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Working practices: one year on Contents

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Chapter 2: Progress since the Committee’s First Working Practices Report

Our review of scrutiny criteria and debate requests

16.Since we were first established in April 2020 as a sub-committee, we have considered 46 treaties. The majority of these were reported for information only, but seven were reported for the special attention of the House. Five agreements were also subject to a debate on the floor of the House or in Grand Committee. We are grateful for the support of the usual channels in finding time for those debates.

17.In determining whether to report an agreement to the special attention of the House we have used the following criteria:

(a)that the agreement is politically or legally important, or gives rise to issues of public policy that the House may wish to debate prior to ratification;

(b)in the case of any agreement that is intended to ‘roll over’ an agreement by which the UK was previously bound, as an EU Member State, that it differs significantly from the precursor agreement, or that it is inappropriate, in view of changed circumstances since the precursor agreement was concluded by the EU;

(c)that it contains major defects, that may hinder the achievement of key policy objectives;

(d)that the explanatory material laid in support provides insufficient information on the agreement’s policy objective and on how it will be implemented;

(e)that further consultation would be appropriate, including with the devolved administrations.

18.We believe that these criteria have worked well and have provided some guidance for the Government on the circumstances in which we may take a particular interest in a treaty. Nonetheless, with the conclusion of the post-Brexit trade continuity programme, criterion (b) is no longer relevant.

19.In most instances, reporting an agreement to the special attention of the House also led to the Committee requesting a debate, with the Chair tabling a motion for debate with the parliamentary authorities. To help us manage the volume of new agreements we are expecting to consider, and given that in due course we will also start reporting on the negotiating objectives of trade agreements (see paragraph 30), we have agreed to refine our approach to requesting debates. When agreements are reported for the special attention of the House, we will explicitly state whether we will be requesting a debate, or whether we are content for the Government to provide additional information in writing prior to ratification. This, of course, does not prevent other members of the House from requesting a parliamentary debate—and our revised approach should not be interpreted as a form of discouragement—but it should help to ensure that our and Parliament’s time is used in the most efficient way.

20.Our scrutiny criteria need to be updated now that the Government’s post-Brexit trade continuity programme has been completed. In particular, criterion (b) (which relates to rolled-over trade agreements) is no longer relevant and will be deleted. The remaining criteria for scrutiny have worked well and will be retained, save for a wording change to criterion (e), which now reads “that further consultation is necessary, including with the devolved administrations”.

21.We also intend to change the way that international agreements are reported to the House and debates are requested. When drawing an agreement to the special attention of the House we will either (a) explicitly recommend the agreement for debate, or (b) set out specific concerns and ask the Government to respond to these prior to the agreement being ratified. We hope that this change will be of assistance to both Members and the business managers in the House.

Scrutiny of Free Trade Agreements

22.Following the end of the post-Brexit transition period, full powers over international trade have returned to the UK from the EU. The UK Government is seeking to make a number of new trade agreements, including with Australia and New Zealand, as well as seeking to accede to the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), and to renegotiate some of the trade deals that it rolled over between 2019 and 2021.12

23.The Government has introduced a variety of measures to help Parliament and stakeholders scrutinise these arrangements. However, we note at the outset that these new measures continue to fall short of the European Parliament’s powers, as set out in paragraph 10 and our first report on Working Practices.

24.Issues around the scrutiny of trade agreements were complicated during our first Working Practices inquiry, as the Government initially refused to stand behind earlier undertakings that it had set out in a series of papers published in February and July 2019, and March 2020.13 Although the Government indicated that it would meet most of these, it did not commit to the full list, raising some doubts over the full list of commitments that would continue to apply.14

Incremental scrutiny commitments: a need for consolidation

25.Since then, Government commitments on scrutiny of trade agreements have developed in an iterative fashion, and have been communicated through different fora: through debates in the Chamber, in written parliamentary statements and in correspondence with us and the International Trade Committee in the Commons.

