1.This inquiry follows up on the work of our first Working Practices inquiry, which considered how we could conduct practical and effective scrutiny of international agreements without the need for immediate legislative change. It also takes stock of developments in the House of Lords over the past year.
2.On 28 January 2021, the International Agreements Committee became a standalone select committee when it succeeded the International Agreements Sub-Committee.1 Given the continuity in remit and membership, for the purposes of this report, we are treating both committees as if they were one and the same. Undertakings made by the Government to the former sub-committee are therefore reflected in our conclusions and recommendations.
3.This report provides a summary of the changes the Government has brought forward to address the concerns expressed in our earlier report, and highlights those matters which still need to be addressed. In addition, we have reviewed our criteria for scrutiny; when treaties that are drawn to the special attention of the House should be recommended for debate; and whether the Constitutional Reform and Governance Act (CRAG 2010) provides a suitable framework for treaty scrutiny.
4.Our work was informed by two roundtables with experts on treaties and trade agreements. We would like to thank the participants: Stephen Adam (Global Counsel); Jill Barrett (barrister and former Legal Councillor at the Foreign and Commonwealth Office); Professor Joanna Harrington (University of Alberta); David Henig (Director of Trade Policy at the UK Trade Policy Project);2 Professor Holger Hestermeyer (King’s College London); Emily Jones, Associate Professor in Public Policy (Global Economic Governance), Blavatnik School of Government, University of Oxford; Arabella Lang (Deputy Director (Research) Public Law Project) and Dr Mario Mendez (Queen Mary, University of London). We would also like to thank our specialist adviser for this inquiry, Alexander Horne (Counsel at Hackett & Dabbs LLP and Visiting Professor at Durham University).
5.While our report focuses on treaty scrutiny in the House of Lords, our work was conducted against the background of a review of treaty scrutiny by the House of Commons Public Administration and Constitution Affairs Committee (PACAC). Their inquiry aims to establish how the House of Commons should conduct treaty scrutiny and at what stages of treaty making it should be involved.3
6.We make this report to the House for debate.
7.On 10 June 2020, we published a report entitled Treaty Scrutiny: Working Practices.4 It was the third report from a House of Lords Committee on the subject of treaties and followed on from the Constitution Committee’s report Parliamentary Scrutiny of Treaties5 and the European Union Committee’s report Scrutiny of international agreements: Lessons learned6. These two reports had already emphasised the importance of treaty scrutiny and our first Working Practices report further expanded on their conclusions. All three reports were debated collectively in the House of Lords on 7 September 2020.7
8.We made recommendations in the following areas:
9.We also considered the adequacy of the current treaty scrutiny framework, including the Ponsonby Rule and the Constitutional Reform and Governance Act 2010 (CRAG). We noted that, following Brexit, there would be a loss of transparency and accountability if adequate new systems were not put in place, since the process of scrutiny of international agreements in the European Parliament was more advanced than the systems which had (then) been established by the UK Parliament.
10.In particular, we noted that the European Parliament had mechanisms to examine the mandates proposed by the Commission and the process of negotiations. Moreover, Article 218 of the Treaty on the Functioning of the European Union (TFEU) gave the European Parliament veto powers in respect of certain types of international agreements. We also referenced the scrutiny powers of the US Congress.
11.We further recalled the words of Walter Bagehot in his seminal work, The English Constitution, that:
“Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous.”8
12.We concluded that:
“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.”9
13.We have been particularly struck that for two hugely significant agreements for the UK—the UK-EU Withdrawal Agreement and the Trade and Cooperation Agreement with the EU (TCA)—the relevant CRAG provisions were disapplied and therefore parliamentary scrutiny was circumvented.10 Given the European Parliament did not complete its own scrutiny of the TCA until 28 April 2021,11 there would have been ample time available for the UK Parliament to conduct its scrutiny on that agreement. Instead, neither House of Parliament had the opportunity for a formal debate or vote on the TCA itself, as opposed to the implementing legislation.
14.This is our second report on working practices and it is published over a year since we concluded our first inquiry. This has given us the opportunity to take stock of how parliamentary scrutiny can be operated under the framework of the Constitutional Reform and Governance Act 2010 (CRAG), and whether there is a need for structural change.
15.We had hoped that, in the time since our first report, the Government would have established a framework for information sharing with clear, transparent and well-understood criteria. Unfortunately, this has not happened and we use the opportunity of publishing this report to set out some practical changes which we believe would make the treaty scrutiny process more effective.
1 The International Agreements Sub-Committee of the European Union Committee had, since April 2020, taken on responsibility for scrutinising all international agreements laid before Parliament under CRAG.
2 David Henig also provides specialist advice to the Committee on the Trans-Pacific Partnership (CPTPP) accession negotiations and other trade-related questions.
3 See: Public Administration and Constitutional Affairs Committee, ‘Inquiry into post-Brexit scrutiny of international treaties’, 26 March 2021: https://committees.parliament.uk/work/1152/the-scrutiny-of-international-treaties-and-other-international-agreements-in-the-21st-century/news/153516/inquiry-into-postbrexit-scrutiny-of-international-treaties/
4 European Union Committee, Treaty Scrutiny: Working Practices, (11th Report, Session 2019-21, HL Paper 97)
5 Constitution Committee, Parliamentary Scrutiny of Treaties, (20th Report, Session 2017–19, HL Paper 345)
6 European Union Committee, Scrutiny of international agreements: lessons learned (42nd Report, Session 2017-19, HL Paper 387)
7 HL Deb, 7 September 2020, cols 105GC-107GC
8 Walter Bagehot, The English Constitution, 2nd Edition (Brighton: Sussex Academic Press, 1997), p 176
9 European Union Committee, Treaty Scrutiny: Working Practices, (11th Report, Session 2019-21, HL Paper 97), para 32.
10 While the scrutiny of agreements with the EU falls to the European Affairs Committee (previously the EU Committee), it should be noted that these have had an impact on other agreements we have scrutinised, including, for example, on the cumulation provisions of trade agreements.
11 European Parliament, ‘Parliament formally approves EU-UK trade and cooperation agreement’, 28 April 2021: https://www.europarl.europa.eu/news/en/press-room/20210423IPR02772/parliament-formally-approves-eu-uk-trade-and-cooperation-agreement [accessed 16 September 2021]