Working Practices (International Agreements Committee Report)

Baroness Hayter of Kentish Town Excerpts

Thursday 19th May 2022 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

To move that this House takes note of the Report from the International Agreements Committee Working practices: one year on (7th Report, Session 2021-22, HL Paper 75).

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I beg to move that the House notes the Working Practices: One Year On report, published back in September last year. This was, of course, produced under the distinguished chairmanship of my noble and learned friend Lord Goldsmith—no, not the Minister, the original one—to whom I pay tribute for his sterling work in setting up and leading the International Agreements Committee, aided and abetted by Alex Horne, our specialist adviser, and our brilliant team led by Jennifer Martin-Kohlmorgen.

As colleagues know, our remit goes well beyond trade. But in regard to that, I pay tribute—if it does not end his political career—to the noble Lord, Lord Grimstone of Boscobel, for his unfailing courtesy in answering our many questions, appearing before us both virtually and in person, and ensuring that his departmental officials were on hand to deal with some of the very fine detail of trade agreements. I especially mention his official who delivered four box files of the Australia deal to my home on Boxing Day; the grandchildren were not equally thrilled.

There are five points that I would like to make in opening this debate. First, on trade deals, what became known as the Grimstone rules, which emerged during the passage of the then Trade Bill though this House, have, I am delighted to report to the House as real news, just been confirmed today in an exchange of letters between the noble Lord, Lord Grimstone, and myself. These are now the official record of the earlier commitments, engineered by my noble friends Lord McNicol and Lord Stevenson at the time of the passage of the Bill, and they will remain in place unless our committee, alongside the International Trade Committee in the Commons, with which we worked, agrees to their amendment.

Secondly—here I have to move to “more work yet to come”—this welcome exchange of letters covers only trade. Treaties can emerge from the Home Office, such as on the Istanbul convention, family issues and immigration; from the Ministry of Justice, on prisoner exchange; from the Department for Transport, on the recognition of licences and navigational aids; and from the Ministry of Defence, as with the UK-US-Australia deal and provision of weapons to Ukraine, which we also dealt with. All those departmental treaties are overseen by the Foreign Office, but on those we have been given no such assurances as to how the relevant department will interact with Parliament to ensure effective scrutiny, given that the Constitutional Reform and Governance Act, or CRaG, is insufficient for the task, particularly when it comes to complex agreements.

Pending amendment of CRaG, there are other ways in which the Government can work with us to ensure that we can do our scrutiny job on all agreements properly. Our interactions with the noble Lord, Lord Grimstone, and today’s exchange of letters have shown that this has been possible for trade agreements. We now ask the Foreign Office to establish an equally constructive dialogue with us on the other types of agreements.

We hope—this is my third point—that CRaG will be reformed. It was passed in the days when the EU negotiated our trade agreements, with the European Parliament doing detailed and very powerful scrutiny, and with the power to say no to a negotiated deal. That ability to say no ensured that the European Parliament was consulted throughout the negotiations, so that the final result would be acceptable to it. We hope there will come a time when this Parliament also has to consent to trade deals and other important agreements.

Relating to this is my fourth point—that when we last negotiated our own trade deals, back before 1973, as some of us remember, there were no devolved Governments, so the UK Government were the sole authority. With devolution, treaty-making remains a reserved power, albeit that such deals can now cover devolved competences and interests. It is vital that, going forward, devolved Administrations are fully involved throughout the negotiations to ensure that their interests and competences are considered and fully respected. Meanwhile, we say to the devolved Administrations that, if they wish to raise any issues on treaties being negotiated, our door is open and we hope to hear from them directly.

My fifth point is about agreements which are not actually treaties. One example is amendments to treaties which, if significant, should also come to Parliament but at present are not always covered by CRaG. Perhaps more important, and certainly more urgent, is the issue of deals being signed by way of memoranda of understanding rather than by treaty. This means they do not even have to be disclosed to Parliament, let alone laid and debated here. I raised this in a Private Notice Question on 25 April in regard to the deal on deporting asylum seekers to Rwanda. That was done by an MoU, without any debate or approval by Parliament. The committee this morning opened an inquiry on this issue, and we will have a call for evidence on the MoU on our website shortly.

This use of “less than treaty” memorandums of understanding flies in the face of the 1924 Ponsonby rule, whereby any significant international agreements, commitments or undertakings would be brought before Parliament. We were astonished on 9 March to hear the noble Lord, Lord Grimstone, in exchanges on my Oral Question, I think in answer to a supplementary by the noble Lord, Lord Kerr, say that

“the Ponsonby rule survived for 86 years before it was supplanted by CRaG. I can completely confirm that now … they are governed by CRaG”.—[Official Report, 9/3/22; col. 1421.]

It was never suggested in 2010 at the time of the CRaG Act going through that it supplanted Ponsonby. Indeed, CRaG covers only treaties and not memoranda of understanding.

After the answer that the Minister gave to the question from the noble Lord, Lord Kerr, we wrote to the Foreign Office on 25 March, but Amanda Milling’s response, received on 11 May, simply says

“the Government and the Committee have different views on the content and status of the Ponsonby Rules. The Government does not accept there has ever been a constitutional convention … whereby non-legally binding arrangements are routinely published or submitted to parliamentary scrutiny”.

She asserts that it is for government to decide what to tell us.