26.In December 2020, further to a conversation between our Chair, the Chair of the Commons’ International Trade Committee, and Lord Grimstone of Boscobel Kt (Minister for Investment at the Department for International Trade and the Department for Business, Energy Industrial Strategy), the Government put on record a set of commitments for scrutiny of trade agreements through a Written Ministerial Statement (WMS).15

27.The scope of the WMS was limited to agreements with the US, Australia, New Zealand, and the UK’s proposed accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). For other agreements, the Government stated that it would “provide further clarification at the appropriate time”. The commitments made in the WMS are summarised in the table below:

Stage	Commitment in the WMS
Opening of negotiations	Publication of objectives and scoping assessments
Negotiations	Updates through ‘Round Reports’ on conclusion of each negotiation round
	Extensive stakeholder engagement on detail of negotiations
	Regular briefings with Parliamentarians
	Commons’ International Trade Committee and Lords’ International Agreements Committee (the Committees) to receive public and private briefings with Ministers and Chief Negotiators
Conclusion of negotiations	The Committees to be given confidential access to the agreement “a reasonable time” before laying under CRAG
	Publication of an Explanatory Memorandum and Impact Assessment alongside treaty text
	Should the Committees recommend a debate, the Government will “seek to accommodate” it, “subject to Parliamentary time”

28.We noted that the commitments on parliamentary involvement at the start of negotiations fell short of those made by the previous Government in its 2019 Command Paper Processes for making free trade agreements after the United Kingdom has left the European Union.16 The Command Paper had stated that “we will ensure that Parliament has a role in scrutinising these documents so that we can take its views into account before commencing negotiations”.17

29.The absence of substantive Committee involvement regarding negotiating objectives prompted Members to engage with relevant amendments in the Trade Bill. Lord Lansley pressed a series of amendments that resulted in two new commitments from the Government, which have since been dubbed ‘the Grimstone Rule’.

30.This new rule has two limbs: the first, in effect, includes a promise by the Government that it will facilitate a debate on the negotiating objectives if we request one.18 The second limb relates to the ratification of an agreement for which we have requested a debate, and was couched by Lord Grimstone in the following terms:

“I would like to state from the Dispatch Box that I cannot envisage a new FTA proceeding to ratification without a debate first having taken place on it, should one be requested in a timely fashion by the committee.”19

31.This second limb of the Grimstone Rule was tested in relation to the proposed UK-Kenya Economic Partnership Agreement. During the debate, which was held after the end of the 21-day scrutiny period under CRAG, Lord Grimstone indicated that the Government had not yet ratified the agreement and delayed it deliberately “in order to ensure that Parliament has had the opportunity to effectively scrutinise the text”.20

32.In March 2021, the then-Secretary of State for International Trade, the Rt Hon Elizabeth Truss MP, wrote to the Commons International Trade Committee.21 She made clear that the terms of the Grimstone Rule would also apply to that committee, and, having previously been limited to negotiations with the US, Australia, New Zealand and the Trans-Pacific Partnership (CPTPP), extended the Government’s commitments on scrutiny to all new free trade agreement negotiations:

“I can confirm my intention to further extend the principle of these arrangements to new FTA negotiations. This includes a commitment to undertake a public consultation/call for input, publish negotiating objectives, an initial scoping assessment and a Government response to the consultation/call for input before starting negotiations. In addition, should your Committee produce a report on these objectives and as part of this recommend a debate, then the Government will seek to accommodate a request, subject to available Parliamentary time. During negotiations, the Government will publish regular updates – usually after each substantive negotiating round, and undertake close engagement with the relevant Select Committees, including providing oral and written evidence in public and private. At the conclusion of negotiations, the Government will publish an independently scrutinised impact assessment, facilitate time for the relevant Select Committees to produce a report on the agreement and seek to accommodate a debate, subject to available Parliamentary time.”

33.It remains unclear, however, whether these commitments will also apply to the following:

(a)the ‘enhanced’ trade agreements the UK Government is expecting to negotiate with countries with which it already has a trade agreement. For example, the UK Government has just closed its public consultation on enhanced agreements with Canada and Mexico, with the aim of beginning negotiations with Canada and Mexico by the end of the year.22

(b)agreements that are not ‘full’ FTAs but cover trade rules or seek to deepen economic collaboration between two countries, such as the Digital Economy Agreement the UK Government is negotiating with Singapore.23

34.In her letter, the Secretary of State also reiterated the Government’s commitment to provide the two committees with “a reasonable time before the final agreement is laid in Parliament under the Constitutional Reform and Governance (CRAG) Act procedure, to produce a report on the agreement”.24 The letter suggested that the Government would seek to find “a pragmatic approach for how our new FTAs may be initially presented to Parliament ahead of the start of the 21 sitting day period under CRAG”.

