Chapter 4: Reforming treaty scrutiny
55.The shortcomings in the current system of treaty scrutiny, and the pressures that leaving the EU will place on those processes, necessitate fresh consideration of how Parliament deals with treaties. In this chapter we consider options for improving treaty scrutiny and make recommendations for reform.
A treaty scrutiny committee
56.As part of our scrutiny of the Constitutional Reform and Governance Bill, which became CRAG in 2010, we recommended that the House of Lords consider establishing a committee to scrutinise treaties.66 Many of our witnesses to this inquiry similarly suggested that Parliament required a select committee dedicated to treaty scrutiny. For example, Professor Joanna Harrington, University of Alberta, said that a treaty committee would be a “home” within Parliament for treaties and that this would have several benefits. She said it:
“Provides a visible location to where the texts of all proposed treaty actions can be sent, and kept, along with their explanatory memoranda … Serves to publicise the Executive’s reasons for wanting to ratify a treaty, with committee members able to use the committee’s processes to seek further explanations or clarifications, to propose reservations and understandings, and were an inquiry to be warranted, to receive submissions and hear testimony from witnesses.”67
57.David Lawrence from the Trade Justice Movement said:
“Committees are the obvious place where issues can be explored in more depth than just on the Floor of the House, if you get allotted time for a debate. The other good thing about parliamentary committees is that they have a level of independence from Government, which means that if they hold inquiries into trade agreements it is a better process throughout.”68
58.As a home for treaties, a treaty committee would attract more attention from parliamentarians and the public to treaties before Parliament. Jill Barrett said that at present “The only information on Parliament’s website about treaties laid before Parliament under the CRAG Act is listed under ‘Statutory Instruments’. It is very difficult to find it, even if you know it is there. There is nothing there to attract the public’s interest in Parliament’s work on treaties.”69
59.The Government suggested that it was open-minded on Parliament establishing a new treaty scrutiny committee. Sir Alan Duncan said that “anything to do with parliamentary scrutiny is a matter for Parliament”,70 but the Government was “ready to engage in discussions and consider arrangements to strengthen parliamentary scrutiny of treaties”.71 While not contradicting this view, David Lidington MP set out potential challenges a treaty committee might face:
“Would a single treaty scrutiny committee actually have within it the capacity and expertise to deal with things that might be as different as a fisheries treaty with Iceland, an FTA [free trade agreement] with Mexico, a political co-operation agreement with Kyrgyzstan or a military assistance treaty with Kuwait? It would surely be necessary, in each of those hypothetical examples, for whichever committee or committees were looking at them to take account of the views of experts on the areas of policy that were the subject matter of the treaty.”72
60.There are examples of committees focusing on treaties in other countries’ parliaments. Many witnesses identified the Joint Standing Committee on Treaties (JSCOT) in Australia as an effective model for treaty scrutiny. JSCOT reviews all treaty actions proposed by the Australian government. Before a treaty can be ratified, the Australian government sends the proposed treaty and accompanying documents to JSCOT, which can conduct an inquiry and reports on the issues. Once the report is complete, it is presented to the Commonwealth Parliament with a recommendation as to whether the treaty should be ratified.73
61.Alexander Downer, the former Australian Foreign Minister who was accountable to JSCOT for the first decade after its establishment, told us that it was a committee of “substantial prestige” as: “Treaties cover everything now, because of globalisation … Treaties have become a much more important issue than ever before … this committee has taken on quite a significant role.”74
62.We believe a dedicated treaty committee is required to provide effective parliamentary scrutiny of treaties. Such a committee would create a natural home and possible clearing house within Parliament for all treaty-related activity, building expertise amongst members and staff and providing better scrutiny of the Government’s actions. In the rest of this chapter we explore how such a committee might be constituted and how it might operate.
