Chapter 1: Introduction
Background
1.Treaty scrutiny is a developing area for Parliament and one which will become more important after Brexit, as the competence to negotiate and conclude international agreements in a range of policy areas is returned to the United Kingdom. Such agreements, or treaties, increasingly have a direct impact on daily life. This is particularly the case for trade agreements, as Derrick Wyatt QC, Emeritus Professor of Law at Oxford University, told this Committee in September 2016, at a time when we were contemplating the forthcoming Brexit negotiations:
“Trade agreements have moved on. They used to be mainly about tariffs, but now they are relatively little about tariffs. They are about non-tariff barriers and harmonisation of regulatory standards. They reach deep into the domestic policy-making sphere.”
While Mr Wyatt cited trade agreements specifically, he did not limit his observation to trade: “I think there is a strong argument to be made for the scrutiny of all international trade agreements that affect domestic decision-making.”1
2.Thus treaties can embody important policy decisions and create legal obligations for the UK, impinging on the role of Parliament. They may also require legislation to be passed by Parliament, and can affect Parliament’s future ability to pass legislation that would place the UK in breach of its international law obligations. Even where treaties do not require any immediate changes to domestic law, they can develop dynamically through decision-making by treaty bodies, or following dispute resolution. This may lead to future changes or restrict domestic capacity for law-making over time. For all these reasons, parliamentary scrutiny of treaties matters.
The work of the European Union Committee
3.Since January 2019 the European Union Committee has been tasked by the House of Lords Procedure Committee with scrutinising Brexit-related treaties or international agreements. While there is no hard-and-fast definition of ‘Brexit-related’ in this context, the bulk of the agreements that we have scrutinised have been ‘rollover’ agreements. These are intended to replace agreements previously concluded between the EU and third countries or international organisations, which the UK has benefited from hitherto as an EU Member State, but which it now wishes to enter into in its own right, to ensure continuity post-Brexit. A much smaller number have been essentially new agreements, designed to deal with consequences of Brexit, such as the ending of free movement rights.2
4.It is important to note that the majority of these Brexit-related agreements form part of the Government’s contingency planning for a possible ‘no deal’ exit. If, on the other hand, the UK and EU conclude a Withdrawal Agreement, it is likely that, under the terms of that Agreement, EU international agreements will continue to apply to the UK for a transitional period, with the result that new UK-specific agreements may not be needed, at least in the short term.
5.Committees and officials in both Houses continue to reflect on the longer-term options for parliamentary scrutiny of treaties post-Brexit—most recently the House of Lords Constitution Committee, in its report Parliamentary Scrutiny of Treaties, published on 30 April.3
6.Although our role is time-limited, since January 2019 we have produced 12 scrutiny reports, considering 42 separate agreements—a substantial body of work, for which there is no precedent in the United Kingdom Parliament. We have therefore decided to pull together some reflections on our work, drawing on our experience and identifying key ‘lessons learned’. We trust that this report will complement the work of other committees, making a useful contribution to this developing area.
The legal framework
7.As we set out in our report, Scrutiny of international agreements: treaties considered on 5 February 2019,4 treaties are negotiated, signed and ratified by the Government, on behalf of the UK, under prerogative powers. Parliamentary involvement is currently limited. Parliament has a role in scrutinising treaties under Part 2 of the Constitutional Reform and Governance Act 2010 (the CRAG Act); and, as the UK operates a dualist legal system, Parliament must legislate to give domestic legal effect to any treaty that creates new legal obligations.
8.The CRAG Act provides that, with some exceptions,5 the Government may not ratify a treaty unless it has first laid a copy before Parliament, and, within 21 sitting days6 of this happening, neither House has passed a resolution that the treaty should not be ratified. A resolution passed by the Lords is advisory, while the Commons can prevent the Government from proceeding for another 21 sitting days (and the Commons can pass further such resolutions, indefinitely postponing ratification).7 The CRAG Act also provides that the Government may, exceptionally, disapply this procedure as long as it provides reasons, although it cannot do so once either House has passed a resolution.8
9.The Act provides a definition for a ‘treaty’, which broadly follows the definition in the Vienna Convention on the Law of Treaties:9 a treaty is a written agreement between States or between States and international organisations which is binding under international law.10 This means that political arrangements, such as some memoranda of understanding (MoUs), and agreements which are not made with recognised States, or international organisations, are excluded from parliamentary scrutiny. Treaties which do not have to be ratified are also excluded.
10.The CRAG Act thus applies something akin to ‘negative procedure’ to treaties—it does not require Parliament’s approval for treaties. It also says very little about providing treaty information to Parliament, and it does not provide any role for the devolved administrations, even where treaties engage areas of domestic policy that are devolved. There is no requirement for time to be found for a debate, or a vote, under the CRAG Act, even where concerns have been raised by a parliamentary committee or a motion to withhold ratification has been tabled. This is unlikely to be a major issue in the House of Lords, where the usual channels customarily provide time for debates on motions relating to secondary legislation and committee reports, but may be more of an issue in the House of Commons.
