Treaty scrutiny: working practices Contents

Summary of conclusions and recommendations


1.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. (Paragraph 30)

2.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. (Paragraph 31)

3.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. (Paragraph 32)

Processes and requirements for effective scrutiny

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

5.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. (Paragraph 39)

6.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. (Paragraph 41)

7.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. (Paragraph 42)

8.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. (Paragraph 50)

9.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. (Paragraph 51)

10.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. (Paragraph 52)

11.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. (Paragraph 60)

12.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. (Paragraph 61)

13.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. (Paragraph 64)

14.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. (Paragraph 65)

Information provision by the Government

15.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. (Paragraph 72)

16.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. (Paragraph 82)

17.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. (Paragraph 91)

18.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. (Paragraph 92)

19.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. (Paragraph 93)

20.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. (Paragraph 96)

21.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. (Paragraph 105)

22.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. (Paragraph 106)

23.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. (Paragraph 111)

24.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. (Paragraph 112)

25.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. (Paragraph 115)

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