63.A number of witness suggested that a joint committee of both Houses would be best placed to undertake treaty scrutiny.75 For example, Dr Mario Mendez, referring to the recommendation made by the Joint Committee on the Draft Constitutional Renewal Bill in 2008, said that a joint committee would be preferable, as it would combine the “expertise that can be found in the House of Lords with the added legitimacy that flows from having elected members.”76
64.Dr Brigid Fowler, Senior Researcher at the Hansard Society, thought that there were good arguments in favour of joint committees, but the Society’s experience had been that members of both Houses had not always been keen. The success of joint committees had been a “bit hit-and-miss”, perhaps because “there are quite different cultures in the two Houses.”77
65.The House of Commons International Trade Committee recently reported on the need for parliamentary scrutiny of trade agreements. The committee concluded that “A parliamentary committee should be charged with the detailed scrutiny that will be required for future trade negotiations. At present, the most suitable committee to take this responsibility is ours.”78 As there are lots of treaties on subjects other than trade, this would not obviate the need for a separate committee to undertake treaty scrutiny.
66.At present, the Liaison Committees in both the House of Commons and the House of Lords are reviewing the structure and work of the select committees in their respective Houses.79 We hope this report will be helpful in their deliberations.
67.There is a choice to be made between establishing a treaty committee in either or both Houses, or establishing a joint committee. We recognise that there are advantages and disadvantages to any model and ultimately that it will be for the Liaison Committees in both Houses to consider whether a joint committee would be desirable. If a joint committee is not the preferred option, it would be appropriate for the House of Lords to appoint its own treaty scrutiny committee.
The stages of treaty scrutiny
68.There are three points in the treaty-making process where more effective scrutiny might take place: mandates, negotiations and ratification. At each stage we explore what scrutiny Parliament might conduct and what information it requires to undertake that work.
Mandating treaty negotiations
69.Currently there is no requirement for the Government to alert Parliament nor to seek its consent to open treaty negotiations. There is also no real practice of Parliament being proactive in mandating the opening of negotiations for new treaties.
70.Some of the non-governmental organisations (NGOs) who submitted evidence argued that Parliament should take a much more active role at the mandating stage.80 For example, the Trade Justice Movement advocated a debate and vote on “proposals to enter into formal trade negotiations, and use this to set out and approve the Government’s negotiating mandate. This will ensure that there is some degree of democratic consensus prior to a deal being negotiated”.81
71.Other witnesses thought that there should be greater involvement for Parliament, without the need for it to approve a formal mandate for opening negotiations. David Henig, Director of the UK Trade Policy Project at the European Centre for the International Political Economy, said:
“Given that Parliament and devolved administrations will need to vote to approve a Free Trade Agreement there are those who argue that they should also have to approve a mandate for talks. I do not agree that this is necessary. Government should publish their aims for talks, and MPs, Peers and devolved assemblies should have a chance to debate this, and emphasise important points, but ultimately the government should be the ones setting out what they aim to achieve, to be voted on by MPs at the end of the process.”82
72.Witnesses with experience of negotiating treaties were sceptical about this level of engagement and transparency. For example, former Foreign Secretary Sir Malcolm Rifkind did not “believe that the concept of a mandate from Parliament or from any element within Parliament would be in the public interest.”83 He said:
“[A] Government who are known to require, in advance, the approval of Parliament speak with less authority during these negotiations. It reduces the authority of the Government in the negotiations … It also implies that if you have been given a mandate and you wish to depart from the mandate, in the middle of the negotiation you have to go back and forward to your Parliament to say, ‘Can we please change the mandate that you have given us?’ It is often at the very least inconvenient, to put it mildly, and sometimes entirely impractical … The nature of any negotiation involves both sides knowing that, at some stage, they will have to offer compromises. You do not announce these compromises in advance; you keep them in reserve for when and if they are required.”84
73.Alexander Downer agreed:
“I am not sure that it would help with the Government’s capacity to negotiate. The Government’s basic view, and certainly my view, would be that the Executive, the relevant Minister and his or her department should be able to conduct the negotiations in an unfettered way … let us take into account the resources that would be involved … it would create chaos, in the amount of time that was involved.”85