35.DIT officials are currently liaising with parliamentary authorities to enable these commitments to be met. Officials have suggested to our secretariat that they intend to make agreements available before formally laying them under CRAG, most likely around the time the agreement is signed. Officials are working to ensure that the system is in place for when the first new FTA—expected to be the trade agreement with Australia—has been signed. In relation to the Australia agreement, Lord Grimstone told us in his latest appearance before the Committee that he expects the committees to have access to the agreement text for “a period of at least three months—I stress at least three months—before the publication of the signed FTA and it being laid in Parliament for the purposes of CRAG”.25

36.It remains to be seen how this system will operate in practice, but if it does work as planned, it will represent a significant improvement on our ability to conduct scrutiny of trade agreements.

37.Part of the rationale for increasing the time available for scrutiny derives from the need to provide the new Trade and Agriculture Commission (TAC)—a new statutory body to be set up under the Trade Act 2021—with sufficient time to conduct its scrutiny.26 Its role is to examine the text of an FTA and provide advice to the Secretary of State on whether any of the FTA’s measures on agricultural products have implications for the UK’s domestic protections—specifically those relating to animal and plant health, animal welfare and the environment.27 On receiving the advice from the TAC, the Secretary of State is required to produce a report on whether the FTA’s measures are compatible with the maintenance of the UK’s statutory protections and lay the report before Parliament alongside the TAC’s advice.28 Crucially, an FTA that includes measures on agricultural products cannot be laid in Parliament under CRAG until the Secretary of State has laid these other documents in Parliament first.29

38.The Government has also agreed to provide us with regular updates and confidential briefings on negotiations on trade agreements—and has delivered on this commitment. These updates and briefings provide useful context about the issues under discussion with proposed trade partners and enable us to line up evidence from appropriate stakeholders. They can, however, lack the level of granularity required for scrutiny purposes. This is true, in particular, of post-negotiation round updates—they tend to cover what has been discussed, but rarely give a flavour of the obstacles encountered during the negotiations. We also note that, in some cases, more detailed information has been made available publicly by the other party to an agreement. New Zealand is a particularly striking example. The New Zealand Government maintains a dedicated webpage on the negotiations, which includes detailed summary reports of each of the negotiation rounds.30 We understand that there will be areas of negotiations that are sensitive and confidential, but we believe that the principle of scrutiny by parliament is important and should be fully recognised, and we are open to discussing any arrangement that may help facilitate the sharing of confidential information.

UK Government engagement with other stakeholders

39.Since the publication of our last Working Practices report, the Government set up new trade advisory groups (TAGs), designed to secure input into free trade agreement negotiations from the wider business community.31 We have heard from some members of the TAGs that, despite being required to sign non-disclosure agreements, there has been a reluctance to share the detail of the negotiations or draft text.32 Despite the Government telling us that “all TAGs have been granted access to sensitive information during negotiations, which we have received positive feedback on from members”,33 we note that some TAG members have complained to the press about the apparent lack of meaningful information being shared.34 In response to those concerns, press reports suggest the Government will look again at how input is sought and information shared with the TAGs.35 It is, of course, too early to assess the impact this may have on the operation of the TAGs, but we tentatively welcome this development.

40.We similarly welcome the Government’s decision on 7 September to allow trade union representation on the TAGs.36 Arguing that the input sought from the unions was different to that being sought from industry, the Government, until recently, had engaged with the unions through a dedicated Trade Union Advisory Group. However, Unions raised concerns about the information being shared with that group and requested to be represented on the TAGs instead.37 We note, however, that other civil society groups are not represented on the TAGs. When we asked the Government how they would ensure representation from non-business groups, Lord Grimstone replied that the Government engages with civil society organisations through “Ministerially-led roundtables and bilateral engagement”, and that the Government would “continue to work with civil society … as we enter the next, crucial stages of negotiations”.38

41.When it comes to engagement with the general public, a recent survey of 3,000 adults by consumer rights group Which? found that more than two thirds of consumers (67%) considered that the public was receiving too little information from the government around trade deals.39

42.As it reviews the operation of the TAGs, the Government should consider whether there are any improvements it can also make to how it engages on trade agreements with civil society and the wider public. Rather than focusing on promoting trade agreements in the media, the Government should recognise that parliamentary scrutiny, and in particular scrutiny of negotiating objectives, is an important contribution to its engagement with civil society.

