Treaty Scrutiny: Working Practices (EUC Report)

Lord Ahmad of Wimbledon Excerpts

Monday 7th September 2020 Grand Committee

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, I join other noble Lords in thanking the noble and learned Lord, Lord Goldsmith, the noble Baroness, Lady Taylor, and the noble Earl, Lord Kinnoull. I am going to say something which I have probably never said before in your Lordships’ House: I agree with the noble Lord, Lord Foulkes. He described these parliamentary reports as “excellent”. I fear that that is where our agreement may come to a very Lord-like difference of opinion. I am, nevertheless, truly grateful to noble Lords for their insightful contributions to this excellent debate. I also echo the sentiments of other noble Lords in acknowledging the sterling work done by my noble friend Lord Boswell during his tenure.

I thank all noble Lords present, all committees and staff for their excellent work in the production of these reports. The noble Lord, Lord Inglewood, reminded the Committee that, whatever the new norm will be, life has changed. It is, therefore, a particularly strong testament to everyone involved that in the same 12 months that these reports were produced, Parliament has established a dedicated treaty committee, with the noble and learned Lord, Lord Goldsmith, as an exemplary chair. I welcome my early engagement with that committee.

I know the noble Lord, Lord McNally, well. One of my first jobs in government was to serve as his Whip. Those who have seen the noble Lord perform at the Dispatch Box will appreciate my great skill in ensuring that the words “Keep Calm and Carry On” were regular reflections of the exchanges that we had. I hope that, if I am not able to directly answer all the comments in the course of my remarks, I shall be able to provide the level of warm reassurance that the noble Lord mentioned.

The production of these reports is testament to the magnitude of the issue being considered today: how the United Kingdom negotiates and concludes our international treaties. As always, I listened very carefully from the outset. The noble Lords, Lord Whitty and Lord Foulkes, and my noble friend Lord Balfe talked about how the committee itself should be governed and operate. I noticed that there was a difference between my noble friend’s perspective and what the noble Lords, Lord Whitty and Lord Foulkes, suggested on whether it should be a Joint Committee. As I am sure noble Lords will acknowledge, this is very much for Parliament itself. I engage directly with the Joint Committee on Human Rights in my capacity as Human Rights Minister and the Government look forward to working with any scrutiny mechanisms established by Parliament within the CRaG framework. I also welcome the International Agreements Sub-Committee, established in April this year.

It would be remiss of me not to pick up on the points made by the noble Baroness, Lady Northover, about the recent remarks that have been made and where we currently are in negotiations with our EU partners. In reflecting on the excellent contribution of my noble friend Lady Noakes, the noble Baroness said that my noble friend was looking at the past. I fear that my noble friend was attempting to remind noble Lords of the present: where we are today. We have left the European Union and therefore it is important, as the UK moves forward, to recognise that we will have full control of our treaty policy.

It is also right that Parliament takes a heightened interest in how the Government conduct their treaty negotiations. That has been reflected in the excellent debate today. We are at a crucial juncture in our constitutional order, and at this early stage I recognise that strong governance, as the noble Lord, Lord Collins, reminded us, is vital. Our actions this year will set a precedent for the UK’s international agreements long into the future. However, the constitutional balance, which my noble friend Lady Noakes mentioned in her remarks, also requires us to be cautious about not tying the Executive’s hands.

The three reports considered today recognise that treaty-making is, of course, a function of the Government, subject to appropriate parliamentary scrutiny. That scrutiny is provided for, as all noble Lords acknowledge, in the Constitutional Reform and Governance Act 2010, which enshrines the principles of parliamentary accountability in our international treaty relations. In the Government’s response to the previous reports—I say to the noble and learned Lord, Lord Goldsmith, that I too hoped that we would have published my response to the report, but I hope we will issue it very shortly—we fully acknowledged the case for improving processes around the way the Act is implemented to ensure effective parliamentary scrutiny.

The noble Baronesses, Lady Donaghy and Lady Northover, and the noble and learned Lord, Lord Goldsmith, among others mentioned the CRaG Act. They also recognised the reforms that have taken place. As we know, the Act is barely 10 years old. The fundamental nature of treaties has not changed significantly in that time and it is the Government’s view that CRaG respects the balance between the need for parliamentary accountability and the fundamental right of the Executive to negotiate for the UK internationally, exercising their powers under the royal prerogative. The rule is a result of centuries of constitutional practice, as we have heard, and it serves an important function. The Constitutional Reform and Governance Act allows the United Kingdom to speak clearly, with a single voice as a single actor under international law.

