The Constitution Committee has launched an inquiry into the parliamentary scrutiny of treaties and invites individuals and organisations to submit evidence.
When the UK leaves the European Union, the Government will seek to rollover and replicate some existing international treaties and begin negotiation on new treaties. These will be both with the EU and with other countries, and on a wide range of topics including aviation, fisheries and nuclear safety, as well as trade.
Parliament currently has few procedures or mechanisms for scrutinising the government’s treaty actions, and its role needs to be re-examined to ensure that it is sufficiently robust to deal with potentially many more treaties.
Parliament’s treaty role was put on a statutory basis by the Constitutional Reform and Governance Act 2010. The Act formalised some of the Ponsonby Rule, placing a requirement on the Government to lay before Parliament most treaties that it wishes to ratify, along with an Explanatory Memorandum. For the first time, the Act also gave parliamentary disapproval of treaties statutory effect, and gave the House of Commons a power to block ratification. In addition, since 2014 the Secondary Legislation Scrutiny Committee has scrutinised treaties laid before Parliament at the point of ratification, and some select committees also look at some treaty actions in their areas. Further, parts of some treaties need implementing legislation in the UK, allowing Parliament to consider how those elements will be implemented in the UK. But unlike in some other countries, Parliament does not have to approve most treaties, or debate or vote on them, and has no formal opportunity to influence their terms.
Parliamentary scrutiny of treaties at the EU-level is more substantial. The EU Parliament is required to authorise the opening and conclusion of treaty negotiations and the EU’s negotiator is required to keep the relevant parliamentary committee fully updated throughout the process. This system of parliamentary oversight of negotiations and treaty agreements will cease to apply after Brexit, resulting in a reduction in the scrutiny of treaties that affect the UK.
For this inquiry, the Committee is interested in: the effectiveness of Parliament’s current treaty role; how other countries’ parliaments and the EU Parliament conduct treaty scrutiny; and, how and when Parliament should scrutinise government’s negotiating of and agreement to treaties after Brexit.
The Committee welcomes written submissions on any aspect of this topic, and particularly on the issues and questions set out below. Submissions need not address all the questions. We welcome contributions from all interested individuals and organisations.
1.How effective is Parliament’s current scrutiny of treaties in both holding the Government to account and helping it get the best agreements possible? How useful are the processes and powers under the Constitutional Reform and Governance Act 2010 and do they strike the right balance between Parliament and government?
2.What challenges does Brexit pose for Parliament’s consideration of treaties?
3.What role should Parliament have in the future in scrutinising treaties, from potentially requiring approval for the negotiating mandate through negotiations themselves to treaty agreement, as well as in subsequent treaty actions like amendments, derogations, enforcement and withdrawal? How should this link to Parliament’s consideration of treaty-implementing legislation?
4.To what extent, if at all, does the judgment of the Supreme Court in the Miller case on triggering Article 50 have implications for the government’s future treaty actions?
5.Should different types of treaties be subject to different levels of scrutiny? If so, how should these be differentiated?
6.Is a parliamentary treaties scrutiny committee required to examine government treaty actions post-Brexit? If so, how should it be composed and supported, and what powers should it have? Or would another model be appropriate?
7.What information should the government provide to Parliament on its treaty actions? Should there be a regular reporting requirement during negotiations?
8.How might the government and/or Parliament best engage other stakeholders and members of the public during treaty negotiation and scrutiny?
9.What models of treaty scrutiny in other countries are most effective and what might the UK Parliament learn from them?
10.What role should the devolved institutions have in negotiating and agreeing treaties?