43.We welcome the steps the Government has taken towards greater transparency of new trade agreements, including the following commitments: to publish objectives ahead of negotiations; to Parliamentary debates; and to establish trade advisory groups. We also welcome the work it is undertaking with parliamentary authorities to ensure that the text of free trade agreements can be made available to us a reasonable time before being laid formally under CRAG.

44.Yet more needs to be done to improve the effectiveness of the existing scrutiny system and make it robust.

45.Significantly, formal points for engagement with the committee are always set for after Government decisions have already been taken, so we are effectively responding to a fait accompli. The Government should not see parliamentary scrutiny of treaties as a rubber stamp at the end of the process to convey simple approval. For the system to function effectively, there must be meaningful consultation between the Government and Parliament (having also involved the devolved administrations). In particular, for agreements that have significant implications for the UK’s domestic policy and regulatory framework, such as trade agreements, it is important that this consultation and dialogue starts before a mandate is established, so the final mandate can be informed by Parliament, and continues throughout the negotiation process.

46.While we welcome that the Government has provided us with updates and private briefings on individual negotiations, it would be helpful if these could provide more in-depth information about the obstacles and points of contention in the negotiations. Cognisant of the sensitivities surrounding ongoing negotiations, we are open to discussing arrangements to ensure the confidentiality of any such information.

47.We are also concerned that, while the Government has offered a series of additional commitments in letters, consultations and on the floor of the House, including ‘the Grimstone Rule’, these have been subject to frequent and iterative change and have not been consolidated or formalised. As matters stand, any scrutiny that occurs is essentially in the gift of the Government of the day. The Government should also clarify whether, and to what extent, the commitments made in respect of new agreements also extend to (a) new agreements with existing trade partners, and (b) agreements that, short of being full free trade agreements, seek to deepen economic relationships or contain trade rules.

48.In the absence of legislation, we recommend that the Government consolidates the various commitments it has made to Parliament to-date on the subject of trade agreements into a formal concordat to demonstrate that these are requirements which are serious, certain, and concrete and should be respected by future administrations. The concordat should be jointly negotiated with us and the International Trade Committee in the House of Commons. We have included a draft of the proposed concordat at Appendix 2 to this report.

Scrutiny of other agreements

49.The system for scrutinising non-trade agreements under CRAG is suboptimal and limited progress has been made to improve the system since our last Working Practices report. A specific challenge we have faced with non-trade agreements has been the absence of a formal mechanism to notify us of agreements that are about to be laid in Parliament for scrutiny. In most cases, agreements were only drawn to our attention once they were laid in Parliament.40

50.In the last 12 months we have scrutinised agreements as diverse as road and air transport agreements, agreements on the protection of classified information, the peaceful uses of nuclear energy, and the prevention of incidents at sea, as well as police cooperation and judicial cooperation agreements. The short time available for scrutiny under CRAG, combined with the wide range of subjects covered by international agreements, has made the task of scrutinising non-trade agreements particularly challenging. Expert input is often essential to enable us to identify all substantive issues with an agreement. It takes time, however, to source this expert input and without advance warning that an agreement is about to be laid in Parliament, it is difficult to obtain the necessary information and report within the confines of the 21-day timetable set out by CRAG.

51.Further to several discussions between our secretariat and Government officials, officials at the FCDO told our secretariat at the end of August that, in future, they would aim to send us a list of agreements each week based on those agreements for which an Explanatory Memorandum had been submitted to the FCDO Treaty Section.41 A treaty being included in this list would mean that the agreement would likely be laid “in the next week or so”. FCDO officials also cautioned that simply sharing a list of all signed agreements with the Committee could give inconsistent timelines—for a variety of reasons, some signed agreements take longer to lay in Parliament than others. However, officials also said they would supply information on signed agreements where possible.

