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The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
My Lords, the Hybrid Grand Committee will now begin. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear a face covering, except when seated at their desk, to speak sitting down and to wipe down their desk chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded, or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) (Amendment) Order 2020
(4 years, 2 months ago)
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Lord Bethell
That the Grand Committee do consider the NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) (Amendment) Order 2020.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
It is a sad fact of life that the NHS is not immune to fraud. As noble Lords will be aware, this Government have backed the NHS with the biggest cash boost in its history—an extra £33.9 billion by 2023-24. This money will go on investment, recruitment and epidemic response. This is taxpayers’ money and we are determined to get the best return on that investment, so that it makes the biggest difference to the most people. Yet fraudulent activity in the NHS means that the money intended for patient care ends up in the pockets of those who did not legitimately earn it. This is wrong. From a practical point of view, this means that fewer resources are available to be spent on front-line health services such as patient care, healthcare facilities, doctors, nurses and other staff. On a reputational front, it damages trust in the system. From an ethical point of view, it is our duty to fight fraud, because this is taxpayers’ money and we have a duty to spend it appropriately. That is why we have prioritised the NHS Counter Fraud Authority—to ensure that it is an effective counterfraud organisation. We believe it is best that it operates independently as a body which can act without external interference or influence and perform those functions that cannot be undertaken at a local level: serious and complex investigations, such as those that cross borders, and cases of alleged bribery and corruption on a national level.
Since its inception as part of the department in 1998, its function has evolved and in autumn 2017 it was launched as an independent special health authority. As a result, due to the NHS Act 2006, it is limited to a maximum lifespan of three years and so is due to be abolished on 31 October 2020. To prevent this, a statutory instrument was laid on 11 June 2020 to extend the abolition date by three years to 30 October 2023. I will take this opportunity to highlight the important work of the NHSCFA and set out why we need to extend its lifespan for a further three years.
The NHSCFA is a national centre of excellence. Fraud is a hidden crime and to fight it you have to find it. The CFA has done a valuable job in building the right relationships with organisations across the health and enforcement sectors to take that fight to the thieves who seek to deprive the NHS of resources for patient care. The NHSCFA is continually developing its intelligence and investigation capabilities and is breaking new ground in how to detect and prevent fraud. It has also set important national standards for the counterfraud work of NHS providers and commissioners, which apply to independent healthcare providers and NHS organisations. Its work is clearly bearing fruit; the NHSCFA’s latest strategic intelligence assessment shows an overall estimated reduction in losses from fraud of £60 million between 2017-18 and 2018-19. It also shows a £28 million reduction specifically on dental contractor fraud, thanks to a relentless focus by the NHSCFA over recent years, along with an £85 million annual reduction in fraud losses from false claims to entitlement to help with healthcare since 2017.
It is clear that this approach is working and that to change direction now would be a mistake. This concerted approach by NHSCFA to improve fraud awareness and drive up fraud reporting across the NHS is bearing fruit. We need it more than ever, especially when we are in the middle of the greatest threat to public health that we have seen for generations. As part of the government response to coronavirus, the Chancellor has repeatedly said that the NHS will get whatever funds it needs. An initial £5 billion coronavirus fund was established in the Budget in April 2020 and this was increased to £48.5 billion in the coronavirus emergency response fund in the Chancellor’s summer update, of which £31 billion has been approved to support our health services. We are continuing to work with the NHS and HMT to ensure that the NHS gets the funding and resources it needs, so total funding may change.
Although we have seen the nation coming together to celebrate the heroic work of NHS staff, unfortunately coronavirus presents a heightened risk of fraud, where criminals may seek to exploit the situation. Never before has a counterfraud response to protect this investment been so important. To us, “Protect the NHS” is about protecting not just staff but the money that taxpayers contribute to this invaluable national resource. The NHSCFA has played a key role during this period and has produced and shared coronavirus threat assessments with partners, and coronavirus counterfraud guidance specifically for the NHS. This includes guidance outlining the unique risks to the coronavirus response and specific guidance outlining types of mandate fraud and how to identify, prevent and respond to them.
As technology evolves, the risks to the NHS will evolve too, especially from fraud, so we will need organisations such as the NHSCFA to co-ordinate the response at a national level. If we made the decision to abolish the NHSCFA today, it would expose the NHS to significant financial risks. It would mean that there was no ability to accurately record and assess the nature and scale of fraud and to inform the response, both within the NHS and across the wider health group. It would result in serious and complex fraud investigations being transferred elsewhere; for example, to other NHS bodies, the police or the DHSC. It would involve costly additional expenditure for local NHS bodies at a time when they should be focusing on a global epidemic. It would undermine the funding of much-needed resources that are critical for patient care.
I urge noble Lords to keep this vital organisation in place and allow it to keep doing its important work, providing confidence and certainty to so many people. I commend this draft order to the Committee.
Lord Jones (Lab)
My Lords, I thank the Minister for his introductory remarks, his comprehensive review and his brevity. I support the order. The NHS has been magnificent at tackling Covid-19. Perhaps we should consider striking medals for that army of devoted NHS servants. I was a Health Minister in three Administrations. There was fraud in those far-off days; there is fraud now. Ministerial intervention was not effective then; my colleagues and I did not stamp out fraud. The Minister now is finding fraud to be resilient if he seeks a renewed continuation of the NHS Counter Fraud Authority. Surely he is engaged in a positive, considered and professional reactive policy.
I could say that a distinguished Chief Medical Officer said in my hearing that in this respect, the NHS is a monster and it has got a brain. The Minister has a more positive attitude than that exasperated senior official, the Chief Medical Officer. The noble Lord, Lord Lawson, got it right when he ventured to say most positively that the NHS is the nation’s religion. Certainly, it is a great NHS: that is absolutely certain.
