War Powers and Treaties

My Lords, I am delighted to follow the noble and gallant Lord, Lord Bramall, for two reasons. One is that in 1944 he was my brother Philip’s platoon commander. The other reason, more relevant today, is that with great respect I agree with everything that he has said. However, like my noble friend Lady Williams, I want to concentrate on the second part of the consultation paper covering treaties. The first part is extremely important, of course, and I welcome the proposals for requiring parliamentary consent to the sending of troops into armed conflict, but I do not feel that I have anything to contribute which cannot be said, or indeed has not already been said, much better by others. But I do have some experience of dealing with treaties as a result of my involvement in the recent disputes over the United Kingdom/USA treaty on extradition. That is probably the most controversial treaty in recent years. It is controversial because it is unequal. The standard of evidence required for extradition from the United States to the United Kingdom is higher than that required for extradition in the other direction. It is a classic example of the defects of the system and plainly shows the inadequacy of the involvement of Parliament in the treaty-making process. This treaty was in fact signed before Parliament knew anything about it. The Ponsonby rule or convention is, I believe, inadequate, and the noble Lord, Lord Anderson, was unduly complacent in thinking that it was of any significant value. The Ponsonby rule or convention confers no power on Parliament to do anything whatever except hold a debate. Not surprisingly, very few Ponsonby debates have been held in recent years. Parliament does have powers where changes in United Kingdom law are needed before a treaty can become effective because the Government, quite rightly, do not ratify a treaty unless any necessary changes in United Kingdom law have been enacted. That was the case in relation to the extradition treaty with the USA. That treaty needed an Order in Council under the Extradition Act 2003 to enable the United Kingdom to ratify it. Either House could have blocked the treaty by rejecting the Order in Council. Neither did so, although we on these Benches voted against the Order in Council in your Lordships’ House. One problem that applies to this is that once a treaty has been signed by a representative of the Government, they come under an obligation to use their best efforts to ratify it. If amendments or changes are needed to a treaty, it is very difficult to reopen negotiations which have already been concluded and have resulted in a signed treaty. It is essential, therefore, that parliamentary scrutiny should take place and, further, should begin even before a treaty is signed. Had that happened with the extradition treaty, the problem could—and very probably would—have been solved simply by the omission of six words from the text. The omission of those words would have converted it into an equal treaty. I agree with my noble friend about the need for consideration of these matters by a parliamentary committee, preferably a Joint Committee of both Houses. It follows that the Government should send a draft of a proposed treaty to that committee before the Government sign it. The committee could then take evidence, if it wished to do so, and publish a report on whether there were likely to be serious objections to it. The committee could also at that stage decide whether the treaty is one which needs the consent of Parliament or, as a considerable number of them are, is a relatively unimportant or uncontroversial treaty which does not need further parliamentary consideration. Treaties which are not controversial and not of great importance could then go through without any further parliamentary procedure. The role of this Select Committee would be very similar to the role played by the Select Committee on the European Union of your Lordships’ House in dealing with scrutiny of proposed EU legislation and the scrutiny reserve system which applies to that legislation. If the committee reported that the treaty would give rise to objections, the Government could continue negotiations with a view to modifying the draft, or they could go ahead with a signature but with the knowledge that this might well give rise to a rejection of the treaty by Parliament. Treaties give rise to rights and obligations in international law. This is part of the definition of a treaty under the Vienna Convention of 1969. The Government are not allowed to make laws for the United Kingdom by the exercise of the prerogative, and they should not be allowed to use the prerogative powers to commit the United Kingdom to obligations under international law without the consent of Parliament. The details of the form of that consent can be left for a future date. Parliamentary consent is needed in many countries—notably the USA, where the Senate must consent before a treaty can be ratified by the Government. I firmly believe that Parliament in this country should have similar rights. I look forward with great pleasure to the next speech, which will be the maiden speech of the noble Lord, Lord, Janvrin.