52.It is too early to tell how effective this new notification system will be, but we welcome this development and hope it will go some way to addressing the practical challenges we have dealt with when scrutinising non-trade agreements.

53.The system that the Government has introduced for the scrutiny of trade agreements is more transparent than that under which non-trade agreements are scrutinised.

54.In particular, many of the non-trade agreements we have scrutinised were not notified to us until they were laid. This, in turn, limited the amount of time available to take evidence from stakeholders. We call on the Government to formalise the commitments recently made by FCDO officials to provide us with advance notice of agreements. A formal commitment could be included in response to this report, or conveyed through an alternative mechanism deemed suitable by ministers.

Outstanding issues from our previous inquiry

55.We would like to thank FCDO and DIT officials for continuing to meet with our secretariat (and the staff of the House of Commons International Trade Committee) on a regular basis to share updates and discuss issues of concern. While we have seen some progress on the scrutiny of trade agreements, and on our request to provide us with advance notice of agreements due to be laid in Parliament, overall progress on the other issues we raised with the Government has been slow.

Consultation with the devolved administrations and legislatures

56.We have repeatedly had to ask the Government to provide information about consultation with the devolved administrations and whether they had raised any objections to the terms of agreements. This issue became sufficiently problematic that we began to contact the devolved administrations directly. The Foreign, Commonwealth and Development Office (FCDO) had promised to address this by revising their guidance for Government departments completing the Explanatory Memoranda (EM) that contain this information. We note that the guidance was updated on 31 August 2021 and now states that an EM should “describe the nature of consultations with the Devolved Administrations, including the focus of discussions and responses (to the extent possible)”.42 We welcome this development, but it remains to be seen to what extent this change to the guidance will lead to more information being provided.

57.In evidence to PACAC, the Government has acknowledged the interests of the devolved administrations in respect of treaties. It stated that:

“The Government recognises the interest of the Devolved Administrations in relation to treaties. The Government’s engagement with the Devolved Administrations in the area of treaty-making is underpinned by the International Relations Concordat, which is part of the Devolution Memorandum of Understanding between the United Kingdom Government and the Devolved Administrations. The Government continues to involve the Devolved Administrations in the formulation of the UK’s position for international negotiations where these involve devolved matters (including non-devolved matters, which impact upon devolved areas). The Devolved Administrations also legislate to implement international obligations, which relate to devolved matters, and have responsibility for ensuring compliance, within their jurisdictions, with international obligations applicable to the UK. The Government is committed to working constructively with them to facilitate the effective implementation of the UK’s international obligations …

The Government has welcomed Parliament’s suggestions to improve the quality of Explanatory Memoranda and intends to revise further the template contained in the FCDO Treaties and MOU Guidance in light of recommendations from the House of Lords International Agreements Committee.”43

58.The Welsh Government has expressed support for formalising its engagement with the UK Government through a concordat that would go beyond the International Relations Concordat,44 and which would extend to those areas that have an impact on devolved interests. We understand, however, that limited progress has been made. The Government should work with the devolved administrations to ensure that outstanding obstacles to agreeing such a concordat are overcome.

59.We have consistently noted that the information we are provided with regarding the Government’s consultation with its devolved counterparts and the devolved legislatures is unsatisfactory. While we accept that the negotiation of international agreements is a reserved competence, many agreements have a significant impact on devolved competencies and the system should be more transparent and consultation timely. We welcome the Government’s changes to its guidance on Explanatory Memoranda and hope that the new guidance will ensure that the concerns we have raised are addressed.

60.In this context, we also note that the Welsh Government has proposed a concordat with the UK Government to formalise engagement, particularly in areas which, although not devolved, have a direct impact on devolved interests.

61.In scrutinising and reporting on agreements, it is important that we are able to reflect a UK-wide perspective. We invite the devolved governments and legislatures to engage with us on international agreements, including if the UK Government is seeking to enter into agreements which are not believed to be in the interests of Scotland, Wales, or Northern Ireland. We, in return, will continue to press the issue of consultation with the devolved governments and parliaments in Westminster, to seek to ensure that concerns are heard in the UK Parliament.

