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Treaty scrutiny: working practices Contents

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Treaty scrutiny: working practices

Chapter 1: Introduction

The establishment of the International Agreements Sub-Committee

1.The International Agreements Sub-Committee was established in April 2020 as a sub-committee of the European Union Committee. This followed the decision of the House of Lords to endorse a recommendation by the Procedure Committee to revise the terms of reference of the European Union Committee by including a duty “to consider matters relating to the negotiation and conclusion of international agreements”.1

2.Although it is currently a Sub-Committee of the European Union Committee, the International Agreements Sub-Committee has been asked to consider the Government’s conduct of negotiations of international agreements with states and other international parties. This could encompass a wide range of agreements, described in detail below. The Sub-Committee is also specifically tasked to scrutinise all treaties that are laid before Parliament under the Constitutional Reform and Governance Act 2010 (the CRAG Act).

This inquiry

3.At its first meeting, the Sub-Committee agreed to conduct a short inquiry into working practices. The inquiry opened on 11 May 2020 and two private round-table meetings were held with experts on international agreements.2 We also received 15 written submissions. We would like to thank everyone who contributed helpful evidence to our inquiry.

4.This report examines some of the challenges to effective scrutiny of treaties under the UK constitutional settlement and how the Sub-Committee intends to operate within the current legislative framework. It also sets out some requests to the Government to ensure that its treaty scrutiny work is both effective and of practical assistance to interested stakeholders and the Government itself.

5.We make this report to the House for debate.

Background: some historical context

6.The UK Government signs and ratifies international agreements (or treaties—we use the terms interchangeably) under the royal prerogative. Historically, Parliament’s involvement has been limited, but as the UK is what is known as a dualist state,3 Parliament is often required to legislate to bring domestic law into line with proposed treaty obligations. This does not have to be by way of primary legislation: for example, the Institute for Government (IfG) has noted that Parliament has already given the Government many of the powers it would need to implement Free Trade Agreements (FTAs), since tariff reduction can be implemented by negative statutory instrument under section 9 of the Taxation (Cross-border Trade) Act 2018.4 Some treaties may therefore come into force without any parliamentary debate having taken place.

7.Parliament is also notified of international agreements that the Government intends to ratify. But it has no role in the negotiation of agreements and has no effective veto power under the CRAG Act (discussed below) to prevent the Government from ratifying agreements that Parliament does not feel are in the national interest.

8.Concerns about this state of affairs were expressed as far back as the nineteenth century. In the introduction to the Second Edition of his seminal work, The English Constitution, Walter Bagehot observed:

“Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous. In older forms of the English Constitution, this may have been quite right; the power was then really lodged in the Crown and because Parliament met very seldom, and for other reasons, it was then necessary that, on a multitude of points, the Crown should have much more power than is amply sufficient for the present.”5

9.Bagehot identified that, under the system as it then stood, “the Government which negotiates a treaty can hardly be said to be accountable to any one”, even though (in some cases) once the treaty has been made by the Government it cannot be undone in the same way as domestic legislation.6 He argued that it would be advantageous to “require that in some form the assent of Parliament” should be given to treaties, and that “we should have a real discussion prior to the making of such treaties.” Bagehot noted that, were this done, “We should have the reason for the treaty plainly stated, and also the reasons against it.”7

The Ponsonby Rule

10.Despite the arguments made in favour of parliamentary involvement in the agreement of treaties, reform was slow. In 1924 the Foreign Affairs Minister, Arthur Ponsonby, gave a multi-part undertaking to Parliament during the Commons Second Reading debate on the Treaty of Peace (Turkey) Bill. He affirmed that:

“It is the intention of His Majesty’s Government to lay on the table of both Houses of Parliament every treaty, when signed, for a period of 21 days, after which the treaty will be ratified …

In the case of important treaties, the Government will, of course, take an opportunity of submitting them to the House for discussion within this period. But, as the Government cannot take upon itself to decide what may be considered important or unimportant, if there is a formal demand for discussion forwarded through the usual channels from the Opposition or any other party, time will be found for the discussion of the treaty in question.”8

