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Treaty scrutiny: working practices Contents

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Chapter 2: Processes and requirements for effective scrutiny

Workstreams and scrutiny

33.We anticipate that the new Sub-Committee’s three main workstreams are likely to be:

• scrutiny of agreements subject to ratification under the CRAG Act;
• inquiries on proposed FTAs; and
• inquiries on international agreements or proposed agreements that are unrelated to trade.

34.In respect of the first of these, we are tasked with scrutinising all international agreements subject to ratification under the CRAG Act. This means that, in addition to FTAs, we will scrutinise a wide range of other agreements relating to the environment, security, private international law and other matters. We will draw those that are most important to the special attention of the House of Lords.

35.Questions also arise over the scrutiny of amendments to international agreements, and ‘treaty-like documents’ which are not covered by the CRAG Act. These include agreements with entities that the UK Government does not recognise as a State (e.g. the Palestinian Authority) and Memoranda of Understanding (political agreements between States which are not binding in international law, but which may prompt interest and debate) (MoUs).26 These issues are considered in more detail in Chapter 3.

Criteria for whether to draw a treaty to the special attention of the House

36.The Sub-Committee will use the following criteria, originally adopted by the European Union Committee and subject to only one minor amendment,27 in deciding whether to draw a treaty to the special attention of the House:

(a)that it is politically or legally important, or gives rise to issues of public policy that the House may wish to debate prior to ratification;

(b)in the case of any agreement that is intended to ‘roll over’ an agreement by which the UK was previously bound, as an EU Member State, that it differs significantly from the precursor agreement, or that it is inappropriate, in view of changed circumstances since the precursor agreement was concluded by the EU;

(c)that it contains major defects, that may hinder the achievement of key policy objectives;

(d)that the explanatory material laid in support provides insufficient information on the agreement’s policy objective and on how it will be implemented;

(e)that further consultation would be appropriate, including with the devolved administrations.

37.These criteria were originally developed with the continuity agreements in mind, and do not focus on the merits of individual agreements, but rather whether they accurately replicated the existing EU agreement. The criteria are, nonetheless, flexible and can be usefully retained, in their modified form, during the implementation period, during which there may be further rollover agreements. However, it is important to stress that in respect of all new agreements an assessment will be made of the merits of the underlying agreements, and that the scrutiny criteria will not act as a constraint on this.

38.For the remainder of this Parliamentary session, the criteria for scrutinising international agreements will be as set out in paragraph 36.

39.However, there will be a significant change in practice. In 2019, the application of the scrutiny criteria was focused on a consideration of whether trade continuity agreements successfully rolled over existing trade agreements. Going forward, the Committee will assess all new agreements on their merits and will consider whether they are politically, economically or legally important, or give rise to issues of public policy that the House may wish to debate prior to ratification, as well as how effectively the Government has secured its stated aims and negotiating objectives.

Parliamentary debates

40.Under Part Two of the CRAG Act, it is open to the House of Lords to resolve that a treaty should not be ratified. No such motion for resolution has been tabled, and even if it were to be tabled and agreed by the House its effect would be merely advisory: if the Government decides to proceed with ratification notwithstanding, the Act requires that the Minister of the Crown ratifying the agreement lay before Parliament a “statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why”.28 By convention, where the European Union Committee has drawn an agreement to the special attention of the House, and a motion for debate has been tabled (even if it does not use the form of words specified in the CRAG Act), the usual channels have assisted in finding time for a debate to be held.

41.We are grateful for the support of the usual channels in finding time to debate motions relating to international agreements to which special attention has been drawn. This reflects the earlier recommendation by the House of Lords Constitution Committee. We look forward to the continuation of this support.

42.In circumstances where it is not practicable to hold a debate within the CRAG timetable, we would expect that the 21-sitting-day period be extended, unless there are exceptional circumstances to justify the ratification of the agreement without a debate.

Relations with other parliamentary committees

43.Several other Select Committees have an interest in treaties, FTAs and international relations generally. Notably, in the House of Commons, there may be an overlap with the International Trade Committee on the scrutiny of trade agreements. Parliament’s Joint Committee on Human Rights will take an interest in those agreements that have an impact on human rights frameworks, directly or indirectly. And in the House of Lords the International Relations and Defence Committee is responsible for considering policy issues relating to international relations. Other committees in both Houses may wish to scrutinise agreements which cover particular subjects, such as extradition, defence, or the environment.

