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On 19 May 2022, the House of Lords is scheduled to debate a report from the International Agreements Committee entitled ‘Working practices: One year on’ (17 September 2021, HL Paper 75 of session 2021–22). Baroness Hayter of Kentish Town (Labour), the committee’s current chair, will sponsor a motion that will allow the House to ‘take note’ of the report.

1. Committee reports on working practices

The House of Lords International Agreements Committee scrutinises all treaties that are laid before Parliament under the terms of the Constitutional Reform and Governance Act 2010 (CRAG 2010). It also considers the government’s conduct of negotiations with states and other international partners.

First established as a sub-committee of the House of Lords European Union Committee in April 2020, the committee became a standalone committee of the House in January 2021. Given the continuity in remit, the ‘Working practices: One year on’ report considers both committees as “one and the same”.

1.1 First report (July 2020)

Following a short inquiry which began in May 2020, the committee published its first report on working practices in July 2020. This considered how the committee could conduct “practical and effective scrutiny” of agreements under the statutory framework provided for by CRAG 2010.

The committee argued the establishment of a dedicated committee presented a “fresh opportunity to address some of the deficiencies of the UK Parliament’s treaty scrutiny processes”. In particular, the committee cited concerns about CRAG 2010 and the provision of information prior to agreements being signed and the amount of time available for parliamentary scrutiny. It said that “time and experience” would show whether the 21-sitting day timetable provided for under the act would prove adequate for effective scrutiny. In the meantime, the committee set out what it called a “series of pragmatic recommendations” to facilitate parliamentary treaty scrutiny without the need for legislative change. Many of these related to the quality of information provided by the government, including in relation to trade agreements, non-trade agreements, memoranda of understanding (MoUs) and amendments to agreements.

In its response, published in September 2020, the government said that it continued to believe the framework set out by CRAG 2010 remained appropriate. But it welcomed the committee’s formation and “willingness to explore pragmatic and proportionate ways, without seeking legislative change, to work with the government to facilitate treaty scrutiny”. It added this was particularly the case in relation to future free trade agreements (FTAs).

In December 2020, in a written statement on transparency and scrutiny arrangements for new FTAs, the government reiterated that it was committed to facilitating parliamentary scrutiny of future trade deals. It said current scrutiny arrangements for such agreements were appropriate for the UK’s constitutional make-up and separation of powers. In terms of benchmarking current arrangements, the government argued that its approach to scrutiny by Parliament and other stakeholders of these types of agreement was “at least as strong as any other Westminster-style democracies such as Canada, Australia and New Zealand”.

1.2 Second report (September 2021)

The committee published its second report in September 2021. This detailed:

  • how the committee had conducted its work over the previous year
  • some minor changes to the committee’s criteria for scrutiny and reporting
  • proposals for some “further pragmatic steps” that could be taken to improve scrutiny
  • the committee’s assessment of the statutory framework for treaty scrutiny

Overall, the committee noted that improvements had been made to the system for parliamentary scrutiny of treaties over the 12 months preceding the report. However, it expressed disappointment that the government had not “established a framework for information sharing with clear, transparent and well-understood criteria”. It added that “much more” needed to be done to ensure the system in place for parliamentary scrutiny of treaties was both robust and effective.

For example, the committee recommended that “helpful commitments” from the Department for International Trade concerning the scrutiny of trade agreements, including for example publishing objectives ahead of negotiations, should be consolidated into a formal concordat. It said additional commitments had been welcome, although some of these, including the ‘Grimstone Rule’ on the facilitation of debates on negotiating objectives and FTAs, had been subject to “frequent and iterative” change. The committee argued that a concordat would formalise these as minimum requirements for both the current government and future administrations. It added that the concordat should be jointly negotiated between the committee, the government, and the House of Commons International Trade Committee. The committee provided a draft concordat text in an appendix to the report.

The committee was less content with progress made with the Foreign, Commonwealth and Development Office (FCDO) in respect of the transparency surrounding non-trade agreements. It called on the government to “formalise the commitments recently made by FCDO officials to provide us with advance notice of agreements”. It also said the FCDO had been unable to agree a mechanism to notify Parliament of significant amendments to existing treaties or important MoUs. The committee therefore recommended new criteria as to the types of documents which it argued should be drawn to its attention, “whether or not” treaty amendments would be subject to the ratification requirements under CRAG 2010 or the government believed an MoU met the definition of a treaty.

