Human Rights Protections in International Agreements Contents

5Parliamentary Scrutiny of International Agreements

The current system for parliamentary scrutiny of international agreements

45.Historically the Government has had wide prerogative powers concerning treaty negotiations and signature, with little parliamentary involvement, as compared to some other countries’ systems. Indeed, even now, any parliamentary involvement in scrutinising international agreements is done late in the process, usually after a text is finalised. Moreover, treaties that require little to no change to UK laws often receive minimal scrutiny from Parliament (or indeed elsewhere).

46.In some countries international agreements have direct legal effect in domestic law (“monist” systems). The UK has a “dualist” constitutional system, whereby changes are needed to domestic law in order to give legal effect to an international agreement’s provisions in domestic law. Therefore, if changes to domestic legislation are needed for the UK to be able to comply with the obligations in a treaty, then legislation is required (whether secondary or primary legislation). In such cases, while the Government can sign a treaty which would require changes in domestic law, the UK normally only ratifies an agreement once domestic legislation is in force (and therefore once the UK is in a position to be bound by and comply with those international obligations in that agreement).

47.The Constitutional Reform and Governance Act 2010 (CRaG) sought to clarify the parliamentary role in relation to international agreements. Under CRaG, before the Government can ratify a treaty it must be laid before Parliament for 21 sitting days. In principle, the House of Commons could block such a treaty but it would require repeated motions to do so; the House of Lords can express concern in debate, to which the Government must reply, but has no such blocking mechanism.

48.The FCO’s submission sets out the current system for parliamentary oversight of international agreements under the Constitutional Reform and Government Act 2010 (CRaG):

“Under the UK constitution, making, amending and withdrawing from treaties are functions of the executive carried out in the exercise of the Royal Prerogative. The principal statutory framework providing for parliamentary scrutiny of treaties is the Constitutional Reform and Governance Act 2010 (CRaG) […] human rights issues which may be of interest to Parliament will be highlighted within an Explanatory Memorandum which accompanies all treaties laid before Parliament pursuant to CRaG. As the Committee will be aware, if a treaty raises significant Human Rights issues, a copy of the Memorandum will be sent to the JCHR. In all cases, a copy will also be sent to the Foreign Affairs Committee, and to any other Select Committee which has expressed an interest, and the Government will engage with those Committees accordingly.”44

49.As this shows, treaties and Explanatory Memoranda are meant to be sent to the relevant Commons select committee(s), and any human rights engaged should be highlighted in the Explanatory Memorandum. Where human rights issues are engaged, the Explanatory Memorandum should be sent to the JCHR.

50.We have examined a sample of recent treaties and it is clear that this process is not being followed adequately—few Explanatory Memoranda contain a section on human rights analysis. Even international agreements on subjects such as extradition or mutual legal assistance, which would naturally raise human rights issues, do not contain the relevant analysis or information on human rights compatibility.45 There is no flow of information to the JCHR.

51.A table of recent agreements and memoranda laid under CRaG shows the lack of analysis of human rights. Table 1 shows multilateral agreements for 2018. Table 2 shows bilateral agreements for 2018.

Table 1: Multilateral agreements and memoranda laid in 2018

Name of Agreement

Human rights analysis in EM:

[MS No.15/2018] Convention on the Simplification of Formalities in Trade in Goods and Council Decision

EM states:

“Human Rights:

There are no human rights considerations.”

[MS No.14/2018] Convention on a Common Transit Procedure and Council Decision

EM states:

“Human Rights:

There are no human rights considerations.”

[MS No.13/2018] UK/IAEA: Agreement for Application of Safeguards in Connection with Treaty on the Non-Proliferation of Nuclear Weapons

No reference to human rights

[MS No.12/2018] UK/IAEA: Protocol Additional to Agreement for Application of Safeguards in Connection Treaty on Non-Proliferation of Nuclear Weapons

No reference to human rights

[MS No.11/2018] Convention on Choice of Court Agreements

EM states:

“(iii) Human Rights

Accession to the Convention does not raise any human rights concerns.”