I have some brief questions for the Minister. How many prosecutions for fraud were there in each of the years 2018 and 2019? How many successful prosecutions were there in those years? By what process are prosecutions initiated? With reference to paragraph 7.2 in our helpful notes, does his department have an estimate in money terms of the amount of fraud currently under way? How does his department gather and seek such information? Given the large sums of fraudulent moneys that have been discovered to be involved, will he consider enlarging the budget of the authority for better and ever more effective working? How many staff are engaged in the authority? Perhaps the Minister will give the name of the current chair or director of the authority and indicate the salary paid annually to that person. In conclusion, congratulations must go to the authority on saving the sums of money already indicated.
Lord Bourne of Aberystwyth (Con) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Jones, one of the most liked and respected politicians in Wales. I thank the Minister for bringing forward the order, which I certainly support. The NHS is rightly a cherished national institution and extra funding has indeed been brought forward by the Government. That is quite right, particularly in light of the current challenging crisis that faces us.
Fraud is always to be condemned, but there is something especially nauseating when it is taking money away from patient care in our cherished national institution, the NHS. Fraud is something that we should all take very seriously. Like the noble Lord, Lord Jones, I thank the NHS Counter Fraud Authority for the work that it has been doing developing intelligence against fraud and saving the NHS money by uncovering fraud: £60 million in the last year for which figures are available. Of that, £27.6 million related to dental contractor fraud, so that was a considerable amount.
The Minister for Care in the other place said that coronavirus presents a heightened risk of fraud; indeed, the Minister said the same again today. In the light of that, does the Minister believe that additional resources are needed in these challenging circumstances to save additional money for the NHS? If so, what is being done in that regard? I know that the Counter Fraud Authority has been working on a revised strategy, but I do not believe that it has yet been published. Does the Minister have any detail on that, and will he indicate when that strategy will be published?
I believe that PPE for combating Covid—which has presented, in some respects, a challenge with regard to fraud—is purchased centrally by the Government and is therefore not subject to the scrutiny and supervision of the NHS Counter Fraud Authority. Can the Minister indicate what body is scrutinising this area for fraud, what supervision does exist, and if that body—whatever it may be—is working alongside the NHS Counter Fraud Authority in order that the two bodies can be truly effective in that respect?
I thank the Minister very much for bringing these regulations forward; we should all welcome them. I hope that we are able—because I realise that this is on a three-year rolling cycle—to assure the people who are doing this vital work that their jobs are safe. I am sure that is the case, but I fear that when we see these things on a three-year rolling cycle, towards the end of the three years the employees and those working for the authority might perhaps be wondering what will happen to their jobs. I am sure that that is not the case, but anything that the Minister can say about the continuing security of these jobs would be welcomed by the House. With that, I lend my support to this order.
Lord Bhatia (Non-Afl) (V)
My Lords, I support this order fully. It will allow the NHSCFA to continue to protect the NHS from fraud, bribery and corruption, thereby safeguarding taxpayers’ money. Some £286 million of savings has already been made over the past few years. Doctors and dentists who defraud citizens will face charges. This order will be able to deal with this kind of corruption.
Lord Naseby (Con)
My Lords, this is a very important order. I declare my interests; I am married to a former full-time senior partner GP and I was for 12 years a member of the Public Accounts Committee, specialising in health matters.
I congratulate the Minister on bringing this forward. It is very timely. I wonder why three years was chosen rather than a Parliament, but that is not a key issue. I note, though, that paragraph 3.4 of the Explanatory Memorandum states that this applies to England only. Does that mean that there is a comparable body in Northern Ireland, Wales and Scotland? I hope the answer to that is “yes”—but if it is not, why on earth is it not?
I am not clear—and this goes back to my Public Accounts Committee years—who is actually auditing the work of this very important body. Is it the National Audit Office or some other organisation? Certainly, in my experience across a wide spectrum of departments and semi-independent bodies, the Comptroller and Auditor General in that organisation does a superb job and refers problem areas to the Public Accounts Committee. If the Minister is not able to answer that this afternoon, I hope he will be able to write to me.
I will raise an issue that might not be absolutely key at this point. I note that there are still too many examples of two chemists in a town trading under different names but actually belonging to the same company. The whole respect of the pharmaceutical and chemist world is basically that they get a primary payment, and that should not be happening.
Of course, at the top of my mind is the protective equipment that has had to be bought. While there were challenges there—not everything went as smoothly as I am sure the Minister would have liked—nevertheless I recognise the enormous effort that was put into providing protective equipment. But of course, when things are done at speed, inevitably there are loopholes, and I just wonder what we are doing in terms of helping this organisation to look closely at the contracts that were signed, the delivery of those contracts and whether the product was up to specification, to ensure that public money, paid for by the taxpayer, is well spent and that if the contract has not been delivered as thought, there will be not necessarily prosecution but some form of retribution repaid to this organisation.
I will ask another question that may seem strange. Is there any part of the NHS that is excluded from this organisation? It is very important that there is nobody and no part of the NHS that shall be excluded.
My noble friend Lord Bourne raised an absolutely crucial question. There is, it is rumoured—so I am told and I thank my noble friend for reminding me of this, because I did pick it up the other day—a revised strategy circulating somewhere. If there is, it seems to me that it should not be circulating for very much longer, because we really do want to know what is happening on the ground.
I will make just two further small points that are tangential to this. A colleague of mine whom I met a couple of days ago went for a test at Olympia. She was told that there was no space at Olympia and that she should go to Wellingborough—which happens to be next door to my former constituency. Upon complaint, it was discovered that there was space at Olympia. So that is a problem and a waste of resources.
In the papers over the weekend we saw the problem of past tests, where people have been cleared but there is some residue in their body that means that when the results are tested again, they come up as positive. That is another problem.
Finally, my noble friend—I do treat him as a friend, because I have known him for many years—Lord Jones has asked the right questions. How many people have been prosecuted? How many special prosecutions have there been? How many special initiatives have there been? Is my noble friend in a position to update the figures for savings that we have here?
I say again to my noble friend that we owe a huge thank you to the staff who are doing this work. It must be challenging and I hope that they are getting all the resources they need. I hope that they are getting the right skills. If they are short at all, will my noble friend confirm that, as far as he knows, they have got all the staff they need to do a first-class job?
