20.In its report, the Constitution Committee concluded that the “current mechanisms available to scrutinise treaties through CRAG are limited and flawed”, and that “reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions”. We agree with this over-arching conclusion.
21.As we undertook our treaty scrutiny work, it became apparent that the CRAG Act suffered from certain practical weaknesses. Many of these related to the CRAG Act timetable: 21 sitting days proved insufficient for sub-committees to consult adequately with stakeholders, or for those stakeholders to conduct their own consultation or analysis. As a result, no evidence sessions were held and the opportunity for any public engagement was extremely limited.
22.The limitations that the CRAG Act places upon parliamentary involvement in the negotiation, agreement and implementation of treaties are illustrated in Figure 2. This gives an indicative overview of the stages in the process that would result in the entry into force of a typical trade agreement. In practice the process will vary, according to the subject-matter, complexity and sensitivity of each agreement. But whatever the earlier stages of negotiating and reaching agreement on a treaty, Parliament’s formal role is currently restricted to the final, implementation phase.
23.The fact that we were scrutinising Brexit-related ‘rollover’ agreements meant that the problems we encountered were less serious than they might have been in other circumstances. The agreements were negotiated in most cases with a view to mitigating a possible ‘no deal’ exit on 29 March 2019, and their aim was to ensure continuity with pre-existing agreements from which the UK already benefited (and which had previously been subject to scrutiny at both EU and national level). Our reporting criteria were drawn up accordingly, focusing on whether the new agreements differed from the precursor agreements, rather than analysing their inherent merits.
24.We also came to this task with significant advantages: the EU Committee has a large staff complement of 26, including two legal advisers, an existing sub-committee structure, and a culture of document-based scrutiny. We were also supported by our specialist adviser. Even with these advantages, completing the work within the CRAG Act deadlines was challenging. Careful consideration should be given to the staffing of any committee tasked with scrutiny of treaties in the longer term: it will probably need significant levels of staff support, including access to specialists in both international and trade law. Other stakeholders, including the devolved administrations, may also need to reflect on the level of resource that they devote to consideration of new international agreements, if they are to engage effectively in the process and have their say in the outcome.
25.In summary, the fact that we were able to report on these agreements within 21 sitting days should not be seen as a vindication of the CRAG Act. Quite the contrary: we were only able to scrutinise these agreements within that timetable because we were able to take many of their underlying principles and objectives as a given. Even so, the CRAG Act timetable was a significant impediment, precluding meaningful consultation of stakeholders and limiting the opportunity for committee Members to engage in informed consideration and discussion.
26.Our experience thus supports the Constitution Committee’s conclusion that the CRAG Act is poorly designed to facilitate parliamentary scrutiny. It presents Parliament with a ‘take it or leave it’ choice—whether or not to withhold its consent to a complex legal document, which may have taken many years to negotiate, and the text of which has been finalised. It precludes any opportunity for Parliament, or committees, to seek to influence the shape of agreements, either before or during negotiations.
27.As the Constitution Committee noted, a more effective scrutiny process would involve parliamentary engagement at three stages: (i) at the start of negotiations (the ‘mandate’ phase); (ii) during negotiations; and (iii) at the end of negotiations (the ‘signature/ratification’ phase). To this might be added a fourth stage, of continued oversight after an agreement has been implemented, as it continues to develop either due to decisions taken by treaty bodies, or following dispute settlement procedures. We outline these four stages below, suggesting ways in which parliamentary involvement could be improved. These suggestions would not require the amendment of the CRAG Act, though that option remains open to Parliament.
28.The European Union Committee has reported on the Government’s programme of continuity agreements within the timetable prescribed by the Constitutional Reform and Governance Act 2010, but this has come at a cost, reducing opportunities for consultation and collection of evidence, and limiting Member engagement. We therefore agree with the Constitution Committee that the CRAG Act is poorly designed to facilitate parliamentary scrutiny of treaties.