Amendments to international agreements

62.Most international agreements can be amended by the parties, although the mechanisms to do so vary. Most commonly, agreements make provision for amendments to happen through the mutual decision of the parties. This can happen through a variety of mechanisms, including Joint Committees (or similar structures) that are set up under the terms of the agreement itself.

63.Amendments to agreements can be as important as the underlying agreement itself, and so significant amendments ought to be subject to scrutiny. This is provided for under CRAG. However, the terms of section 25(2) of CRAG, which defines some of the exceptions to a treaty subject to ratification, are far from clear. Greater certainty is required about which amendments ought to be laid and scrutinised.

64.In addition, even if changes to an agreement are minor and technical in nature, and do not need to be laid under CRAG, or require legislation to be implemented, they may still be of interest and it is important that there is an accurate and publicly-available repository of this information.

65.We have two, longstanding, requests on the question of amendments to treaties. Both were discussed in our earlier Working Practices report.45 The first was that the Government engage with us to devise a system for drawing new amendments to international agreements to the attention of Parliament. The second was that the Government should ensure that it maintains a list of amendments so that it is possible for anyone to find an up-to-date version of each international agreement.

66.While the Government has promised to implement both of these requests little has happened in practice.46 It remains less than clear which amendments will be laid before Parliament for scrutiny, and whether there is a clear and logical rationale for any such decisions.

67.We note that the Government has now given evidence to PACAC that it “agrees with Parliament that it is important to have a complete and up-to-date record of the treaties to which the UK is a party, and has committed to ensuring that all amendments to treaties are published in the UK Treaty Series, including those that are not subject to CRAG.”47 This reflects the response to our previous Working Practices report sent to us in September 2020. It is now time for this commitment to be put into action.

68.The FCDO should publish clear guidelines on how it decides whether particular treaties and treaty amendments should be subject to ratification (and therefore laid under CRAG).

69.We call on the Government to honour the longstanding commitment it has made to publish all treaty amendments publicly and to make this information readily available online in a user-friendly format.

70.We recognise that it would be disproportionate to notify us in advance about each and every amendment. Since the Government has failed to come forward with a method for notifying us about significant amendments to treaties, we offer some additional guidance and criteria for amendments which we believe should be notified.

71.We recommend that the Government notifies us formally, and in advance where possible, of any amendments to international agreements which meet at least one of the following criteria:

(a)The amendment is politically, legally or economically important;

(b)The amendment imposes material obligations on UK citizens or residents;

(c)The amendment has human rights implications;

(d)The amendment would give rise to significant expenditure;

(e)The amendment would change the underlying agreement significantly, or has provisions which are novel.

72.Any such amendments should be referred to us, whether or not they are subject to the ratification requirements under CRAG 2010.

Memoranda of Understanding (or non-legally binding agreements)

73.In our original Working Practices report, we noted that the third limb of the Ponsonby Rule48 meant that the Government should disclose agreements, commitments and undertakings (including Memoranda of Understanding, or MoUs) which “involve international obligations of a serious character” whether or not they met the specific criteria laid down under CRAG.

74.MoUs are commonly distinguished from formal international agreements on the basis that they are political agreements between states and not designed to be governed by international law49—yet they can still involve substantive obligations (and can sometimes even be treaties in their own right). In subsequent correspondence, we therefore indicated that important MoUs should be notified and, where appropriate, disclosed to the Committee on a routine basis.

75.Unfortunately, this request has been consistently refused by the Government, which has—at best—agreed to consider the issue on a case-by-case basis.50 In its response to our original Working Practices inquiry, the Government contended that MoUs “can be useful tools for arrangements to be established quickly or operate flexibly, for detailed provisions which change frequently, for primarily technical or administrative matters, or for situations where confidentiality is required, for example, in defence matters or technology”. It stated that “in general terms, MoUs are drafted in non-legally binding language to reflect political commitments. They are not binding as a matter of international law and are not published or laid before Parliament as a matter of Government practice”.51

76.The issue around the disclosure of MoUs is one we have returned to because it is important. Put frankly, the difficulty with the Government’s approach is that it allows the Government to enter into secret arrangements which it does not disclose to Parliament on the grounds that it asserts that they are not legally binding in international law. In addition, and no less significantly, the use of MoUs allows the Government to fill out the details of a treaty it has signed—a practice which it acknowledges in its own Guidance on Practice and Procedures.52 This appears to be akin to producing an Act of Parliament with associated delegated legislation, but never showing Parliament the detailed regulations made under the parent legislation.