[MS No.10/2018] Convention on International Recovery of Child Support and Other Forms of Family Maintenance

EM states:

“(iii) Human Rights

Ratification of the Convention does not raise any Human Rights concerns.”

[MS No.9/2018] Interbus Agreement with Protocol and Decision

No reference to human rights

[MS No.8/2018] Framework Agreement on the establishment of the International Solar Alliance

No reference to human rights

[MS No.7/2018] Agreement Establishing the Inter-American Investment Corporation

No reference to human rights

[MS No.6/2018] Amendments of the texts and annexes to the 1999 Protocol to Abate Acidification, Eutrophication and Ground-level Ozone

No reference to human rights

[MS No.5/2018] Protocol to Eliminate Illicit Trade in Tobacco Products

No reference to human rights

[MS No.4/2018] Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse

No reference to human rights

[MS No.3/2018] Agreement extending the Framework Agreement for International Collaboration on Research and Development of Generation IV Nuclear Energy Systems

No reference to human rights

[MS No.2/2018] Amendments to texts and various annexes to 1998 Protocol on Persistent Organic Pollutants and 1998 Protocol on Heavy Metals

No reference to human rights

[MS No.1/2018] Convention on Road Traffic as amended

No reference to human rights

Source: Foreign and Commonwealth Office, Multilateral treaties published in the Miscellaneous Series. First published 17 April 2013

Table 2: Bilateral agreements and memoranda laid in 2018

Name of Agreement

Human rights analysis in EM

[CS USA No.1/2018] UK/USA: Agreement for Cooperation in Peaceful Uses of Nuclear Energy

No reference to human rights

[CS Turkey No.1/2018] UK/Turkey: Agreement on the Establishment, Functioning and Activities of Cultural Centres

No reference to human rights

[CS Poland No.1/2018] UK/Poland: Treaty on Defence and Security Cooperation

No reference to human rights

[CS Kuwait No.2/2018] UK/Kuwait: Treaty on Mutual Legal Assistance in Criminal Matters

No reference to human rights (or human rights section) despite obvious human rights issues in the content.

[CS Kuwait No.1/2018] UK/Kuwait: Extradition Treaty

No reference to human rights (or human rights section) despite obvious human rights issues in the content.

[CS Canada No.1/2018] UK/Canada: Agreement for Cooperation in the Peaceful Uses of Nuclear Energy

No reference to human rights

[CS Australia No.1/2018] UK/Australia: Agreement for Cooperation in the Peaceful Uses of Nuclear Energy

No reference to human rights

[CS Albania No.1/2018] UK/Albania: Agreement with Albania supplementing the European Convention on Extradition

No reference to human rights (or human rights section) despite obvious human rights issues in the content.

Source: Foreign and Commonwealth Office, Bilateral treaties published in the Country Series. First published October 2013

52.The current system intended to ensure Parliament has information about the human rights implications of proposed agreements is not working. Parliament has not received adequate or timely information from Government about the potential human rights implications of international agreements being negotiated or those subject to CRaG scrutiny.

53.There is more parliamentary involvement where legislative change is required. As the FCO’s submission explained:

“[…] Where a treaty requires changes to UK law, the necessary changes are made before the treaty is brought into force for the UK. It is Parliament which determines whether and how those changes are made. In the case of primary legislation, the relevant Government Department submits a report to the JCHR, with its introduction accompanied by a statement of the responsible Minister on the compatibility of the new instrument with Convention rights, within the meaning of the Human Rights Act 1998. In the case of secondary legislation, the Explanatory Memorandum highlights any human rights issues which may be of interest to Parliament.”46

54.There is, therefore, little opportunity for Parliament to scrutinise international agreements negotiated by the Government, either before or after the UK has signed a treaty. The scrutiny required under CRaG is after signature, and therefore precludes any meaningful input into the provisions of a treaty, and is for such a short period of time as to undermine any meaningful scrutiny. Under international law, even without ratification, when a State signs an international agreement, it takes on an international obligation not to defeat the object and purpose of an agreement.47 Yet, it is only after taking on this obligation by signing a treaty that, in those rare cases requiring legislation, Parliament will have some involvement. However, this involvement will be too late for any meaningful input into the agreement which has already been negotiated.