I draw to a close on this issue. Whatever the status of Ponsonby, it is surely not acceptable for the Government to sign far-reaching agreements with foreign powers, with human rights, expenditure, diplomatic or even security implications, without so much as a nod to Parliament, let alone any chance for a debate. We have to do better than that, and I look forward to the Minister being able to supply some more positive and concrete reassurances than his colleague was able to supply.

--- Later in debate ---

[Baroness Hayter of Kentish Town (Lab)]

My Lords, do you ever feel sorry for the Minister replying to a debate?

[Noble Lords]

No, not really.

[Baroness Hayter of Kentish Town (Lab)]

Oh, go on—be generous. I shall comment on the Minister’s response so I hope the other speakers will forgive me for not going through everything they said, although I thank everyone who has contributed, particularly the members of the committee, whose expertise has been witnessed today.

Clearly, important statements were made about our negotiating objectives, and the need for us to discuss those, by the noble Lord, Lord Oates, my noble friends Lord Hendy and Lord McNicol and the noble Viscount, Lord Waverley. As well as my noble and learned friend Lord Morris, I know that the noble Baroness, Lady Ludford, the noble Lord, Lord Udny-Lister, and the noble Viscount, Lord Waverley also mentioned the devolved Administrations. As well as involving them, there is a clear need to get other stakeholders involved in this, which the right reverend Prelate the Bishop of St Albans mentioned, particularly in relation to TAGs. Personally, I was rather disappointed that Which?, the only independent spokesperson for consumers, was excluded by the Government from the domestic advisory group, or DAG—albeit on the Europe issue, rather than on what we deal with. This suggests that the Government do not really want to listen to other voices.

Today’s main point, to which we must return—I am sorry not to touch on the others—is about where control over all this happens. Most of this debate, as my noble friend Lord McNicol said, is about the role of Parliament in scrutinising what the Government are doing. I do not think that the noble Baroness, Lady Ludford, used the phrase “bring back control”. However, she and my noble friend Lady Liddell were essentially asking what the point was of having brought things back here, away from the hands of foreigners, if only to give them to an even smaller number of Ministers. The Minister has just used the phrase “with a big majority in the House of Commons”, as if to tell us in the House of Lords where to go. That was not point of bringing things back to Parliament—that they should just be done. As the noble Viscount, Lord Waverley, and the noble Lord, Lord Purvis, said, other Parliaments manage this. I have just come back from Washington DC, where the Committee on Ways and Means interferes far more with deals than we do—so we are not asking for anything ludicrous.

I must spend a moment on the MoU, given the debate we have just had. Sweden and Finland probably think that what we promised them was binding. Hearing now from the Minister that it is not may concern them just a bit, particularly if Turkey is going to hold them out of NATO for a while. So the Minister has now told us that the only security they have been given is not worth the paper it was written on. This is something of a surprise.

The noble Lord, Lord Lansley, warned that MoUs should not be used as a substitute for scrutiny, and my noble friend Lord Stansgate, I think, used the expression “should not evade it”.

I must now come to the noble Lord, Lord Kerr, who asked us to consider his TICs—taken into considerations. The only thing taken into consideration is that, sometimes, he is quite outrageous—even though he is a maestro. He at least honoured Ponsonby when he was at the Foreign Office. The idea that CRaG got rid of Ponsonby is a really big legal issue that we will have to discuss. There will no doubt be very experienced lawyers, even now, offering to give their opinions on it.

I am grateful to the Minister for attempting to respond to this debate. I felt a bit sorry for him—but not very. I am really worried about his view that CRaG, passed when we were in the European Union, is still fit for purpose. Despite trumpeting the view that we have now taken the ability to negotiate our own trade deals, he somehow considers an Act passed to deal with trade deals when we were not dealing with them as fit for purpose. He needs to go back to his department and look at that. He says that there is big difference because the public are now more aware; I think that the bigger difference is that we are not in the European Union and we are doing our own deals.

The House will have to come back to Ponsonby. In addition to our disagreement on the view, the Foreign Secretary sent the most bizarre letter I have ever received on 11 May, saying that she should not meet us as a committee, given the positions held—that is, that we differ from each other. I thought that you met when you had a disagreement to reach consensus. That is what happened with the noble Lord, Lord Grimstone. It is true that we had some private discussions in the bar, but we also had discussions in our committee and we reached the agreement.

That agreement is not a concordat, as the right reverend Prelate wanted, but we suggested an exchange of letters instead. We said that would do, if the Government did not want to call it a concordat. We got there; we reached a compromise, because we sat down as a committee and agreed it there. So the idea that a Foreign Office Minister will not meet us because we disagree seems quite extraordinary.

We need to move forward on this. Our committee will meet next week, when I am sure we will discuss how to take it further. As I say, our discussions with the Department for International Trade have shown that we can move forward. I very much hope that the Minister will take back to the Foreign Office that we are willing to reach a compromise and we need to move forward in a better way, with Parliament being able to scrutinise the decisions the Government take under Crown privilege or any other way. I undertake to the House that our committee will continue to scrutinise treaties and other agreements and less than agreements and undertakings, and will report to the House accordingly.

While I agree with my noble friend Lord Stansgate that the Government should take note of our report, my position is to formally move that this report is noted by this House.

Motion agreed.