11.The third limb of the commitment was that the Government desired that Parliament should:

“also exercise supervision over agreements, commitments and undertaking by which the nation may be bound in certain circumstances and which may involve international obligations of a serious character, although no signed and sealed document may exist.”9

12.Over time the requirement for a treaty to lie on the table for 21 calendar days has hardened into a requirement for all treaties to be laid for at least 21 sitting days before ratification. This commitment has come to be referred to as the Ponsonby Rule.10

13.Notwithstanding the Ponsonby Rule, in 1998 Professor Robert Blackburn observed that Westminster was “the only Parliament in the European Union that lacks a formal mechanism for securing parliamentary scrutiny and approval of treaties”.11

The Constitutional Reform and Governance Act 2010

14.Two significant changes have occurred in recent years. The first was a commitment by the Government in 1996, in response to the publication of the Treaties (Parliamentary Approval) Bill, a private member’s bill, to produce Explanatory Memoranda (EM) alongside treaties. The second was the passage of the CRAG Act, which codified some aspects of the Ponsonby Rule into statute. The CRAG Act was passed following the Governance of Britain review, conducted from 2008 until 2010. The changes relating to treaties were first suggested as part of the Draft Constitutional Renewal Bill.

15.Part 2 of the CRAG Act requires that a treaty be laid before Parliament for 21 sitting days prior to ratification, accompanied by an EM “explaining 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.”

16.The CRAG Act did little new to facilitate scrutiny of agreements (since it merely codified an existing convention) and did not provide Parliament with a power to prevent the ratification of an agreement. Moreover, the obligations on the Government only arise once the agreement has been signed, which is too late in the process to influence the content of the agreement. The Act does provide the House of Commons with a power to delay the ratification of an agreement, potentially indefinitely, but this has never been used and can be sidestepped entirely in undefined “exceptional circumstances”.12 On the question of post-signature review of bi-lateral agreements, Professor Campbell McLachlan QC (Professor of International Law at Victoria University of Wellington) has observed that:

“Post-signature review suffers from the defect that it presents Parliament with an all-or-nothing choice. It can either accept the treaty in the form in which it has been negotiated, or reject it in its entirety. This greatly limits the substantive contribution that Parliament can make.”13

17.By 2016, Arabella Lang, the (then) specialist on international law at the House of Commons Library had concluded that:

“The CRAG [Act] 2010 does nothing new to help Parliament actually scrutinise treaties. In other words, there is nothing to ensure that Parliament looks at treaties in a systematic way, decides which are significant or controversial and presents its democratic opinions on them to Government at a point where it could make a difference. This is perhaps surprising given that the aim of the Governance of Britain proposals was ‘to hold power more accountable’.”14

18.In the most recent edition of Modern Treaty Law and Practice, former Foreign Office Deputy Legal Adviser, Anthony Aust, described Part 2 of the CRAG as an “unnecessary” and “cumbersome” procedure.15 In response to our call for evidence, Stephen Adams (senior counsel at Global Counsel) argued that the UK’s current structures for parliamentary oversight of treaties represent the “rudimentary minimum” to fulfil important accountability functions.16

Brexit: A new interest in treaty scrutiny

19.One reason that there may have been limited interest in domestic scrutiny of treaties is that, while the UK was an EU Member State, much of the work negotiating agreements was done by the EU on the UK’s behalf. Agreements within EU competence were scrutinised in detail by the European Parliament, including UK MEPs, and the European Parliament has veto powers in respect of certain agreements under Article 218 of the Treaty on the Functioning of the European Union. On the domestic front, the European Union Committee in the House of Lords and the European Scrutiny Committee in the House of Commons scrutinised the decisions made by UK Ministers at the main EU decision-making body, the Council. These mechanisms have now come to an end following the UK’s exit from the European Union on 31 January 2020.

