Chapter 2: Treaty-making and scrutiny
Introduction
7.Treaties are international agreements between states that have legal effect. In international law, the 1969 Vienna Convention on the Law of Treaties defines a treaty as:
“an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”4
8.Other forms of international agreements to which the UK is a party exist, such as memorandums of understanding. These are different from treaties in that they are not binding under international law. While there may be political consequences for states failing to adhere to international agreements, only treaty obligations may lead to legal ramifications for signatories that do not comply with them. While some international agreements may be worthy of scrutiny, as they are not subject to statutory parliamentary scrutiny processes and in most cases do not have legal effect, we do not consider them further in this report.
Treaty-making in the UK
9.The UK is party to over 14,000 treaties, some negotiated by the UK Government through bilateral or multilateral processes, others under the auspices of supranational institutions of which the UK is a member.5 On average, the UK negotiates, signs and ratifies around 30 treaties a year.6
10.The significance of treaties varies considerably. Sir Michael Wood, said “Some are of central importance in international and national affairs, while others are of strictly limited interest.”7 Having assessed the monthly Foreign and Commonwealth Office treaty action bulletins for 2018, former Foreign Secretary Rt Hon Jack Straw concluded that while recent treaties had dealt with important matters, they were “not likely to stir up controversy”, and many of them were “pretty prosaic”.8
11.Distinguishing between significant treaties, that may be worthy of close parliamentary scrutiny, and more “prosaic” treaties is not necessarily straightforward. Professor Michael Bowman, Director of the University of Nottingham’s Treaty Centre, explained:
“treaties are unhelpfully resistant to neat and orderly classification into predetermined categories—there is, in other words, no simple, widely agreed, all-purpose taxonomy of such instruments … Although it seems most natural and convenient to classify them as instruments in the fields of ‘human rights’, ‘trade’, ‘education’, ‘environment’ etc—not least because that tends to map most easily onto existing institutional structures and reservoirs of expertise—such an approach (at least if applied in isolation) might very well prove inappropriate or counter-productive in practice. For one thing, the precise boundaries of such categories are by no means conceptually clear or incontestable; for another, many treaties quite deliberately straddle two or more such subject areas.”9
Treaties and the Royal Prerogative
12.The negotiation and signature of treaties have historically been seen solely as the preserve of the Government, acting under the Royal Prerogative.
13.While the Supreme Court’s judgment in R (Miller) v The Secretary of State for Exiting the European Union10 raised questions about the interaction between the treaty-making prerogative and statute law in the context of EU withdrawal,11 the Government confirmed,12 and many of our witnesses agreed,13 that the principle that treaty-making is undertaken by the Government under prerogative power remains unchanged.
14.We recognise that treaty-making—specifically the negotiation and signature of treaties—is a function of the Government, exercised through the Royal Prerogative.
Parliament’s scrutiny of treaties
15.Parliamentary interest and involvement in the treaty-making process has, for the most part, been limited. Its scrutiny has primarily been of the Government legislation required to implement treaty obligations.
16.Until 2010 Parliament’s involvement in treaties operated under a convention known as the Ponsonby rule, established in 1924, which stipulated that treaties must be laid before Parliament for 21 sitting days prior to ratification.14 In 2007 the then Lord Chancellor Jack Straw proposed putting the Ponsonby rule on a statutory footing.15 This led to the process for ratifying treaties set out in sections 20–25 of the Constitutional Reform and Governance Act 2010 (CRAG).16 These provisions, which encompass but are broader than the Ponsonby rule, state that:
- A treaty may be ratified only if a Minister has laid before Parliament a copy of the treaty and within 21 sitting days17 neither House has resolved to reject it. A treaty must be accompanied by an explanatory memorandum setting out the provisions of the treaty and the Government’s reasons for seeking its ratification.
- If the House of Commons resolves against ratification—irrespective of the view of the House of Lords—a further 21 sitting day period is triggered during which the Government may lay a statement explaining why the treaty should nevertheless be ratified. The Government cannot ratify the treaty until that further 21-day period has elapsed, during which time the Commons may resolve against ratification again. This process may be repeated, so giving the Commons power to block a treaty’s ratification indefinitely.