77.An example of the sort of issues that can arise can be seen in our correspondence with the FCDO over a request for the disclosure of an agreement with the United States relating to the Croughton Annex (on diplomatic immunity arrangements for US personnel and their families) which came to light following the death of Harry Dunn.

78. A letter from our Chair noted the case of Somalia v Kenya (2017, International Court of Justice), where the International Court of Justice (ICJ) stated that the supposed MoU at issue in a case before it was in fact a treaty. Our letter indicated that the ICJ case demonstrated “that there is at least a risk that a document that the Government identifies as an MoU might actually be a treaty for the purposes of the Vienna Convention, if it is deemed that there was an intention to create legally binding obligations between the parties”.53

79.That point was reinforced when the status of the MoU on the Croughton Annex was subsequently litigated by the Dunn family before the UK courts. Throughout this episode, the FCDO has refused to disclose the document to Parliament.

80. In the Third Edition of Modern Treaty Law and Practice, Anthony Aust (the former Deputy Legal Adviser to the Foreign and Commonwealth Office) acknowledged that “the use of MoUs is now so widespread, some officials may see the MoU as the norm, with a treaty being used only when it cannot be avoided”.54 He also noted that he was aware of several instances where there had been a disagreement on the status of a bilateral agreement between the parties, including some instances where this had happened after the agreement had become effective.55

81. Whatever their precise status, the Joint Committee on the Draft Constitutional Renewal Bill, which reported in 2008, 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 may be more important in their effects than most treaties”. If MoUs are not disclosed, then there must be a risk that, as Arabella Lang has observed, such arrangements may be used as “workarounds” to enable scrutiny to be evaded where “parliamentary demands become too onerous”.56

82.We remain concerned that we are not informed of important agreements which are not subject to ratification, contrary to the third limb of the Ponsonby Rule. We accept that it is not necessary, and indeed would be disproportionate, to notify us of every Memorandum of Understanding that the Government enters into. However, there are some significant agreements which should be notified and sent to us for review—whether or not the Government believes that they meet the definition of a treaty under the Vienna Convention on the Law of Treaties.

83.In order to assist the Government in identifying these, we propose a new set of criteria to ensure that only significant Memoranda of Understanding are notified and sent to us. Notification and deposit should be required only if an agreement—

(a)is politically or economically important;

(b)imposes material obligations on UK citizens or residents;

(c)has human rights implications;

(d)is directly related to a treaty; or

(e)would give rise to significant expenditure.

84.We also believe that the terminology used to distinguish between treaties and political agreements can cause confusion, since documents that are entitled Memorandum of Understanding can actually be treaties. Going forward, we suggest that the Government uses the terminology of treaties and “non-legally binding agreements”. Additionally, we propose that documents which are not intended to be legally binding should say so on their face to ensure that the intention of the parties is made clear.

The sequencing of implementing legislation

85.To provide parliamentarians with a full picture when scrutinising legislation, it is important that substantive implementing legislation is not put before Parliament before we have had a chance to scrutinise and report on an agreement.

86.We were therefore concerned to note that in its evidence to PACAC, the Government indicated that it “considers that the flexibility to pass implementing legislation before, during or after CRAG scrutiny of a treaty is beneficial and sometimes essential, and should be preserved”.57 While there may be occasions where the Government is compelled to legislate in haste, in normal circumstances predictability is important and effective scrutiny is likely to be more difficult where Parliament has already passed the implementing legislation without sight of the underlying agreement.

87.We are concerned that the laying of treaties and the introduction of associated legislation is not adequately co-ordinated and implementing legislation could be passed before we have had the opportunity to report.

88.We therefore ask the Government to provide a commitment that it will not 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 by the responsible Minister. Such explanation should be provided to the Committee in writing.

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