74.Sir Franklin Berman QC noted that it was not always evident at the point that discussions begin that a treaty would be the outcome:
“[T]he process of entering into contact with the other side is not necessarily under the label of setting out to negotiate a treaty. It is a process of contact that might ultimately turn into a closer discussion, in the course of which the parties are not even clear at that stage whether the ultimate objective will be a treaty in the formal sense, or some other kind of understanding or less formal arrangement between them.”86
75.Setting out the Government’s position, Sir Alan Duncan MP said that it was “Parliament’s role to hold ministers to account, and ministers negotiating treaties will always need to have in their mind an understanding of which issues in those treaties are relevant to Parliament and are seen to be significant for Parliament.”87 However, he thought it would be “wrong” to “be mandated to do only certain things … Some treaties involve delicate negotiations; as soon as you throw them open to the public gaze, you destroy the strength of your negotiating hand.”88
76.We do not believe that Parliament should be required to endorse the Government’s mandate prior to commencing treaty negotiations. This would impinge inappropriately on the Government’s prerogative power and limit the Government’s flexibility in the negotiations. However, for significant or controversial treaties, the Government will want to ensure that it has the support of Parliament at the outset of negotiations in order to secure ratification to the final text of the agreement. While this may not be a formal resolution to approve a mandate or the commencement of negotiations, the Government should consider the merits of a debate or other forms of engagement at an early stage, so that Parliament is involved in the process.
Information provision at the opening of negotiations
77.At present the Government is not required to inform Parliament that treaty negotiations have begun. The only information provided about the Government’s treaty actions is a list of the treaties that the UK signed in the previous month on the Foreign and Commonwealth Office’s section of the gov.uk website.
78.The Joint Committee on Human Rights, in its recent report on human rights protections in international agreements, said the current arrangements were not adequate and recommended 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.”89
79.Shortly before the end of our inquiry, the Department for International Trade set out its proposals for Parliament’s involvement in free trade agreements after the UK has left the EU.90 In its paper the Government committed that, for future free trade agreements, it would publish an “Outline Approach” which would:
“include our negotiating objectives and be accompanied by a scoping assessment which will be informed by economic modelling, setting out the potential economic impacts of any agreement. We will ensure that Parliament has a role in scrutinising these documents so that we can take its views into account before commencing negotiations.”91
80.We recommend that the Government should inform any treaty committee when treaty negotiations begin and provide background information about the parties to the negotiations and the broad subject areas that are expected to be discussed. This will improve the information available to Parliament and allow a treaty committee to plan its scrutiny work effectively. There may be circumstances where a treaty was not the outcome initially envisaged by the Government; in such cases, the Government should alert the committee as soon as formal negotiations begin. In many cases, especially in relation to trade negotiations, such information will be in the public domain and it will not compromise the Government’s position to keep Parliament informed. We therefore welcome the Government’s commitment to provide more information to Parliament at the beginning of the process for making free trade agreements and suggest this approach be considered for all treaties.
81.We recognise that there are rare instances where the fact that negotiations are taking place is sensitive and information could not reasonably be provided to a treaty committee. On these occasions, nothing that compromises the Government’s ability to negotiate freely should be disclosed. We recommend that in such circumstances the Government informs any treaty committee at the earliest appropriate opportunity and explains why confidentiality was needed earlier in the process.
During treaty negotiations
82.Parliament’s role during the negotiations, reflecting the Government’s prerogative on treaties, is one of scrutiny. We found little support for any formal involvement of Parliament in conducting negotiations; rather, the primary concern during this phase of treaty-making was the information provided to Parliament about negotiations and the balance between transparency and confidentiality.
83.We believe that if Parliament is kept appropriately informed about the existence of ongoing treaty negotiations (subject to the qualification about exceptional circumstances in paragraph 81), existing parliamentary mechanisms, supplemented by the work of the proposed treaty committee, should be sufficient to provide effective scrutiny.