How to improve parliamentary oversight of human rights protections in international agreements

55.The submissions that we have received overwhelmingly recommend that the current system of parliamentary oversight of human rights protections in international agreements should be strengthened and improved.

56.In explaining the current challenges, Dr Sam Fowles in his submission noted:

“At present, Parliament’s role in treaty-making, as (largely) defined by Part 2 of the Constitutional Reform and Governance Act 2010 (“CRAGA”), is based on outdated principles and is not fit for purpose. The present scheme was developed at a time when foreign policy had a relatively limited impact on the domestic rights of citizens. As a result of globalisation, that is no longer the case.

Parliament’s role in treaty-making should be updated based on the principle that the level of scrutiny to which a treaty is subjected should match the level of impact that treaty will have on citizens’ rights including, in particular, human rights (“the Accountability Principle”). This is particularly important in the case of human rights because (a) human rights are fundamental rights and therefore merit the most rigorous standard of protection, and (b) human rights are universal so the UK has a moral responsibility to take into account both the human rights of UK citizens and of foreign citizens.”48

57.As the Institute for Human Rights and Business said:

“The case for UK Parliamentary oversight of human rights protections contained in international agreements contemplated by the UK is overwhelming […] International trade and support for international human rights standards are two of the key “selling points” for the UK abroad–both are essential and neither should undermine the other.”

Such agreements are often devised by technical staff focused on specific issues relevant to the department, with limited regard to broader UK commitments on human rights, transparency, and the environment. Objectives of companies and industry associations may not always align with broader human rights goals of a government. Scrutiny by a parliamentary committee is therefore essential, as has been the case for EU trade agreements.”49

58.The timing of parliamentary involvement is a particular issue: any new system must ensure parliamentary input into international agreements at the negotiating mandate stage as well as at the ratification stage, so that Parliament is not merely presented with a fait accompli.50

59.The Law Society of Scotland said:

“At a minimum, trade policy documents, including negotiation texts, should be made available to parliamentarians, both in Westminster and the devolved administrations and legislatures, to enhance transparency, facilitate scrutiny and strengthen democratic accountability. In an EU context, MEPs are able to consult such documents in so-called reading rooms, as was done in the case of EU-US TTIP negotiations. […]

Similarly, we consider that human rights protections should also be included in other types of international agreements, and scrutiny might be better achieved through the same sorts of mechanisms as suggested for trade agreements.”51

We endorse the importance of including the devolved administrations and legislatures in the scrutiny process particularly as regards Human Rights. In terms of the devolved settlement, human rights are not reserved insofar as they apply to devolved competences (except save in so far as regards the amendment or repeal of the Human Rights Act 1998). We note the important work done by the First Ministers Advisory Group on Human Rights Leadership in this regard.52 We also note that the International Trade Committee report on UK trade policy transparency and scrutiny recommended a statutory role for the devolved administrations in the formulation of trade policy, the negotiation process and the scrutiny of agreements prior to ratification.53

60.Witnesses presented different ideas for improving parliamentary scrutiny. Dr James Harrison suggested that parliamentary scrutiny might have five aims: (i) addressing the human rights situation in (future) trade partners; (ii) taking action to ensure that trade agreements do not lead to trade in human-rights-sensitive-goods (e.g. arms) between the UK and its trade partner causing human rights violations; (iii) taking action to ensure that trade in non-sensitive goods (e.g. chicken) does not negatively affect the human rights of people in the UK and/or trade partner; (iv) seeking to have positive human rights impacts through obligations in the trade or investment agreement itself (e.g. tackling slavery in supply chains); and (v) ensuring against negative human rights impact of obligations in the trade or investment agreements itself (e.g. investor protection provisions or intellectual property provisions). He considered that:

“The processes, information and analysis needed in relation to each of these five aims will be very different, as will any role for the JCHR. For instance, in relation to aim 1 above, the initial information required will be primarily in relation to the human rights situation in the potential trade partner country. In relation to aim 5, the most important initial information will be the negotiating text of the trade or investment agreement. Subsequent analysis undertaken will then be very different in nature, as will be the processes and mechanisms which would be needed to address any human rights issues arising.”54

61.Some noted that there should be a way of concentrating parliamentary energy where it was most needed, so suggested a screening and scrutiny process for human rights concerns in international agreements. For example, Dr Sam Fowles said:

“Not all international agreements will impact on human rights to the same extent. Further, international agreements (particularly trade and investment agreements) are often highly complex and wide ranging, making adequate scrutiny by a whole house of parliament impractical. The JCHR can therefore play an important role in the scrutiny of international agreements in two ways:

Information supplied to Parliament

62.One challenge in undertaking both the sifting and scrutiny role is that much depends on the timing and quality of information supplied to Parliament by Government. Many submissions argued for better information to be provided to Parliament56 and indeed submissions often argued for increased transparency more generally.57 As noted above, the JCHR rarely receives Explanatory Memoranda on international agreements specifically addressing human rights compatibility or otherwise raising human rights concerns. This needs to be improved significantly if Parliament is to perform an adequate sifting and scrutiny role.

63.There have been different solutions proposed to address this gap in adequate, timely information being provided to Parliament. The Northern Ireland Human Rights Commission has argued for an obligation for a Minister to make a statement of compatibility in relation to proposed international agreements, similar to those required for primary legislation:

“This requirement for a statement and accompanying analysis should go beyond a simple statement of compatibility to state the basis for such an assessment and any variance from international human rights standards and the rationale for any such variance. This would ensure that such a statement is meaningful and avoids becoming formulaic. This statement should also set out what mechanisms are in place to resolve disputes that arise within international agreements.”58

64.Moreover, the Northern Ireland Human Rights Commission has argued the case for requiring the Government to conduct human rights impact assessments of trade agreements post-Brexit:

“The OHCHR Guiding principles on human rights impact assessments provide clear guidance on what should be included in such an assessment. […] further elaboration is required as to the extent to which the UK Government will commit to conducting human rights impact assessments with respect to trade negotiations. The Commission suggests the Joint Committee seek clarity from Government as to the extent to which the proposed impact assessments will consider human rights compliance.”

“The OHCHR Guiding principles emphasise that impact assessments should be conducted on an ongoing and dynamic basis and the Commission considers that there is significant potential for Parliament to play an active role in monitoring the impact of trade policies. The Commission recommends that with respect to international trade agreements the proposed duty on a Minister of the Crown to provide a statement of compatibility should include a statement on how the proposed agreement will assist in the realisation of the United Nations sustainable development goals. The role of Parliament with respect to trade agreements should be ongoing and there should be specific stages at which Parliament will assess the impact of trade agreement on human rights and the realisation of the sustainable development goals in the UK and globally.”59

65.It is clear that the current arrangements under the CRaG Act are not adequate and that much more timely information is required from Government in relation to the negotiation of international agreements and human rights compliance.

66.We consider that the Government must inform Parliament of all international agreements that it intends to negotiate—at a minimum identifying the other party to the agreement and the subject matter and broad aims of the agreement. This information should also indicate any human rights issues that might be relevant to the negotiation as well as any human rights protections that might need to be sought. For international agreements engaging human rights issues, the Government should keep the Committee regularly informed of progress in negotiations.

67.The Government must provide to Parliament a human rights memorandum for all proposed international Agreements once there is a draft text. This memorandum should be communicated to the Joint Committee on Human Rights. Such a memorandum could be very short for agreements raising few (if any) human rights issues, so need not be burdensome. For those agreements raising more substantive human rights issues, such as complex trade or investment deals, extradition treaties, mutual legal assistance treaties or data sharing arrangements, more detailed human rights analysis would be required. This should help to ensure that the human rights implications of the UK’s international obligations are considered fully before the UK becomes bound by those obligations.

