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Treaty scrutiny: working practices Contents

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Chapter 3: Information provision by the Government

66.As we have noted, if we are to conduct meaningful scrutiny of international agreements, it is essential that the Government provides detailed and comprehensive information at each stage of the treaty-making process. The traditional approach has been to publish information after an agreement has been signed. This has included EMs and, in respect of recent rollover FTAs, more detailed Parliamentary Reports. However, in a number of recent reports, the Department for International Trade (DIT) has recognised the need to engage with Parliament at earlier stages in the process.

67.This chapter considers the information that is currently provided to Parliament about treaties and ‘treaty-like’ agreements by the FCO and DIT, and identifies the minimum level of information provision that will be necessary for the Sub-Committee to conduct effective scrutiny. It also considers some of the commitments already made to Parliament by the FCO and DIT.

Explanatory Memoranda

68.As noted in paragraph 15 above, section 24 of the CRAG Act contains a statutory requirement on the Government to lay an EM with each treaty laid before Parliament.48 But CRAG does not set out any detailed requirements about the contents of such EMs. This provision was a late amendment to the Act and was not debated at the time.49

69.Jill Barrett therefore proposed that the Committee may wish to “issue guidance on the expected contents of treaty Explanatory Memoranda” and “review the adequacy of each EM as it is tabled”. She noted that the Secondary Legislation Scrutiny Committee has provided detailed guidance on what it expects to see in EMs and that it comments publicly on the adequacy of EMs. She argued that although recent dialogue at official level between House of Lords staff and the FCO had resulted in “improvements”, a public process would be more effective.50 A similar point was made by Arabella Lang, who noted that JSCOT often held the Australian Government to account on the content of EMs.51

70.Arabella Lang also suggested that EMs could be renamed “’National Interest Analysis’, or similar, to better reflect their purpose”. This terminology reflects the usage in other Parliaments. Professor Campbell McLachlan QC noted that the content of the National Interest Analysis documents supplied to the New Zealand Parliament is specified in a Standing Order (SO 397), which requires “an assessment of the costs as well as the benefits of ratification”. Professor McLachlan argued that this approach was “much more rigorous than the current form of Explanatory Memorandum used in the UK”.52

71.The Sub-Committee will keep the content and quality of EMs under review. Our proposed scrutiny criteria refer to the quality of explanatory material at subparagraph (d), and the EU Committee provided some guidance in its lessons learned report on the subjects that ought to be addressed in an EM. In response, the FCO recently supplied the Committee with an updated EM template, taking account of many of its suggestions. We hope that this final template may be made public shortly and that the quality of published EMs will continue to improve.

72.We welcome the FCO’s efforts to update its Explanatory Memorandum template and to expand the nature and range of the information that it makes available to Parliament. The quality of EMs provided to Parliament is currently one of our published scrutiny criteria. We will keep the new EMs under review and provide further feedback when appropriate. We encourage the FCO to publish its updated EM template at the earliest opportunity.

Free Trade Agreements

73.Scrutiny of FTAs is likely to pose a particular challenge. In his written evidence, David Henig, Director of the UK Trade Policy Project at the specialist trade policy think-tank the European Centre for International Political Economy, noted the wide range of issues which might be covered in such agreements:

“FTAs are lengthy treaties setting out the rules for preferential trade over and above World Trade Organization (WTO) levels of access taking place between two or more customs territories. Other agreements such as Mutual Recognition Agreements (MRAs) focus on regulations, and are not considered preferential in WTO terms, but still set rules for trade. Rules can come in many areas including environment, intellectual property, customs, labour relations, technical standards, food safety and many more.”53

74.Mr Henig highlighted the fact that FTAs are likely to be “substantial” agreements, whose contents will “need to be interpreted over time”. This meant that it was important that the process of scrutiny should be commenced “well ahead of the completion of negotiation”, or alternatively that the Government should allow “considerable time at that point for ratification.”54

75.The idea of frontloading scrutiny was also addressed by the IfG. They suggested that, to enhance the role of Parliament at the start of the process, the Government should “lay a command paper before Parliament detailing its negotiating objectives for each FTA to allow a debate”. The IfG argued that this would be “beneficial to increase transparency and enhance scrutiny by parliamentarians” and would also be “an opportunity to test where key objections may lie”.55

76.Stephen Adams of Global Counsel also stressed the importance of parliamentary scrutiny, stating that the effect of FTAs is important not only because they can “compel changes in domestic law”, but also because they can “compel the UK not to change its current law, regulation or practice in the future”, which could have “quasi-constitutional” importance in the UK system, where parliamentarians should be “cognisant of their obligations to successor Parliaments”.56

77.As we noted in Chapter 1, the Government has not shown any willingness to extend the statutory timetable under the CRAG Act. However, other options for parliamentary scrutiny exist. These include:

• the publication of comprehensive consultation documents at the outset of a negotiation, which set out, inter alia, the Government’s objectives and initial analysis of a potential deal;
• public announcements, via ministerial statements, after negotiating rounds;
• private briefings by Ministers and officials;
• the publication of Parliamentary Reports and impact assessments; and
• providing parliamentary committees with time to make detailed reports on any agreement that has been reach prior to laying the agreement under CRAG.