Baroness Thornton (Lab)
My Lords, first, I need to declare my interests as a former member of a clinical commissioning group and a current non-executive member of a hospital trust—because, of course, we get trained in fraud when we take up these non-exec positions. So I have been diligent in doing my online training with the NHS fraud authority. It is very rigorous and it makes you think very carefully about the whole range of fraud that might occur in the NHS, including in recruitment, procurement and so on. So I will just say that it is very useful that it is so diligent in this. Of course, it is part of the whole audit process that goes on within NHS foundations and NHS bodies all the time.
I thank the Minister for introducing these provisions, which we will of course be supporting. Fraud is by definition a hidden crime and those who commit fraud are of course in a minority. But we are talking about significant sums here. The 2018-19 estimates say that fraud cost the NHS about £1.27 billion. So fraud is not and never has been victimless, and in this case it impacts directly on patient care. I commend the work of the fraud authority in uncovering scams and ghost patients, but there is still quite a long way to go.
Unfortunately, Covid-19 presents a heightened risk of fraud, and it does so across the whole of society. As someone who had to have their bank cards changed three times during lockdown, I say that unscrupulous crooks are seeking to exploit the fact that systems are not working and in particular that our health system is under unprecedented pressure—and they are doing it for their own financial gain. I think all noble Lords will agree that robust response is imperative to safeguard the reputation and resources of our health service, so we welcome these provisions and the extension of their lifespan for a further three years.
The disruption caused by Covid-19 has seen a reported spike in fraud cases across health and social care, ranging from fake PPE to recruitment, as well as cybersecurity attacks. I think noble Lords will agree that this is deeply concerning, so what assessment have the Government made of reports that levels of fraud have been increasing during the Covid-19 crisis, and is the noble Lord able to share any preliminary figures with us today?
Like my noble friend Lord Jones, I say that it is imperative that the fraud authority has the resources it needs to investigate, detect and prevent fraud. So could the Minister assure the Committee that the resources that it does need to investigate, detect and prevent fraud are there, and that there has been increased funding, commensurate with the increased risk?
An urgent concern is the relaxation of recruitment rules and practices to allow NHS bodies to hire staff working across the health and social care sector. I completely accept that this has been necessary at a time of emergency, but I wonder what assessment the Government have made of these exceptional circumstances and the unique pressures that may impact on methods of preventing fraud in recruitment. What advice and support is the fraud authority giving to NHS organisations to help them prevent fraud in these difficult times?
PPE has already been mentioned in this debate, and we have talked a lot about it in the last few months. It is of enormous concern that amounts of public money have been directly awarded outside the usual tendering process, with no competition. What steps is the authority taking to prevent fraud linked to PPE procurement? Given that PPE procurement for Covid-19 is now centrally managed, can the Minister confirm whether this falls outside or inside the remit of the authority? Who will be investigating this as we move forward? Are cases being referred to the Department of Health’s anti-fraud unit, supported by the authority? I hope that the Minister will also take the opportunity to confirm that there will be an inquiry into PPE procurement as we move forward.
The Minister has already mentioned something of vital importance: cross-working. The most recent annual report identifies a number of challenges and potential barriers that affect the ability to tackle fraud against the NHS and highlights the fact that the level of understanding of the nature of fraud in the NHS continues to be uneven across the health system. So if there is underreporting of fraud and suspicious activity, that is of continuing concern. Can the Minister expand on what the authority intends to do to improve cross-NHS working?
In June, as has been mentioned, the Cabinet Office published the Counter Fraud Functional Standard, which is intended to be introduced across the NHS by the end of the financial year. We certainly welcome this move towards a common counter approach across the public sector. But what steps is the NHS Counter Fraud Authority taking to support the NHS organisations to implement this change? Can the Minister confirm that this will be introduced across the NHS by the end of this financial year, as intended, or will it need to be delayed? Perhaps he could explain that.
So we welcome this order and I think that these are all questions that will probably need to be answered in due course.
Lord Bethell (Con)
My Lords, I thank noble Lords who contributed to this lively debate. I completely endorse the comments of several of them, including my noble friend Lord Naseby, who thanked the CFA for its work. It is tough work; it requires huge diligence. It is not always glamorous, exciting, blue lights and fun; it is about grinding out huge amounts of detective work and auditing and being thorough. I am extremely grateful for the work of the CFA and say a massive thanks for its impact. Some of that is seen directly through the numbers, but a lot of it, as was alluded to by the noble Baroness, Lady Thornton, is seen through soft impacts such as cross-working, “encourager les autres” and a general sense of grip, which it is an important thing for NHS management to have over the system.
With all the taxpayers’ money that is going into investment, recruitment and epidemic response, never before has counterfraud been quite so important—a point made by several noble Lords. The CFA has been instrumental in providing guidance and organisation across the health sector and, very importantly, in sharing intelligence with law enforcement partners.
A number of noble Lords asked about the approach of the CFA. We know that preventing loss is much more cost effective than prosecuting suspects and recovering funds. That is why the CFA does an enormous amount of work on fraud prevention methodologies. It is pushing hard to build and develop capabilities across the NHS and to share national standards and best practice with all parts. That is why it is driving a national, co-ordinated and cross-organisational response focused on prevention—the approach alluded to by the noble Baroness, Lady Thornton.
I say in response to my noble friend Lord Naseby that the CFA was established as a special authority only in 2017, but we have seen from its own strategic intelligence assessment that there has been a year-on-year reduction in fraud loss estimates. For that, we are enormously grateful.
The noble Lord, Lord Jones, asked about the number of prosecutions. The CFA has 45 ongoing investigations, involving 165 suspects. In 37 of those cases, a potential fraud value has been calculated which exceeds £34 million. I hope that that gives the noble Lord an idea of the scale of this work. The estimate for NHS fraud has been reduced, according to the strategic impact authority, from £1.27 billion to £1.21 billion, which shows the recent impact of the CFA. The chair is Tom Taylor and his salary is currently £14,450 for an average of two or three days a month.
