Treaty Scrutiny: Working Practices (EUC Report)

Baroness Northover Excerpts

Monday 7th September 2020 Grand Committee

[Baroness Northover (LD)]

My Lords, I too thank the noble Lords who have introduced these three impressive reports. As my noble friends Lord Purvis and Lord Wallace have noted, it is an irony that the Committee is having this debate on a day on which the Government have flagged that they may go back on an agreement they have already made, with the EU, on the Northern Ireland border. If indeed that is what they plan to do, this has huge consequences for peace on the island of Ireland, and for the unity of the United Kingdom. I expect emollient words, as usual, from the Minister, whatever he may privately feel. The Government do seem to be rowing back a little today, but whose bright idea was it to throw out agreements already made? When I bear in mind how we endeavour to ensure that China adheres to its signature on the 1997 Sino-British treaty on Hong Kong, the Minister will absolutely know what risky ground the Government may well be on. How can we ask others to adhere to treaties if we feel we can pick and choose which ones we will adhere to?

It is clearly vital to the rules-based global order, which we say we support, that countries guide their relationships through treaties, not conflict, and adhere to agreements made. Treaties have become more numerous and complicated than was the case with traditional peace treaties, or ones which bound one country to assist another if attacked. The Constitution Committee’s 2019 report, Parliamentary Scrutiny of Treaties, noted this, and that Brexit made the examination of treaties, which were now likely to multiply, very pressing for the United Kingdom. It pointed out:

“During the … UK’s membership of the EU, the nature of treaties changed fundamentally—broadening from areas largely associated with international affairs—peace settlements and security alliances—to wide-ranging economic and trade agreements, encompassing diverse public policy issues.”

There had already long been concern about Parliament’s ability or otherwise to scrutinise treaties, dating back to Victorian times, as the noble and learned Lord, Lord Goldsmith, said. I recall the concern in the early 2000s about the agreement we made with the United States on extradition, which was not subject to parliamentary scrutiny and was not reciprocal. We see those concerns playing out in reality now, not least in the case of Anne Sacoolas and Harry Dunn, yet we have had to extradite those with clear and major mental health problems.

The CRaG Act of 2010 sought to address some of the concerns about proper and thorough scrutiny of treaties, just as legislation should also be subject to proper and thorough scrutiny, not least lest unintended consequences may be shown up. As the noble Lord, Lord Whitty, the noble Baronesses, Lady D’Souza and Lady Donaghy, and other noble Lords have said, CRaG is not fit for purpose post Brexit. The Act requires that a treaty be laid before Parliament 21 sitting days before ratification, alongside explanations of any such treaty. That was certainly a step forward, but it has not proved effective in providing adequate scrutiny or, in effect, allowing Parliament the power to amend a treaty or prevent ratification. It occurs when the treaty has already been agreed. As the noble Earl, Lord Kinnoull, pointed out, most treaties were scrutinised within the European Parliament.

It is clearly important to look at such treaties in advance, before they are concluded; otherwise, the matter is delivered as a fait accompli. It is a bit like the case with statutory instruments, where you do not necessarily want to reject the whole SI—an action regarded as a very rare nuclear option.

Scrutiny of treaties has not kept up with where we are. As the noble Lord, Lord Boswell, and others put it, scrutiny is essential. As the nature and number of treaties expanded while we were in the EU, many of them were negotiated at an EU level. The noble Baroness, Lady Noakes, may wish to go back to a pre-common market period, but life has moved on—and so have treaties.

The noble Lord, Lord Lansley, and others pointed out that transparency does not impede the Government but can assist them. My noble friend Lady Bowles showed how it helped in the case of EU negotiations with the United States. Now that we are negotiating our own treaties, such as trade deals, updating how we scrutinise them becomes urgent. My noble friend Lord Beith and the noble Lord, Lord Bilimoria, emphasised how important such trade deals are.

The International Agreements Sub-Committee was set up to address, as it was put, “some of the deficiencies” of Parliament’s current treaty scrutiny processes. Surely the noble Lords, Lord Lansley and Lord Whitty, are right that the committee should stand alone and not just as a sub-committee of the European Union Committee. Given all that was said about “taking back control” to be delivered by Brexit—reference has been made to that today—including that this meant that the UK Parliament would expand its role, as my noble friends Lady Smith and Lord McNally said, and the expectation that various treaties would be brought forward as a result of Brexit, not least in terms of trade deals, clearly this issue must be addressed. As my noble friend Lord McNally pointed out, the Brexiteers promised increased sovereignty for Parliament.

The sub-committee has been set up and, as the noble and learned Lord, Lord Goldsmith, indicated, is looking at whether adequate scrutiny of treaties can take place within the current CRaG arrangements, not least because there is little time or opportunity for legislative change. But as this latest report makes clear, the feeling is that if this scrutiny does not work, then legislative change to CRaG will be required. The way in which the Government pushed back with their response to the 2019 reports makes this conclusion look more, rather than less, likely.

That brings us to the three reports we are debating. The Constitution Committee’s report, Parliamentary Scrutiny of Treaties, is over a year old, as is the European Union Committee’s Scrutiny of International Agreements. We have the working practices paper from the new sub-committee, which is more recent; as the noble Baroness, Lady Taylor of Bolton, said, the Constitution Committee recommended the establishment of this sub-committee. All the reports have called for greater transparency, a role for Parliament earlier in the process of negotiating international agreements and a proper role for the devolved institutions. Only the noble Baroness, Lady Noakes, thinks that the reports go too far. Others, such as the noble Baroness, Lady Goudie, argue the opposite.

Despite what the Government said in their 2019 response, the new sub-committee states that it expects the ratification of treaties to be extended beyond three weeks to enable proper scrutiny. Can the Minister tell us specifically whether the Government now agree? We do not want just warm words, to which my noble friend Lord McNally referred. Will they agree to this limited request?

The report notes that the FCO was unable in short order to answer its own questions. One might well ask why the Government think that three weeks is enough for Parliament to scrutinise a complicated trade deal. Of course, in terms of their own delays on a few questions, I note the Government have decided to use up some of their bandwidth, despite facing Brexit and coronavirus, by merging DfID and the FCO and changing their Permanent Secretaries. That cannot have helped.

The committee notes the complexity of scrutinising free trade agreements, covering many areas, as David Henig laid out, including the environment, employment relations, technical standards, food safety and much else. How might the Government facilitate this more complicated scrutiny? As I say, the noble Baroness, Lady Noakes, does not think that they need to and the noble Lord, Lord Foulkes, does not think that they will. I have a feeling that I agree with the noble Lord.

The European Parliament, of which we used to be a member, and to which UK citizens voted their representatives, has more power here than does the UK Parliament. I note that the Government do not want to replicate this, according to their response. Yet our leaving the EU, as the noble Earl, Lord Kinnoull, put it, results in a democratic deficit that Parliament must put right. Again, so much for taking back control —to the Executive, maybe. The US Congress has more powers, and we expect that those will be brought to bear in any agreement with the US on trade.

The Government pushed back hard on the 2019 reports, pocketing where the reports allowed the Government to take unilateral action but giving little in terms of transparency or timing on any scrutiny. For example, the Government welcome the fact that the committee saw no need to amend CRaG, exploiting its politeness. It is therefore useful to have this year’s report on how things are working, or not really working. There are serious warnings in here. As the noble and learned Lord, Lord Goldsmith, my noble friend Lord Beith, the noble Baroness, Lady Bennett, and others have pointed out, treaties may have as great an effect on the UK and its people as the legislation we consider. I therefore look forward to specific proposals and agreement from the Minister, and for him no longer to endorse the Government’s response that we have here.