Summary
This is our second report on Working Practices, published just over a year since we concluded our first inquiry. When we reported in July 2020, we stated that we would attempt to conduct practical and effective scrutiny of every international agreement laid before Parliament under the Constitutional Reform Act 2010 (CRAG 2010). However, we also noted that time and experience would tell whether it was possible to conduct meaningful treaty scrutiny within the current statutory framework.
This report provides details of how we have conducted our work over the past year; sets out some minor changes to our criteria for scrutiny and reporting to Parliament, proposes some further pragmatic steps which could be taken to improve scrutiny, and sets out our assessment of the statutory framework for treaty scrutiny.
Since we were established, we have reported on 46 treaties. Of these, 7 have been reported for the special attention of the House and 5 have been subject to debate. During this time, we have sought to formalise arrangements for treaty scrutiny with the Foreign, Commonwealth and Development Office (FCDO) and the Department for International Trade (DIT). This has met with limited success.
DIT has now set out a number of helpful commitments in respect of the scrutiny of trade agreements, which we have welcomed. However, these have been subject to frequent and iterative change, and are contained in a series of letters, consultation papers and undertakings given on the floor of the House. We recommend that these commitments should be consolidated into a formal concordat, to reflect the practices that have been established to-date. This should be jointly negotiated between the Government, this Committee and the International Trade Committee in the House of Commons. A draft of such a concordat is set out at Appendix 2 to this report.
Progress with the FCDO has been slower. Notably, it has failed to deliver on commitments made in September 2020 to publish all treaty amendments. Nor has it been able to agree a mechanism to notify Parliament of significant amendments to treaties, or important Memoranda of Understanding (MoUs) which involve international obligations of a serious character. To assist the Government in identifying the amendments and MoUs which should be notified, we have adopted some new criteria as to the types of documents which should be drawn to our attention.
We are also concerned that the laying of treaties and the introduction of associated legislation is not properly co-ordinated and that implementing legislation could be passed before we have had the opportunity to report. Accordingly, we request an undertaking from the Government not to pass legislation implementing any international agreement subject to ratification under CRAG 2010 in advance of our reporting, save in exceptional circumstances, and with a full explanation from the responsible Minister.
On the issue of devolution, we have consistently noted that the information that we are provided with in respect of the Government’s consultation with the devolved administrations and legislatures is unsatisfactory. We welcome the fact that the Government has changed the guidance it provides on this issue in its Explanatory Memoranda template and hope that this addresses the concerns we have raised. Nonetheless, we recognise that it is important that we are able to reflect a UK wide perspective in our reports and therefore invite the devolved governments and legislatures to engage with us if they consider the UK Government is seeking to enter into agreements which are not in the interests of Scotland, Wales, or Northern Ireland.
Finally, having scrutinised international agreements for over a year, we conclude that the statutory framework established under the Constitutional Reform and Governance Act 2010 is insufficient to facilitate the robust and effective scrutiny.
We believe that much could be learned from scrutiny systems operated in other jurisdictions and that, if a future administration is open to reforming the statutory framework, then priority should be given to the following measures: (i) ensuring that Parliament has a formal role, earlier in the process than it currently does; (ii) that Parliament should be provided with a treaty text in advance of signature (so that significant issues can be raised before the text is set in stone); and (iii) that Parliament’s consent should be required, prior to ratification, for all trade agreements, and other significant treaties which are drawn to the special attention of either House.