- If the House of Lords resolves against ratification but the Commons does not, the Government may lay a statement before Parliament setting out its reasons why the treaty should nonetheless be ratified and then may proceed to ratify it. The power of the Lords over treaties is therefore limited, in practice amounting to a brief delay to ratification.
- In “exceptional cases” a minister may ratify a treaty without going through the process set out above.18 Subsequently, a copy of the treaty must be laid before Parliament and an explanation given for ratifying the treaty without the normal process. The legislation provides no guidance on what might constitute an “exceptional case”, and as such it is at the discretion of ministers to decide.
17.Since the process was established in 2010 neither House has resolved against ratification. As the evidence from Jill Barrett, Queen Mary, University of London, Professor Eirik Bjorge, Bristol University, Dr Ewan Smith, University of Oxford, and Arabella Lang, House of Commons Library, noted, “No qualifying resolution has ever been tabled under the CRAG Act, and as far as we are aware no meaningful debate or vote on a treaty has ever taken place during the s. 20 period.”19
Efficacy of the CRAG process
18.Sir Franklin Berman QC, a former legal adviser in the Foreign and Commonwealth Office, suggested that there was “nothing inherently wrong with the current arrangements [the CRAG process], which scrupulously respect the different prerogatives of the Executive and of Parliament.”20
19.However, most of our other witnesses disagreed. The current system was described as “not sufficient”,21 “not fit for purpose”,22 “ineffective”,23 “outdated”,24 “unsatisfactory”,25 “inadequate for major international agreements”,26 and not providing a “constructive balance between Parliament and government.”27 Professor David Howarth, University of Cambridge, observed:
“From the Whitehall point of view, everything is perfect. The whole process is under the control of Ministers. Parliament does not really get a look-in until after signature and, even after signature, the CRAG processes are very difficult for anyone to operate, especially in the Commons where the Government controls the agenda. So it is marvellous from their point of view. From the Westminster point of view, obviously the opposite is the case.”28
20.Rt Hon Sir Alan Duncan MP, Minister of State for Europe and the Americas, said that the provisions in CRAG were appropriate, but “ultimately, anything to do with parliamentary scrutiny is a matter for Parliament” rather than the Government.29
21.A number of shortcomings with the current system were raised. The Trade Justice Movement pointed to the lack of parliamentary involvement in treaties prior to ratification:
“Under the current system, negotiating objectives are not laid before Parliament, there is no debate and no vote before the government begins negotiations … Since Parliament is not consulted prior to negotiations, this means that there is no formal process to ensure that the views of MPs and their constituents are taken into account in shaping trade deals … This severely impacts the ability of Parliament to hold the government to account for its actions.”30
22.War on Want described the current system as presenting Parliament with a fait accompli.31 Sir Michael Wood suggested: “it might be considered desirable for there to be more scrutiny of treaties before ratification. That is, that Parliament should have more of a say leading up to the decision whether or not to ratify a treaty.”32
23.A further concern was that the CRAG provisions did not cover all types of treaty, as not all treaties provide for a ratification stage. Sir Michael Wood explained:
“Treaties do not always provide for a ratification stage; they may enter into force upon signature or come into force upon an exchange of notes. These are usually (but not always) the less significant treaties (though this is of course a subjective matter), or those not requiring implementing legislation.”33
24.Other forms of international agreement, such as UN Security Council Resolutions, are not covered by the CRAG processes. Jack Straw highlighted the significant impact some Security Council Resolutions can have on member states:
“UN Security Council resolutions are made under a treaty and they have the effect of treaties, often going further than that. They can be mandatory on all Governments, for example on sanctions, all the post 9/11 decisions made by the Security Council on terrorism and plenty elsewhere. For those, there is no process for signature or ratification. Once they have been determined in the Security Council, that is that. We are one of only five member states that can say no at the point of decision. Everybody else just has to put up with it.”34
25.Witnesses also observed that there is no guarantee that time will be made available in the House of Commons for a debate or a vote on a treaty if one is sought.35 This is similar to the concerns raised about statutory instruments subject to the negative procedure, which we highlighted in our recent report on delegated legislation.36 The Trade Justice Movement said:
“the government has little incentive to give time to debate controversial treaties as they risk losing a vote on ratification. Whilst the Opposition might force a debate on an Opposition Day, only 20 days per session are allocated for such debates, meaning that an Opposition Day debate may not be scheduled during the 21 sitting days.”37
26.Global Justice Now observed that “Parliament didn’t even have a debate on the Canadian–EU trade deal known as CETA until the British government had already authorised conclusion of the deal, despite parliamentarians requesting such a debate for over 12 months.”38
27.One counter-argument to the suggestion that meaningful debate on treaties is lacking was that Parliament would have an opportunity to scrutinise their contents when considering the legislation to implement them. However, as former Foreign and Commonwealth legal counsellor Jill Barrett said:
“This may be inadequate because the legislation commonly implements only part of the treaty, and because it will not reveal the obligations undertaken by other States parties to the treaty. For example, the obligations in the UK–USA Extradition Agreement 2003 are asymmetric, but this is not apparent from the UK’s implementing legislation.”39
28.ClientEarth, the Woodland Trust and Friends of the Earth were among a number of witnesses who argued that the 21 sitting day period was both “too short and at too late a stage to secure thorough and effective scrutiny of international treaties.”40
29.Concerns were also raised about the circumstances in which the “exceptional cases” provision in section 22 of CRAG might be invoked by the Government.41 Professor Michael Bowman said:
“it seems reasonable to suppose that by far the most likely scenario in which ill-judged or over-hasty governmental decisions might be made in this field would be one involving a situation of perceived ‘emergency’ (whether real, exaggerated or largely imagined), when public feelings might be running high and the flames of political intemperance might most easily be fanned. Yet these are precisely the circumstances in which Parliamentary scrutiny is most likely to be excluded … [the Act] permits ratification of treaties without prior reference to Parliament under the rubric of ‘exceptional cases’, a category which remains totally undefined in the Statute but is widely supposed to have emergency situations in mind.”42
30.Connected to the lack of parliamentary involvement in treaty processes were concerns about the lack of transparency and information about treaties and negotiations.43 Jill Barrett and others said that “The Government has no obligation to inform Parliament or the public about proposed, ongoing or abortive treaty negotiations.”44 Global Justice Now said: “Members of Parliament do not have the right to see or vote on government negotiating objectives, to see the negotiating papers, which would allow them to scrutinise government positions, to read impact assessments or consultations or to amend or stop a trade deal once negotiated and before it is signed.”45
31.The only information that the Government is required to provide at any point in the treaty-making process is the explanatory memorandum (EM) that accompanies a signed treaty when it is laid before Parliament. In the view of Jill Barrett, many explanatory memorandums were “very short and uninformative. This is in notable contrast to the EMs submitted with Statutory Instruments. The House of Lords Secondary Legislation Scrutiny Committee has provided detailed guidance to Government on the contents it expects to see in an EM and it comments on the quality of EMs tabled.”46
32.Lord Boswell of Aynho, on behalf of the European Union Select Committee, concluded:
“Perhaps the only reason successive Governments have been able to get away with limiting Parliament’s role in [the scrutiny of treaties] is because the treaties that matter most—particularly trade agreements—have been negotiated on our behalf by the EU. Operating in accordance with EU law, the European Commission has conducted negotiations, while the European Parliament has provided increasingly effective democratic oversight. Meanwhile, our domestic procedures for scrutinising treaties have languished.”47
33.The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed. Reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions, irrespective of the consequences of Brexit. We consider the options for reform in Chapter 4.
Committee scrutiny of treaties
34.Aside from the CRAG process, the only systematic scrutiny of treaties has been conducted by the House of Lords Secondary Legislation Scrutiny Committee (SLSC) since 2014–15. Treaties fall within the SLSC’s remit to scrutinise “every instrument (whether or not a statutory instrument) … upon which proceedings may be, or might have been, taken in either House of Parliament under an Act of Parliament.” This is “with a view to determining whether or not the special attention of the House should be drawn to it.” In its evidence, the SLSC said it had considered 69 treaties since 2014–15; it had reported on 18 of them for information and had not drawn any to the special attention of the House.48
35.Since at least 2000, the Foreign and Commonwealth Office has sent every signed treaty to the relevant departmental select committee;49 however few of these have been reported on.