The noble Lord asked also about the type of fraud investigated by the CFA. Covid fraud has been focused on—cyber-enabled fraud through malicious emails, apps and SMS texts. It has also investigated fraudulent appeals designed to exploit public sympathy and the spreading of false information. In this, the CFA has worked closely with the Cabinet Office, which has provided incredible support.
On how much fraud is reported to the CFA, it receives around 5,500 reports each year. The figure of 5,500 for 2018-19 was an increase of 700 over the year before. Almost half of those reports relate to fraud committed by NHS staff and a quarter to fraud committed by NHS patients.
My noble friend Lord Bourne asked a number of questions about the budget. The current budget of the CFA, which is an indicative, non-ring-fenced revenue budget allocation, is £11 million. That budget is funded through the DHSC in the same way as other health arm’s-length bodies. In 2019-20, we detected and recovered a total of £126 million which would have otherwise been lost to fraud.
My noble friend asked also about the PPE supply chain. PPE procurement during Covid-19 is currently managed centrally and not by NHS trusts. Therefore, Covid-19 procurement activity falls outside the CFA’s remit. The DHSC anti-fraud unit is working with partners to scrutinise transactions and reduce the risk of fraud against the Government—the noble Baroness, Lady Thornton, asked about that specifically. The CFA is supporting this work, but I will take a moment to give special thanks to my noble friend Lord Agnew, who is very much leading the charge from the Cabinet Office in the anti-fraud campaign. I am a representative member from the health department on what is known as the “fraud board”, which meets regularly to update policies and programmes in this area.
I thank the noble Lord, Lord Bhatia, for his comments. On my noble friend Lord Naseby’s question about the devolved authorities, I want to clarify that the CFA, although focused on England, provides a huge amount of training, technical support, data and other specialist support for DAs. Although they handle this as a devolved area, they benefit greatly from the CFA’s expertise.
My noble friend is entirely right about Covid spending. I would like to have said that everyone behaved immaculately through the Covid campaign, but that is not true. We were subjected to an enormous, co-ordinated and systematic campaign by those who sought to defraud taxpayers. We are conscious of that. We put in place enormous co-ordination with the police authorities in order to spot fraudulent efforts. They were extremely energetic but not always successful, and we have prosecutions in place to chase down fraudsters who sought to take money unreasonably off taxpayers.
Auditing of the CFA is done by the National Audit Office. I reiterate the thanks given by my noble friend Lord Naseby to the CFA.
On the CFA’s three-year cycle, it is an arm’s-length body established as a special health authority under the National Health Service Act 2006, which gives it a maximum tenure of three years. It is therefore out of the electoral cycle. Affirmative secondary legislation is required to extend the tenure for a further three years until 30 October 2023, which is why we are here today.
I think that I have addressed a number of the comments made by the noble Baroness, Lady Thornton, but I reiterate what I said on PPE in particular, which was subject to a concerted, organised effort by the criminal world to defraud the British taxpayer. Our response has been energetic and remains ongoing.
Extending the current model provides an opportunity for the CFA to continue its work. Its budget, which a number of noble Lords asked about, is under review, but we believe that it is ample for the work that it is doing. The department will continue to oversee the function of the CFA in its sponsorship role to ensure that it is fit for purpose. This will also allow the department to consider the best operating model for the CFA in the long term. The order is important secondary legislation that is integral to allowing the CFA independence and a crucial remit to continue. I urge noble Lords to approve it.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
The Grand Committee stands adjourned until 4 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
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The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing; others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear a face covering, except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other surfaces that they touch before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I shall immediately adjourn the Committee.
Treaty Scrutiny: Working Practices (EUC Report)
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Lord Goldsmith
That the Grand Committee takes note of the Report from the European Union Committee Treaty scrutiny: working practices (11th Report, HL Paper 97).
Lord Goldsmith (Lab)
My Lords, it is my privilege as the chair of the International Agreements Sub-Committee of your Lordships’ European Union Committee to move this Motion. In doing so, it is my very pleasant duty to acknowledge and thank the chair of the European Union Committee itself, the noble Earl, Lord Kinnoull, and the chair of your Lordships’ Constitution Committee, my noble friend Lady Taylor of Bolton, for the earlier reports for which they were responsible. They will be moved to be noted immediately after I have spoken. I also want to thank the Secondary Legislation Scrutiny Committee, chaired by the noble Lord, Lord Hodgson of Astley Abbotts, for its continued engagement with the issues that we are to debate this afternoon.
The purpose of this debate is to consider how we will undertake the new and critically important task of scrutinising the international commitments that the Government propose that the country enters into. It is a critically important task because international agreements can be every bit as important as the domestic legislation it is the job of this House to scrutinise, but they receive only a fraction of the scrutiny. This point was made as long ago as 1872 by Walter Bagehot, who said, in his second edition of The English Constitution:
“Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous.”
We have moved on from there, though it has been a slow and, many would say, still incomplete process. Our report traces some of the developments and, importantly, the Ponsonby rule, which goes back to the peace treaties of the First World War. Yet we lag far behind many countries in our parliamentary scrutiny of international commitments. The EU and USA have developed detailed arrangements for approval of agreements. The theme in all the reports that are for consideration today is whether the Constitutional Reform and Governance Act—CRaG—processes will enable this House to perform the task of scrutiny which I believe everyone believes that it should.
We are disappointed that we have not had before this debate the reply of the Government to our report; it would have made it a more constructive and useful debate if we had had that. None the less, we look forward very much to the Minister’s reply. I welcome in that respect the positive engagement of both the Minister here today and the noble Lord, Lord Grimstone, for their repeated statements in correspondence and orally that the Government share the view that scrutiny by Parliament, including by this House, is crucial. I look forward to hearing that repeated as well. I am particularly appreciative of the positive steps of the noble Lord, Lord Grimstone, to keep the committee that I chair informed of developments.
