On 7 September 2020, the House of Lords is due to debate three committee reports on parliamentary scrutiny of international treaties:
- House of Lords Constitution Committee, Parliamentary Scrutiny of Treaties, 30 April 2019, HL Paper 345 of session 2017–19;
- House of Lords European Union Committee, Scrutiny of International Agreements: Lessons Learned, 27 June 2019, HL Paper 387 of session 2017–19; and
- House of Lords European Union Committee, Treaty Scrutiny: Working Practices, 10 July 2020, HL Paper 97 of session 2019–21.
Recent debate on whether Parliament requires additional powers to scrutinise treaties has occurred in the context of Brexit. After the end of the UK-EU transition period on 31 December 2020, the UK will be able to ratify and implement trade agreements with other countries. This will be the first time the UK has had an independent trade policy since 1973.
When the UK was a member of the EU it was bound by many treaties, including trade agreements, which had been negotiated and ratified by the EU. The main scrutiny body in that context was the EU Parliament. The EU Parliament has significant scrutiny power, including a veto power, in respect of most treaties. This has led to calls for the treaty scrutiny powers of the UK parliament to be strengthened.
Constitution Committee: Parliamentary Scrutiny of Treaties
The Constitution Committee’s report summarised the role of Parliament in scrutinising treaties as follows:
Parliament’s scrutiny of treaties is based on the Ponsonby rule, established nearly 100 years ago and subsequently set out in the Constitutional Reform and Governance Act 2010 (CRAG). These provisions limit Parliament’s scrutiny to a 21 sitting day period after the Government lays a completed, signed treaty before both Houses. No systematic scrutiny of treaties currently takes place prior to signature.
The Constitution Committee explained that, once signed, treaties are laid before Parliament under the negative resolution procedure. They require no debate or vote in either House of Parliament prior to being ratified. The House of Commons has the power to delay ratification for 21 days—repeatedly, if desired—but only if the Government makes time for debates and votes. The House of Lords can vote against ratification, but the Government can still proceed by making a statement setting out why it believes the treaty should be ratified.
The Constitution Committee accepted that treaty-making is a function of the Government under the royal prerogative. However, it said that the treaty-making process had developed significantly during the UK’s membership of the EU. During that time, the committee said that treaties had developed from being broadly concerned with international affairs, such as peace and security, to “wide-ranging economic and trade agreements, encompassing diverse public policy issues”. In that context, the committee concluded that the powers of Parliament to scrutinise treaties were “anachronistic and inadequate”.
To address these concerns, the Constitution Committee recommended that Parliament should establish a new treaty scrutiny select committee, to sift all treaties and identify which require further scrutiny. The committee did not believe Parliament should be required to endorse the Government’s mandate prior to commencing treaty negotiations. However, it recommended that there should be a “general principle” in favour of transparency from the Government throughout the treaty process, particularly regarding “significant or controversial” treaties. It also recommended that the Government should engage more effectively with the devolved institutions throughout the process.
The recommendation to establish a scrutiny select committee has subsequently been implemented. In March 2020, the House of Lords agreed to change the terms of reference of its EU committee to allow it to establish a sub-committee with a remit to scrutinise treaties and international agreements. The International Agreements Sub-Committee was established in April 2020.
Theresa May’s Government published a response to the Constitution Committee’s report in July 2019. It said that it believed the CRAG Act remained a “viable legal framework for scrutiny”. However, it agreed that information sharing between the Government and Parliament could be improved and it committed to engage with “whatever parliamentary scrutiny structures the Houses implement”.
On engagement with the devolved nations, the Government said it was committed to “strong and effective relations” and it would continue to involve them “in the formulation of the UK’s position for international negotiations”.
However, on the general issue of transparency, the Government said it did “not agree that it should operate on a presumption of transparency for all treaty negotiations”. The Government said that when deciding which information to make public it had to balance openness against factors “including the risk of undermining the UK’s negotiating position”.
European Union Committee: Scrutiny of International Agreements: Lessons Learned
The EU Committee’s report summarised the lessons learned by the committee from its scrutiny of 42 Brexit-related agreements in 2019. The committee’s main conclusion was that the Constitutional Reform and Governance Act 2010 did not provide for sufficient scrutiny:
The CRAG Act is poorly designed to facilitate parliamentary scrutiny. The CRAG Act provisions come into play only after treaties have been signed by the parties, and the timetable they prescribe is too short to allow proper consultation or engagement by committees.
