House. Equally, one could publish it on the Order Paper, or as a White Paper. There is no way in which a treaty could be published in a way that was secretive, or designed to mislead the House. These are simply the customary words—they are used in many other pieces of legislation as well—that allow Ministers to decide whether a Command Paper or a White Paper is appropriate. I am certain of that.

It will be sad when the hon. Member for Cambridge (David Howarth) is no longer a Member of this House. He has done a great service to the House in many ways. He raised the question of whether the affirmative resolution procedure should be used in both Houses. My own suspicion is that that would be too cumbersome for the two Houses. The process that is used in the House of Lords is somewhat different from what happens in this Chamber.

The hon. Member for Stone (Mr. Cash) pointed out that there are many different kinds of treaty. The vast majority of them are very technical and relatively minor, and they do not detain or concern the House very often. It should not be for the Government to decide which do and which do not, however. It should be for the House to decide which treaties it wants to investigate, debate and vote on. We would absolutely guarantee that a motion would be debated and voted on, if the House so wished. The question was asked earlier: who is the House, in this context? If Members—whether Front Benchers or Back Benchers—sought to debate a motion, the Government would ensure that there was a debate within the time. The other thing that the Government could do is extend the time.

The concept of the Government responding to individual Back Benchers demanding a debate and a vote is a new one. What would Back Benchers have to do to achieve such success?

They would have to ask for it.

A couple of hon. Members referred to the 21-day period. The hon. Member for Aldridge-Brownhills (Mr. Shepherd), who is not in his place at the moment, said that the material might be tabled on the last day before a recess. Actually, one of the provisions in the clause has not been mentioned. At present the Ponsonby rule applies only to days when either House is sitting, whereas under our proposal, the term “sitting day” would mean a day on which both Houses are sitting. That will effectively extend the period of time available. This is in response to one of the Committees that examined the Public Administration Committee’s report on the draft Bill. We have sought to extend the period in that way.

On the question of determining which documents are important and which are not—be they treaties or treaty-like instruments—will the Minister tell us whether the term “written agreement” is wide enough to cover that? Also, under the conventions relating to the Ponsonby rule, it has been open to the Government since 2001 to refer treaties to departmental Select Committees, and they normally do. It is at that point that some of the problems of categorisation could arise. A departmental Select Committee could decide that a treaty was important and ought to be debated and voted on. The crucial question is not merely whether we have a debate on a “take note” motion, but whether we have a substantive motion on which a vote can take place. Those are areas that require further clarification, are they not?

The hon. Gentleman is right to say that if there is a desire for a vote, there has to be a vote on a substantive motion. If such a motion were to fall, the Government could, as the hon. Member for Somerton and Frome (Mr. Heath) has pointed out, try to bring the issue back to the House. My suspicion, however, is that the politics of the moment would probably determine that if a Government had lost, in the House of Commons, a treaty that they had signed, there would be a real danger that the Government would fall—although that is not what happened to President Wilson when he lost the Versailles treaty in the United States of America. That situation was rather different, of course, because the Executive there are completely separate from the legislature. None the less, it is pretty unlikely that Governments would want to continue to bring such a matter back again and again.

That raises an obvious question. Why do the Government think that this particular provision is at all desirable or necessary?

Because there would be circumstances in which one would want to return to such an issue. It will be a political judgment for the Government. They may decide “No, it’s clearly dead; we’ll have to leave it,” but in other circumstances they may believe that it is in the interest of national security, or whatever, to return to the issue and try to make the argument again. The key point is that the Government would not be able to proceed without the House of Commons having either voted in favour or decided to let the matter rest.

Can the Minister identify any matter on which the Government may currently be defeated which they cannot bring back before the House at their discretion?

As for my saying that it did not matter that the clause had not been raised in general public consultation, several matters were raised, and there has been a Joint Committee on the Bill, which broadly agreed with the provisions in the clause. It felt that the previous version had not been properly drafted, which is why we redrafted the provisions this time, and we believe that we have made them clearer.

If I did not say this earlier I apologise, but the point that I wanted to make is that the Minister said that no criticism had been made of clause 24, yet this is the opportunity for us to make criticism, and the other place needs to know about the fact of our criticism.

Well, some criticism has been made, so let me clarify that: there have been previous debates on this matter.

The hon. Member for Stone asked why the procedures do not apply to treaty-like documents, and he referred to memorandums of understanding. Such procedures would apply to such memorandums if they were legally binding in international law, but memorandums of understanding are not legally binding in international law, which is why those procedures do not apply. That is the clear distinction that we are trying to draw here.

The hon. Gentleman is right to say that there are some circumstances in which we have to enact certain elements of a treaty before ratification, in order to bring ourselves into line with it. On other occasions we have already substantially legislated in the field, so there is no need for further legislation and the only process left is approval followed by ratification. There are a few instances where ratification happens by virtue of signature, mainly in cases where negotiation is developing fast so that revealing the Government’s hand in public—in the UK and therefore to the wider world—would undermine our negotiating stance with another Government. There is, I think, an element of wanting to maintain that distinction.

I hope that I have reassured the House that the Commons would always have the right of veto, should it choose to implement it. The Government would always make sure that where a debate and vote were requested, they would be made available within the allotted time—or if they were not, we would extend the time in order to allow that provision.