78.Each of these options was the subject of commitments by the Government in the previous Parliament.57 In recent months, the DIT has published detailed policy papers on its strategic approach to agreeing an FTA with Japan58 and on its objectives in trade negotiations with the United States of America.59 These documents set out public negotiating objectives and preliminary assessments of the impacts of the proposed FTAs. On 17 June 2020 a further set of papers was published in respect of proposed trade deals with Australia and New Zealand.60

79.On 18 May 2020, the Minister for Investment at the Department for International Trade, Lord Grimstone of Boscobel, wrote to the Sub-Committee with an update on negotiations with the United States. He indicated that the UK and US had conducted the first round of negotiations between 5 May and 15 May, that this was a was “a full discussion covering all aspects of negotiations towards an FTA including creating opportunities for SMEs, services, telecoms and customs arrangements”, and that he would be making a Written Ministerial Statement to Parliament on the same day. He also offered the Sub-Committee a briefing on “outcomes from the first round of US-UK negotiations”.61

80.We were encouraged that, at that private briefing, Lord Grimstone indicated that the Government intended to stand by many of the commitments made by the DIT in its February 2019 Command Paper. The text of the subsequent letters between Lord Goldsmith and Lord Grimstone, published in Appendix 3 of this report, underlines this assurance. We note in particular the commitment by the Government to make available sufficient time for the Sub-Committee to report on new agreements prior to them being laid before Parliament under the CRAG Act.

81.One practical way in which committees could be provided with time to make detailed reports, prior to laying an agreement under the CRAG Act, would be to provide them with a copy of the agreement at the time that it is initialled, by which point the text is stable. We have already noted that this is done as part of the consultation process with the devolved administrations. There is no reason why this information could not be shared with parliamentary committees at the same time. At this stage, the negotiations are effectively over, and while the text might still be subject to legal scrubbing, or very minor amendment, there is no reason why it should not be subjected to scrutiny, even if the document has to be provided on a confidential basis.

82.We are grateful that the Department for International Trade has confirmed that the commitments made in its Command Paper, Processes for making free trade agreements, published in February 2019, continue to apply. In particular, we believe that the commitment to allow committees time to make detailed reports on any agreement that has been reached, prior to laying the agreement under the CRAG Act, will prove essential to allow for proper scrutiny. We encourage other departments across Whitehall to now follow the Department for International Trade’s lead.

Lessons from other Parliamentary systems

83.Welcome though they are, none of the commitments made by the DIT go as far as the scrutiny systems in some other jurisdictions. Dr Mario Mendez, Reader in Law at Queen Mary, University of London, stated:

“If we are aspiring to ‘best practices’ in terms of parliamentary scrutiny, these proposals do not go as far as the emerging practice in the EU where the European Parliament has been able to use its treaty enshrined information rights and veto power to shape negotiating mandates and also the treaty text. Nor in relation to trade does it go anywhere near as far as the US where the fasttrack trade promotion authority lays out substantive conditions for trade negotiations, time constraints, Congressional veto powers and ensures a prominent role for congressional committees and advisory groups composed of members of congress in the pre-negotiation stage and during negotiations.”62

84.At a private round table event where we discussed treaty scrutiny in other jurisdictions with Alexander Downer, Jason Langrish, and Jude Kirton-Darling, it was clear that, at the European Parliament, the combination of an effective International Trade Committee, information rights and a veto power, meant that far more influence could be brought to bear.