Information provision and transparency during treaty negotiations
84.Many witnesses criticised the lack of information available to Parliament during individual treaty negotiations. Global Justice Now said current disclosure of information represented a “democratic deficit” and argued that parliamentarians should have “proper rights to information, and powers to scrutinise, set guidelines, amend, and stop trade deals”.92 War on Want similarly argued:
“Transparency should be the norm during trade negotiations, so that the presumption is that material can be made public unless there is a specific and convincing reason against. In particular the UK should release its text proposals ahead of each negotiating round, and the consolidated text, showing the current state of agreement between the parties, should be released after each negotiating round. This reflects the trend for increasing transparency in EU and WTO negotiations, as well as common practice in other areas of international negotiations such as on climate change.”93
85.We heard that the UK’s treaty actions appeared to be less transparent than those of other countries.94 Michael Clancy, Director of Law Reform at the Law Society of Scotland, said that, in practice, an opaque approach by the UK Government could be futile as “other jurisdictions may have more transparency than we are prepared to give … nowadays it is very easy to sit and peruse the agendas of committees the world over. What appears to be hidden in one jurisdiction is quite open in another.”95
86.Jack Straw was more sceptical about transparency during treaty negotiations:
“There should be transparency at the beginning and the end of the process, but … in the middle of the process it should be for the negotiators to decide how much privacy and confidentiality there should be, and certainly not others … Everybody is in favour of transparency. It is motherhood and apple pie. You cannot not be, but a lot of negotiations have to take place in confidence. You are literally trying to build up confidence with the party on the other side, and if what you are doing is going to be leaked, life becomes impossible.”96
87.Mr Straw referred to negotiations with the government of Spain in 2001 on the provisions of the 1713 Treaty of Utrecht that affected Gibraltar. Sir Malcolm Rifkind made a similar point in relation to negotiations he had as Foreign Secretary during the 1990s with Argentina about the Falkland Islands:
“Sadly, as in Mr Straw’s example, it did not lead to a breakthrough, but it made significant progress in improving the bilateral relationship between our two Governments. None of that leaked or was in the public domain, and it would have been very foolish for it to be in the public domain, because any chance we might have had of seeing some even more substantial progress would have been jeopardised.”97
88.Nick Dearden, Director of Global Justice Now, said that he would like to see “a presumption of transparency” during treaty negotiations, and that if the Government wanted to keep something secret, there had to be an “explanation” and “committees should be able to argue back against that if they thought it was not justified.”98 Sir Malcom Rifkind said he did not “have any problem with the concept of a presumption of openness, as long as it is the Government who ultimately determine how far they can go.”99
89.Sir Alan Duncan MP thought that a presumption of transparency, even with the caveats suggested by Sir Malcolm Rifkind, would be an “error”:
“It would make negotiations very difficult. As we have seen already in public debate, it reduces the exchange of opinion, with the ramping up of opinion to that of simplistic slogans, which are very good for an NGO’s profile but not very good for the quality of public debate. Parliament is the place to scrutinise, and the forum of social media exchange would not be fruitful for negotiating treaties. Of course, transparency is ultimately important, but at the right stage, in the right way and at the appropriate level.”100
He did, however, recognise that the level of transparency should depend on the treaty under negotiation:
“We adjusted the level of engagement to match the appropriateness of the treaty that was being negotiated, which is probably something we would always do. We have had the Canada treaty, with lots of NGOs firing off their views. If we were to negotiate with the United States on a free trade agreement, I am sure there would be massive public interest in what was happening and what was going to be included and discussed. But if it was some kind of nuclear de-proliferation or reduction treaty, we would be in a completely different world, where a presumption of transparency would be likely to ask us to reveal lots of things that it would not be appropriate to reveal. What then would the presumption of transparency have meant? It has to be calibrated.”101
90.The level of information that can reasonably be provided to Parliament during negotiations will vary considerably, but we believe there should be a general principle (rather than a legal requirement) in favour of transparency during treaty negotiations. We would not expect such information to include negotiating strategies, ‘red lines’ or potential areas of compromise; rather the Government might provide an assessment of progress, information on any areas on which agreement had been reached, and any changes to the list of subjects under discussion.