29.It follows that the fact that we have met the CRAG Act timetables in reporting on the Government’s programme of continuity agreements is unlikely to be a reliable guide to future scrutiny of treaties. Once the Government begins to negotiate and conclude new treaties, particularly trade agreements, detailed committee scrutiny within the timetable prescribed by the CRAG Act is unlikely to be possible. While improvements could be made without amending the CRAG Act, we note that this option remains open to Parliament.
30.In the words of the Constitution Committee: “Currently there is no requirement for the Government to alert Parliament nor to seek its consent to open treaty negotiations. There is also no real practice of Parliament being proactive in mandating the opening of negotiations for new treaties.” The Constitution Committee did not consider that Parliament should be required “to endorse the Government’s mandate”, but concluded that 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”.
31.Our experience of scrutinising international agreements immediately prior to ratification bears out the wisdom of the Constitution Committee’s observations. If there is to be informed scrutiny at the end of the process, a minimum amount of high-level information should be provided to Parliament and relevant committees at the outset, whenever the Government enters into a negotiation with a view to concluding an international agreement. This includes:
32.This basic list reflects some of the commitments made by the Department for International Trade (DIT) in its paper, Processes for making free trade agreements after the UK has left the EU. In that paper DIT undertook to publish an ‘outline approach’, including negotiating objectives and an analysis of economic impacts, and to ensure that Parliament has a role in scrutinising these documents.
33.We welcome the DIT’s openness to parliamentary engagement. Such information, provided when negotiations commence, will enable committees to plan and prioritise their work. It will provide an early opportunity for committees to consult the Devolved Administrations, Crown Dependencies, Overseas Territories and other interested stakeholders, such as business, sectoral representatives and local government. It will provide the raw material for committees to seek evidence, conduct inquiries, and make recommendations—in other words, it will set the groundwork for constructive, transparent and informed parliamentary engagement (and, by extension, stakeholder and wider societal engagement) throughout the treaty-making process.
35.In respect of more significant treaties, particularly trade agreements and other large-scale agreements, a clear negotiating mandate will be required and should be published in draft. This will form the basis for committee engagement and consultation throughout the process.
36.As well as scrutinising Brexit-related international agreements since January 2019, the European Union Committee has since the 2016 referendum sought to scrutinise the UK Government’s negotiations with the European Union, which gave rise in late 2018 to the UK-EU Withdrawal Agreement. At the outset we sought to identify a middle ground, acknowledging that it was not for Parliament to “seek to micromanage the negotiations”, but insisting that “the principle of accountability after the fact” was not “a sufficient basis for parliamentary scrutiny”.
37.The Government has largely failed to find that middle ground as the negotiations of the past two years have progressed. The Committee did hold one helpful private meeting with Government lawyers in summer 2018, to discuss progress in negotiating the text of the draft Withdrawal Agreement. But this was the exception: as a rule, the Committee has been unable to gain access to timely or detailed information on the progress of negotiations. Requests for meetings with Ministers have been turned down, and Government responses to letters and reports have been delayed and often of poor quality. Nor did this lack of transparency aid the Government in securing support for the Withdrawal Agreement: indeed, it may have been actively counterproductive, particularly when compared to the European Commission’s consistent engagement with the European Parliament.
38.Our experience with the rollover agreement programme was rather different. European Union Committee staff liaised regularly with officials at the FCO, DIT, and the Department for Exiting the European Union (DExEU). Relations were cordial and constructive, and it would not have been possible to conduct the treaty scrutiny that we undertook without their helpful assistance.
39.However, this engagement took place largely within the parameters of the CRAG process, after agreements had been finalised. Where negotiations were still active, officials were constrained even in sharing information on timing: they were rarely able to provide much advance notice as to when an agreement might be signed, or when it might be laid before Parliament. It remains unclear, almost three months after the original planned date for UK withdrawal, whether some major trade agreements, such as those with Canada and Japan, will be rolled over at all.
40.It was also notable, during the negotiation and signature of the rollover agreements, that some other Parliaments were provided with information (and sometimes treaty documents) before the UK Parliament. Given the sheer volume of agreements under scrutiny, we might have found it difficult to consider draft documents and negotiations as well as the final agreements. But looking to the future, Parliament will expect to be involved far earlier in the process.
