War Powers and Treaties

My Lords, this is one of those significant moments in the quiet evolution of the British constitution when often we fail to recognise the significance of what we are discussing. I am extremely grateful to the noble and gallant Lord, Lord Guthrie, for giving us the opportunity to debate this crucial moment in our constitutional evolution, because it is nothing less than that. I also congratulate the Government on their courage in getting hold of the issue of the royal prerogative in two of the most important areas that can affect the role of Parliament and on recognising the need to empower Parliament to be part of that decision-making process. I listened with great interest to the points raised by the noble and gallant Lord, Lord Craig of Radley, but to my mind the arguments made by the noble and gallant Lord, Lord Guthrie, and the noble and learned Lord, Lord Mayhew of Twysden, are conclusive. We live in a different world and we cannot commit our troops without a much wider process of decision-making than the one on which we have rested for so many centuries. I shall speak today not about the war-making power but about the other leg of this set of proposals: parliamentary accountability with regard to treaties. On this, there is quite a long history. My noble friend Lord Lester of Herne Hill proposed that Parliament should be involved in the ratification of treaties as long ago as his 2003 Bill and he repeated the proposal in 2006. In another place, Kenneth Clarke, leading the Conservative Party’s study of the changing constitution, proposed that there should be parliamentary accountability in respect of the ratification of treaties. I am delighted that we have now reached something very close to consensus. In our society today, treaties are of the greatest possible significance. Let me mention just two groups of them so as not to take up too much time. There is a whole group of treaties concerned with climate change, becoming more and more important and likely to grow in significance in the next few years. We no longer talk about the thinness of the ozone layer because, in the words of the former UN Secretary-General Kofi Annan, the Montreal protocol was one of the most successful treaties ever passed and actually managed to push back that threat a long way. Since then, we have had the Kyoto treaty, about which I need say little more except that up to now it is the only international treaty with force across the whole global pattern of climate change. Even now, as we sit, there is a major discussion about the renewal of that treaty, and it could not be of more significance for our citizens and the world. There is another group of treaties of great significance, on arms. Even now, there is wrangling over the cluster bomb treaty between those who wish to weaken it by excluding what are called ““clever”” cluster bombs, and the wish of most of our fellow citizens throughout the world to have an effective cluster bomb treaty. It is still under discussion. The small arms treaty is strongly supported by the British Government, to their credit. It is still not actually being implemented, and one does not need to look much further than the terrible events in Kenya to see how critical it is to have some sort of small arms treaty that will prevent the desperate outcomes in much of Africa and some parts of Asia from local civil wars, fed by the arms trade which makes a great deal of money from, essentially, the destabilisation of one country after another. I could go on, but will just mention one other treaty which has so far not been put into practice at all, although passed by the General Assembly of the United Nations as long ago as 1993: the proposed treaty for the fair treatment and recognition of the human rights of migrants. Our country is today deeply caught up in a discussion about the rights of migrants, but there has never been a debate in this House on the issues raised by the treaty, which is now nearly 20 years old. How can we look at accountability for treaties? I am clear that there must be more to it—in this respect it is very different from war powers—than simply agreeing that Parliament should approve the ratification of treaties. It is essential, in as complex an area as this, that it be matched by a parliamentary Select Committee which would look into treaties and decide which ones were so significant for our citizens, in this country and beyond, to be discussed and debated in Parliament before the Government finally give their approval. In this respect, the Ponsonby rules, to which the noble Lord, Lord Anderson of Swansea, referred, while impressive in their day—laying treaties for 21 days and leaving it for the House to decide which ones should be debated—are simply no longer adequate machinery. There must be a much more careful look at treaties, and a decision made by the House itself about which ones should be debated before they can be agreed to. We therefore need a combination of those two things. To that end, I recently submitted a memorandum to the Liaison Committee, asking that it should seriously consider the possibility of a Select Committee on treaties. The committee said that this was a major issue which rather went beyond, in its view, its own competence and jurisdiction. Long ago, the noble Lord, Lord Wakeham, also proposed, in his well known report on the reform of the House of Lords, that there should be a careful look at treaties and that they should become part of the responsibilities of this House—possibly jointly with the other House; that is a matter for discussion which I shall not go into right now. This is the moment for Parliament to seize this opportunity. It is particularly appropriate for this House, with its responsibilities and experience. That has been matched in other parts of the world, such as Germany, Canada and the United States, where the upper House has a special responsibility in this field. However, I strongly urge that, as a result of this debate, the Government, as part of their reform of the constitution of the United Kingdom and their exciting proposals, look closely at treaties and consider whether there should not be some form of Select Committee of Parliament, linked to—I stress that—a decision by the Government to accept that there should be parliamentary approval before major treaties are ratified. That would very much strengthen democracy in this country, and enable us to reach more considered decisions than some which are currently taken, virtually negatively, by a failure to ask for a debate.