No, I am not giving way, as we have already had quite a lengthy debate. [Interruption.] The hon. Member for Rayleigh (Mr. Francois) is sighing at me, but he was not here and he did not listen to my response to his party’s questions. Without further ado, I urge the Committee to reject the amendment and to carry the clause.

We have had a good debate, and I thank the Minister for his kind remarks. A series of interesting points have been raised about a wide range of issues. I do not want to go through all of them. I am particularly grateful to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) for his suggestions about how to develop further the proposals on which treaties should or should not be debated in the House, but the proposal before us now—amendment 1—is simply to reverse the negative procedure and introduce the affirmative procedure as the default option, and as the fundamental way in which this House deals with treaties.

I have had the opportunity of listening to the Minister, and although I do not doubt his sincerity, it seems to me that he has not provided an explanation of how Standing Orders can enable the House to consider a negative resolution against a Government who do not wish to provide one. I believe that that is a serious flaw that needs to be addressed and will have to be looked at further in the context of the Bill, even though I support a negative resolution in principle.

I thank the hon. and learned Gentleman. That is the core of the problem with the negative procedure.

The Government’s defence has two aspects. First, the procedure is said to be cumbersome, but the response to that point was provided by the hon. Member for East Antrim (Sammy Wilson). The Government have said that there are only 30 treaties a year, and that they will be dealt with in fundamentally the same way as we deal with affirmative resolutions for statutory instruments, of which we deal with several a day—there is one about income tax on the Order Paper today—so this does not seem to be at all a good point for the Government to make. The procedure is not cumbersome in the least.

For the second part of the Government’s defence, the Minister gave a guarantee that in certain circumstances, if complaints were made about a treaty on the Floor of the House, the Government would use their power over the agenda of the House to make sure that a debate and a vote took place. The trouble with that defence is that it was later reduced to absurdity when the Minister said that he would accede even to the requests of Back Benchers, which immediately starts to contradict his first point. If anything would be cumbersome, it would be a system under which any Back Bencher could get 90 minutes on the Floor of the House any time they wanted to complain about something. I am afraid that that part of the defence does not work either.

It seemed to me that the Minister was thrown back on to what might be called the “good chap” theory of the constitution—that we are all good chaps together and no one will exploit the power that this particular way of implementing intentions gives the Government. I am afraid that it is too late for the good chap theory of the constitution. If the whole purpose of the clause, and this part of the Bill, is to transfer power from the Government to Parliament, that transfer itself must be part of the Bill. What the Government cannot do is transfer a little bit so that the proposal does not work in reality—even though one wants it to work—and then say that otherwise Parliament can rely on the Government’s good will. That is precisely the form of Government that we are trying to move away from; it relies on the use of the very prerogative that we are trying to undermine.

Does the hon. Gentleman accept the central idea—I put it to the Minister, but he would not take the point—that to get the objectives right, it is signature rather than ratification that we need to get right, because under the UK constitutional arrangements ratification tends to take place at the end of the procedure?

I think that the hon. Gentleman is half right. I agree that it would be a good idea to develop proposals to deal with signature, but that does not mean that ratification is irrelevant; indeed, I think it is very important.

To return to the central issue of the Government’s control over the House, that is precisely what makes clause 24 ineffective as a way of transferring power. If the Wright Committee’s proposals were to be accepted by the Government, that situation might change. Unfortunately, however, we have no sign yet that the Government intend to bring those proposals to the Floor of the House and accept them in full. At this point, if the Minister would like to spring to his feet to contradict me, I would be grateful—but I would also be surprised. In the absence of any guarantees to change the House’s procedure, the point still stands that the negative procedure achieves very little, if anything. On that basis, I shall press amendment 1 to the vote.

Question put, That the amendment be made.

I beg to move amendment 125, page 12, line 42, at end insert—

‘(1A) In the case of treaties which transfer competences from the United Kingdom Parliament to the European Union—

(a) subsection (1)(c) shall not apply,

(b) the procedure set out in new Clause [Referendum on Treaties which transfer competences to the EU] shall apply.’.

With this it will be convenient to discuss the following: amendment 126, in clause 27, page 14, line 10, after ‘(1)’, insert

‘Save as provided for in section 24(1A),’.

Amendment 127, in clause 26, page 13, line 39, at end insert

‘or if the treaty transfers competences from the United Kingdom Parliament to the European Union.’.

Amendment 128, in clause 28, page 14, line 44, at end add—

‘(5) In this Part, “competences” means areas of supplementary, shared or exclusive jurisdiction.’.

New clause 68—Referendum on treaties which transfer competences to the EU—

‘(1) This section shall apply in the case of a treaty which transfers competences from the United Kingdom Parliament to the European Union.

(2) A referendum shall be held throughout the United Kingdom and Gibraltar on the day specified by a Minister of the Crown.

(3) The question to be asked in the referendum is whether the British people approve the ratification of the treaty, “Yes” or “No”.

(4) A person is entitled to vote in the referendum if, on the day it is held, he is—

(a) an individual who would be entitled to vote as an elector at a parliamentary election in a constituency in the United Kingdom;

(b) a peer who would be entitled to vote as an elector at a local government election in an electoral area in Great Britain or at a local election in an electoral area in Northern Ireland; or

(c) a Commonwealth citizen who would be entitled to vote in Gibraltar as an elector at a European Parliamentary election.