36.During our inquiry the House of Lords European Union Committee undertook a temporary function to scrutinise the treaties that the Government was seeking to ‘replicate’ or ‘roll-over’ at the point the UK leaves the European Union.50 The workings of this process may provide valuable lessons on the practicalities of treaty scrutiny.
37.The SLSC concluded: “There are opportunities and compelling arguments for more effective parliamentary scrutiny of treaties … Given the role of the SLSC—essentially, policy scrutiny of secondary legislation—the SLSC, in our view, would not be the natural home for this ‘upstream’ treaty scrutiny function.”51 We share the SLSC’s view and consider its implications in more detail later in this report.
Treaty scrutiny by the European Parliament
38.While a member of the EU, competence over some policy areas, such as trade, has resided in Brussels rather than Westminster. Witnesses told us that the European Parliament has conducted effective scrutiny, particularly on wide-ranging trade agreements such as the Comprehensive Economic and Trade Agreement (CETA) with Canada.
39.Jude Kirton-Darling MEP, a member of the European Parliament’s International Trade Committee, explained that since 2010, after the Lisbon Treaty came into effect, the European Parliament had gradually evolved its narrow powers on treaties, resulting in the opening of formal inquiries and creation of “other informal powers.” This had been possible because the European Commission was required under the Lisbon Treaty “to keep the European Parliament informed in a timely and effective manner.”52 This led the Commission to provide the European Parliament with information from the point of “the draft mandate for negotiation, through the negotiation process … then out towards the ratification.” Ms Kirton-Darling also noted that, after ratification, the European Parliament’s International Trade Committee sought to “hold the negotiators to the commitments they made in agreements.”53
40.Jack Straw pointed out that the European Parliament is a markedly different institution to the UK Parliament:
“I do not believe there is a parallel between a Parliament of a unitary state, which is what we still are, and a supranational Parliament, which is what the European Parliament is … You are being led down a rabbit hole if you think there is much to learn from the practice of the European Parliament. It is a very different institution for a very different purpose.”54
41.The differences between the UK Parliament and the European Parliament are significant. In the UK, the Government draws its membership and legitimacy from Parliament, with members of the executive also remaining members of the legislature. In comparison, there is clear separation between the functions and responsibilities of the European Parliament and European Commission.
42.While the context may be different, there may be lessons of good practice that the UK could adopt after Brexit. Witnesses referred to the greater emphasis on transparency and information provision on treaties in the European Parliament. Professor Elaine Fahey, Professor of Law, City Law School, University of London, thought this dichotomy was particularly stark during the Brexit negotiations:
“The UK Parliament looks very much behind the curve. You do not look like you are getting all the information here and now. It is out there on the internet, on Twitter and on the PowerPoint slides of the EU 27. There is the dynamic of engagement with information. We live in a world where everything is leaked. You have a lot to learn about how to bring on board the provisions of the rules of procedure of the European Parliament.”55
43.The Trade Justice Movement explained that, after the talks between the EU and the USA on the Transatlantic Trade and Investment Partnership (TTIP) collapsed, the EU Commission committed to:
- “Making more negotiation objectives public
- Providing all MEPs with access to additional restricted documents, including negotiating texts, in a secure reading room
- Reducing the number of restricted documents so that MEPs have access to more information outside the secure reading room
- Publishing a list of the documents shared with the European Parliament and the Commission as well as information about who is being consulted in relation to trade negotiations
- Disclosing negotiating mandates immediately after their adoption
- Publishing final trade agreement texts in advance of the legal revision being completed.”56
44.While some of these measures were taken only in relation to the TTIP negotiations, Jude Kirton-Darling said they were “Quite a step forward”.57
45.Lord Boswell of Aynho, Chairman of the Lords EU Committee, said: “the mechanisms for treaty scrutiny that have evolved during the period of UK membership of the EU should be regarded as part and parcel of the UK’s constitutional settlement. Failure to replicate comparable arrangements domestically post-Brexit would be a retrograde step, reducing transparency and democratic accountability.”58
46.The powers that the European Parliament has developed over recent years suggest that effective scrutiny of international agreements can occur where there is sufficient political interest, information provision and powers.
47.While we do not recommend directly replicating the European Parliament’s treaty scrutiny mechanisms at Westminster, lessons may be learned from it, particularly in relation to information provision. We consider what reforms are required in more detail in Chapter 4.