The three major issues I will refer to this afternoon are information, time—those two are connected—and what commitments are covered. We need information; we need to know what agreement is proposed and what its terms are. The worry is that, if we see the information and the text of a treaty only when it is signed, it may be too late for any effective scrutiny. Will the opportunity to improve the arrangements simply have passed, and does it then become an unwelcome choice of take it or leave it? This can be managed by sharing information in different ways, before the CRaG clock starts, through advising Parliament of negotiating mandates and enabling debate on those, keeping us informed of the progress of negotiations and providing notifications of what is likely to be laid soon. That may involve sharing information in private, which is not ideal, as many or perhaps all of us would prefer transparency. But if otherwise we will not see the outcome until much later, we have said that we will be prepared to receive it in private.
The second issue is the time available for our scrutiny. CRaG allows 21 sitting days, which is very tight, especially if we want to consult experts or stakeholders. We are very concerned about this issue. In Command Paper 63 in February 2019, important assurances were given by the Government, which included assurances that adequate time would be available for scrutiny—and scrutiny indeed by both Houses. That was the Government of Mrs May and not of Mr Johnson, but we hope that we can still receive the same assurance from the present Government. Can the Minister provide today the assurances that the present Government will do just as much as was promised in February 2019 and will now reconfirm those commitments? A sliding back, just at the moment that we need to see these agreements which Mr Johnson’s Government much vaunted during the Brexit debates, would be very regrettable. At the very least, it would raise the question of whether CRaG can be made fit for purpose at all.
Before proposing amendments to CRaG, we have proposed a pragmatic approach. We hope to be testing out this sort of arrangement on the agreements that we are scrutinising—or not yet scrutinising, but where inquiries have been opened—including the earliest, which is likely to be the UK-Japan deal. In a spirit of co-operation, Parliament and Government can test what works well, and develop new practices and approaches together. Still, some points that the Government need to act on are immediately clear, and were clear to my noble friend Lady Taylor’s committee and to that of the noble Earl, Lord Kinnoull, including increased and regularised co-operation with the devolved regions and Crown dependencies and overseas territories.
One issue is that we need to find a way forward for enabling scrutiny of agreements beyond the strict terms of CRaG, in particular where amendments to existing agreements arise, and memoranda of understanding. Under the third limb of the Ponsonby rule, the Government accepted that Parliament ought to
“exercise supervision over agreements, commitments and undertaking by which the nation may be bound in certain circumstances and which may involve international obligations of a serious character, although no signed and sealed document may exist.”
Yet, despite the fact that this description clearly covers memoranda of understanding, which can have profound political consequences, we have thus far been unable to obtain assurances from the Government that these will be routinely disclosed to the committee, even when they involve significant international obligations.
MoUs can relate to important issues, such as deportation of terror suspects with assurances that they will not be tortured, or, more recently, the diplomatic immunity of individuals not covered by the Vienna Convention on Diplomatic Relations. I refer here to the Harry Dunn issues. So we need to see these. The point was raised in our committee, including by Members with great experience and knowledge, that this might overwhelm the committee because of the number of such arrangements. It cannot be right for the Government to decide which amendments and MoUs are subjected to scrutiny; that must be a matter for Parliament.
So we have proposed a pragmatic and practical approach to sift such documents for scrutiny, and we hope that the Government will engage with this in a positive fashion. Our current solution therefore is to propose a sifting process so that only a manageable number of these would rise to the level of requiring detailed scrutiny. That is a proposal on which we particularly look forward to the Government’s response to the reports and their agreement on a way forward.
What is the timetable for agreeing a system for routinely sending us amendments, and other relevant treaty information? When can we expect to see a system in place that reports amendments and memoranda of understanding that are agreed, so that we can get on with our work? Are the Government willing to commit to providing regular lists of what has been agreed to help the Committee identify where scrutiny needs to be applied? I am looking forward to hearing not just from the Minister but from other noble Lords this afternoon as to how they see the work that we are to do going forward, and I hope that the debate on these reports will very much advance the aim that we have. I beg to move.
Baroness Taylor of Bolton (Lab) [V]
My Lords, I am happy to follow my noble and learned friend Lord Goldsmith. I am pleased that his committee has been established. I will say a few words as chair of the Constitution Committee to give some background as to why we took an interest in this issue.
The Constitution Committee launched an inquiry into Parliament’s role in the scrutiny of treaties in October 2018. We did so for three basic reasons. The first and obvious one is that we believed that treaty scrutiny mechanisms were not adequate, had failed and were flawed. That was based not just on the Ponsonby rule, which has been mentioned. We of course also looked at the provisions of the Constitutional Reform and Governance Act 2010, but we concluded that more needed to be done, and not just because times have changed and current procedures are no longer adequate. The fact is that Parliament has little or no chance to influence treaties while they are being negotiated and, indeed, only a very limited opportunity to potentially block ratification at the end of the whole process. That stops Parliament fulfilling some of its obligations and responsibilities to hold the Government to account.
Added to that is the fact that treaties have changed in nature over the years. My noble and learned friend Lord Goldsmith pointed out that modern trade treaties touch on a wide range of policy issues that have a very significant and direct impact on everyday life. That is becoming increasingly clear when we see the treaties currently being discussed. So there was a strong case for change.
On top of that, we have the third factor, which might change urgently, which is, of course, Brexit. These issues have become more pressing because Brexit is now a fact of life and because Parliament will have many more treaties—indeed, some very complex ones—to scrutinise once we are in the situation, as we are now, of replacing EU trade agreements.
The committee worked hard on this issue and we published our report in April last year. I place on record our thanks to Professor Stephen Tierney, Professor Mark Elliott and our excellent parliamentary team of Matt Korris, Matt Byatt and Lloyd Whittaker. I am sure that my committee would want me to express our appreciation for the work they did to help us.
Our report concluded that there was a very real degree of urgency about this situation and that Parliament really needed to act quickly to deal with all these issues. One of our recommendations was that there should be a committee along the lines of the one just suggested by my noble and learned friend Lord Goldsmith. That committee has to scrutinise treaties, as he said, but it also has a responsibility to bring to the attention of the House some of the issues that are important and have to be considered by us all.