As noble Lords will also understand, negotiating a treaty is an art. However, I also acknowledge the contribution from my noble friend Lord Moynihan, who importantly reminded us of the strength and skills in our own parliamentary democracy, particularly—I add with perhaps a degree of bias—the expertise that we find in your Lordships’ House. At some stage, though, in the negotiations themselves, both sides will have to offer compromises. I am sure, however, that many noble Lords will recognise that these compromises are best kept in reserve. I was in business for more than 20 years prior to joining the Government, and I learned that all negotiations require the need for big sleeves. Announcing your position in advance often risks giving your negotiating partner the upper hand. Sometimes, of course, confidentiality—which many noble Lords mentioned—will be key. We are, of course, reminded of the Good Friday agreement.

However, if we are too prescriptive in the requirements that we make around CRaG, we risk tying our negotiators’ hands. Negotiators must be equipped to represent the national interest to the best effect. Equally, however, I respect the necessity, as has been said today, that they remain mindful of Parliament’s interests. As any Minister negotiating a treaty will be aware, the importance of Parliament’s role cannot in any way be ignored. Knowing that Parliament can resolve itself against ratification or may need to pass implementing legislation is an important consideration during the course of negotiations and in engaging with Parliament under CRaG.

The issues of CRaG, its reform and how Parliament moves forward with scrutiny were also matters of much debate in this regard. In the time I have I will pick up on some of the specific questions that were asked about the Government’s current position. As I already said, further details will emerge from the formal response that the Government will issue to the noble and learned Lord, Lord Goldsmith.

What has changed since CRaG was adopted, though, is the level of public interest now that the UK has control of its treaty policy, as the noble Earl, Lord Kinnoull, highlighted. I say to the noble Earl, Lord Sandwich, the noble Baroness, Lady Smith, and others that the Government welcome this increased interest. We accept that this justifies increased engagement and information within the CRaG framework whenever possible. As I said, this will vary at times due to individual negotiations but could include engagement through the negotiation process before an agreement is formally laid before Parliament under the Act.

The noble Baroness, Lady Bowles, also talked of the importance of parliamentary scrutiny. The Government acknowledge that, and I add that we also believe that parliamentary scrutiny does not necessarily end with ratification. I assure noble Lords that the Government are committed to publishing all treaty amendments, not just those that require ratification and thereby trigger CRaG. Likewise, for other implementations, derogations or withdrawals, we look forward to working with the International Agreements Sub-Committee to provide transparency effectively and appropriately.

On living up to these commitments, our response has to date focused on the important issue of trade deals—an area where there has been significant recent interest, for understandable reasons. I am pleased to note the positive response to the bespoke approach of colleagues in government, particularly those in the Department for International Trade, in this respect. This point was acknowledged by several noble Lords. Its regime of engagement and transparency allows for effective scrutiny of trade agreements. I suggest to the noble Baroness, Lady Bennett, and reassure the noble Lord, Lord Bilimoria, that we have seen through the recent compressive publications before negotiations—whether with the US, Japan, which the noble Lord, Lord Bilimoria, mentioned specifically, Australia or New Zealand—that the DIT, as well as other departments, will continue to keep Parliament informed through regular updates on negotiation progress.

In addition, the Government will also seek to allow time before finalising a new free trade agreement and laying it before Parliament under CRaG. That will allow the relevant scrutiny committee to produce an independent report. This open and detailed process will help Parliament and the public understand the agreement and its implications. This reflects the Government’s continued commitment to transparency.

I will pick up on some of the specific questions. The noble and learned Lord, Lord Goldsmith, and other noble Lords mentioned the 21-day timescale. In this regard, the Government commit to continue the regular constructive meetings between officials and those in the committees. In addition, it might be appropriate in certain cases for the Government to share a signed or initial treaty text with the relevant Select Committee or the IAC in advance of laying formally under CRaG to help the committee manage its scrutiny workload. This is especially appropriate for the FTAs, as I mentioned, and the Government will seek, as I said, to allow time between finalising a new FTA and laying it before Parliament under the CRaG procedure. The noble and learned Lord asked specifically about the timescales, as did the noble Baroness, Lady Taylor, and the noble Earl, Lord Kinnoull. The Government will consider the use of Section 21 of CRaG, whereby Ministers can extend 21 sitting days where appropriate.

