Summary of conclusions and recommendations
Introduction
1.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. (Paragraph 14)
2.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. (Paragraph 15)
Progress since the Committee’s Working Practices Report
3.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”. (Paragraph 20)
4.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. (Paragraph 21)
5.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. (Paragraph 43)
6.Yet more needs to be done to improve the effectiveness of the existing scrutiny system and make it robust. (Paragraph 44)
7.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. (Paragraph 45)
8.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. (Paragraph 46)
9.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. (Paragraph 47)
10.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. (Paragraph 48)
11.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. (Paragraph 53)
12.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. (Paragraph 54)
13.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. (Paragraph 59)
14.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. (Paragraph 60)
15.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. (Paragraph 61)
16.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). (Paragraph 68)
17.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. (Paragraph 69)
18.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. (Paragraph 70)
19.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. (Paragraph 71)
20. Any such amendments should be referred to us, whether or not they are subject to the ratification requirements under CRAG 2010. (Paragraph 72)
21. 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. (Paragraph 82)
22. 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. (Paragraph 83)
23. 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. (Paragraph 84)
24. 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. (Paragraph 87)
25. 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. (Paragraph 88)
Looking forward
26. 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. (Paragraph 93)
27. 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(Paragraph 94)
28. 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. (Paragraph 95)