44.The number of Committees with shared interests means that we will have to work together cooperatively to ensure that Parliament holds the Government to account across the range of areas related to international agreements. This can be facilitated in several ways, including at official level; through Chair-to-Chair meetings; and, potentially, via joint Committee meetings. We welcome the Commons International Trade Committee’s willingness to work together to ensure the two Committees’ scrutiny of international trade matters is carried out in a complementary way.29

Relations with the devolved executives and legislatures

45.One of the most significant issues identified during the EU Committee’s scrutiny of Brexit-related agreements was the level of engagement with the devolved administrations in Scotland, Wales and Northern Ireland. Initially there were concerns that the devolved administrations were not consulted until very late in the process, sometimes when agreements had already been signed. Following proactive engagement with the Government, it was agreed that the devolved administrations would be provided with copies of agreements when they were ‘stable’—namely, when they were initialled.

46.In its lessons learned report, the Committee noted that in future, when new treaties are being negotiated, rather than ‘rollover’ agreements, “proactive engagement will be critical”. It also suggested that “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”.30

47.New agreements may well engage devolved competencies and interests, and appropriate consultation will be vital. As the IfG has observed, new international agreements may well require legislation to be passed by the devolved legislatures. This “will not just be relevant to FTAs, but also, for example, to environmental and fisheries agreements”.31 Colin Murray and Dr Clare Rice argued that Brexit “has exposed the degree to which the UK’s governance order is not as unitary as the doctrine of parliamentary sovereignty suggests”. They contended it “overlooks the engagement of devolved institutions in Northern Ireland, Scotland and Wales with other countries and international bodies” and concluded that, as the “devolved administrations are free to diverge on policy within their areas of competence to reflect localised necessity,” “Westminster is thus not the centre of legislative authority in the UK; it is one of several”.32

48.The IfG identified the need for strong interparliamentary relationships, and reserved particular praise for the Interparliamentary Forum on Brexit, which first met under the chairmanship of the Senior Deputy Speaker in October 2017, following a recommendation by the European Union Committee in its report Brexit: devolution:33

“The Interparliamentary Forum on Brexit was a positive step in building relations both between members of the different legislatures but also officials. Creating a space for informal discussions about international agreements which affect the whole of the UK would be a positive step.” 34

49.The External Affairs and Additional Legislation Committee of the Senedd (Welsh Parliament) has proposed a five-phase process through which it would seek to engage with the UK Government on new international agreements.35 However, in its written submission to our inquiry, it also proposed that any proposals for a revised process of UK Parliamentary scrutiny should incorporate “the need to consider the views of the Senedd before the conclusion of its scrutiny process.” It added:

“An interparliamentary dialogue on international trade, perhaps under the aegis of the Interparliamentary Forum on Brexit, would be welcome from our perspective.”36

50.International agreements may impinge on devolved competencies and interests. While there are representatives within the UK Parliament from the constituent parts of the UK, this does not necessarily mean that Wales, Scotland and Northern Ireland will automatically be fully involved in the UK Parliament’s treaty scrutiny processes.

51.While it will be for the devolved administrations and Parliaments to negotiate their precise arrangements between themselves and with the UK Government, we would encourage the creation of a real and meaningful consultation process to ensure that agreements reflect the interests of the constituent parts of the UK.

52.On the interparliamentary front, it is vital that Westminster committees engage closely with the Welsh and Scottish Parliaments and the Northern Ireland Assembly in scrutinising the negotiation and agreement of future treaties. As a first step, we invite the Interparliamentary Forum on Brexit to consider the options for developing processes to support such engagement.

Relations with the Crown Dependencies and Overseas Territories

53.International agreements can also have an impact on the Crown Dependencies (Jersey, Guernsey and the Isle of Man) and Overseas Territories.37 This is because the UK can negotiate to extend the application of treaties to the Crown Dependencies and Overseas Territories, either at the time of ratification, or at some later date. This means that it is important to ensure that they are fully consulted at the earliest stage, to allow them time to consider the implications of having any treaty extended to them. We would encourage both the Crown Dependencies and Overseas Territories to commence a dialogue with us, particularly where they feel that their concerns have not been taken into account at the negotiating stage, or where they wish to be included within the scope of an agreement.

