Treaty-making is a significant responsibility of the Government. Treaties determine the shape of policy in a wide range of areas and commit the UK to membership of international organisations. The UK is party to over 14,000 treaties and normally negotiates around 30 new treaties each year.
Treaties are binding in international law and form the basis for domestic legislation to comply with their provisions. It is therefore imperative that Parliament scrutinises the Government’s treaty actions—through the mandate, negotiation and ratification phases—that precede implementing legislation.
Parliament’s scrutiny of treaties is based on the Ponsonby rule, established nearly 100 years ago and subsequently set out in the Constitutional Reform and Governance Act 2010 (CRAG). These provisions limit Parliament’s scrutiny to a 21 sitting day period after the Government lays a completed, signed treaty before both Houses. No systematic scrutiny of treaties currently takes place prior to signature.
Treaties are subject to a negative resolution procedure, meaning that no debate or vote is required before they are ratified. During that period, the House of Commons has the power to delay ratification for a further 21 days—repeatedly, if desired—but only if the Government makes time for debates and votes to take place. The House of Lords may vote against a treaty’s ratification, however the Government can nonetheless ratify the treaty by making a statement setting out why the treaty should still be ratified. This is the limit of Parliament’s involvement in, and scrutiny of, treaties. Since the passage of the 2010 Act, no debates have taken place in the House of Commons under its provisions. While we accept that treaty-making is a function of the Government under the Royal Prerogative, the powers available to Parliament to scrutinise ministers’ actions are anachronistic and inadequate.
Evaluating the current system of parliamentary scrutiny is timely, given the UK’s impending departure from the European Union. During the period of the UK’s membership of the EU, the nature of treaties changed fundamentally—broadening from areas largely associated with international affairs—peace settlements and security alliances—to wide-ranging economic and trade agreements, encompassing diverse public policy issues. Parliament’s existing scrutiny mechanisms developed when treaty-making was profoundly different to its current state, and while many treaties were negotiated and concluded at EU-level.
To address the shortcomings in Parliament’s scrutiny of treaties, we recommend that a new treaty scrutiny select committee be established. This committee should sift all treaties, to identify which require further scrutiny and draw them to the attention of both Houses. The committee would have the option to undertake scrutiny of those treaties itself or engage the policy expertise of other select committees as appropriate. For significant treaties, the committee should be able to recommend that the Government extend the 21 sitting day period under CRAG, providing the committee with sufficient time to report to Parliament. The treaty committee should also be able to secure a debate on treaties it deems significant. We recommend that if the committee recommends a debate on a treaty, the Government should commit to providing time for it within the 21-day period.
We recommend that there should be a general principle, rather than a legal requirement, in favour of transparency throughout the treaty process. While it should remain the Government’s responsibility to decide what information should be shared with Parliament, and there will be circumstances where the national interest requires a measure of secrecy, we recommend that disclosure should be the norm rather than the exception. The treaty committee should be informed when negotiations begin and be told which parties are involved and the subject areas that are expected to be discussed. We also recommend that the quality of explanatory memorandums accompanying treaties laid before Parliament should be improved to allow the treaty committee to conduct effective scrutiny.
The treaty committee and the Government should build an effective working relationship and, over time, the trust to share confidential documents relating to treaty negotiations. We welcome the Government’s commitment to provide select committees with sensitive information about free trade agreements on a confidential basis and we recommend that, where appropriate, this be extended to negotiations relating to other forms of treaty.
The expanded remits of the devolved institutions and the challenges of shared and overlapping competences emerging as a consequence of Brexit are brought to the fore by issues around treaty-making. We reaffirm our previous recommendations for strengthened intergovernmental mechanisms to address these issues. We recommend that the UK Government engages effectively with the devolved institutions throughout the treaty process including, where appropriate, involving representatives from the devolved executives as part of the UK Government’s negotiating team. We do not see the need for the devolved legislatures to provide explicit consent to treaties, but the UK Government must take their views into account to ensure that the devolved competences are respected and in recognition that the necessary domestic legislation will be implemented by the devolved legislatures.
Treaty-making has always been a significant function of the Government, and the expanding scope of treaties in recent decades has heightened their importance. Parliament’s scrutiny processes have not kept up. The increasing volume of treaties expected after Brexit only strengthens the case for reform. The establishment of a treaty committee and greater information-sharing by the Government will provide the basis for the significant improvements in Parliament’s scrutiny that we believe are essential.