Scrutiny of international agreements: lessons learned Contents

Summary of conclusions and recommendations

1.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. (Paragraph 28)

2.It follows that the fact that we have has 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. (Paragraph 29)

3.At the start of all treaty negotiations, the Government should provide Parliament and all relevant committees with specified high-level information. (Paragraph 34)

4.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. (Paragraph 35)

5.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. (Paragraph 45)

6.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. (Paragraph 46)

7.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. (Paragraph 56)

8.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. (Paragraph 57)

9.Any committee carrying out treaty scrutiny may wish to consider publishing clear criteria, on the basis of which it would assess and report on treaties prior to ratification. (Paragraph 58)

10.Before a treaty is ratified, the Government should provide transposition notes showing how the obligations it imposes upon the UK will be implemented in domestic law and policy. (Paragraph 59)

11.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. (Paragraph 60)

12.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. (Paragraph 66)

13.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. (Paragraph 67)

14.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. (Paragraph 68)

15.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. (Paragraph 75)

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