41.Drawing on this experience, we believe that Parliament should be informed of major developments in negotiations on treaties in which it has expressed a clear interest, at regular intervals. This does not mean Parliament ‘micro-managing’ negotiations, still less conducting them. But it does mean the Government reporting regularly to Parliament and being more open than has been the case hitherto. It means, among other things, sharing draft texts where these have been agreed at negotiator level between the parties (essentially where a chapter of the agreement is considered closed) and they are not considered to be confidential—as happened with early drafts of the UK-EU Withdrawal Agreement.
42.We also agree with the Constitution Committee that there “should be a general principle (rather than a legal requirement) in favour of transparency during treaty negotiations”. While giving committees access to documents in confidence and providing private briefings may sometimes be helpful, it risks undermining the general principle that Parliament should conduct scrutiny openly. Confidential information makes it harder to engage with stakeholders and write reports, particularly where conclusions are based on undisclosable information. Committees work best when they are most transparent, to the House and to the public.
43.In some rare cases, we accept that information may be withheld from Parliament (for example where to make the information public would undermine the object and purpose of the treaty, or would cause grave harm to national security or to an individual). Nonetheless, these limited exceptions to the principle of transparency should be specified and justified as soon as is practicable by the Government. Parliament may wish to review this approach if there are indications that it is being abused by Government.
44.The question of transparency also has a bearing on intra-UK relations. In scrutinising Brexit-related agreements, we have frequently sought assurances from the Government that it has consulted the devolved administrations, so that they can comment whenever a treaty is likely to impinge on devolved competencies and interests. In future, when new treaties are being negotiated, rather than ‘rollover’ agreements, proactive engagement will be critical. Existing, informal channels of communications between the UK’s legislatures may also need to be developed and, if necessary, strengthened, to help reduce scrutiny gaps and duplication.
45.It is not Parliament’s job to micro-manage, still less conduct, treaty negotiations. But nor is it sufficient for Parliament merely to provide accountability after the fact—as the experience of the last two years so strikingly demonstrates. During the negotiation of treaties in which Parliament has expressed a clear interest, it should be kept informed of major developments, at regular intervals, in an agreed manner.
46.Treaty information provided to Parliament should generally be made public and exceptions to this must be specified and justified. The delineation between access and transparency will have to be agreed between Parliament and the Government. We accept that there may be limited occasions where access to confidential documents and briefings may usefully be provided to committees. But we agree with the Constitution Committee that there should be a presumption in favour of transparency during treaty negotiations.
47.As we have noted, Parliament’s formal role in scrutinising treaties is set out in the CRAG Act, and involves the Government laying each agreement before Parliament for period of 21 sitting days prior to ratification. During that time either House may pass a resolution calling on the Government not to ratify the agreement.
48.If Parliament is to exercise its statutory functions under the CRAG Act effectively, it will need more than the final text of a treaty immediately prior to ratification. In reality, the text of any international agreement goes through various stages in the period leading up to ratification, and the earlier committees can have sight of the text (without formally triggering the CRAG process) the more likely it is that they will be able to provide informed commentary. This was acknowledged in the Department for International Trade’s paper on scrutiny of trade agreements, which indicated that the Government “would commit to ensuring that there was sufficient time between finalising a new [Free Trade Agreement] and laying it before Parliament under the CRaG procedure so that the committee(s) could make … a report”.
49.We see no reason why committees should not see the draft text when it is initialled (in other words, when political agreement is reached). This would enable Parliament to give meaningful consideration to the obligations that would bind the UK before the Government enters into those obligations and fixes the agreement by signing it. These texts should also be supplied to the devolved administrations so that they can form a view as to whether devolved competencies and interests are engaged.