The committee was also concerned that the laying of treaties and the introduction of associated legislation was “not properly coordinated” and that implementing legislation could be passed before the committee had the opportunity to report on the matter. It therefore requested a formal ministerial undertaking that it would receive advance notice of all agreements due to be laid in Parliament. The committee also asked that the government not introduce legislation implementing any international agreement subject to ratification under CRAG 2010 in advance of the committee reporting, save in exceptional circumstances.

The committee also said it was important that it was able to reflect a UK-wide perspective in its reports. It therefore invited the devolved governments and legislatures to engage with the committee if they considered the UK government was seeking to enter into agreements which were not in the interests of Scotland, Wales, or Northern Ireland.

Finally, in a chapter titled ‘looking forward’, the committee concluded that its experience over the preceding 12 months reinforced points made in previous committee reports—including by the House of Lords Constitution Committee and House of Lords European Union Committee—that the “statutory framework contained in CRAG [2010] is insufficient to ensure robust and effective scrutiny, even if the improvements called for in this report are implemented”. It continued:

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:

  • 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.
  • 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.
  • 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.

The committee added that “without such powers, Parliament’s scrutiny of agreements is extremely constrained”. It argued that while it was “able to highlight issues, increase engagement with stakeholders, and conduct some technical scrutiny of the implications of new treaties”, this was “very much at the limits of what can be achieved under the restrictions imposed” by the current framework.

2. Government response to the committee’s second report

The government’s response to the committee’s second report was published in February 2022.

In it, the government disagreed with the committee’s conclusions and recommendations in several respects:

  • The government said it did not believe that “now is the right time to consolidate various commitments into a formal concordat”. However, it said it would continue to review this position as the first new free trade agreements were scrutinised by Parliament. It added that it disagreed with the committee that statements made by Minister for Investment Lord Grimstone of Boscobel during passage of the Trade Act 2021 constituted a new ‘rule’, and that formalising current arrangements at this time would prevent both the government and Parliament from “flexibly adapting to implement lessons learned”.
  • It said it recognised the “value in ongoing informal communications” between officials, “including notification of forthcoming treaties when possible”. However, it added this was not a government commitment.
  • The government also argued there had “never been a convention in the UK whereby non-legally binding arrangements are routinely submitted to parliamentary scrutiny”. It said it was established government practice that such agreements were not routinely published. It added that it may be appropriate to draw to Parliament’s attention non-legally binding arrangements that raised questions of public importance, but that ministers would consider doing so only on a case-by-case basis.
  • It also said it considered CRAG 2010 to be an “appropriate legislative framework, providing sufficient flexibility to enable Parliament to undertake effective scrutiny prior to ratification of a treaty, while reflecting the UK’s dualist system”. For this reason, it also did not agree with the committee’s three proposals in respect of Parliament’s formal role in the scrutiny of agreements. It said these were “not suited to the UK’s constitutional settlement”.

3. Follow-up letters

In a series of follow-up letters, Baroness Hayter sought answers from ministers further to the government’s response. In an article published on the parliamentary website which summarised three letters exchanged between January and February 2022, Baroness Hayter called on the government to reconsider its response. She said:

Arrangements for scrutiny need to be clear and transparent. The watering down of previously made commitments on trade deals and the rejection of pragmatic recommendations, such as that there should be a single written record of all commitments in respect of scrutiny of trade agreements, is deeply concerning.

The government also refused to address the absence of clear criteria for when memoranda of understanding and amendments to existing treaties should be deposited in Parliament. Or even to give the committee advance notice of pending agreements.

When the government does not constructively engage with committees, the effect is that parliamentary scrutiny becomes less effective and democracy suffers.

Baroness Hayter further invited the government to “provide assurances that previous commitments will be respected and recorded in an exchange of letters; and for it to engage constructively both with our committee and with any other relevant parliamentary committees”. She said that doing so would lead to “stronger, fairer international agreements, to the benefit of all”.

In a letter dated 8 March 2022, FCDO Minister Amanda Milling said that the government was “willing to record its commitments on the subject of trade agreements in an exchange of letters”. She added that the government continued to consider the existing treaty scrutiny framework and methods of publication for treaty amendments as sufficient. Ms Milling added that informal contact between officials had “worked well to date” and so the government did not consider it “necessary or appropriate” to make giving advance notice of forthcoming treaties a ministerial commitment.

On 14 March 2020, Baroness Hayter replied that the committee “very much welcome[d] the government agreeing to the committee’s recommendation for an exchange of letters to consolidate existing parliamentary scrutiny commitments in respect of trade deals”. She wrote that the committee would “wish to raise some further questions” on the other points, and that she would “correspond […] on these matters separately in due course”.

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