However, as I think my noble and learned friend indicated, establishment of the committee in itself not enough. A lot depends on what happens from now on and on the Government’s attitude. Indeed, most of the successful working of the committee will be dependent on the Government’s attitude. We have had some signs of potential progress, but, again as my noble and learned friend touched on, we must make sure that there is sufficient time for the treaties committee not just to look at a treaty’s proposals but to complete its work before things come forward to the House. We are talking about very short timeframes on occasion. This is something we have to be wary of, because Parliament is being bounced into making very hasty decisions on a lot of issues at the moment, and this should not happen so far as treaties are concerned.
The second point is very important. Again, my noble and learned friend touched on this. The Government must provide more information about trade negotiations, and must do so at the appropriate time. The Constitution Committee was not naive about this. We accept that there are areas where there is sensitivity about negotiations and there are times when perhaps things will have to be withheld from the committee, but it is important that we get the balance right. So we recommended that there should be not a legal requirement for transparency but a general principle in favour of transparency throughout the treaty process—a general principle that disclosure to the committee should be the norm and that withholding information should be the exception. The Government have made some comments, some of them potentially helpful. I am sure that the new committee will seek to get the right balance. It is possible for a committee to deal with sensitive information. As someone who chaired the Intelligence and Security Committee for some years, I know that that procedure is possible.
I must highlight one other issue: the question of devolution. The Constitution Committee has on many occasions commented on the difficulties of this Government and the devolved institutions working properly. There have been many times when we have had to comment on the shortcomings of intergovernmental relations. This is a very real and current problem that will cause many difficulties. We really do worry about it. Indeed, in our most recent report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill last week we said:
“It is extraordinary and profoundly disappointing that the official review of inter-governmental relations has yet to reach any conclusions.”
That has been going on for a very long time. We also urged the Government to publish the Dunlop review as soon as possible. We are seeing real problems in this area and the Government have not been taking the issue as urgently as they absolutely need to.
To conclude, we welcome the new committee and I welcome my noble and learned friend Lord Goldsmith to his role. There will be a great deal of work because of Brexit, and it is pertinent to so many areas of life. There are some important issues to contend with, as my noble and learned friend said. The sifting process is right, but we really need to get the right attitude on the part of the Government if the committee is going to be able to fulfil its role.
The Earl of Kinnoull (Non-Afl)
My Lords, it is a great privilege to follow two such excellent opening speeches. The noble and learned Lord, Lord Goldsmith, has already made a considerable mark in chairing the new International Agreements Sub-Committee, as demonstrated in his speech, and its first report is one of great authority, clarity and importance. The noble Baroness, Lady Taylor of Bolton, and the ever-excellent Constitution Committee once again produced a report of great weight and incisiveness, and just now she produced a speech to match. I warmly thank the noble Lord, Lord Boswell, under whose chairmanship the EU Committee’s June 2019 report was produced just before I took over, but who has graciously suggested that I lead off today.
The three reports we are considering build on each other. The cornerstone is to be found at paragraph 33 of the Constitution Committee’s April 2019 report, which says:
“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed.”
No serious academic or legal voice has challenged that conclusion.
The EU Committee’s interest in the subject derived directly from our scrutiny of Brexit. For many years the committee scrutinised, to varying degrees, the EU’s exercise of treaty-making powers on behalf of the UK, via the system of document-based scrutiny. This role for EU national Parliaments and their European affairs committees has in recent years been supplemented by an enhanced role for the European Parliament. These mechanisms for parliamentary oversight and accountability, honed and developed at European level over half a century, now no longer apply in the UK. Their disappearance leaves a democratic deficit. There are many ways one could address this, but the essential fact is that the task of scrutiny has now fallen back on the Westminster Parliament, and there is a need to design, with the Government, a proportionate new approach that will apply from here on to Governments of whatever colour.
Against this backdrop, and with the blessing of the Procedure Committee, in early 2019 the EU Committee and its sub-committees embarked on the first attempt at systematic parliamentary scrutiny of treaties, within the confines of the CRaG Act. We published 22 reports on more than 50 agreements, all directly Brexit-related. We assessed them against set criteria, modelled on those used by the Secondary Legislation Scrutiny Committee in scrutinising statutory instruments. The report we are debating today sets out the lessons learned from this substantial programme of work. Here, I should take a loop and thank the staff of the European Union Committee, who worked incredibly hard and, as we have already heard, to unbelievably short timetables to produce reports of outstanding quality for the House.
I go back to our 2019 report, in which our first and most important conclusion, echoing the Constitution Committee, is that
“the CRAG Act is poorly designed to facilitate parliamentary scrutiny of treaties.”
As has been said by the noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Goldsmith, it simply does not allow time for meaningful, merits-based scrutiny, let alone evidence-based analysis. The sole agreement on which we were able to take evidence was the UK-South Korea deal, and that was thanks only to the time gained from the non-Prorogation of Parliament last September.
CRaG was, after all, an Act designed to fit into a constitutional layout where the UK was a member of the EU and of all its scrutiny arrangements for new treaties. But, as has been noted, treaties can be as important as much primary legislation and with far-reaching implications: think of the European Convention on Human Rights, the World Trade Organization agreements, the forthcoming trade agreement with the United States, and many others. The post-Brexit position is that the Government can enter into such constitutionally and politically important agreements simply by exercising the royal prerogative, and that Parliament is given just 21 sitting days to rubber-stamp them at the very end of the process, just prior to formal ratification. As noted by the noble and learned Lord, Lord Goldsmith, and the noble Baroness, Lady Taylor, this is not defensible.