(5) A Minister of the Crown may by order make provision in relation to the referendum which—

(a) determines the referendum period for the purposes of Part 7 of the Political Parties, Elections and Referendums Act 2000 (c.41); and

(b) requires ballot papers to be used by voters in Wales, after having set out the question and the possible answers in English, to set them out again, with equal prominence, in Welsh.

(c) makes provisions as to the conduct of the referendum, entitlement to vote in the referendum and legal challenge to the referendum result.

(6) Every power of a Minister of the Crown to make an order under this section shall be exercisable by statutory instrument.

(7) An order under this section may be made only if a draft of the order has been—

(a) laid before Parliament; and

(b) approved by resolution of each House.

(8) A treaty subject to Section 24, (1A) can come in to force in accordance with provisions made by the Secretary of State by order made by Statutory Instrument provided—

(a) the Chief Counting Officer has given a certificate under section 128(6) of the Political Parties, Elections and Referendums Act 2000 (c.41) certifying the outcome of the referendum; and

(b) the total number of votes certified as cast in favour of the answer “Yes” exceeds the total number certified as cast in favour of the answer “No”.’.

These amendments and new clause 68 would ensure that any future treaty that transferred areas of power or competences from the United Kingdom Parliament to the European Union would require the consent of the British people in a referendum as a condition of its ratification. This referendum lock would give the British people the final say on whether they wish this Parliament to hand over further areas of power to the European Union. This is a right similar to the one that voters of the Republic of Ireland already enjoy under their constitution.

The following point is crucial to these amendments and new clause 68. Will the hon. Gentleman give a cast-iron assurance that if his party forms the next Government, this will be part of their legislative programme in their first term—yes or no?

I will answer in my own way. I very much hope that the hon. Member for Harrogate and Knaresborough (Mr. Willis) will support us in the Lobby this evening in order to amend the law tonight. If we were not to succeed tonight, we would, as I shall discuss later in my speech, then amend the law if we were to form an incoming Conservative Government. He will have an opportunity to support us in the Lobby tonight.

Part 2 of the Bill also seeks to give the Government a get-out clause to ratify treaties in exceptional circumstances without allowing for detailed parliamentary scrutiny and approval. Our associated amendments 126 and 127 would, in effect, disapply the special exemptions that the Government have granted themselves in the Bill to ratify treaties, so that they could not apply to any treaty that transfers further powers from this Parliament to the European Union.

Yes. If my hon. Friend looks at the amendment paper, he will see that we have attempted to do that in amendment 128.

My hon. Friend mentioned the Irish constitution, whose guarantee is a cast-iron one, because it is part of a constitution that is almost impossible to change. In our case, a Conservative Government could have a referendum just because they wished to do so, but a Labour Government would not have to hold a referendum. What does the amendment mean?

By putting in this referendum lock, the amendment means that if ever there were a future treaty that transferred powers from Britain to the EU, there would have to be a referendum. We are committed to that, which is why we are moving the amendment on the referendum tonight. To return to the point made by the hon. Member for Harrogate and Knaresborough, if we were not to succeed tonight and if we were victorious at the general election, we would amend the legislation as an incoming Conservative Government in order to achieve a referendum lock. I hope that that is very clear. What the House will want to know this evening is whether the Labour party and the Liberal Democrats support a referendum lock, which is what we are proposing tonight. I hope that that provides a clear answer for my hon. Friend the Member for Gainsborough (Mr. Leigh). We shall wait to see what Labour and the Liberal Democrats do in the Division Lobby.

I would like to make just one more paragraph’s-worth of progress and then I shall give way to the right hon. Gentleman, as he is a former Minister for Europe.

We do not believe it is right that treaties relating to the EU should be specifically exempted from parliamentary scrutiny, so we have tabled amendments 126 and 127, which seek to undo the loopholes that the Government have introduced in the Bill and to ensure that a future Government cannot avoid giving the British people their say. On that point, I shall give way to the right hon. Gentleman.

I am not, in principle, against the idea of referendums relating to the European Union; in fact, I am on record as saying that I think we ought to have an all-singing, all-dancing referendum on membership of the European Union. However, may I just ask the hon. Gentleman how many of the treaties that have been passed in the past 20 years does he think would have needed to be the subject of a referendum?

Thank you. Our amendment proposes that if ever there were a future treaty that transferred powers, a referendum would have to be held. As the right hon. Member for Leicester, East (Keith Vaz) knows, we argued very hard for a referendum on the Lisbon treaty. I do not wish to pre-empt the debate, Sir Michael, but I have a funny feeling that that may yet crop up again once or twice in the next few minutes.

This amendment has, of course, been tabled by our Front Benchers and my hon. Friend will, I am sure, understand that references to the transfer of future competences are, in the opinion of some of us, including myself, simply not enough. We need to ensure that we repatriate economic competitiveness, for example, as my right hon. Friend the Member for Witney (Mr. Cameron) said that we must in his speech to the Centre for Policy Studies in 2005. Will my hon. Friend clarify the difference between what my right hon. Friend said then and what is being said now in the most recent speech on Europe, which is that we want to repatriate that competitiveness?

As my hon. Friend will know, I am talking now about an amendment that concerns future treaties. I do not propose, although my hon. Friend tempts me to do so, to go into long debate about the changes for which we have asked on how the Lisbon treaty will apply in the UK post-ratification. I hope, Sir Michael, that you will understand why I will not go down that route this evening. I want to focus on this amendment. The commitment given by my right hon. Friend the Member for Witney (Mr. Cameron) definitely still stands.

