Constitutional Reform and Governance Bill

My Lords, I will speak also to Amendments 9 and 10. We have listened to the persuasive arguments of the noble Lord, Lord Norton. I hope my words on Amendments 8 and 9 will be of comfort and that he will not press them. The Government are content to accept Amendment 10. The Government have consulted widely for nearly three years on the proposals to enhance parliamentary scrutiny of treaties. Following a public consultation on the subject, clauses included in the draft Constitutional Renewal Bill were considered in detail by the Joint Committee established for pre-legislative scrutiny, of which the noble Lord, Lord Norton of Louth, was a member. While the Government added Clause 25 to the Bill in response to the Joint Committee’s recommendation that there should be a mechanism for considering requests to increase the period available for scrutiny beyond 21 days, the committee's report agreed with the Government that, ""a 21-day sitting period will be sufficient time for Parliamentary scrutiny of treaties in the vast majority of cases"." The noble Lord’s amendment seeks to amend Clause 25, which describes the mechanism for extending the period of scrutiny and provides that the Minister shall normally use that mechanism except in cases where he deems the treaty to be a minor or technical amendment to existing agreements. The amendment would create a presumption that the scrutiny period for treaties will be longer than 21 days, rather than that the extended period will be the exception. It is current practice under the Ponsonby rule to extend the sitting-day period whenever possible where a request is made through the established channels or by a Select Committee for more time to scrutinise a treaty. In fact, requests for extension are not the norm. This point was recognised by the Joint Committee when it concluded that 21 days would be sufficient in the vast majority of cases. As is evident from the addition of Clause 25 to the Bill in response to the pre-legislative scrutiny undertaken, the Government stand by their previous commitments. I see no sound case for amending the Bill to make extending the scrutiny period the norm. In addition, I note that the amendment is unclear on what should count as minor, technical or incremental adjustments to existing arrangements. Putting such obscure criteria into the Bill would leave the Government open to criticism, and would offer no discernible benefit beyond the Government's current proposals. For these reasons, I hope that the noble Lord will withdraw his amendment. Clause 26 provides that, in exceptional circumstances only, the provision setting out the normal process of formal parliamentary scrutiny may be disapplied. Clause 26 also states that if exceptional procedures are invoked, the responsible Minister must lay a Statement before Parliament explaining his reasons for departing from the normal procedures. The noble Lord’s amendment would require the Minister to consult the chair of the Foreign Affairs Committee and any other committee he considers appropriate before invoking exceptional circumstances. In 2000, the Procedure Committee of another place, in recommending against the setting up of a Commons sifting committee specifically to deal with treaties, stated that the appropriate role for the other place in relation to scrutiny of treaties was to draw upon the established expertise of the departmental Select Committee. It recommended that the Foreign and Commonwealth Office send every treaty subject to ratification to the relevant Select Committee along with its explanatory memorandum. The Government accepted this recommendation and it is now routine practice. In addition, in their response to the committee’s report, the Government gave an undertaking to provide an opportunity for debate on any treaty involving major political, military or diplomatic issues if the relevant Select Committee and the Liaison Committee so requested. It is clear that the Government are committed to working with whichever committee Parliament decides to establish. Nevertheless, I believe that the noble Lord’s amendment ties the hands of the Executive unnecessarily. It is not simply tautologous to say that the cases in which it is envisaged that Clause 26 will be used are by their very nature exceptional; the Government need the flexibility to respond to factors outside their control or to urgent situations as they develop. This amendment would require the Government to consult the Chairman of Committees before acting in all cases, even if such a delay would adversely affect the Government’s ability to secure the nation’s interests. It is not for nothing that flexibility is inherent in the Ponsonby rule—albeit a flexibility which both Conservative and Labour Governments have resorted to on only a handful of occasions over the past 60 years. The Government will naturally strive to ensure that the chairman of the Foreign Affairs Committee and relevant Select Committees are apprised of matters that concern them in a timely fashion. The Government already do so as a matter of course. Not only is this amendment unnecessary but it would apply a rigid procedure when the uncertain nature of events makes a flexible approach the only sensible one. Under the clause as it stands, there is already a safeguard in that the Minister is under a duty to explain to Parliament his reasons for departing from the norm. This is the appropriate means of dealing with these exceptional cases, and I urge the noble Lord not to press this amendment. Finally, Amendment 10 would place in statute a requirement for every treaty laid before Parliament to be accompanied by an explanatory memorandum explaining what the treaty is about and why the Government believe it should be ratified. Under the Ponsonby rules, since 1997 the Government have consistently laid an explanatory memorandum at the same time as laying a copy of every treaty. We fully intend to continue this practice and are therefore content to place this requirement on the statute book and accept the noble Lord’s amendment.