Treaty scrutiny: working practices Contents

Appendix 3: Correspondence between the Sub-Committee and the Department for International Trade and Foreign and Commonwealth Office

Letter from Lord Goldsmith QC to Lord Grimstone on working practices, 16 June 2020

Thank you for speaking to the International Agreements Committee on 10 June about our Working Practices inquiry, which provided a useful and constructive discussion. The Committee were pleased to note your statement that the Department was committed to transparency. They noted the example you gave of the publication of the detailed documents relating to the Government’s approach and objectives for the US and Japan negotiations together with written statements and open briefings for parliamentarians. You told us that you expected this approach to continue with the Australian and NZ negotiations; likely to commence in the next few weeks. We also noted the Written Statement that had been made reporting on the first round of negotiations, and we were pleased to note that you expected that sort of reporting to continue.

We also discussed the provision of updates to scrutiny committees and parliamentarians more widely, including when concluded trade agreements were laid before Parliament under the Constitutional Reform and Governance Act 2010. We were grateful for your confirmation that the Department was committed to providing such updates regularly, as well as an Explanatory Memorandum and an impact assessment when agreements were concluded.

You also noted that Parliamentary Reports had been produced for all the continuity trade agreements, and that this would continue to be the case. There was not time to discuss this in more detail during the meeting, but we would be grateful to know whether the Department also intends to produce Parliamentary Reports for newly negotiated agreements, as well as continuity agreements.

You told the Committee that holding debates on the Government’s objectives for trade negotiations was not part of the Department’s plans as it was considered that debates on negotiating objectives could be counterproductive, as they would provide intelligence to the other negotiating party/parties. However, we were pleased to note your statement that the sorts of documents that DIT published prior to starting negotiations with the US were indicative of the information that it intended to make available publicly to Parliament for other future negotiations.

The Committee were grateful for your acknowledgement of the challenge of carrying out detailed work within a 21-sitting-day period and you suggested that private briefings, from ministers or officials, might be a way forward to help inform committees and allow them to begin their work before an agreement was laid formally. You suggested that practice and experience over the coming months might be the best guide for how to achieve this balance of confidentiality and information provision, and we would be happy to take forward with you discussions on how best to do that. Would it be helpful if you and I had a discussion about that to seek to reach a more detailed proposal?

The Committee further noted the statement that the Command Paper setting out the Department’s approach to trade agreements (Processes for making free trade agreements, published in February 2019) still applied, which had amongst other things committed the Department to making time to allow a select committee to report on an agreement after negotiations had ended but before the treaty text had been laid, although it was noted that this did not specify precisely how much time would be made available.

The Committee believes that this approach could be helpful to HMG, as experience from other countries showed that it could be useful for negotiators to be able to say that, through confidential discussions with their parliament, they knew that a certain concession a negotiating partner was suggesting would be impossible to get through the legislature.

Members also asked about how the Government would work with the devolved administrations, and how it would ensure that its economic cost-benefit analyses were robust, in particular where they might indicate impacts on particular regions or nations in the UK. They welcomed your statement that you were very conscious of duties to the whole of the UK and noted that Greg Hands, the Minister for Trade Policy, held constructive and collaborative meetings with counterparts in Wales, Scotland and Northern Ireland through the Ministerial Forum for Trade, and that opinions and advice from the devolved nations were acted upon.

The economic modelling done by DIT was discussed, and it was noted that the Department’s approaches and methods were in line with those used in the wider literature, but that such modelling, particularly of dynamic effects, could be difficult. You noted that it was not always possible to conduct modelling at a granular level that would show, for example, the effects on all regions of the UK with good levels of certainty. However, the Department was trying hard to draw out the likely impact on different parts of the UK. What had currently been published were scoping assessments, and with any final agreement a more detailed impact assessment could be produced.

You did in this context note that particular suggestions or questions about the methodology used would be welcome, and that officials would be happy to provide more detail about how economic analyses were produced. We do not have any such questions at this time, but hope to receive evidence on this point and may wish to discuss this in more detail in the future.

Finally, members asked about what more could be done by both the Government and Parliament to ensure that the public were aware of what was being negotiated and agreed, and why.

You told us that the Government was seeking to strike deals because they were in the public interest, and we agreed with you that there was a need to help everyone understand and take advantage of them. In particular, we discussed the debate on the Agriculture Bill regarding standards, which indicated the very significant interest people had in the deals that the Government was seeking to strike, as well as the significant number of contributions to public consultations, with 160,000 responses to the public consultation on the US deal.

As you know, we are working towards concluding our inquiry and will be publishing a full report in the coming weeks. In that respect, it would be very useful if we could include in our report an annex recording some of the discussion that we have had with you, so that other members and the public are aware of the exchange we have had in person, as well as by correspondence.

With that in mind, I would be grateful for your, and your officials’, views about whether this letter, along with any response from you, might be put into the public domain as part of our final report.

I would be grateful for a response to this letter by 30 June.

Letter from Lord Grimstone to Lord Goldsmith QC on working Practices, 29 June 2020

Thank you for your letter dated 16 June, following our meeting on 10 June. I am committed to working closely with your Committee and continuing a constructive working relationship as we take forward the UK’s independent Trade Policy.

I was pleased to be able to reassure your Committee that we are committed to transparency, using the comprehensive information we have published on our approach to US and Japan negotiations as an example. We will, of course, continue to keep Parliament updated on the progress of negotiations via regular updates.

You asked whether we intend to publish Parliamentary Reports for new FTAs as well as our continuity agreements. The purpose of our Parliamentary Reports for continuity agreements is to draw the attention of the House to any significant changes that have been made to the original text of the deal that the EU had with the country in question. As we discussed, my department will continue to produce Parliamentary Reports for all remaining continuity agreements.