The last major ratification of a European treaty was that of the Lisbon treaty. During debates on the treaty, Conservative Members of Parliament kept their manifesto promise and voted for a referendum. Unfortunately, with a few honourable exceptions, the Labour party and the Liberal Democrats did not.

My party believes that the British people should be given the last word on any future transfers of power from the UK to the EU, so I challenge the Labour party and the Liberal Democrats to have equal trust in the British people and to support this amendment tonight. Before they vote, I would also ask them to consider the following. If they vote against the amendment, they will be voting against giving the British people a say on any future handover of power to the EU and people will rightly ask why. Their most likely conclusion will be that Labour and the Liberal Democrats, once again, mean to sign new treaties handing powers over from Britain to the European Union without consulting the voters, as they have conspired to do in the past. If that is what they plan to do, we will be happy to inform voters of their intentions at the imminent general election.

I am, as ever, particularly curious about the position of the Liberal Democrats. They have so many that one is entitled to be curious about them. Let us take a look at one of them. At the 2005 Liberal Democrat party conference, the right hon. Member for Sheffield, Hallam (Mr. Clegg) proposed a conference motion, seconded by the hon. Member for Twickenham (Dr. Cable), no less, that stated the following:

“Any proposals which involve significant change in the relationship between the Union, the member states and its citizens should be approved in Britain through a referendum”.

That is essentially what these amendments would accomplish, so it would be an act of extraordinary inconsistency if the right hon. and hon. Gentlemen did not support them, and if their colleagues in the Liberal Democrats did not do so, either.

Liberal Democrat spokesmen are well practised at explaining away extraordinary inconsistencies, so I look forward with interest to hearing what the hon. Member for Kingston and Surbiton (Mr. Davey) has to say.

As we are talking about inconsistencies—and it is important to recognise that my hon. Friend the Member for Kingston and Surbiton (Mr. Davey) will give a robust defence to the questions that the hon. Member for Rayleigh (Mr. Francois) has rightly posed—does the hon. Gentleman not find it inconsistent for the Conservative party to give a cast-iron guarantee about the Lisbon treaty and for it now to display this wriggling when talking about the future? He and his party gave a cast-iron guarantee that they would ensure that the people would be able to have a vote, but there is now no guarantee that if the Conservative party came into power it would do anything about the Lisbon treaty, the Maastricht treaty or any other piece of legislation. That is a betrayal of the British people and of the hon. Gentleman’s party.

I think that that was more of a rant than an intervention. This is a guarantee that would be enshrined in statute, and that is why it would be so important. The hon. Gentleman knows full well that we campaigned for a referendum on the Lisbon treaty. We argued for that referendum in this House and we voted for it in this House. If the Liberal Democrats had kept to their manifesto promise, as we did, and had voted with us in the Lobby, there were enough Labour rebels to have delivered that referendum. The Liberal Democrats know what they did in abstaining on that point and in conspiring with the Government to prevent a referendum on Lisbon, so we shall take no lessons whatsoever from those on their Benches about desires for a referendum. Let me make that very clear.

Importantly, these amendments and the associated new clause seek to help restore the British people’s trust in politics by ensuring that any future treaty that transfers powers to the European Union at the expense of the UK Parliament must be put to the British people in a referendum.

One of the difficulties that will always arise is the question of how one compels a Government to do that. Does my hon. Friend agree that it is probably the case that if a Government refused to hold a referendum, a citizen could go to the courts under judicial review and get an order requiring the Government to do it? That is the safeguard, and it is a considerable one for the citizenry as a whole.

If a Government had enshrined in law the guarantee that any future transfer of powers in a treaty would be put to the British people in a referendum—if that had been put on the statute book—and if such a treaty was introduced and an individual felt that the Government were trying to wriggle out of their referendum commitments, that individual would have recourse to law in the courts. My right hon. and learned Friend makes an important point. That would help to give this amendment teeth and it is all the more important, therefore, to put it on the statute book.

Will the hon. Gentleman explain the difference between a statutory protection and a constitutional protection? It seems to me that a statutory protection such as that which he and his hon. Friends wish to introduce could be overturned by a Government, who could change the law. It therefore cannot be said to be enshrined and cannot be a lock, as he is trying to suggest.

Given what has happened in the past few years, if this provision were to be put into law and a Government attempted to remove the provision, I think that the British people’s reaction would be very severe. I throw that question back to the hon. Gentleman, and I shall listen carefully to what he has to say in his speech. As we want to try to amend the law tonight, I want to hear him say that the Liberal Democrats support the amendment and that they will never seek to overturn it. I want to hear that from the Minister, too, given what has happened in our country in the last couple of years and given the need to restore public trust in politics. I always listen to speeches made by the hon. Member for Kingston and Surbiton very carefully, but I shall listen with especial care tonight to see whether he will give, on behalf of his party, a commitment that his party would support the amendment and, if it is passed, that they would never seek to overturn it.

I have just given way to the hon. Gentleman, and I shall listen carefully to his speech. I hope that he, in turn, will give way to me.

If these amendments are not passed today—this brings me back to the earlier question asked from the Liberal Democrat Benches by the hon. Member for Harrogate and Knaresborough—an incoming Conservative Government would introduce their own legislation by amending the European Communities Act 1972 to ensure that this referendum lock is enshrined in law. Nevertheless, I commend the amendment to the House and hope that the Liberal Democrats and the Labour party will join us in voting for it, thus helping to restore, in some part at least, trust in politics among the British people.