More is needed: this is the consistent message of all three reports that we are debating. It does not necessarily require a statute but requires at least a consistent and durable understanding. A good model would be a concordat between the Government and Parliament, analogous to the very successful EU scrutiny reserve resolution. This would cover such issues as: the publication of and consultation on negotiating objectives; the sharing of information with relevant parliamentary committees, either publicly or—as pointed out by the noble and learned Lord, Lord Goldsmith—confidentially, as negotiations progress; and undertakings to allow committees sufficient time to publish their conclusions and recommendations, and to take those views into account. I too feel strongly that it would need to provide for meaningful engagement with the devolved Governments and legislatures. It would have to cover issues such as amendments to agreements and those agreements, including memoranda of understanding, which do not fall within the terms of the CRaG Act. It would also define exceptions: most importantly, for instance, when for special reasons the Government need to bypass the full parliamentary scrutiny. I would be grateful for the Minister’s initial comments on this line of thinking.
We too read the positive notes from the previous Government and the Department for International Trade, in their Command Paper of February 2019, outlining their plans for engagement. We had excellent contacts throughout 2019 at the official level with the FCO, the DIT and DExEU. I should take another loop to thank the officials concerned for the courteous and efficient way in which they came back to us, understanding the timing difficulties for us in producing our reports. They never failed. More recently, however, we have seen rather limited progress from the Government in engaging with our recommendations.
I hope for a positive statement from the Minister today in response to the unanimous view of our three committees—a common view, based on careful consideration of the issues and substantial practical experience. None of us wishes to tie the Government’s hands or to intrude into confidential negotiations. But in today’s world, given the complexity and variety of international agreements, we need structures to provide appropriate democratic oversight and accountability. Now that we have left the EU, we have the opportunity to design those structures. We do not need to ape the existing European Parliament structure or that of any other institution. We can devise our own structure and processes to suit the needs of our Government, our Parliament and our people. I look forward to the Minister’s response.
Lord Purvis of Tweed (LD)
My Lords, it is a genuine privilege to follow three such highly respected chairs and, on behalf of my colleagues, I thank them for their chairmanship. I also thank the members of their committees, and the predecessor committees, for their reasoned reports and characteristically sensible and proactive recommendations.
If the reporting in the Financial Times is correct and we see on Wednesday proposals to renege on treaty commitments for joint decision-making, in an agreement not yet a year old, this is a sobering backcloth to a debate on treaty-making and the ultimate trustworthiness of a UK Government in implementing treaties. It shows that this is not just a purely constitutional or theoretical debate but one of practical politics—ones that affect people’s livelihoods across the country.
As all three Lords Committee reports made clear, there are two areas without contention. The first it that is has always been and will continue to be the responsibility of government—not Parliament—to open, negotiate and sign international agreements; the second is that these vary in complexity, scope and significance. But the consensus among the committees, if not the Government, is expressed in paragraph 33 of the report quoted by the noble Earl. He read the first part of that paragraph. It goes on to say:
“Reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions, irrespective of the consequences of Brexit.”
All committees have proposed improvements to the process and some progress has been welcomed, as indicated, such as in Command Paper 63 on trade agreements, but in other areas more improvements can be made. I shall focus the remainder of my time on trade agreements, while my colleagues will cover the wider breadth of the reports and the consequences of their recommendations.
Whereas the committees did not propose that Parliament extends its authority by resolving to approve a trade negotiating mandate, and then an agreement, the House has done so. A clear majority of the House voted for this in the Trade Bill last year. No doubt this will be debated tomorrow, during the Second Reading of another Trade Bill. While a Motion has not been laid relating to Section 20 of the Constitutional Reform and Governance Act to withhold support for a trade agreement, in March last year I moved the first Motions in the House in accordance with Section 21: to extend the scrutiny period for the agreement establishing an economic partnership agreement between the eastern and southern African states. There were similar debates on the Faroe Islands and Switzerland agreements. During the debates, the then Minister apologised for a lack of consultation with the devolved Administrations and committed to changing procedures, and clarified areas of concern that the EU sub-committee had raised in its report, as indicated by the noble Baroness, Lady Taylor. Without the debate that I secured, these commitments could not have been given to the House. I pointed out that it should not really be down to an individual Member to secure Motions, but I am glad I did. I hope the Minister will respond positively on implementing committee recommendations to change this.
Asserting greater parliamentary authority over the setting of negotiating mandates, then approval of the agreements, does not reduce the ability to exercise prerogative powers. It actually strengthens it—the noble and learned Lord, Lord Goldsmith, referred to this—as we saw for the United States and the EU. In the two biggest economies in the world, which we are negotiating with, there is recognition that trade agreements now go well beyond their traditional roles, such as on bilateral tariff rates. In both economies, there is a vote on the text of the agreement. They also have a process for setting the mandate; we have neither. In both the US and EU, the relevant committees can be provided, through agreed protocols, negotiating documents and classified negotiating texts. This was alluded to in the UK Government’s Command Paper but was subsequently watered down. Clarity from the Minister on that would be most welcome.
It thus makes sense to build on the dualist system, and for Parliament to approve the agreements before the process of seeking to support their implementation into domestic law. This is one area where we would see progress. Given the concerns about what we may see on Wednesday regarding the UK internal market process, this is even more important. I hope that the Minister will move beyond the current Government’s position and act to deliver on some of the recommendations from these very sensible committee reports.
Lord Moynihan (Con)
My Lords, the consequences of the imminent prospect of the UK having an independent trade policy at the end of the year have been well covered by the noble Lord, Lord Purvis.
As has been pointed out, the EU Parliament has been the principal scrutiny body for the many treaties and international agreements negotiated and ratified by the EU, and it is clear that Parliament should now have the additional powers to ensure additional scrutiny of the treaties and international agreements that the UK will enter into in future. This is all the more important because the nature of debate and scrutiny of all legislation in the current living-with-Covid environment has been reduced to a substantial restriction of accountability to Parliament and of the ways in which we would normally hold the Government of the day to account. However, Covid-19 and living in a post-Covid-19 world is not the principal argument in favour of further change to the CRaG framework.
In its excellent report, the Constitution Committee rightly observed that treaty scrutiny, under the function of the Government under royal prerogative and subject to the negative resolution process, has not moved with the times. Treaties now cover far more than broad principles of international relations, encompassing detailed public policy issues—issues that must be subject to detailed scrutiny by Parliament.