This does not apply to new FTAs and, given we will be producing full impact assessments and explanatory memoranda and engaging in ongoing dialogue with your Committee on new FTAs, we do not believe it is necessary to produce similar Parliamentary Reports for such agreements. I would be happy to discuss this further to ensure that we understand the information that you would like to see and can consider that as we develop the suite of information that will accompany final agreements.

Regarding private briefings, at an appearance before the International Trade Committee (ITC) on 24 June the International Trade Secretary confirmed that we will hold private briefings where appropriate to discuss the progress of negotiations and any areas of interest with relevant Select Committees. I know that our respective officials are already discussing this as part of their regular dialogue and I would of course be happy to have a further discussion with you.

In terms of the Command Paper entitled “Processes for making free trade agreements once the UK has left the EU”, this paper was authored and published by a previous administration prior to the election and thus in a very different context. This Government is committed to the key principles of transparency and effective scrutiny of our trade policy and has made, and delivered, its own commitments in this regard. This includes delivering many of the commitments from the previous paper, for example publishing objectives and initial economic assessments for our negotiations with the US, Japan, Australia and New Zealand.

As confirmed by the International Trade Secretary to the ITC on 24 June, it is our intention to ensure:

“that there is sufficient time for the relevant scrutiny committee to produce a report, should it wish to do so, before the final text of a trade agreement is laid before Parliament.”

I have noted your ongoing inquiry and look forward to reading your report. I am content for your letter of 16 June and this response to be published as part of that report. If you wish to publish further information from our previous meetings I would appreciate a discussion beforehand.

Letter from Lord Goldsmith QC to Lord Ahmad of Wimbledon on working Practices, 22 June 2020

Thank you for speaking to the International Agreements Committee on 17 June about our Working Practices inquiry, which provided a useful and constructive discussion.

The Committee was pleased to note your commitment to working cooperatively to find ways to support parliamentary scrutiny of international agreements, including those that do not currently engage CRAG, such as Memoranda of Understanding. We welcome your commitment to helping to address some of the challenges posed by the short timetable under CRAG, including ensuring that sufficient time can be found to allow our Committee to report on an agreement after it is finalised but before it is laid formally under CRAG.

It was also useful to discuss the ‘umbrella’ role you and the Foreign and Commonwealth Office play across Government when it comes to the negotiation and conclusion of international agreements and submitting them for scrutiny under CRAG. We agree with you that there ought to be a consistent approach to supporting parliamentary scrutiny across Departments and hope that you and your officials might work in Government to help ensure that this is the case.

In our discussion, you highlighted that it will be difficult to establish a single, one-size-fits-all framework for either the provision of early information or the laying of political agreements like MOUs for scrutiny. We appreciate that international agreements vary widely and agree with you that experience will be a good guide of the sorts of working practices that will be most effective for different types of agreements.

Nevertheless, we hope our officials can start to discuss now the types of agreements where, in principle, information could be provided early to the Committee prior to a final agreement being laid for scrutiny under CRAG, as well as those categories of agreements that would not be subject to CRAG but we might agree should be notified to the Committee and offered for scrutiny. It would be useful to make some progress on this issue by the September, to allow the Committee and you to consider some recommendations about a flexible framework that would give more clarity to Departments across Government about what the Committee will need from them in order to conduct parliamentary scrutiny effectively.

During the meeting we also discussed the sorts of information included in Explanatory Memoranda, and in particular the role the FCO could play in ensuring that all Departments were able to provide informative assessments of the human rights impacts of international agreements. We are grateful for the work that FCO officials have done so far in reviewing the EM template to help ensure that EMs provide the Committee with the information it needs and hope that this guidance will prove effective.

Finally, we discussed the role of the devolveds in international agreements. We welcome your open and collaborative approach to working with the devolved administrations and hope that this is shared by your colleagues across Whitehall, as we know it is shared by Lord Grimstone at the Department for International Trade. You noted that sharing initialled agreements with the UK Parliament at the same time as sharing them with the devolved administrations would need to be considered on a case-by-case basis. While we appreciate it is hard to define in the abstract precisely when an agreement might be suitable for sharing, we again hope that our officials might have productive discussions in the next few months about how to develop a flexible framework for doing this.

As you know, we are working towards concluding our inquiry and will be publishing a full report in the coming weeks. In that respect, it would be very useful if we could include in our report an annex recording some of the discussion that we have had with you, so that other members and the public are aware of the exchange we have had in person, as well as by correspondence. I hope that you might agree that this letter, along with any response from you, can be put into the public domain as part of our final report.

I would be grateful for a response to this letter by 30 June, if possible, to allow us to finalise our report as swiftly as possible in early July.

Letter from Lord Ahmad of Wimbledon to Lord Goldsmith QC on working Practices, 3 July 2020

Thank you for providing me the opportunity to brief your Committee on 17 June, and your subsequent letter of 22 June underlining our shared commitment to working cooperatively to support parliamentary scrutiny of international agreements. I’m glad both you and the Committee found the discussion useful and constructive, and I look forward to further conversations in future. Following the UK’s exit from the EU, the International Agreements Sub-Committee has an important scrutiny role to play in relation to international agreements.

As you are aware, the Foreign and Commonwealth Office is leading a process of reviewing the procedures around the Constitutional Reform and Governance Act (CRaG), which lays out the provisions for parliamentary scrutiny of international agreements. We will need to consult colleagues across Government before responding to your inquiry report in full, including the issues raised in your letter of 22 June.

At this point, I would like to reiterate my comments made before your Committee, namely that this Government welcomes and respects Parliament’s role in scrutinising international agreements. Timely, robust scrutiny undoubtedly leads to better treaty making.

I wish you all the best with with your report and, as highlighted above, look forward to the further discussions in due course.





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