I shall speak only briefly in this debate, because I know that any discussion on the European Union attracts a huge amount of interest, not just from the usual suspects but from those outside the House as it is, obviously, one of the most interesting aspects, in my view, of Government policy. I would like to see more debates on the European Union and much more scrutiny of such issues on the Floor of the House of Commons. I would also like to ensure that the European Scrutiny Committee can bring its reports to the Floor of the House on its own motion, allowing Members of the House to discuss the facts, as opposed to the myths, about the European Union.

I have some sympathy with the remarks of the shadow Minister for Europe, but we need clarity about what he means in respect of the transfer of powers. There is a consensus among all the parties in the House that we are better off in the European Union than outside it. I am not sure whether that applies to the hon. Member for Stone (Mr. Cash), but the Front-Bench teams of all political parties are united in the belief that the future of this country remains within the European Union.

In order to convince me to support him, because I am with the Government on the amendment, the hon. Member for Rayleigh (Mr. Francois) must tell us two things. First, who is to be the final arbiter of whether powers have been transferred? As with most things to do with Europe, facts are put to one side and the issue becomes a matter of opinion. The Conservative party takes a principled stand. It has said that the Lisbon treaty entails a massive transfer of powers, so there ought to be a referendum. The Government’s position has been different. Their view is that the treaty is codifying, there are no new powers and therefore, in trying to tidy up and improve the operation of the European Union, there is no need for a referendum.

May I suggest that the answer to the right hon. Gentleman’s question is that in the first instance, it is a matter for a political decision whether the competences transferred are sufficient in scale to justify a referendum? But if the Government declined to hold a referendum, as I said in my intervention, a citizen could go to the courts. It would then be for the courts to determine whether the circumstances that have arisen within the treaty are sufficient to require a referendum. Ultimately, it would be a matter for the British courts.

That is an interesting point. I am not sure that we heard it necessarily from the Front Bench. I know that the right hon. and learned Gentleman, a most distinguished lawyer and Member of the House who, sadly, is standing down at the next election, has suggested a way forward, but I, as a representative of my constituents, would not want constant referrals to the courts or constant applications to the High Court and then to the new Supreme Court on the issue. That would paralyse Government policy. Whichever Government were in office, that would not be the best way of dealing efficiently with a matter of such importance.

I do not agree that the matter would be best dealt with by the courts, not least because of declaration 17, which is annexed to the Lisbon treaty. It gives guidance to the courts with regard to the question of primacy of European law not only over our laws, but over our law-making, our constitution and this Parliament. I have not the slightest interest in transferring to the Supreme Court of this country decisions on the question in that environment. We need a United Kingdom Parliamentary Sovereignty Bill such as I introduced only last week.

That is exactly the problem that we face: two distinguished lawyers, a Queen’s Counsel and a former shadow Attorney-General for the Conservative party, disagreeing as to whether the courts should be involved. That is in a short debate in the House. One can imagine what would happen if every citizen had the right to make an application to the courts. Our court system would be log-jammed, the Government’s policy would be held in abeyance, and the whole European Union would probably not be able to operate. That is why we have such a problem deciding what to do about the issue.

The right hon. Gentleman is making a very good speech and I agree with much of it. The problem is to determine whether significant powers have been transferred. For instance, if Croatia joins, there may well be an accession treaty. It could be argued that some powers were being transferred. Ultimately, the matter will depend on the courts. We have no tradition in this country of a Supreme Court making political judgments. It could be very dangerous.

I agree. That is the problem with the solution on offer. We need to determine the circumstances in which a competent authority can say that powers have been transferred. For various reasons, party political points will always be made when we discuss Europe. I agree that there are divisions in all the major political parties. I am not sure that there are any divisions in the Liberal Democrat party on Europe, but there certainly are in the Labour party. There is a small minority in the Labour party who believe that we should not be in Europe at all, and I think that applies to the Conservative party as well. We need to find out, and the hon. Member for Rayleigh will convince me to support him, if he has a formula that will allow us to make that first decision.

Is there a certain irony here? If the argument is that power from the House has been transferred in part to the EU—to some extent, obviously, it has—what would be the logic of transferring further powers from the House to the courts? That has not happened before and, in my view, as a humble Member of the House, would be totally unacceptable.

My hon. Friend is being very modest in describing himself as a humble Member of the House. He probably has more experience of the House than all of us put together, in terms of length of membership of the House. He is right—

But he is that distinguished.

At the end of the day, we want to make the decision on the extent of the transfer of powers.

On the question of how a decision is made, I have some sympathy with the proposal from the Conservatives, but they miss certain aspects. Perhaps we should develop a constitutional court to examine the issue and identify which legislation is constitutional in nature and should require a referendum for it to be changed.

I think the hon. Gentleman would find that the cry from the Benches would be, “Too many courts and too many lawyers already involved in these issues.” It is a matter for Parliament and politicians to decide in the end. That is the problem that I have with the proposition from the hon. Member for Rayleigh.

Secondly, the hon. Gentleman did not answer the question that I put to him. Suppose we accepted his formula on the transfer of powers. We have had quite a few treaties in the past 20 years. We did not have a referendum on Maastricht. I am not sure whether the Conservative party has revisited its history and believes that we ought to have had a referendum on Maastricht.