68.The Standing Order for the Joint Committee on Human Rights should be amended so that the remit covers “human rights relating to the UK’s international obligations (but excluding consideration of individual cases)” as well as “human rights in the UK (but excluding consideration of individual cases)”.

69.There should be a formal role, specifically covering human rights, for the devolved administrations and parliaments in the formulations of trade policy, the negotiations process and the scrutiny of agreements prior to ratification.

70.We have received many useful ideas for enhancing the parliamentary scrutiny of international agreements, which we commend to other Committees considering how the system as a whole should change. We look forward to colleagues’ views on how best to construct a parliamentary process to sift all international agreements and highlight those which require further consideration. Any such process should be properly resourced.

The example of the Sino-British Joint Declaration of 1984: Human rights in Hong Kong

71.We have received many submissions stating concerns that the Sino-British Joint Declaration of 1984 either did not adequately protect human rights—or that the enforcement of it is inadequate to protect human rights for the people of Hong Kong.60 There are particular concerns about breaches of the right to freedom of expression, freedom of the press and media, freedom of assembly and association, academic freedom, the prevention of democratically elected representatives from taking their seats, extra-judicial abductions, rule of law, interferences in business activities and clamp-downs on political speech and human rights defenders, notwithstanding the terms of the Joint Declaration.61

72.Lord Ahmad of Wimbledon in his letter of further information to the Committee, dated 3 February 2019, confirms “The Joint Declaration on the Question of Hong Kong remains as valid today as it did when it was signed over thirty years ago. It is legally binding treaty, registered with the UN, and continues to be in force”.62 Recent efforts by China seeking to claim that this International Agreement no longer applies have increased concerns about the erosion of freedoms in the Hong Kong Special Administrative Region. In its submission, Hong Kong Watch stated: “ […] in 2017, Lu Kang, the Foreign Ministry spokesperson of the People’s Republic of China, said that the Sino-British Joint Declaration was a ‘historical document’ which has no ‘practical significance’ and is ‘not binding’. This attitude has been reflected in China’s policy towards Hong Kong as the rights and freedoms guaranteed in the Joint Declaration have faced an unprecedented crackdown since 2014.”63

73.The Sino-British Joint Declaration is a very specific type of agreement (relating to hand over of territory). It highlights the difficulties of enforcing human rights protections even in an agreement which contains specific references to human rights. Although the UK Government undertakes a 6-monthly report on the implementation of the Agreement, this does not seem to be resulting in adequate maintenance of the required freedoms for people in Hong Kong. Indeed, in its submission Hong Kong Watch stated “it looks likely that in the coming years things will only worsen.”64 In his letter of further information Lord Ahmad of Wimbledon makes clear the concerns that the Foreign and Commonwealth Office has in this regard, stating “there is continued pressure on Hong Kong’s high degree of autonomy and on the rights and freedoms guaranteed by the Joint Declaration and enshrined in basic law.”65

74.Several Hong Kong-related submissions therefore suggested that in future, trade agreements should include “essential elements” clauses requiring respect for international human rights protections and should also ensure that there were strong enforcement mechanisms for such clauses.66 Hong Kong Watch stated that “Parliament must ensure that the Government is held to account”67 for its legal obligation to monitor the implementation of the Joint Declaration, a view which Dr Sam Fowles agreed with in his evidence to the Committee.68 Some also suggested specific requirements for the Foreign Secretary to report regularly to Parliament on how the human rights protections in such agreements were working in practice.69 As Lord Ahmad said in his evidence to the Committee, “where obligations have been signed up to it is, of course, incumbent upon us, as it would be for any Government who subscribe to human rights, to ensure those obligations are upheld.”70

75.We note that the Foreign Affairs Committee is currently inquiring into China and the International Rules Based System. We hope that that Committee will address this issue and that the evidence we have received will provide further background for their consideration of the Sino-British Joint Declaration.