91.The Government must remain in control of what information it considers is appropriate to disclose about negotiations. There will be instances when it is not in the UK’s national interest for information to be shared with Parliament. We expect such occasions to be the exception rather than the norm.
Information-sharing and trust
92.The reforms we propose in this report will be most effective if a treaty committee and the Government build a relationship of trust, with information sharing embedded as part of the process. Lord Boswell of Aynho said that, from his experience of chairing the EU Committee and interacting with the Government, “effective parliamentary scrutiny of treaty negotiations requires trust—a willingness to engage in frank discussion, to give access to documents, and to share and respect confidence.”102
93.Jude Kirton-Darling MEP told us that there was an effective working relationship between members of the European Parliament’s International Trade Committee and the EU’s trade negotiators:
“[As] members of the International Trade Committee we are sent confidential documents circulated among members of the Trade Policy Committee—with the exception of the most sensitive. If you are a rapporteur or shadow rapporteur on a file, you get an extra level of access to the negotiations that you are covering … On TTIP, we all enjoyed much greater transparency because we had the readouts from the negotiating teams after the negotiating rounds, which are probably the most useful thing I have ever had access to. The negotiators wrote their reports back to their headquarters in Brussels, saying, ‘This is where we have got to in this round. This is where the US is. This is the key issue’. You could see exactly what was going on in the negotiations.”103
94.She added that confidential documents had been made available in reading rooms to all MEPs during the TTIP negotiations.104 Other witnesses commented on the value of access to confidential documents during treaty negotiations.105
95.Professor David Howarth expressed scepticism about sharing confidential materials during treaty negotiations:
“In an ideal world, Ministers would trust the chairs of Select Committees not to give away secrets—which is, in effect, the system in the United States when it is working properly … The problem with Britain is that Whitehall does not trust Parliament. It does not trust anybody. It does not trust the lawyers. There is an inherent distrust by Whitehall of Westminster.”106
96.We note that during the negotiation of the UK’s withdrawal from the European Union the House of Commons compelled the Government to provide confidential sectoral analyses on Brexit to the Exiting the European Union Committee. These analyses were also given to the Lords EU Committee. Both committees held the documents in confidence while negotiations continued as to what parts of them could be made public.
97.In its recent paper, Processes for making free trade agreements after the United Kingdom has left the European Union, the Government proposed providing select committees with sensitive information during free trade agreement negotiations:
“we propose that the committee(s) could have access to sensitive information that is not suitable for wider publication and could receive private briefings from negotiating teams. This would need to be on an understanding of confidentiality, and we envisage that the committee would need to take a mixture of public and private evidence from Ministers and negotiators on the progress of negotiations. This would ensure that the committee(s) was able to follow negotiations closely, provide views throughout the process and take a comprehensive and informed position on the final agreement.”107
98.While an effective working relationship between any treaty committee and the Government should be established from the committee’s inception, trust regarding the sharing of confidential documents can develop only gradually over time. 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.
