Chapter 3: Looking forward
89.When we conducted our original Working Practices inquiry, we undertook to set out a series of pragmatic and proportionate recommendations to facilitate effective Parliamentary treaty scrutiny, without the need for legislative change. In so doing, we took the view that it was more important to get a scrutiny mechanism established and put in place before the end of the Brexit process, than to establish the ideal mechanism.
90.We also indicated, however, that we would reflect upon the restrictions imposed under the current statutory framework and return with further recommendations, should we consider them to be necessary.
91.We note that the Government has argued that treaty scrutiny mechanisms in the UK are “at least as strong as any other Westminster-style democracies”.58 It has gone further on social media, such as Twitter, arguing that “our scrutiny processes are amongst the most robust and transparent in the world”.59 In its evidence to the Commons’ Public Administration and Constitutional Affairs Committee inquiry on the scrutiny of international treaties, the Government said:
“The Government’s position remains that the legislative framework in Part 2 of CRAG is appropriate and provides sufficient flexibility to permit Parliament to undertake effective treaty scrutiny prior to ratification.60
92.We respectfully disagree. In our previous inquiry, we identified other models which provide for more effective scrutiny,61 and notwithstanding the improvements made thus far, we believe that more needs to be done.
93.This is the fourth report on the principles of parliamentary scrutiny from the House of Lords. Our experience of scrutinising treaties for over a year reinforces the points raised previously by the European and Constitution Committees—we conclude that the statutory framework contained in CRAG is insufficient to ensure robust and effective scrutiny, even if the improvements called for in this report are implemented.
94.Much could be learned from the scrutiny systems which are operated in other jurisdictions. Most notably, we believe that if a future administration is open to reforming the statutory framework, then priority should be given to ensuring the following three improvements:
(a)In respect of trade agreements, Parliament should be given a formal role in influencing the objectives when mandates are being set and this should be done transparently;
(b)In respect of all other agreements, Parliament should be provided with a final draft text, in advance of signature, so that any significant issues can be raised before the agreement is signed and the text is set in stone;
(c)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.
95.Without such powers, Parliament’s scrutiny of agreements is extremely constrained. While we are able to highlight issues, increase engagement with stakeholders, and conduct some technical scrutiny of the implications of new treaties, we are very much at the limits of what can be achieved under the restrictions imposed by the current statutory regime.
59 Rt Hon. Elizabeth Truss MP (@trussliz), twitter on [9 October 2020]: https://twitter.com/trussliz/status/1314491252956696577?lang=en
60 Letter from Lord Ahmad to Lord Goldsmith, 14 July 2021: https://committees.parliament.uk/publications/7023/documents/76807/default/
61 European Union Committee, Treaty Scrutiny: Working Practices, (11th Report, Session 2019-21, HL Paper 97), paras 83–87