Treaty Scrutiny: Working Practices (EUC Report)

Lord Inglewood Excerpts

Monday 7th September 2020 Grand Committee

[Lord Inglewood (Non-Afl) [V]]

My Lords, as a number of your Lordships have said, this is an important debate. That is particularly so because the Constitution Committee concluded—other Members have quoted this, too:

“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed. Reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions, irrespective of the consequences of Brexit.”


It would be difficult to be clearer than that.

Before continuing on that theme, I will comment on the Covid crisis, because there is a lesson to be learned. Everyone is agreed that, after it is all over—whenever that might be—the new normal will not be the old usual. The same is true about the post-Brexit world, which will not be the same as the one we left when we joined the EEC some 50 years ago. I do not believe that this has been thought about sufficiently, either at the time of the referendum or since.

Since that time, as a number of your Lordships have said, the world has changed significantly, in ways that are in no way connected with Brexit. Socially, economically and technologically, the world is a much more interdependent and hence more cross-jurisdictional place than it was then. This will not change unless we want to evolve into some kind of North Korea.

We must remember that, because over recent years the EU has negotiated on our account in many international fora and the Government have been deeply engaged in the Council of Ministers, there will be a great deal more treaties than more than 50 years ago. As has already been said, Governments are always accountable to Parliament, as much as in exercising the royal prerogative as in dealing with domestic policy and legislation. There should be no equivocation about that. Intergovernmental agreements by their very nature cannot deal with the minutiae or the detail and complexity required to put necessary provisions on to the domestic statute book. The frameworks within which that is done are set and mandated outside the jurisdiction, but they define domestic legislation.

Furthermore, matters agreed in intergovernmental negotiations can be implemented in more than one way, and how that is done is a matter for the UK Parliament. In short, I believe that Parliament’s legitimate concerns encompass not only domestic legislation but the terms of any international agreements which will affect the UK statute book. In terms of Parliament being able to exercise its role, the existing arrangements, based on a Hobson’s choice between approving and rejecting an agreement and, frequently, a similar choice in respect of implementing agreed terms through statutory instruments, are essentially a parody of parliamentary government and, as such, unacceptable, not least because I have been told that, on occasion, Whips’ Offices have been known to deploy methods of persuasion that gangmasters might be proud of.

I spent 10 years in the Legal Affairs Committee of the European Parliament. The scrutiny given to the implementation of decisions taken in both the Commission and the Council and in respect of international agreements was on an entirely different level from that seen here, as a number of your Lordships have pointed out. While it is far from a perfect template or precedent for what we might do here, it draws attention to and highlights the shortcomings of our domestic arrangements and procedures. Checks and balances have always been an integral part of our constitution for hundreds of years, and delay where, in the last analysis, the House of Commons can insist on its way is foursquare within our constitutional practices and conditions.

When we joined the EEC, Sir John Foster led the evolution of a new way of doing parliamentary business. We now need another Sir John Foster, or a series of Sir John Fosters, to take another root-and-branch look at where we go from here and how to plot a way forward.