48.The UK’s departure from the European Union exposes and exacerbates many of the shortcomings in Parliament’s treaty scrutiny system. This is not simply because the UK will leave the system of EU-level negotiation and scrutiny of treaties, as set out in the previous chapter, but also because the context in which treaties are negotiated has changed profoundly during the period of EU membership. Treaties, particularly trade treaties, can cover much broader areas of public policy than in the past, and in much greater detail. Preparations for Brexit have already led to an increase in the number of treaties being laid before Parliament.
49.The content of treaties has expanded and changed over time, particularly in recent decades. Former Foreign Secretary Rt Hon Sir Malcolm Rifkind said “Traditionally, treaties were relations between states—war and peace, exchange of territory and matters of that kind; not entirely, but to a very substantial degree. Now the bulk of treaties are on trade or issues that have domestic implications.”
50.Dr Mario Mendez, Reader in Law at Queen Mary University of London, said that “there has been a radical transformation in the remit of treaty-making. Treaties are doing very different things today from what they were doing in, for example, 1924. They reach into all aspects of our daily lives in a way that they did not in 1924.” David Lawrence, Senior Political Adviser at the Trade Justice Movement, explained:
“trade agreements have substantially changed … They now cover huge areas of public policy. They have an impact on rights that ordinarily would derive from primary legislation … Things such as consumer rights, workers’ rights, environmental legislation and health standards are all affected.”
51.Witnesses highlighted the greater freedom the UK would have to negotiate new treaties after Brexit. Rt Hon David Lidington MP, Chancellor of the Duchy of Lancaster, said that “in a post-EU future, we are probably looking at a significant increase in the number of treaties that the United Kingdom will seek to negotiate and implement, and they will be quite disparate in character.”
52.Sir Franklin Berman QC said “There will be a huge burden of treaty-making, as we know from our daily press, to make up for the fact that we are no longer within the trading arrangements of the EU and the EU’s network of broader international arrangements.” Dr Dermot Hodson and Professor Imelda Maher suggested that “By one measure, the Government will need to negotiate at least 750 treaties with 168 states if it wishes to recover the agreements on trade, regulatory, nuclear and other issues that it will forego by leaving the EU.”
53.The Secondary Legislation Scrutiny Committee emphasised the strain this would put on Parliament: “Arguably, any increase in numbers will serve only to compromise further, to a greater or lesser extent, an already largely ineffective scrutiny mechanism.”
54.The UK’s departure from the European Union will result in the Government negotiating and signing more treaties than has been common in recent years. These will include complex trade treaties, which have hitherto been negotiated at EU-level and scrutinised by the European Parliament. Parliament’s scrutiny of treaties will need to adapt to these changes, as the provisions of the Constitutional Reform and Governance Act 2010 were enacted in a time where leaving the EU had not been seriously contemplated, and thus not designed to support detailed scrutiny of the volume and breadth of treaties that will be required in future.
59 (Sir Malcolm Rifkind)
60 (Dr Mario Mendez)
61 (David Lawrence)
62 (David Lidington MP)
63 (Sir Franklin Berman QC)
64 Written evidence from Dr Dermot Hodson, Birkbeck College, and Professor Imelda Maher, University College Dublin ()
65 Written evidence from the Secondary Legislation Scrutiny Committee ()