85.The IfG contended that comparing the US and EU experience to that of a Westminster-style democracy was problematic. It noted that the models were not entirely applicable to the UK’s constitutional arrangements and political structure, since both the European Commission and the US presidency “are independent executives operating in systems with a strong separation of powers”. By contrast, the IfG noted that “the UK’s constitutional system is based, in contrast, on a fusion of powers and requires the executive to maintain the continuous confidence of the House of Commons”.63

86.Nonetheless, there is much to be learnt from the operation of treaty scrutiny in other Parliaments,64 and the experience of the Australian JSCOT (described briefly in Chapter 2) may provide some helpful precedents. JSCOT is empowered to consider matters arising from treaties and proposed treaty actions, as well as any international agreement—whether or not negotiated to completion—that is referred to it by either House or a Minister. This covers bilateral and multilateral agreements, including amendments to agreements and withdrawal from treaties.65

87.The treaty scrutiny process requires that all actions proposed by the Government be tabled for at least 15 sitting days before action is taken that will bind Australia under international law to the terms of the treaty. In the Australian parliamentary calendar, this might run for between four and six calendar weeks. JSCOT routinely invites written submissions on treaties under scrutiny and holds hearings, where appropriate. While it may not have the same powers as the European Parliament, or Congress, we believe that JSCOT is a broadly effective model.

The approach of the Department for International Trade

The provision of confidential information and briefings

88.One of the ways the DIT, in its 2019 Command Paper, proposed to engage with Parliament was through the provision of confidential information and private briefing to select committees.

89.On 10 June 2020 we held a private meeting with Lord Grimstone of Boscobel. Officials from the DIT were also in attendance. As well as asking about working practices, we discussed the proposed UK-US trade deal. We understand that this was the first time a Committee of the UK Parliament had received such a confidential briefing about a proposed trade deal.

90.There is clearly a tension between a Committee receiving confidential information from the Government and the general principles that the Committee is answerable to the House, and that Parliament as a whole seeks to conduct scrutiny openly and transparently. Nonetheless, we commend the DIT for its willingness to engage in what is a new and challenging process. We welcome the constructive way in which Lord Grimstone and his officials engaged with us and we were impressed with their commitment to return and update us on the negotiations on a regular basis.

91. We welcome the constructive engagement that we have received from the Department for International Trade as we begin our work. The public-facing documents on the proposed UK-US and UK-Japan Free Trade Agreements have been helpful in initiating our scrutiny work.

92.It is important that the Government sets out, at an early stage in the process, clear negotiating aims and objectives, so that the public can understand why the Government is seeking these FTAs, and Parliament can evaluate how effectively the Government has met its objectives.

93.We also recognise the Government’s argument that some matters are too sensitive to make public during negotiations. Accordingly, while noting that the provision of confidential information to Committees makes it more difficult to engage with stakeholders, the public, and Parliament, we nonetheless welcome the willingness of Ministers and officials to provide private briefings to the Committee during the course of trade negotiations. We believe that regular briefings will prove essential to our work. The challenge for us will be to use them to inform our public-facing work in an appropriate manner, including by providing context to the final texts that are agreed between the parties.

Information on non-trade agreements

94.The commitments made by the DIT only relate to FTAs, but much of the diet of the Sub-Committee will be made up of agreements which do not relate to trade. Some of these, for example those that relate to the environment, security, or extradition, may prove equally contentious.

95.On 17 June 2020 the Sub-Committee met Lord Ahmad of Wimbledon, the Minister of State at the FCO responsible for treaty policy and practice. Due to the COVID-19 crisis, this meeting took place in private. We are grateful to Lord Ahmad for engaging with us on the question of working practices. As with the meeting with Lord Grimstone, referenced at paragraph 80 above, correspondence setting out what was discussed at this meeting is included in Appendix 3 of this report.

96.We raised with the FCO, in our meeting with Lord Ahmad, a number of issues (which we a subsequently set out in our letter of 22 June). Many of these had been raised previously by the EU Select Committee over the course of the past year. At the time of writing this report we have not yet had a response with the commitments we hope to see. We hope that the Department will engage with our recommendations in a positive and expeditious fashion. The rationale for our desire to scrutinise treaty-like documents, such as memoranda of understanding and amendments to international agreements is set out in further detail below.

Memoranda of understanding

97.Certain ‘treaty-like’ documents, including MoUs, are commonly distinguished from formal international agreements, on the basis that they are political agreements between States and are not designed to be governed by international law.