I cannot hold the hon. Member for Rayleigh responsible because he was not in the House at that time, but the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) was in the Cabinet at that time—[Interruption.] He was a Minister of State. At any rate, he was in the Government. We did not have a referendum over Maastricht, and none of the other treaties that we have had in the past 20 years have come anywhere near the transfer of powers in that. If that treaty did not satisfy the criteria, how would any other treaty do so?

I instigated the Maastricht referendum campaign, which got more than 500,000 signatures on the petition to Parliament for such a referendum. Of course I believe that there should have been one. The Conservative party, apart from three Members, was united on the entire Lisbon treaty. As a consolidating treaty, that is more important than Maastricht because it takes the process of integration, plus primacy, so much further. It is a lethal treaty and should have been subject to a referendum. It is a disgrace that the Government did not hold one.

That is the principled view of the hon. Gentleman. He has always held that view, not just about the Lisbon treaty, but about every statutory instrument and every motion to do with Europe that has ever come before the House. It is always a disgrace, always the thin end of the wedge, and must therefore be opposed.

On my second point, I should like to know—if not now, perhaps later—how many of those treaties would have passed the test of the hon. Member for Rayleigh. I think he would find that on matters of opinion, quite a few treaties would have passed the test, which would have meant that the country was in a constant state of referendums. If we who were elected to the House pass every decision over to a referendum, there is no point in Parliament or in electing representatives.

My final point is a question: what are we doing in Europe anyway? I believe that the Conservative party is signed up to the concept of Europe, but of course its members have to oppose everything that the Government propose in that regard. That happens for a variety of reasons, but the fact that there is going to be a general election in the next few weeks means that the official Opposition cannot support the Government on anything but must show principled opposition to everything that the Government put forward.

That applies most of all to issues involving Europe, but even so I think that the Conservative party is pro-European. Should there be a Conservative victory at the next general election, there is no prospect that a Conservative leader and Cabinet will say that Britain should come out of the EU. There will of course be a lot of mood music and many statements about being very tough with the Europeans in discussions and negotiations, but I have been in this House for 23 years and I know that every British Minister who goes to Brussels does so to speak on behalf of the British people and Parliament. That applies equally to my hon. Friend the current Minister for Europe. No Minister ever goes to Brussels or to the other European cities to hand power over to other people. That has never been the intention of any Government.

I am grateful to my right hon. Friend. Does he agree that every previous Opposition party hoping to win power—the Conservatives in 1970 and 1979, and Labour in 1997—was on the whole pro-European? However, the huge difference now is that the Conservative party has broken off all relations with its sister right-wing parties in Europe. The mood music is important: the Conservatives are not going to pull out of the EU but, if they were ever to win power, they would destroy the chance of Britain—and especially British business—of having any real influence.

My right hon. Friend is absolutely right. He speaks with great authority, being the longest serving Europe Minister in the past 13 years. I do not know how many we have had in that time, but we have probably had about seven. However, I know that he is the longest serving—

So far, absolutely. However, after his stunning performance at the Dispatch Box, I think that that the present Minister for Europe, my hon. Friend the Member for Rhondda (Chris Byrant), will definitely be promoted after the election—unless he can manage to do what some of us have always suggested, which is to ensure that the European portfolio is represented in the Cabinet. That would be the very best way to ensure that we scrutinise what is happening in Europe.

All the parties need to put their posturing to one side—that is, with the exception of the Liberal Democrats, who have always been very clear about where they stand on the European issue. That is why I believe that it would be a good idea for us to hold one referendum on the question of this country’s membership of the EU. We should put the matter to the people once and for all. We have been in the EU for three decades, but let us just put the question to the people so that they can decide whether we should stay in or come out.

I know that the Foreign Secretary does not like that view, and that it is not shared by the Government, but some of us are so frustrated by the constant sniping about everything European that there may be no other way for the British people to make a final decision on Europe. Despite everything that the Conservative leader has said, I think that he will be sitting on the same platform as the Labour Prime Minister and the leader of the Liberal Democrats, saying that Britain’s future is in the European Union.

It may be that the best way to deal with these European issues is to have better parliamentary scrutiny. I think that I remember Ministers making statements in this House about the need to have more European business on the Floor of the House so that it could be properly scrutinised. The problem is that such business is usually scheduled for Thursday afternoons when a one-line Whip is in operation, which means that attendance is very low. The only people who turn up are those of us who love coming to EU debates, and the Minister and the shadow Minister, who have to come to them.

Better parliamentary scrutiny of European matters would be a better way to deal with these great issues. I do not think that we should have constant referendums on them. That is not the way forward.

The right hon. Gentleman said that we should have a once-and-for-all referendum, but I remember what the late, lamented Peter Shore had to say about that. As long as there is an England, the issue will never be closed, as it is about national self-government. As long as this country remembers what it is about, the issue will always re-emerge. We govern ourselves.

That is absolutely right. Otherwise, what on earth are we doing here discussing these matters at 7.55 on a Tuesday evening? Of course we want to govern ourselves, but the British people ought to have an opportunity to say something about Europe. They have not been allowed to as yet, but people need to be able to position themselves as they wish.