50.It is also vital that, when it is laying an agreement under the CRAG Act, the Government provides an adequate explanatory memorandum (EM). Section 24 of the CRAG Act merely states that an EM is required, and that it should explain “the provisions of the treaty, the reasons for Her Majesty’s Government seeking ratification of the treaty, and such other matters as the Minister considers appropriate”. The CRAG Act does not provide clear guidance as to the precise content of EMs, and our experience was that the information provided can be patchy. On the basis of our experience scrutinising EU documents, we see benefit in EMs incorporating a series of mandatory headings, to ensure that Government departments take a consistent approach to the information that is provided to Parliament. It will be for a future Treaties Committee to consider the structure of EMs in more detail, but we hope that the following indicative list will be helpful in informing that consideration:
51.While mandatory headings will be needed, there is a risk that the production of EMs could turn into a box-ticking exercise. The quality of the information provided by Government will be crucial, and it was notable that the Parliamentary Reports produced by DIT, to accompany the rolled over trade agreements, were particularly helpful, for instance in identifying the volumes of trade involved in a proposed agreement, and in explaining any significant differences between the new and precursor agreements.
52.Clauses 3 and 5 of the Trade Bill, currently before Parliament, make provision for similar parliamentary reports to be produced in respect of new free trade agreements. While the fate of the Trade Bill remains uncertain, we endorse this approach, though we are concerned that as things stand there will be no equivalent requirement in respect of non-trade agreements, some at least of which may be as complex and as controversial as trade agreements. We also trust that future parliamentary reports will incorporate the “full impact assessments” referred to in the DIT paper Processes for making free trade agreements after the UK has left the EU.
53.The Government should also provide transposition notes, to improve transparency and show how international agreements are to be implemented in domestic law and policy. At present, this is not always clear: for example, the EMs accompanying many of the continuity trade deals stated that the Government would implement parts of the agreements in Regulations made under the Taxation (Cross-Border Trade) Act 2018. But they did not say how the proposed agreements interacted with the provisions (and passage) of the Trade Bill. Going forward, committees will need greater clarity and certainty, so that Parliament can provide more joined-up scrutiny of the UK’s international obligations and its domestic law. Transposition notes would also help committees to identify any gaps in implementation early in the process.
54.In return, we understand from informal discussions with officials that the Government has found the provision of checklist criteria to be a useful aid to ensuring that appropriate information is supplied in its EMs. While the criteria set out at paragraph 15 will need to be adapted, we would encourage any successor committee undertaking this work to establish a similar checklist for Government departments to support the final, formal stage of parliamentary scrutiny. This would set out the criteria against which agreements would be assessed and, where necessary, reported to the House.
55.Finally, we note that formal scrutiny processes benefit from being supported by close informal dialogue. Officials in recent months have been receptive to feedback about the quality of EMs. They have also been willing to answer detailed questions about agreements, both at staff level meetings and in response to written queries. It has been particularly helpful for committee staff to have contact with (and access to) policy officials in the Government departments responsible for each treaty. All these examples of good practice should be facilitated in the future.
56.After negotiations are complete, Parliament should be given the draft treaty text as soon as it is initialled (when political agreement is reached). The subsequent explanatory memorandum, supplied when the agreement is laid before Parliament in accordance with the terms of the CRAG Act, should include mandatory headings to facilitate effective scrutiny.
57.While mandatory headings will be needed, the quality of the information and analysis provided by the Government will be still more important. We welcome the Department for International Trade’s production of parliamentary reports on rollover trade agreements, and the provisions in the Trade Bill that would create a statutory obligation to produce such reports on future trade agreements. We note, however, that non-trade agreements may be as complex and controversial as trade agreements, and that the existing requirement under the CRAG Act to produce an EM on such agreements is unlikely to meet the requirements of detailed parliamentary scrutiny.
60.Finally, we note that formal processes are not the whole story. We have benefited from close informal dialogue between committee staff and officials. Such dialogue, based on trust and mutual respect, will be vital for any Treaties Committee, at both staff and Member levels.
61.The impact of international agreements does not necessarily end on signature. Agreements can have complex governance arrangements that allow for review, amendment and dispute resolution. Many agreements have developed dynamically, evolving over time. Parliament will have to take a view as to how it wishes to keep such issues under review after an agreement has been ratified by the parties.