Another issue that came up from several noble Lords was MoUs. This was a matter of discussion between me and the committee during our exchanges. As noble Lords reminded us, MoUs are used where it is appropriate to include a statement of political intent or political undertaking. In general terms, MoUs are drafted in non-legally binding language to reflect political commitments. They are not binding as a matter of international law and are not published or laid before Parliament as a matter of government practice. Particular elements of this, including the Ponsonby rule, were covered by the noble Lord, Lord Beith, and the noble Baroness, Lady D’Souza. In situations where MoUs raise questions of public importance, it might be appropriate for the Government to draw such matters to Parliament’s attention; for example, by way of a Written Ministerial Statement. Other measures are available to Ministers, as my noble friend Lady Noakes reminded your Lordships. However, it is not the Government’s intention routinely to submit MoUs for scrutiny.

The issue of devolved Administrations approving treaties that affect devolved issues was raised by the noble Baronesses, Lady Taylor and Lady Donaghy, and the noble Lords, Lord Bilimoria and Lord Collins, among others. The United Kingdom Government recognise that the devolved Administrations have a strong interest in international policy-making in relation to devolved and reserved matters that impact on the distinct interests of Scotland, Wales and Northern Ireland. I assure noble Lords that the Government remain committed to working constructively with the devolved Administrations to facilitate the effective implementation of our international obligations.

The noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Wallace of Saltaire, mentioned ways of scrutiny in other countries. My noble friend Lord Lansley also reminded us of the importance of scrutiny. As I have said, the Government welcome the establishment of the IAC and will engage quite directly. In preparation for this debate, I looked at some of the measures deployed by other countries. JSCOT, the Australian scrutiny committee, has a sifting mechanism—the noble and learned Lord mentioned this—and we see its value. It is in the Government’s interest to ensure that the most qualified committees scrutinise relevant treaties. Whereas under CRaG we allow 21 days, it is my understanding that the Australian committee currently has 15 days to scrutinise a particular treaty.

Human rights were also rightly raised—the noble Baroness, Lady D’Souza, and the noble Earl, Lord Sandwich, talked of their importance. I assure noble Lords that none of the 20 continuity trade agreements already signed has reduced standards in any area. As my right honourable friend the Prime Minister outlined in his Greenwich speech, we remain committed to upholding high environmental, human rights and labour standards. The recent merger of the Foreign and Commonwealth Office with the Department for International Development aligns the importance of our values agenda with our development policy. For example, when transitioning the EU deal with the Republic of Korea, we agreed a joint statement on human rights within a separate political declaration signed by our ambassador and the vice-Minister for Foreign Affairs in Seoul. That was published on 21 August 2019. More widely, the Government have already committed to set out in Explanatory Memoranda whether there are any significant human rights implications so that departments consider the human rights implications of all treaties.

The noble Baronesses, Lady Taylor and Lady Northover, the noble Lords, Lord Beith and Lord Whitty, and my noble friend Lord Lansley mentioned the importance of confidential briefings. The IAC report specifically acknowledged the limits of sharing confidential information regarding FTAs. The Government have a responsibility to protect UK interests in our international negotiations and to ensure that we do not release information that would undermine our negotiating position or our partners’ legitimate expectations of confidentiality. I know that noble Lords agree on this important principle. However, in line with our commitment to transparency and to aid parliamentary scrutiny, we have already seen our DIT colleagues share information where appropriate with the IAC on a confidential basis to keep it apprised of our FTA negotiations. Likewise, the Government will assess whether to give confidential briefings on a case by case basis.

I am coming to the end of my time. In acknowledging the excellence of the debate we have had, and the debate that I am sure will continue, I give a continued commitment in my capacity now as Minister of State at the Foreign, Commonwealth and Development Office to engage. I underline that the Government value parliamentary scrutiny and look forward to engaging closely with the committee in this respect. I assure all noble Lords that no one doubts that Parliament’s role is to hold Ministers to account. Equally, I am sure that all noble Lords recognise that the Government have a responsibility to secure the best outcome when it comes to the national interest in our international negotiations.

One yardstick by which the country will be measured going forward is our record as a sovereign and independent nation on negotiating and concluding new treaties that reflect our new status. Therefore, there is a balance to strike, as I would say to the noble Lord, Lord Collins. But let me assure noble Lords that we believe that the framework of the CRaG continues to strike that balance. With the additional engagement that I have outlined today, which of course will be detailed in response to the noble and learned Lord’s report, I believe that we will be able to provide more reassurance to all noble Lords about the Government’s commitment to transparency and to work with the committee in a constructive and progressive way.

With the additional engagement and information-sharing measures that I have outlined this afternoon, I hope that I have provided a degree of those warm words for the noble Lord, Lord McNally, among others, with the added reassurance that the Government remain absolutely committed to working with Parliament for the effective scrutiny of our international agreements and obligations.