I am very pleased that my right hon. Friend has been so generous with his time, and I am intervening for the second time. I am someone who has modified his view about our membership of the EU. For many years, I have accepted that we belong inside it, and there is no doubt in my mind that coming out would be to Britain’s disadvantage. However, my right hon. Friend is one of the most enthusiastic Members of the House of Commons when it comes to Britain’s membership of the European Community. Does he agree that there is an obligation on the British Government of the day to see to it that excessive powers are not handed over to the EU? There is a great deal of disquiet among the British general public, and I believe that one reason for that is the feeling that we are losing power to the EU to such an extent that is becoming almost unacceptable. I differ with the hon. Member for Aldridge-Brownhills (Mr. Shepherd) about our membership of the EU, but he does have a point that cannot be overlooked.

My hon. Friend is absolutely right. That is why the official Opposition have brought these amendments before the House. The public are concerned, because they only ever get anti-Europe stories from the tabloid press. Everything is blamed on the EU, but the public would feel differently if we had a fair press that respected discussions on Europe.

When a country signs a treaty as important as the one covering accession to the EU, it is signing up to some important principles. We said that we would work with EU colleagues and partners, and that is what we are doing. Of course there has to be some pooling of powers—that is the only way for accession to be accomplished—but there is no need for powers to be handed over wholesale.

My hon. Friend the Member for Walsall, North (Mr. Winnick) has been in this House much longer than I. Will he name any British Minister of the past 20 years, Conservative or Labour, who said that he was attending a meeting with EU counterparts because he wanted to hand over all sorts of powers that he did not believe that the British Parliament or Government ought to have?

Let us put the myths to one side and have a proper discussion and public debate on this issue. Until we do that, I am afraid that I cannot be convinced about the amendments that have been put forward.

I shall make it clear from the start—I hope this will put the hon. Member for Rayleigh (Mr. Francois) out of any pain—that we will not be supporting his amendments tonight. We will be voting against them, and I shall explain why.

Liberal Democrats support a referendum on Europe, but on Britain’s membership of the EU and not on the legalese of any specific treaty. We believe that the British people want to be able to answer the in-out question, and that that is the sort of constitutional issue that is best put in a referendum. As the right hon. Member for Leicester, East (Keith Vaz) said, that is the right way forward.

Given what the leader of the Liberal Democrats has said about a proposed question, would the hon. Gentleman agree to a question such as, “Should the UK Government renegotiate the terms of its relationship within the EU?”? Yes or no?

No, because we need a clearer question about Britain’s membership of the EU. I hope that that is helpful, but the fact that we would want a different question in the referendum is not the only reason for our opposition to the amendment. Another reason is that we think it is fatally flawed. As far as we can see, it would require a referendum on the transfer of any competence, however minor. That could lead to referendums on issues of policy that are relatively minor and which certainly have no real constitutional significance. That surely is an unsustainable position. I cannot believe that the right hon. and learned Member for Rushcliffe (Mr. Clarke) supports it, and I shall be interested to see whether he votes with his hon. Friend the Member for Rayleigh in the Lobby tonight. Neither can I believe that, in government, the Conservatives really would honour the amendment to the letter, because it is so fatally flawed.

It may come as a surprise to find that the Conservatives wish to debate referendums. After all, they have had a rather embarrassing few months after the dropping of their cast-iron guarantee. That is why my hon. Friend the Member for Harrogate and Knaresborough (Mr. Willis), who is not in his place at the moment, was quite right to ask the hon. Gentleman whether he had a cast-iron guarantee for his proposal. He was not able to answer that, and I am not surprised.

The hon. Gentleman, as usual in these debates—there is always a bit of déjà vu to them—tried to tease the Liberal Democrats, but I remind him and the House that the Conservatives voted against the Liberal Democrat proposal on 14 November 2007 for a referendum on Britain’s membership of the European Union. What is worse, they worked with the Labour party to stop this House even debating the proposition on 4 March 2008 about whether we should have a referendum on the in-out question. He says that he will not take lectures from us; likewise, I repeat that remark to him.

The Conservatives’ voting record on referendums in this Parliament does not bear scrutiny. Their record on referendums in government is worth recalling, too, as the right hon. Member for Leicester, East (Keith Vaz) said. Did they offer a referendum on the single European treaty or Maastricht? No. The Liberal Democrats joined forces with the hon. Member for Stone (Mr. Cash) and argued for a referendum on the Maastricht treaty, because it really was of constitutional significance and it deserved a referendum.

Will the hon. Gentleman help me in this respect? He has argued against the amendment on legalistic grounds, stating that “competence” is capable of extending to the trivial and the major. Assuming that one could resolve that issue by drafting, does he object in principle to subjecting to a referendum substantial transfers of competence?

As I said at the beginning of my remarks, we believe that there should be a referendum on the future of Britain’s membership. There have been so many treaties over the past 20 years, as the right hon. Member for Leicester, East reminded us, and the British people have not had a referendum on any of them. It is therefore time to ask people the real question—the one that people say they want—about whether Britain should be a member of the European Union. That is the question people want to be asked, not a question about detailed aspects of a treaty.

Why does the one exclude the other? Why can we not have the referendum on the in-out question, and why should Liberal Democrats not agree to the idea that, when there are substantial transfers in future treaties, the British people are consulted?