20.In the 2017–19 session, there was increased interest in the future of treaty scrutiny. Until 2019, the only regular committee-based scrutiny of agreements was conducted by the House of Lords Secondary Legislation Scrutiny Committee (SLSC), which began to scrutinise treaties in the 2014–15 session. In 2019, much of this work was taken over by the European Union Committee, which scrutinised all Brexit-related agreements, while the SLSC continued to scrutinise agreements unrelated to Brexit. The EU Committee produced over 20 reports, looking at more than 50 agreements, most of them continuity trade agreements which sought to replicate or ‘rollover’ trade agreements that the EU had with third countries. Following a report of the Committee, 2019 also saw the first debate following a motion under CRAG.17

21.In June 2019 the European Union Committee published a report entitled Scrutiny of international agreements: lessons learned. It concluded that the CRAG Act was “poorly designed to facilitate parliamentary scrutiny” and highlighted potential improvements in information sharing and transparency which could enable Parliament to do a better job.18

22.The House of Lords Constitution Committee also showed interest in international agreements, publishing its report Parliamentary Scrutiny of Treaties in April 2019.19 The House of Commons International Trade Committee published a report entitled UK trade policy and transparency in December 2018.20

23.These reports were all published recently, and we do not rehearse their recommendations in detail. Nonetheless, we seek to build on their conclusions. We note that all three reports called for greater transparency; a role for Parliament much earlier in the process of negotiating international agreements; and a proper role for the devolved institutions. Significant concerns were also expressed as to whether it was possible to conduct meaningful parliamentary scrutiny within the timetable permitted under the CRAG Act.

24.The Constitution Committee recommended that a new treaty scrutiny committee should be established, which could identify treaties which required further scrutiny and draw them to the special attention of the House. It stated that:

“For significant treaties, the committee should be able to recommend that the Government extend the 21 sitting day period under CRAG, providing the committee with sufficient time to report to Parliament. The treaty committee should also be able to secure a debate on treaties it deems significant. We recommend that if the committee recommends a debate on a treaty, the Government should commit to providing time for it within the 21-day period.”21

25.The International Trade Committee also highlighted the need for sufficient time to be found between a final text of a treaty being agreed and it being presented to Parliament, in order that it is feasible for a report to be made. In addition, it highlighted the importance of involving business and civil society in the formulation and oversight of trade policy.22

26.The scrutiny of trade deals was the subject of much debate during consideration of the Trade Bill in the 2017–19 session. During the Commons Bill stages, Caroline Lucas MP proposed a new clause that would have required the Government to engage with Parliament in some detail and obtain its approval prior to the ratification of any trade agreement.

27.During the Bill’s Lords Stages, there were multiple amendments relating to Parliament’s role in trade agreements. At the beginning of Committee stage, Baroness Smith of Basildon moved a motion, agreed on division, that the Report stage should not proceed until the Government had set out its proposals for a process for making new trade agreements, “including roles for Parliament and the devolved legislatures and administrations in relation to both a negotiating mandate and a final agreement”.23 This requirement was eventually met by the publication, in February 2019, of a Command Paper entitled Processes for making free trade agreements after the United Kingdom has left the European Union.24

28.The Lords also agreed an amendment relating to parliamentary scrutiny of trade agreements. This would have, among other things, required the Government to gain consent from Parliament to its draft negotiating mandate; required the Government to consult with the devolved administrations on the content of the draft negotiating mandate; and amended the CRAG Act to require the Government to seek approval from Parliament before ratifying any new trade agreement.25

29.The Trade Bill fell at the end of the last Parliament.

30.The establishment of an International Agreements Sub-Committee in the House of Lords presents a fresh opportunity to address some of the deficiencies of the UK Parliament’s treaty scrutiny processes.

31.It is evident from the Government responses to select committee reports in the last Parliament that it is reluctant to amend the legislative framework and review the timetable for scrutiny under the CRAG Act. We have therefore used this report to set out what we believe are a series of pragmatic and proportionate recommendations to facilitate effective Parliamentary treaty scrutiny, without the need for legislative change.

32.Time and experience will tell whether it is possible to conduct meaningful scrutiny within the current timescales. Much will depend on how far the Government is willing to share information in advance of laying an agreement under the CRAG Act. Accordingly, we anticipate reviewing our work within a year and making further recommendations. If we cannot make treaty scrutiny work within the current framework, legislative change may prove the only means to ensure adequate scrutiny of international agreements.

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