Ratifying treaties
99.As we set out in Chapter 2, the CRAG provisions allow for a “take it or leave it” vote on the final treaty text after the Government has signed the agreement but before it has been ratified. Section 20 of CRAG stipulates that treaty approval is subject only to negative resolution, with neither House guaranteed a vote on the agreement. Jill Barrett, a former FCO legal counsellor who led the Government’s work on the treaty provisions in CRAG, said that CRAG “gives legal effect to a negative vote, but does not provide any mechanism to ensure that if a debate and vote is requested by a sufficient number of members, that it will take place.”108
100.The inadequacy of the negative resolution procedure for treaty approval was foreseen by Jack Straw at the time he provided evidence to the Joint Committee on the Draft Constitutional Renewal Bill as Lord Chancellor in 2008. He told that committee “that the best solution might be to make provision in the Standing Orders of each House, that if X number said they wanted a debate and vote, there would have to be a debate and vote, and possibly also that the appropriate subject Select Committee should produce a report on it.”109
101.Many witnesses suggested that there should be a mechanism to ensure that parliamentarians are guaranteed the opportunity to debate and vote on treaties.110 Others argued that, as the scope of treaties had fundamentally changed over recent decades, more significant reform was required to make Parliament’s role commensurate with treaties’ domestic effect. For example, Dr Mario Mendez said that an affirmative resolution procedure should apply to at least certain types of treaties. This might include treaties “modifying domestic law, military treaties, treaties on joining international organisations, treaties affecting domestic spending, trade treaties and treaties affecting the rights and obligations of citizens.”111
102.Sir Alan Duncan MP drew attention to the challenges of providing an affirmative resolution on all treaties:
“[P]arliamentary time is already very much at a premium, and will be all the more so, certainly in the short term, in the aftermath of our leaving the EU. Finding time for the Commons and the Lords to grant express approval for all treaties negotiated in any one year would be very challenging; I think there were 35 last year.”112
103.A treaty committee must be able to secure a debate on treaties it deems significant. We do not believe that many treaties each session would warrant a substantive debate and so the impact on parliamentary time would be limited.
104.While the Constitutional Reform and Governance Act 2010 could be amended to provide for an affirmative resolution, we suggest altering the application of the procedures would be more straightforward. A treaty committee should be empowered to recommend a debate on a treaty and the Government should commit to providing time for it within the 21-day period. If there is opposition to the treaty, the debate would take place on a motion under section 20 of CRAG that the treaty should not be ratified. If the treaty is significant and worthy of debate, but faces no opposition, the debate could be on a neutral motion.
Functions of a treaty scrutiny committee during ratification
105.Given the number and variety of treaties that will be under negotiation and laid before Parliament, a treaty committee will need to consider how to arrange its work effectively. Many witnesses suggested that a committee should sift the treaties laid by the Government at the beginning of the 21-day period and identify which ones were worthy of further scrutiny. Sir Franklin Berman QC saw the advantages of a committee having this role:
“a sifting system that would take treaties that are of particular interest and importance, notably those that are more likely to have an effect inside the United Kingdom, and separate them from others that are purely on the foreign policy level or that might be so technical that they are of no general interest to Parliament at all. It would use that as the fork in the road to determine those that would have a more detailed examination, by whatever process is most appropriate, leaving the others aside.”113
106.Dr Brigid Fowler also referred to a committee sifting treaties:
“The range of instruments that you might be dealing with is one thing that argues for a flexible system, which suggests that you might want to be looking at some sort of sift somewhere. We would not want to oblige parliamentarians and parliamentary staff to spend time on treaties that nobody has a problem with and do not warrant it.”114
107.The Joint Standing Committee on Treaties (JSCOT) in Australia operates such a sifting mechanism.115 The Australian government designates whether a treaty is ‘major’, ‘minor’ or ‘technical’; however JSCOT can re-categorise them if it disagrees with the government’s assessment. JSCOT undertakes an inquiry and reports on those treaties deemed to be more significant. As part of its initial work, the proposed treaty committee may wish to consider whether this model would be appropriate for the UK Parliament. The committee might also wish to consider whether all treaties categorised as ‘major’ should be subject to a debate, as we set out earlier in the chapter.