Parliamentary oversight on the implementation of Agreements

76.Other submissions have also addressed the need for regular reporting from Government, not only at the negotiation and ratification stages, but also on the implementation of international agreements. See, for example, the submission from the Progressive Lawyers Group, who argue that there should be a requirement for the Foreign Secretary to report regularly to Parliament (and in particular to the FAC and JCHR) on how human rights protections in international agreements were working.71 Similarly, the Equality and Human Rights Commission72 and the Business Disability Forum called for better post-ratification scrutiny mechanisms.73

77.The Government should report regularly to Parliament on the implementation of international agreements containing human rights protections, so that we can monitor compliance with human rights standards. When an agreement is initially scrutinised by Parliament, Government and Parliament should agree an appropriate reporting timetable (which may only be once a Parliament in some cases). The Government should undertake a review of the measures available to it to take action where such human rights protections are not respected in practice. Where such human rights protections are not so respected, as reported to the Committee with reference to the Sino-British Joint Declaration, the Government should then take such measures as are appropriate. This should help to ensure that human rights protections contained in agreements are respected in practice and measures taken if this is not the case.

Increased Transparency

78.Some of those submitting evidence suggested that (in addition to parliamentary scrutiny) there should be increased transparency more generally.74 Linked to this there were suggestions for an increased role for a human rights expert body or the EHRC to report annually on UK compliance with its international human rights obligations75—including looking at international agreements. Increased transparency in international agreements is sorely needed. The information publicly provided to Parliament under our proposals should help towards addressing these concerns, and in facilitating these discussions with civil society.


44 Foreign and Commonwealth Office (HIA0016)

45 See for example the lack of any section on human rights compatibility in the Explanatory Memorandums for the recent UK/Kuwait Treaty on Mutual Legal Assistance in Criminal Matters: International treaty, [CS Kuwait No.2/2018] UK/Kuwait: Treaty on Mutual Legal Assistance in Criminal Matters, 5 July 2018 or the UK/Kuwait Extradition Treaty: International treaty, [CS Kuwait No.1/2018] UK/Kuwait: Extradition Treaty , 5 July 2018

46 Foreign and Commonwealth Office (HIA0016)

47 See Article 18 Vienna Convention on the Law of Treaties 1969.

48 Dr Sam Fowles (HIA0007)

49 Institute for Human Rights and Business (HIA0005)

50 See for example, The Law Society of Scotland (HIA0021)

51 The Law Society of Scotland (HIA0021)

53 International Trade Committee, Sixth Report of Session 2017–19, UK trade policy transparency and scrutiny, HC 1043, paras 83–85 and Conclusions and Recommendations 9–11

54 University of Warwick (HIA0020)

55 Dr Sam Fowles (HIA0007)

56 See for example, Amnesty International UK (HIA0015), the Equality and Human Rights Commission (HIA0017)), and the Business Disability Forum (HIA0018)

57 See for example, The Law Society of Scotland (HIA0021)

58 NIHRC (HIA0013)

59 NIHRC (HIA0013)

60 See submissions from Emily Lau (HIA0003), Hong Kong Watch (HIA0006) Hong Kong Journalists Association (HIA0008), Hong Kong UPR Coalition (HIA0009), Mr Ted Chi-fung Hui (HIA0010), Civic Party (HIA0011), The Progressive Lawyers Group (HIA0012), and HONG KONG 2020 (HIA0019).

61 Paragraph 3(5) of the Joint Declaration provides “Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region.”

62 Foreign and Commonwealth Office (HIA0022)

63 Hong Kong Watch (HIA0006)

64 Hong Kong Watch (HIA0006)

65 Foreign and Commonwealth Office (HIA0022)

66 See Hong Kong UPR Coalition (HIA0009), Mr Ted Chi-fung Hui (HIA0010), Civic Party (HIA0011).

67 Hong Kong Watch (HIA0006)

68 Q6

69 See, for example, Progressive Lawyers Group (HIA0012)

71 The Progressive Lawyers Group (HIA0012)

72 Equality and Human Rights Commission (HIA0017)

73 Business Disability Forum (HIA0018)

74 See for example, The Law Society of Scotland (HIA0021)

75 See Mr Miroslav Baros (HIA0004)




Published: 6 March 2019