62.In order to facilitate this, where Parliament has an ongoing interest in an agreement, the Government should report regularly on its implementation. This should include governance arrangements, decisions made by Joint Committees operating under the agreements, and any issues and decisions arising under dispute resolution provisions. In addition, for any agreements containing human rights protections, it is possible that the Joint Committee on Human Rights will wish to monitor compliance.
63.The information requirements listed at paragraph 50 should apply equally to subsequent legally binding protocols and amendments to agreements. Currently, it is not clear when amendments to agreements will engage the provisions of the CRAG Act, particularly where they are agreed by Joint Committees without the need for ratification. It is also possible that some significant amendments may not need to be implemented in domestic legislation if the original implementing legislation is sufficiently widely drawn. This could lead to a scrutiny gap, unless relevant amendments are notified to Parliament and potential issues are outlined clearly in the initial EM accompanying the agreement.
64.This issue has been acknowledged by the Government. In a letter to the European Union Committee about the UK-Iceland-Norway Agreement on Trade in Goods, the Minister of State for Trade Policy, George Hollingbery MP, noted that certain changes to that Agreement, made by a Joint Committee, would not be subject to the CRAG Act process. The letter stated that this would “streamline the process of making amendments for technical or administrative changes” to certain Annexes to the Agreement. The letter also indicated that the Government “remains committed to ensuring the right level of Parliamentary scrutiny” and that it is keen to engage with the Committee on finding an appropriate scrutiny process for amendments.
65.In our report, Scrutiny of international agreements: treaties considered on 26 February 2019, we made the following recommendation:
“We call on Government to state clearly, in respect of all international agreements, the circumstances in which, where significant amendments are made, they should be subject to the scrutiny procedures required by the Constitutional Reform and Governance Act 2010. While there may be a case for some minor and proportionate divergence to be agreed between the parties, subject only to the passage of any necessary domestic legislation, in other cases Parliament may wish to ensure that any changes are made in a more transparent fashion, and subject to appropriate scrutiny.”
66.We reiterate our earlier recommendation that the Government should state clearly, in respect of all international agreements, the circumstances in which, where significant amendments are made, they will be subject to the scrutiny procedures required by the Constitutional Reform and Governance Act 2010.
67.We note that any committee scrutinising treaties in future will have to agree with the Government how amendments should be notified to Parliament, and how they should be scrutinised. It may be that some form of sifting mechanism will be required to ensure that this task can be conducted in a proportionate way. The experience of the European Union Committee, in sifting European documents, may be a model worthy of some consideration.
68.To support appropriate scrutiny, the Government should report regularly to Parliament on changes in international agreements to which the UK is party, including matters such as decisions by Joint Committees operating under treaties and any cases referred for dispute resolution.
69.As noted in Chapter 1, some types of agreement do not meet the definition of a treaty for the purpose the CRAG Act, but may nonetheless be of interest to Parliament.
70.In particular, there are non-legally binding political arrangements, commonly referred to as memoranda of understanding (MoUs). Calling an agreement an MoU does not, in and of itself, determine its status—unhelpfully, some treaties are also called MoUs. A true MoU is a political commitment, which can be distinguished from a treaty by the fact that it is not binding under international law. The distinction between an MoU and a treaty should be clear from the terminology used in the agreement, and some guidance has been published by the FCO.
71.During our scrutiny of Brexit-related agreements, two issues arose in respect of MoUs. The first was that some Air Services Agreements, which had been treaties between the EU and third countries, were converted into MoUs. These MoUs were never published, and although there is some precedent for Air Services Agreements to be concluded through confidential MoUs, we are concerned that this practice should not be used to circumvent proper scrutiny. Any future treaties committee may wish to consider whether it would be appropriate and proportionate to ask for details of, and perhaps even sight of the text of, proposed MoUs.
72.The second issue was that, in respect of the Economic Partnership Agreement between the UK and the CARIFORUM States (‘the UK-CARIFORUM EPA’), the Government proposed using MoUs to achieve a form of provisional application in circumstances where there was not time for the parties to complete the domestic procedures necessary to ratify the proposed agreement.