108.We heard a range of views on whether a treaty committee should sift and scrutinise treaties, or whether it should sift treaties and refer them to other select committees for scrutiny. Jill Barrett and others suggested:
“a hybrid model, in which a treaty committee sifts treaties and sends as many as possible to specialist committees, but handles some treaties itself, such as those with cross-cutting effects and those without a clearly responsible committee. The hybrid model seems to us the most appropriate and effective.”116
109.A hybrid model would allow a treaty committee to work closely with other committees in either or both Houses to use their policy knowledge, while building its own expertise on cross-cutting agreements that touch on a range of policy areas. Another option would be for the treaty scrutiny committee to sift treaties and identify which it wishes to report on. If a treaty committee in the Lords was tasked with this, it might be empowered to appoint sub-committees to scrutinise individual treaties, on to which it could co-opt members of the House with experience relevant to the treaty in question. We suggest that any treaty committee seeks to draw on the expertise of other committees and members to assist its scrutiny through whatever process it considers appropriate.
110.We recommend that the proposed treaty committee undertake a sifting function to identify which treaties are of greatest significance and to draw those to the attention of Parliament.
111.We recommend that the Government keeps the proposed treaty committee informed in broad terms about the treaties that are under negotiation, in order that the committee can anticipate which treaties will need to be sifted for greater scrutiny and prepare accordingly.
Time available for scrutiny
112.Under the CRAG provisions, the 21 sitting day period required before ratification begins once a treaty has been laid before Parliament. We heard concerns, set out in Chapter 2, that this period was too short to conduct meaningful scrutiny.
113.In comparison, JSCOT has a similar amount of time to consider the Australian government’s proposed treaties. The most significant treaties, Category 1, are reported on within 20 sitting days, while Category 2 treaties are reported on within 15 days. Alexander Downer suggested that this “does not sound very long”, but this has “not been a particular problem … and the committee can always ask for an extension.”117
114.In its paper on Parliament’s scrutiny of free trade agreements, the Government recognised the challenges for a treaty committee of reporting with the 21 sitting day period and committed to ensuring “there was sufficient time between finalising a new FTA [free trade agreement] and laying it before Parliament under the CRAG procedure so that the committee(s) could make such a report.”118
115.We welcome the Government’s commitment to provide the text of trade agreements to a committee prior to laying them before Parliament for the purposes of the Constitutional Reform and Governance Act 2010. We recommend that this process is followed for all types of treaty.
116.In addition, section 21 of the Constitutional Reform and Governance Act 2010 allows for the 21 sitting day period to be extended at the discretion of ministers. A treaty committee should not be constrained in its scrutiny by the 21 sitting day provision in the CRAG. We recommend that the Government commits to extending the treaty consideration period if requested by the proposed treaty committee to allow for the completion of scrutiny, unless there are exceptional reasons not to do so.
Information provided with signed treaties
117.Every signed treaty laid before Parliament is accompanied by an explanatory memorandum (EM) produced by the Government. The laying of an EM developed as a convention from 1997 and was formalised in section 24 of CRAG in 2010.
118.Jill Barrett said that the information provided in EMs was limited: many were “very short and uninformative” and they compared poorly to those accompanying secondary legislation.119 She added:
“These deficiencies are illustrated by a recently laid treaty: Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. The UK signed it on 5 May 2008; it was laid before Parliament with an EM on 12 April 2018 (a delay of 10 years); and ratified on 20 June 2018. The EM consists of 2 pages with scant information beyond a summary of the aims of the Convention. For example, on implementation, it merely states: ‘In order to ratify the Convention the UK has taken the necessary legislative and administrative steps to implement the Convention in UK law (including the devolved administrations).”120
119.This view was echoed by the House of Lords European Union Committee in a recent report. In relation to two treaties, the Committee concluded that the supporting explanatory material provided “insufficient information on their policy objectives and on how they will be implemented.”121
120.In comparison, witnesses told us that other countries’ parliaments receive more substantive explanatory materials, with particular reference made to the parliaments of Australia and New Zealand. In Australia, a National Interest Analysis accompanies each proposed Category 1 and Category 2 treaty, setting out the government’s view on:
- “the economic, environmental, social and cultural effects of the proposed treaty;
- the obligations imposed by the treaty;
- how the treaty will be implemented domestically;
- the financial costs associated with implementing and complying with the terms of the treaty; and
- the consultation that has occurred with State and Territory Governments, industry and community groups and other interested parties.”122
121.Michael Clancy told us that he was “particularly attracted by the requirement” of the National Interest Analysis in Australia, adding:
“That strikes me as a very worthwhile addition to the material one might give to Members who have to look at treaty provisions. It will have to be different from Explanatory Memoranda. An Explanatory Memorandum can sometimes be little more than the reworking of the words on the page. I say that as someone who has written an Explanatory Memorandum or two in my time. It is sometimes difficult to explain other than simply by reworking the words on the page.”123
122.The quality of explanatory memorandums accompanying treaties will need to improve to allow Parliament to conduct effective scrutiny.
