In January 2019 the House of Lords Procedure Committee agreed that, for the remainder of the present session of Parliament, the European Union Committee should be tasked with scrutinising Brexit-related international agreements, or treaties. Since that time we have published 12 reports, on 42 agreements. This is a substantial body of work, for which there is no precedent in the United Kingdom Parliament. As committees in both Houses consider how Parliament should scrutinise international agreements after the UK has left the European Union, we offer this report, identifying key lessons that we have learned from our scrutiny, as a contribution to their consideration.
Parliament’s formal role in scrutinising treaties is set out in the Constitutional Reform and Governance Act 2010 (‘the CRAG Act’), and our over-riding conclusion is that the CRAG Act is poorly designed to facilitate parliamentary scrutiny. The CRAG Act provisions come into play only after treaties have been signed by the parties, and the timetable they prescribe is too short to allow proper consultation or engagement by committees. While improvements could be made without amending the CRAG Act, we note that this option remains open to Parliament.
If there is to be constructive and informed parliamentary engagement (and by extension stakeholder and wider societal engagement) in treaty-making, scrutiny needs to start earlier, before formal negotiations begin. In respect of more significant treaties, particularly trade agreements and other large-scale agreements, a clear negotiating mandate should be published in draft, forming the basis for committee engagement and consultation.
During negotiations, parliamentary committees should be kept informed of major developments, at regular intervals, in an agreed manner. There should be a general presumption in favour of transparency during treaty negotiations: while there may be occasions when the Government needs either to share information with committees in confidence, or withhold it entirely, these should be the exception, not the rule, and should be justified in each case.
When negotiations have concluded, the earlier committees can have sight of a treaty the better: we see no reason why committees should not see draft text when the treaty has been initialled (in other words, once political agreement has been reached). Such texts should also be supplied to the devolved administrations. When agreements have been signed, and the formal CRAG Act processes are engaged, the Government should provide comprehensive explanatory memoranda, which should incorporate mandatory headings, to ensure consistency across Government. We suggest an indicative list of headings.
In addition, we welcome clauses 3 and 5 of the Trade Bill, which provide for ‘parliamentary reports’ on trade agreements—though we are concerned that there is no equivalent provision for non-trade agreements. Such reports should incorporate full impact assessments; we also call on the government to provide transposition notes, to assist Parliament in ensuring that there is more joined-up scrutiny of the UK’s international obligations and their implementation in domestic law. In return, we note that committees can help Government by setting out clear criteria against which they will assess and report on agreements.
We also note that impact of international agreements does not necessarily end on signature. Agreements in many cases allow for review, amendment and dispute resolution. The Government should state clearly the circumstances in which, where treaties are amended, they will re-engage the CRAG Act process. The Government should also report regularly to Parliament on changes in international agreements to which the UK is party.
Finally, we note that the CRAG Act applies only to international agreements between States or between States and international organisations which are binding in international law. This could create a scrutiny gap, excluding political agreements or agreements with non-State entities. Any future Treaties Committee may wish to consider how to address this gap.