73.In our report on the CARIFORUM Agreement, we acknowledged that this was a “pragmatic solution where there is insufficient time to bring a treaty into force”. Nonetheless, it blurs the lines between a legally binding international agreement and a politically binding MoU, and raises concerns over the absence of scrutiny of MoUs. In some circumstances the distinction between legally binding agreements and political arrangements such as MoUs may be somewhat arbitrary: both may have the same policy implications and impact upon individual rights.
74.A final issue relates to the definition of a treaty, both under the Vienna Convention and the CRAG Act, which excludes agreements with entities that the UK does not recognise as a State. This arose in respect of the Agreement with the Palestine Liberation Organization on behalf of the Palestinian Authority. We give credit to the Government for publishing this agreement and submitting it to scrutiny. However, this was entirely voluntary: the CRAG Act is clear that agreements with non-State entities are not considered to be treaties and are not subject to the limited scrutiny provided for by the Act. Given the number of disputed territories around the world this may be considered a lacuna in the CRAG Act process. Parliament may wish to seek formal undertakings from the Government that any such agreements will at least be published and scrutinised, even if they fall outside the terms of the CRAG Act.
75.The Constitutional Reform and Governance Act 2010 only applies to international agreements between States or between States and international organisations which are binding under international law. This excludes scrutiny of political agreements (such as Memoranda of Understanding) and agreements with non-State entities. Any future Treaties Committee may wish to consider proportionate means to remedy the resulting scrutiny gap.
14 Constitution Committee, (20th Report, Session 2017–19, HL Paper 345), para 33
15 See Constitution Committee, (20th Report, Session 2017–19, HL Paper 345), para 68
16 Constitution Committee, (20th Report, Session 2017–19, HL Paper 345), paras 69 and 76
17 Department for International Trade, Processes for making free trade agreements after the UK has left the EU, CP 63 (February 2019): [accessed 7 June 2019]
18 European Union Committee, (4th Report, Session 2016–17, HL Paper 50), paras 17–18
19 Letter from George Hollingbery MP, Department for International Trade, to Lord Boswell of Aynho, 28 May 2019: [accessed 20 June 2019]
20 Constitution Committee, (20th Report, Session 2017–19, HL Paper 345), para 90
21 See, for example, European Union Committee, (29th Report, Session 2017–19, HL Paper 287), paras 5–6, and (31st Report, Session 2017–19, HL Paper 300), paras 14–17.
22 Department for International Trade, Processes for making free trade agreements after the UK has left the EU, CP 63 (February 2019): [accessed 7 June 2019]
23 See also Constitution Committee, (20th Report, Session 2017–19, HL Paper 345), paras 117–123.
24 See Joint Committee on Human Rights, (Seventeenth Report, Session 2017–19, HC 1833, HL Paper 310) and (Sixth Special Report, Session 2017–19, HC 2199).
25 Department for International Trade, Processes for making free trade agreements after the UK has left the EU, CP 63 (February 2019): [accessed 7 June 2019]
26 Joint Committee on Human Rights, (Seventeenth Report, Session 2017–19, HC 1833, HL Paper 310)
27 See European Union Committee, (33th Report, Session 2017–19, HL Paper 315), paras 19–20
28 Letter from George Hollingbery MP, Department for International Trade, to Lord Boswell of Aynho, 12 June 2019: [accessed 20 June 2019]
29 European Union Committee, (31st Report, Session 2017–19, HL Paper 300), para 13
30 Foreign and Commonwealth Office, ‘Treaties and memoranda of understanding (MoUs): guidance on practice and procedures’ (updated March 2014): [accessed 17 June 2019]
31 See, for example, A Aust, Modern Treaty Law and Practice, 3rd Edition (Cambridge, 2013), p 42.
32 European Union Committee, (38th Report, Session 2017–19, HL Paper 349), Box 1
33 See European Union Committee, (34th Report, Session 2017–19, HL Paper 321)