Chapter 1: Scrutiny of Brexit-related international agreements
Introduction
1.This report covers six Brexit-related international agreements, or treaties, which we considered at our meeting on 12 February 2019. In this opening chapter we comment on two issues that have arisen in respect of these treaties.
Joint Committees and the amendment of international agreements
2.A common feature of many of the agreements that have been laid before Parliament is the inclusion of provision for a Joint Committee. These Joint Committees supervise the operation of an agreement and, in some circumstances, may be empowered to vary elements within it, by mutual consent. The extent of such powers is, however, a key consideration: some changes may be implemented within the governance structures established under the treaty itself, without reference to outside bodies. Other more significant changes may be tantamount to new agreements, which would be subject to the same processes, prior to entry into force, as the original treaty. Box 1 outlines the various stages in concluding treaties, which may be relevant when considering what procedures should apply in the case of more significant changes to existing agreements.
Box 1: The process of agreeing treaties
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Treaties are first negotiated by the parties and then usually initialled and signed. Unless the treaty provides that it enters into force on signature, by signing a treaty a State shows that it is in agreement with the text (and thus that it will not seek to defeat the treaty’s object and purpose). The State will usually not be bound by the treaty’s terms until the signature has been ratified and the conditions it imposes with regard to its entry into force have been fulfilled. The reason for this separate process is usually to allow for domestic processes, such as consultation with parliaments, or (in some states and with regard to some treaties) the enactment of legislation or a referendum. States determine for themselves which processes are required in order to complete ratification. In the UK, treaties that require ratification have to complete the process prescribed by the Constitutional Reform and Governance Act 2010 (the CRAG Act) before the Government can ratify them. An additional requirement results from the fact that the UK is a dualist state. In other words, a treaty ratified by the Government does not alter domestic law unless and until it is incorporated into that law by legislation. The Foreign and Commonwealth Office’s Guidance on Practice and Procedure relating to Treaties and Memorandums of Understanding (March 2014) notes: “If domestic legislation is required to enable the UK to give effect to its obligations under a treaty, the legislation should be in place before the treaty comes into force, so that the two can come into operation at the same time. It is FCO practice, therefore, to insist that any necessary UK legislation, i.e. an Act or Order-in-Council, must be in place before a treaty is ratified.” 1 The last stage of the treaty-making process is the treaty’s entry into force. Ratification does not always bring the treaty into operation, as treaties often themselves contain provisions stating what is required for their entry into force (for example, multilateral agreements may require a certain number of ratifications). Under Article 25 of the Vienna Convention on the Law of Treaties of 1969 parties can also agree that the treaty, either in whole or in part, is applied provisionally pending its entry into force. In respect of those treaties considered in this report, such provisional application is also subject to a specific clause in the treaty itself. |
3.In respect of the six agreements considered in this report, the explanatory memoranda2 supplied by the Government have in some cases included assurances as to how an agreement might be amended in circumstances where there is a need for divergence from the original text (for example where a recognised standard is updated or a quota is revised). However, this has not been done on a consistent basis. Moreover, some explanatory memoranda indicate that amendments must be made in accordance with the parties’ “respective applicable legal requirements and procedures”, but do not make clear whether this is intended to be a reference to the provisions of the CRAG Act. Going forward, Parliament will want to be clear when the full CRAG Act procedure will apply, to ensure that changes are made in a proportionate, clear and transparent fashion, and that resources are deployed appropriately.
4.When producing explanatory material on Brexit-related international agreements, the Government should provide a consistent and clear statement on the circumstances in which any future amendment of the agreement would or would not trigger the scrutiny procedures required by the Constitutional Reform and Governance Act 2010.
Consultation
5.Of the criteria against which we decide whether to draw a treaty to the special attention of the House, criterion (f) is “that further consultation would be appropriate, including with the devolved administrations”. The approach taken by the Government in addressing this issue in the explanatory memoranda considered by the Committee thus far has been variable.
6.As a general rule, explanatory memoranda should set out clearly whether there has been consultation with: (a) the devolved administrations; (b) the overseas territories (identifying, if this has been done selectively, which territories); and (c) industry or other stakeholders (and, if so, in what format). Where possible, the Government should also set out whether the consultees views on the proposed agreement were positive. Generalised statements are not sufficient to support effective scrutiny.
1 Foreign and Commonwealth Office, Treaties and Memoranda of Understanding (MOUs): Guidance on Practice and Procedures (March 2014): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/293976/Treaties_and_MoU_Guidance.pdf [accessed 12 February 2019]
2 Section 24 of the Constitutional Reform and Governance Act 2010 provides that the Government must provide an explanatory memorandum when laying a treaty under the Act.