The report’s recommendations and conclusions included:
- During treaty negotiations, Parliament should be regularly updated and there should be a “general presumption in favour of transparency” from the Government.
- When negotiations had concluded, a draft text of the agreement should be shared with Parliament and the devolved administrations as soon as possible, accompanied by “comprehensive explanatory memoranda”.
- The committee welcomed provisions of the Trade Bill 2017–19 (which at that time was progressing through Parliament), which would have required the Government to publish parliamentary reports on all trade agreements. The committee said that the reports should include full impact assessments on different sectors of the economy and the labour market. However, these provisions were subsequently removed from the new version of the trade bill introduced after the 2019 general election (for more details, see section on the bill below).
At the time of writing, the Government has not yet published a formal response to the report.
European Union Committee: Treaty Scrutiny: Working Practices
The report from the EU International Agreements Sub-Committee was published in July 2020, following a short inquiry commenced in May 2020. The report noted the concerns raised by previous committees about the powers of parliamentary scrutiny available under the CRAG Act and observed that it may not be possible “to ensure adequate scrutiny of international agreements without legislative change” to the Act. However, as the committee concluded that immediate change was “unlikely”, the report offered a series of “pragmatic recommendations” to facilitate greater scrutiny without the need for amendments to the Act. The report recommended that the Government should:
- Engage more effectively with the devolved administrations, other committees in Parliament, and stakeholders.
- Provide “detailed and comprehensive” information at each stage of the treaty-making process.
- Allow sufficient time for committees to publish reports on completed treaties and trade agreements prior to triggering the 21-day period of scrutiny under the CRAG Act.
At the time of writing, the Government has not yet published a formal response to the report. However, the report was referred to in response to an oral question in the House of Lords on 29 July 2020, where speaking on behalf of the Government, Baroness Scott of Bybrook said the Government had no plans to amend the CRAG Act. She said the Government believed the Act is “appropriate and provides sufficient flexibility” for parliamentary scrutiny of treaties. She added the Government would publish a response to the report “in due course”.
Debate on the Trade Bill 2019–21
The issue of parliamentary scrutiny of treaties was raised during debate on the Trade Bill currently progressing through Parliament. The bill has completed its House of Commons stages and the House of Lords is due to begin its consideration of the bill on 8 September 2020.
During consideration of the bill in the House of Commons, Jonathan Djanogly (Conservative MP for Huntingdon) moved new clause 4 which would have created a statutory framework for Parliament’s role in approving trade agreements. Under the new clause, before starting trade agreement negotiations the Government would have had to:
- Obtain the approval of both Houses of Parliament for its negotiating objectives.
- Consult the devolved authorities on the content of the negotiating objectives.
- Produce a sustainability impact assessment covering the impact of the negotiating objectives on food safety, health, the environment and animal welfare.
Once a draft agreement had been negotiated, the amendment would have required the Government to undertake a similar process of consultation and parliamentary approval before it could be signed and ratified.
This new clause was similar to an amendment made to the 2017–19 version of the Trade Bill at report stage in the House of Lords. The amendment had been agreed to on division by 215 votes to 168, a majority of 47. However, the bill fell due to the 2019 general election. The Lords amendment was removed when the new version of the bill was introduced after the election.
During the debate on the current version of the Trade Bill in the House of Commons, the Government opposed the inclusion of new clause 4. Greg Hands, Minister of State for Trade Policy, said there were “already rigorous checks and balances” on the Government’s ability to negotiate and ratify treaties. He said the new clause was unacceptable because it would “give Parliament veto rights” over the Government’s negotiating objectives. The amendment was defeated on division by 326 votes to 263, a majority of 63.
- House of Lords, ‘Written Question: Trade Agreements’, 29 July 2020, HL7177
- House of Commons ‘Written Question: Trade Agreements’, 2 June 2020, 49854
- Dominique Gracia and Alexander Horne, ‘Treaty scrutiny: a new challenge for Parliament’, UK in a Changing Europe, 20 April 2020
- Holger Hestermeyer, ‘Parliament and treaty-making: from CRAG to a meaningful vote?’, UCL Constitution Unit Blog, 14 March 2019
- Department for International Trade, Processes for Making Free Trade Agreements after the United Kingdom has left the European Union, February 2019
- Brigid Fowler, ‘Parliamentary consent to treaty ratifications: another procedure strained by Brexit?’, Hansard Society, 20 November 2018
Image by Roger Harris from House of Lords Flickr. Copyright House of Lords 2016.