We are saying that they should be consulted, but on a question on which we think they want to be consulted. The hon. Member for Rayleigh seems to want multiple referendums, and that is not sensible. We want a clear decision on the matter, but, although I agree with much of what the right hon. Member for Leicester, East said, I do not think it would settle the issue once and for all, as the hon. Member for Aldridge-Brownhills (Mr. Shepherd) rightly said. It would settle the matter for several decades, however, and many people in Britain have not had the chance to vote because they were not around for the previous referendum on Britain’s membership of the European Community, as it then was. I therefore think they would like to have their say.

I am grateful to the hon. Gentleman for his remarks. Parties change their positions; I accept that. It was I who went to see Paddy Ashdown in February 1992, because I tabled the proposal for a referendum on Maastricht, which was Mrs. Thatcher’s last vote in this House, as it happens. Paddy Ashdown had no difficulty in saying, “We Liberals believe in referendums and will support the referendum on the Maastricht treaty,” but that was a particular treaty. We thought it contained considerable powers, and Paddy Ashdown gladly supported our proposal. Indeed, when the Maastricht treaty itself went to a vote after becoming a matter for legislation in the House, the Liberal Democrats took a robust position on it. The question was not, “In or out?”; it was on the specifics of a treaty. That was the point.

The hon. Gentleman has taken a principled stance on this issue over many years. At the time of the Maastricht debate, I was one of the backroom boys for the Liberal Democrats who worked on the treaty as it went through this House as legislation, and I remember the very night of the vote to which he refers. However, we have moved on from the Maastricht debate. There have been a number of other treaties—the Amsterdam, Nice and Lisbon treaties, in particular—and the mood of the British people has changed, so we must go beyond a treaty-based referendum.

There is a suspicion, which I am sure is entirely cynical, that the Liberals take that stance because they think they can win a referendum on the in-out question, but would have lost one on the Lisbon treaty. That would be an entirely dishonourable position, so I am sure the hon. Gentleman can refute it.

Indeed. The real reason why the Conservatives want to debate referendums tonight, despite their embarrassment at dropping their cast-iron guarantee, is that they do not want to debate the real issues on Europe. They have very firm few positions, as we saw when we debated the substance of the Lisbon treaty.

I take the hon. Member for Rayleigh to task for the Conservatives’ position on justice and home affairs, in particular. I shall not get into a detailed debate tonight, Mrs. Heal, because I am sure you would call me to order, but his party’s leader has made it clear in public that the Conservatives want to take back competences on justice and home affairs—despite the successful work that is being done throughout Europe, particularly by Europol and Eurojust, and on the European arrest warrant. Serious crime is being tackled successfully. Drug trafficking, people trafficking, money laundering, terrorism and sex crimes of the worst kind are being successfully tackled through European co-operation, and the Conservatives’ position is to remove Britain from that co-operation.

I shall try to take the proposal seriously, even though it is seriously flawed. The Minister may provide more definitive legal views on the matter, but I wonder what is meant by “competences”. In explanatory notes to the amendment, the hon. Member for Rayleigh says that the competences would be supplementary, shared or exclusive competences. However, what is the meaning of “supplementary” in the European treaties? For the EU, a supplementary competence is one whereby

“the Union shall have competence to carry out actions”—

this is the important bit—

“to support, coordinate or supplement the actions of the Member States”.

When we look at the EU’s competences that fit the definition of “supplementary”, we find some very interesting ones. Under the hon. Gentleman’s proposal, we would have referendums on transferring supplementary competences on culture, tourism and administrative co-operation. The Conservatives want a referendum on the bulk purchasing of paper clips. That is nonsense. It does not stand up to any serious scrutiny, and I do not believe that if they were in government, they would put forward this proposal. That is why the hon. Gentleman could not answer my hon. Friend the Member for Harrogate and Knaresborough. The proposal is absolutely ludicrous.

No, not yet. The Conservatives seem to want to commit us to referendums on almost any conceivable European treaty, however insignificant, but there are other serious problems with the amendment.

The hon. Member for Rayleigh was present for the debates about the legislation on Lisbon, so he knows that there are other ways to amend treaties now. Indeed, those measures were part of the Lisbon treaty and one reason why he objected to it. One new procedure for amending treaties is the ordinary revision procedure, and, from the Library briefing, I understand that one could transfer competence from member states to the European Union using that procedure, not just through a treaty. The legal position in UK law is that if that were to happen, there would have to be an Act of Parliament. I am interested to know what the Conservative position is. If there were a competence transfer through the ordinary revision procedure, would that, in Conservative thinking, require a referendum? That would be a very interesting development that is not dealt with by the amendment. Perhaps the hon. Gentleman will be able to explain it.

The key problem with the Conservative amendment is that it shows no understanding of how decisions are taken in Europe. It puts together all types of competences, whether they are relatively minor or major, or exclusive or supplementary. Let me take as an example the Lisbon treaty and justice and home affairs. Pre-Lisbon, the EU had competence in pretty much all the aspects of justice and home affairs policy that it has today. The Lisbon treaty did not change the competences; it merely moved them from the intergovernmental arena to the Community method of decision making. For example, there was the transition of the European arrest warrant from an intergovernmental decision to a Community method decision. It was not the transfer of competences that annoyed many Conservatives in relation to the Lisbon treaty, but the decision-making process, so the referendum that is being offered would not deal with many of the problems that Conservative Members have been worried about over recent weeks and months. The fact that the EU has competence in an area does not tell us about the powers or scope of the EU institutions in that area. The Tory amendment is totally silent on that.

This proposal is so utterly flawed that it should not even be supported by the hon. Gentleman’s colleagues on the