123.The proposed treaty committee could set guidelines for the Government on the expected contents of explanatory memorandums and other materials such as impact assessments, similar to those developed for statutory instruments by the Secondary Legislation Scrutiny Committee.
66 Constitution Committee, Constitutional Reform and Governance Bill (11th Report, Session 2009–10, HL Paper 98), para 16
73 Parliament of Australia, Joint Standing Committee on Treaties, ‘Role of the Committee’: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/Role_of_the_Committee [accessed 6 March 2019]
75 Written evidence from ClientEarth, Woodland Trust and Friends of the Earth England, Wales & Northern Ireland (PST0005)
78 International Trade Committee, UK trade policy transparency and scrutiny (Sixth Report, Session 2017–19, HC 1043)
79 House of Commons Liaison Committee, ‘Select Committee system effectiveness and influence inquiry launched’, 18 January 2019; House of Lords Liaison Committee, ‘Select Committee review in the House of Lords launched’, 18 January 2018.
80 Written evidence from War on Want (PST0009), ClientEarth, Woodland Trust and Friends of the Earth England, Wales & Northern Ireland (PST0005), and Global Justice Now (PST0001)
84 Ibid.
88 Ibid.
89 Joint Committee on Human Rights, Human Rights Protections in International Agreements (17th Report, Session 2017–19, HC 1833 HL Paper 310), paras 65–66. See also Appendix 3.
90 Department for International Trade, Processes for making free trade agreements after the United Kingdom has left the European Union, CP 63, February 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782176/command-paper-scrutiny-transparency-27012019.pdf [accessed 6 March 2019]
91 Ibid.
101 Ibid.
102 Written evidence from Lord Boswell of Aynho, on behalf of the European Union Select Committee (PST0026), and Dr Sam Fowles (PST0013)
104 Ibid.
105 See, for example written evidence from ClientEarth, Woodland Trust and Friends of the Earth England, Wales & Northern Ireland (PST0005) and Professor Elaine Fahey (PST0006)
107 Department for International Trade, Processes for making free trade agreements after the United Kingdom has left the European Union, CP 63, February 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782176/command-paper-scrutiny-transparency-27012019.pdf [accessed 6 March 2019]
109 Written evidence from Jill Barrett (PST0021) and Joint Committee on the Draft Constitutional Renewal Bill, Minutes of Evidence, 1 July 2008
110 See written evidence from Global Justice Now (PST0001), ClientEarth, Woodland Trust and Friends of the Earth England, Wales & Northern Ireland (PST0005) and Dr Sam Fowles (PST0013)
115 For more information on JSCOT, see Parliament of Australia, Joint Standing Committee on Treaties, ‘Role of the Committee’: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/Role_of_the_Committee [accessed 6 March 2019]
116 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)
118 Department for International Trade, Processes for making free trade agreements after the United Kingdom has left the European Union, CP 63, February 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782176/command-paper-scrutiny-transparency-27012019.pdf [accessed 6 March 2019]
120 Ibid.
121 European Union Committee, Scrutiny of International Agreements; Treaties considered on 26 February (31st Report, Session 2017–19, HL Paper 300), Summary
122 Parliament of Australia, Joint Standing Committee on Treaties, ‘Role of the Committee’: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/Role_of_the_Committee [accessed 6 March 2019]