4 Vienna Convention on the law of treaties. Concluded at Vienna on 23 May 1969: https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf [accessed 6 March 2019]. Agreements between states and international organisation, or between international organisations themselves are governed by 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations: http://legal.un.org/ilc/texts/instruments/english/conventions/1_2_1986.pdf [accessed 6 March 2019]
5 Foreign and Commonwealth Office, UK Treaties: Guidance to the work of the Foreign and Commonwealth Office (2 July 2013): https://www.gov.uk/guidance/uk-treaties#uk-treaties-online [accessed 6 March 2019]
6 House of Commons Library, Parliament’s role in ratifying treaties, Briefing Paper Number 5855, 17 February 2017. See also, Q 89 (Sir Alan Duncan MP)
13 See, for example, Q 41 (Sir Franklin Berman QC) and written evidence from Jill Barrett, Queen Mary, University of London, Eirik Bjorge, Bristol University, Ewan Smith, University of Oxford, and Arabella Lang, House of Commons Library (PST0020)
14 According to the Governance of Britain green paper in 2007, “the Ponsonby Rule provides that treaties which do not come into force on signature, but which instead come into force later when governments express their consent to be bound through a formal act such as ratification, must be laid before both Houses of Parliament as a Command Paper for a minimum period of 21 sitting days … Explanatory Memoranda are provided with each treaty laid before Parliament to keep it informed about the UK’s treaty intentions. Parliamentary debates are, however, rare. There is no binding mechanism for Parliament to force a debate or which dictates the form of any debate.” The Secretary of State for Justice and Lord Chancellor, The Governance of Britain, Cm 7170, July 2007, p 19: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228834/7170.pdf [accessed 6 March 2019]
15 The Secretary of State for Justice and Lord Chancellor, The Governance of Britain, Cm 7170, July 2007, p 19: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228834/7170.pdf [accessed 6 March 2019]
16 Witnesses to this inquiry used various acronyms for the Constitutional Reform and Governance Act 2010, such as CRAGA and CRaG. For the purposes of consistency in this report, we use CRAG throughout.
17 A minister may extend the 21 sitting day period by up to 21 further sitting days by laying a statement before Parliament before the period expires. This may be done repeatedly.
18 Constitutional Reform and Governance Act 2010, section 22
19 Written evidence from Jill Barrett, Queen Mary, University of London, Eirik Bjorge, Bristol University, Ewan Smith, University of Oxford, and Arabella Lang, House of Commons Library (PST0020). Shortly before the publication of this report the House of Lords debated extending the 21 sitting day scrutiny period under section 21 of CRAG for three treaties. HL Deb 13 March 2019 cols 1107–1122.
22 Written evidence from ClientEarth, Woodland Trust and Friends of the Earth England, Wales & Northern Ireland (PST0005) and Dr Sam Fowles (PST0013)
24 Written evidence from Lord Boswell of Aynho, on behalf of the European Union Select Committee (PST0026) and Dr Sam Fowles (PST0013)
25 Written evidence from ClientEarth, Woodland Trust and Friends of the Earth England, Wales & Northern Ireland (PST0005) and Susan Hedley (PST0007)
33 Ibid.
36 Constitution Committee, The Legislative Process: The Delegation of Powers (16th Report, Session 2017–19, HL Paper 225)
40 Written evidence from ClientEarth, Woodland Trust and Friends of the Earth England, Wales & Northern Ireland (PST0005). See also written evidence from the Trade Justice Movement (PST0010)
41 Written evidence from the Trade Justice Movement (PST0010) and ClientEarth, Woodland Trust and Friends of the Earth England, Wales & Northern Ireland (PST0005)
44 Written evidence from Jill Barrett, Queen Mary, University of London, Eirik Bjorge, Bristol University, Ewan Smith, University of Oxford, and Arabella Lang, House of Commons Library (PST0020)
47 Written evidence from Lord Boswell of Aynho, on behalf of the European Union Select Committee (PST0026)
49 House of Commons Procedure Committee, Second Special Report (Session 1999–2000, HC 990)
50 European Union Committee, Scrutiny of international agreements (27th Report, Session 2017–19, HL Paper 282)
53 Ibid.