Parliamentary Scrutiny of Treaties Contents

Summary of conclusions and recommendations

1.We recognise that treaty-making—specifically the negotiation and signature of treaties—is a function of the Government, exercised through the Royal Prerogative. (Paragraph 14)

2.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. (Paragraph 33)

3.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. (Paragraph 46)

4.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. (Paragraph 47)

5.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. (Paragraph 54)

6.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. (Paragraph 62)

7.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. (Paragraph 67)

8.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. (Paragraph 76)

9.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. (Paragraph 80)

10.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. (Paragraph 81)

11.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. (Paragraph 83)

12.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. (Paragraph 90)

13.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. (Paragraph 91)

14.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. (Paragraph 98)

15.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. (Paragraph 103)

16.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. (Paragraph 104)

17.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. (Paragraph 109)

18.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. (Paragraph 110)

19.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. (Paragraph 111)

20.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. (Paragraph 115)

21.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. (Paragraph 116)

22.The quality of explanatory memorandums accompanying treaties will need to improve to allow Parliament to conduct effective scrutiny. (Paragraph 122)

23.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. (Paragraph 123)

24.As part of its treaty-making after the UK leaves the European Union, the UK Government must engage effectively with the devolved institutions on treaties that involve areas of devolved competence. (Paragraph 140)

25.The UK Government will need to consult the devolved governments about their interests when opening negotiations, not just to respect the competences of those governments but also in acknowledgement of the important role devolved administrations may play in the implementation of new international obligations. It is also likely that other countries participating in negotiations will seek to ensure that any new treaty will be implemented fully throughout the UK. The same logic applies to representatives from the devolved governments forming part of the UK Government’s team in relevant negotiations. (Paragraph 141)

26.Inter-governmental relations have been under stress in recent years. This reflects in part the different political composition of the governments in Westminster, Edinburgh and Cardiff, and the significant additional strain of Brexit. As we have observed in our legislative scrutiny, this has manifested itself in a number of ways including disputes over legislative consent. (Paragraph 149)

27.It is disappointing that the recommendations of our previous reports to address the shortcomings of inter-governmental relations have not been acted on. While some tension is inevitable where competences overlap, particularly in the politically-charged context of Brexit, if problems with the inter-governmental machinery had been addressed at an earlier stage, some of them might have been ameliorated. (Paragraph 150)

28.We welcome the review of the Memorandum of Understanding on inter-governmental relations and the operation of Joint Ministerial Committee structures. It is essential that agreement can be reached on its future operation, including its dispute resolution mechanism, in order to strengthen working relationships and provide a basis for cross-government working, including the negotiation and implementation of treaties. To this end, we also welcome the announcement of a new Ministerial Forum for international trade. (Paragraph 151)

29.It is essential that the devolved governments are effectively involved in treaty negotiations. This should ensure that devolved competences are respected and that the devolved legislatures are able to undertake meaningful scrutiny of the treaty actions that will affect them, as the impact in some policy areas could be significant. (Paragraph 156)

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