98.This distinction has legal precedent. Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between States in written form and governed by international law”.66

99.Section 25 of the CRAG Act similarly defines a treaty as “a written agreement—(a) between States or between States and international organisations, and (b) binding under international law”.67

100.Arabella Lang has noted that, in 2008, the issue of MoUs was given some attention by the Joint Committee on the Draft Constitutional Renewal Bill (which became the CRAG Act), when the then Lord Chancellor, Jack Straw, conceded that some MoUs could be examined by a select committee on an ad hoc basis in future, in confidence if needs be.68

101.The Joint Committee on the Draft Constitutional Renewal Bill recommended that the scrutiny of such documents should be enhanced. And it noted comments from the Foreign Affairs Select Committee that “many ‘treaty-like’ documents (such as memoranda of understanding, exchanges of letters between governments, EU common positions and UN Security Council resolutions) may be more important in their effects than most treaties”.69

102.Dr Mendez cited “confidentiality and convenience” as the main reasons for use of MoUs in preference to treaties, noting that they “generally do not need to be published and are generally not subject to any constitutional procedures”.70 He highlighted the new public register of political agreements in Spain as a model that Parliament might wish to ask the Government to follow.

103.MoUs have the potential to encompass issues of legal and political importance, for example diplomatic agreements on the treatment of terror suspects who are returned to their country of origin. At the high point of the trade continuity programme in 2019, the DIT also proposed using MoUs to provisionally apply legally binding international agreements, thus blurring the distinction between the two categories of agreements.

104.While it is unlikely that we would have the capacity to subject all MoUs to detailed parliamentary scrutiny, it is important that we are kept aware of the existence of these agreements, so that we can address the perception that important political commitments are being agreed in private and are not subject to any oversight. Concerns were also expressed by Arabella Lang that such arrangements may be used as “workarounds” to enable scrutiny to be evaded where “parliamentary demands become too onerous”.71

105.We note the commitment contained within the third limb of the Ponsonby Rule that the Government of the day will draw to the attention of Parliament “other agreements, commitments and understandings which may in any way bind the nation to specific action in certain circumstances and which may involve international obligations of a serious character, although no signed sealed document may exist”. This commitment was not codified in statute as part of the Constitutional Reform and Governance Act 2010.

106.We invite the Government to enter into a discussion about the extent to which this commitment covers politically important Memoranda of Understanding, and about how these can be drawn to the attention of Parliament going forward.

Amendments and the provision of other information

107.In its lessons learned report, the European Union Committee noted that it is currently “not clear when amendments will engage the provisions of the CRAG Act, particularly when they are agreed by Joint Committees without the need for ratification”. The report warned that where such amendments did not need to be implemented in domestic legislation, 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”.72

108.This conclusion was echoed in the evidence from Jill Barrett:

“An issue on which there is an urgent need for clearer information in EMs is treaty amendment mechanisms. Parliament should require treaty EMs to identify any provision in a new treaty for future amendments. It should make clear whether amendments will have treaty status and be subject to CRaG scrutiny, or whether the Government considers CRaG not to apply, eg because amendments will bind the UK through an automatic or tacit approval procedure … This is especially important in relation to trade agreements.”73

109.There has been official dialogue between committee staff and officials at the FCO for some months on this issue, but there has been little concrete progress on how the Government proposes to notify Parliament about proposed amendments to agreements.

110.There is a precedent for providing EMs on proposed amendments to treaties: the European scrutiny committees of both Houses already receive EMs in respect of amendments to agreements negotiated by the European Union, which have to be agreed by the Council of the European Union. This precedent could be adapted, to accommodate the provision of EMs on changes proposed to bi-lateral and multi-lateral agreements which are binding on the UK.

111.We urge the FCO to engage with the committees to devise a system for drawing amendments to international agreements to the attention of Parliament. At present, the absence of any method of highlighting changes to treaties causes a significant scrutiny gap, which means that it is impossible to have an up to date picture of the UK’s international obligations.

112.While the International Agreements Sub-Committee is unlikely to report on each proposed amendment to an agreement, important amendments could be sifted by the Sub-Committee and important changes to international agreements could be drawn to the special attention of the House in the same way as new treaties.

Derogations, withdrawal from agreements and dispute resolution

113.We received a number of other suggestions about additional information that should be provided to the Committee, including information on derogations and withdrawal from agreements.74 In addition, the European Union Committee has already indicated that the Government should report regularly on the implementation of agreements, and that this should include governance arrangements, decisions made by Joint Committees operating under the agreements, and any issues and decisions arising under dispute resolution provisions.75

114.The precise volume of such information is still far from clear. But, as the EU Committee observed in its lessons learned report, it may be that some form of sifting mechanism will be required to ensure that this task can be conducted in a proportionate way.

115.We invite the Government to engage with committees to determine the most effective way of supplying additional information on international agreements, including decisions on derogations, withdrawal from agreements, and decisions arising under dispute resolution provisions. We acknowledge that these should be scrutinised in a proportionate way: a sifting mechanism, perhaps similar to that of JSCOT, could offer a way forward.

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