Volume of work, working practices and prioritisation

54.It is currently unclear how many international agreements will be laid before Parliament in the post-Brexit environment.38 In 2016, it was estimated that perhaps 30–40 treaties a year might be signed and ratified by the FCO.39 The number of new trade agreements that may be concluded after the end of the transition period is also unclear, although the Government clearly has ambitions to sign deals with the United States, Japan, Australia and New Zealand in the near future. All of this makes it difficult to anticipate the precise workload that may fall on the International Agreements Sub-Committee.

55.Arabella Lang suggested that our “initial working methods and objectives” should be “flexible and adaptable”, and that “we should conduct “periodic reviews” of our working methods and effectiveness. She also recommended that the Committee might wish to reach a “framework agreement” with the Government which could set out, inter alia, what information will be provided and when.40

56.In order to prioritise work, it is evident that the Committee will need to be given reasonable notice of the laying of treaties. It will also need a clear assessment from the Government as to their content and nature, which should be contained in the EM accompanying the agreement. However, there may also be merit in categorising agreements, by importance, when they are laid.

57.Jill Barrett, a barrister and former Foreign Office lawyer, suggested that one way to manage workload was through a “sifting” process:

“The Committee should devise a working method for ‘sifting’ all treaties, immediately they are laid. The Committee first needs to develop criteria for prioritising treaties to identify the level of attention each requires from Parliament. These criteria should be applied rapidly to each treaty, to determine whether it requires scrutiny, and if so what level and by which committee, and whether there is any issue to call to the attention of other committees and/or both Houses.”41

58.She noted, in particular, that the Australian Parliament’s Joint Standing Committee on Treaties (JSCOT) operates a sifting mechanism. Treaties and treaty actions are categorised as ‘major’, ‘minor’ or ‘technical’. While the Government proposes the category, JSCOT can re-categorise if it disagrees. Major and minor treaties are referred for inquiry and report. But JSCOT normally accepts ‘technical’ treaty actions without an inquiry, although it has discretion to hold one.42 The IfG also highlighted the work of JSCOT, stating that “this model may prove useful for the UK Parliament, accepting that some international agreements will not be as important as others.”43 A sifting mechanism was also proposed by Professor Joanna Harrington, of the University of Alberta, who argued that a mechanism should be “established so as to determine which new treaty actions require study and inquiry by the committee, and which do not, and in keeping with the goal of strengthening accountability, such a mechanism should be established by the Sub-Committee itself rather than by a Minister or Foreign Office official”.44

59.Once the precise volume of treaties becomes clearer, we anticipate following the precedent set by JSCOT, and will seek to reach an agreement with the Government on the categorisation of treaties and other documents, such as amendments and MoUs, that we wish to scrutinise.

60.After the end of the transition period we will conduct a further review to ensure that our working methods and objectives remain appropriate. Subject to that further review, we see merit in the proposal that we establish a framework agreement with the Government to set out what information will be provided to Parliament and the Sub-Committee.

61.In the interim, we will open a discussion with the Government on the potential for reaching agreement on how to categorise treaties and other documents in such a way as to facilitate proportionate scrutiny. The Australian Joint Standing Committee on Treaties may offer a useful precedent.

Engagement with stakeholders

62.One of the main ways that Parliament can improve its scrutiny of international agreements is to engage with stakeholders and groups which will be directly affected by those agreements. The European Union Committee’s scrutiny of the rolled over South Korea trade agreement benefited from such engagement.45

63.As the IfG has observed, the “most obvious way that parliament can engage with relevant stakeholders around international agreements is through holding evidence sessions.” Yet this can be time consuming and, given the constrained timetable under the CRAG Act, the IfG argued that we should look to “best practice” on public engagement from other select committees in Parliament.46 One example they highlighted was the European Statutory Instruments Committee in the House of Commons, which launched an “engagement tool” that allowed anyone to submit comments on the statutory instruments the committee was scrutinising at that time. The IfG suggested:

“A similar tool may be useful for the scrutiny of relevant international agreements, as any member of the public would be able to express their views—or highlight concerns. This could also inform any decisions around which witnesses should be invited to give evidence on particularly sensitive international agreements.”47

64.One of our initial aims, this year, is to build relations with stakeholder groups. It is clear that parliamentary scrutiny is more effective when experts and those who are affected by international agreements have the opportunity to advise on the meaning and consequences of an agreement.

65.Given the limited time that Parliament has to engage with agreements under the CRAG Act, effective and efficient engagement will be key. While public evidence sessions will remain an important way to highlight particularly sensitive or contentious agreements, we will also be issuing public calls for evidence on all agreements which are potentially legally or politically important and would encourage all interested stakeholders to submit written evidence.

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