Numbers and process
11.Hitherto, international agreements, as instruments subject to parliamentary procedures, have been scrutinised by the Secondary Legislation Scrutiny Committee (SLSC).11 Since it commenced this work in the 2014–15 session the SLSC has considered 69 treaties—typically between 10 and 20 each year. The SLSC has reported on 18 treaties for information, but has not drawn any to the special attention of the House.12
12.As we noted above, we have so far reported on 42 separate Brexit-related agreements since January 2019. At the outset we decided to report on all such agreements, either reporting them for information or drawing them to the special attention of the House. Of the 42, we have drawn nine to the special attention of the House. We have aimed in all cases to report well before the expiry of the 21 sitting day period prescribed by the CRAG Act, to allow Members an opportunity to table motions for debate ahead of the deadline.
13.The flowchart at Figure 1 describes the scrutiny process we followed.
Figure 1: The process of EU Committee scrutiny of treaties
14.Treaties are reported under two headings: those to which special attention is drawn, and treaties reported for information only. Treaties in the first category were analysed in detail, whereas brief factual summaries were provided for treaties in the second category. The Committee’s target was to give Members of the House time, after report publication, to consider tabling motions for debate. Thus we aimed to report well before the 21 sitting day deadline was reached.
15.To maintain consistency of approach, the criteria we applied in determining which treaties to draw to the special attention of the House were modelled on those established by the SLSC, though they were adapted, both in the context of the task at hand, and to reflect the different characteristics of international agreements, as opposed to statutory instruments. The criteria we have applied are:
(a)That the treaty is politically or legally important, or gives rise to issues of public policy that the House may wish to debate prior to ratification;
(b)That it may be inappropriate, in view of changed circumstances since the precursor agreement was concluded by the EU;
(c)That it differs significantly from the precursor agreement to which the UK is party as an EU Member State;
(d)That it contains major defects, that may hinder the achievement of key policy objectives;
(e)That the explanatory material laid in support provides insufficient information on the agreement’s policy objective and on how it will be implemented;
(f)That further consultation would be appropriate, including with the devolved administrations.
16.Of the nine agreements we have drawn to the special attention of the House, the majority raised issues under criteria (a), (c) and (f). Of these, four have been debated on the floor of the House, in two separate debates.13 These were all ‘rollover’ trade agreements, with Chile, the Faroe Islands, the Eastern and Southern African States and Switzerland.
17.It is difficult, on the basis of this limited sample, to predict the number of international agreements that will be subject to parliamentary scrutiny in coming years, their complexity, or the controversy that will attach to them. What is clear is that post-Brexit the extension of UK competence in the international sphere will mean more treaties being negotiated and laid before Parliament, and that those treaties will engage more sensitive areas of domestic policy, both reserved and devolved. Parliament will have to take treaty scrutiny seriously and devote proportionate time and resource to the subject. New and more robust criteria for assessing treaties will also be required—neither the SLSC’s criteria (designed primarily for statutory instruments) nor our own (which reflect the Government’s aim of achieving continuity with prior EU agreements) are likely to be appropriate.
This report
18.This report, as we have stated, draws out lessons derived from our scrutiny of international agreements. We also set out some principles that could serve as a starting point to make improvements to parliamentary treaty scrutiny procedures. Our report was informed by a private, roundtable event, held on 14 May 2019, attended by parliamentary and Government officials, along with Jill Barrett (a Visiting Reader in the School of Law at Queen Mary, University of London) and our specialist adviser, Dr Holger Hestermeyer (Shell Reader in International Dispute Resolution at King’s College London). We would like to thank all who attended this helpful and instructive event.
19.We make this report to the House for debate.
2 An example of the latter category was the agreement on social security with the Government of Ireland to support the continued operation of the Common Travel Area after Brexit: see European Union Committee, Scrutiny of international agreements: treaties considered on 5 March 2019 (32nd Report, Session 2017–19, HL Paper 306).
3 Constitution Committee, Parliamentary Scrutiny of Treaties (20th Report, Session 2017–19, HL Paper 345)
4 European Union Committee, Scrutiny of international agreements: treaties considered on 5 February 2019 (27th Report, Session 2017–19, HL Paper 282). The terms ‘treaty’ and ‘international agreement’ are used interchangeably in this report.
5 Constitutional Reform and Governance Act 2010, section 23
6 Defined as days on which both Houses sit.
7 Constitutional Reform and Governance Act 2010, section 20
8 Constitutional Reform and Governance Act 2010, section 22
9 The Vienna Convention on the Law of Treaties, (1969), Article 2(1)(a) provides that a treaty is “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.
10 Constitutional Reform and Governance Act 2010, section 25
11 The SLSC retains responsibility for scrutinising any domestic secondary legislation that is required to give legal effect to Brexit-related international agreements.
12 For more details see Constitution Committee, Parliamentary Scrutiny of Treaties (20th Report, Session 2017–19, HL Paper 345), para 34.
13 HL Deb, 13 March 2019, cols 1107–1122 and HL Deb, 1 May 2019, cols 971–996