For example, one of the sectors in which I specialise, sports policy, is relevant in this context because it is the field in which the EU’s responsibilities were first introduced into treaty obligations under the Treaty of Lisbon in December 2009. This demonstrates clearly the way in which treaties have now descended into the detail of sectoral policy. In the immediate aftermath of the Lisbon treaty, a specific budget line was established for the first time under the Erasmus+ programme. Article 165 referred to the specificity of sport and Article 165(2)(b) refers to
“developing the European dimension in sport by”,
inter alia,
“protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest”—
a catch-all clause that could be interpreted to cover the criminalisation of doping, for example.
The Bosman case, the tripartite agreement—which is critical to the free, unimpeded movement of racehorses across the borders between France, Ireland and the United Kingdom; without it, Cheltenham and the Derby meetings would be decimated—international agreements that cover competitive professional football, the criteria under which players can move from club to club and the number of players permitted under the Cotonou agreement to play in individual professional sports in this country are all covered by treaty and are critical to the continued smooth running of professional sport. Any changes will have far-reaching consequences.
Where treaties and international agreements continue to descend the political waterfall into the minutiae of sectoral policy, I ask the Government to consider going considerably further than recommending that the Constitutional Reform and Governance Act provides adequate scrutiny. Systematic parliamentary consideration beyond committee consideration is essential as we move forward, so that Parliament can undertake its key role of holding the Executive to account. All three reports are very much welcomed. I hope that the Government’s response will be sympathetic and urgent.
Baroness Donaghy (Lab) [V]
My Lords, first, I congratulate the noble Earl, Lord Kinnoull, my noble friend Lady Taylor and my noble and learned friend Lord Goldsmith on their reports. They provide an excellent basis for the future if the Government are prepared to listen.
I am a member of the EU Select Committee and I chair the EU Sub-Committee on Services. I also chaired the former EU Sub-Committee on Internal Markets. We scrutinised a number of rollover treaties, such as those with South Korea and Switzerland, and experienced the weaknesses of the current CRaG Act procedures. The CRaG Act needs reform, even though the Government have stated that they are not minded to do it. I agree with the Constitution Committee’s conclusion that the current system of treaty scrutiny is “anachronistic and inadequate”.
An article in Parliament Research entitled Treaty Scrutiny: A New Challenge for Parliament, said that the CRaG Act
“relegates Parliament to a ‘weak form of sign off at the end of the process’.”
Parliament has a responsibility to develop its scrutiny capacity, even within the confines of the CRaG Act. This House has responded with the setting up of the International Agreements Committee, which will aim in principle to be open and transparent and will have a good chance of securing time for debates on significant treaties.
We have had warm words from the Government about drawing on the extensive experience and expertise of both Houses, but we should not be used just as a reference library. Treaties, whether on trade, the environment, protecting our public health service or jobs and employment standards, directly affect our daily lives, which is why parliamentary scrutiny and accountability are so vital. It is also why keeping faith with the devolved Administrations is so important. They have a legitimate interest in any agreement reached on their behalf in terms of both policy and devolved competencies. It might just help to keep the United Kingdom together.
The content of future treaties is for another debate. However, the House might be interested to know that one of the witnesses to the Internal Markets Sub-Committee produced a complete table of contents of modern free trade agreements—a massive piece of work. Countries bind themselves to various restrictions, standards or regulation in order to reach a deal. We should remember that when we hear all the stories of the UK freebooting on the high seas.
Incidentally, all such treaties contain some reference to level playing fields or non-regression clauses. Disguise it as you will, any Brexit deal will have to cover this—as will all other treaties. The irony is that we are applying for membership of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, where the UK will be expected to conform to some kind of restrictions on standards, dumping or dispute resolution. If it is half a world away, it is okay; if it is a country within half a day’s travel, apparently it is not okay.
Lord Beith (LD)
My Lords, I speak as a member of the Constitution Committee. I welcome the fact that our report is being debated and that it is being debated alongside two excellent reports, which have been equally well presented.
The point made by both committees is that treaties now extend far more into the daily lives of people than many did in the past, particularly when their primary concern in the past was either tariffs or international boundaries of countries other than our own. People who do not know their Ponsonby rule from their CRaG will find their daily lives affected on issues that have been mentioned, such as standards and environmental rules of the kind that appear in many trade agreements.
That is one part of the background. Of course, there are lobby groups that know perfectly well what is involved and are very active when trade negotiations are going on. We are about to lose a much higher degree of systematic parliamentary engagement with and accountability for treaty-making in the areas for which the EU had responsibility, notably trade. The European Parliament carried out that scrutiny vigorously, with a degree of engagement and information not to be found in Westminster’s scrutiny of treaties. That will go, and when it has gone, we will not be able to control our laws in the sense of those other than the Executive controlling our laws. They will be subject to much less democratic control than they were before.
Clearly, treaty-making is a function of the Executive, but they must be an accountable Executive, subject to oversight continuously through the process. One thing that happens when Executives are subject to scrutiny is that the question is asked during the process: will Parliament wear this? Is this something that we can get through or will it be opposed? Will we have to rely on loyalty and the fact that people do not want a general election at the moment to ensure that we get it through? It is at that level that our treaty scrutiny has tended to be, I am afraid.
Governments worry that demanding effective parliamentary scrutiny prevents the Executive doing their job, but that clearly was not the case with the European Commission, which had to accept detailed scrutiny by the European Parliament. It comes strangely from those who thought that the Commission was too powerful to ignore the fact that when we want to create a system here, there is no reason we should not have that level of accountability.
We have argued in our report for a Westminster alternative. Indeed, the process has been going on because existing and newly created committees have started to assume that role. There are some things which a trade scrutiny committee can do itself; there are others which might be better done by a committee which specialises in a particular field. But the committee structure of the two Houses of Parliament really needs to engage with this task.
There is some government recognition in their response of the need for improvement, but the rejection of the presumption of transparency is a mistake. It is not that everything by law would have to be transparent; the working assumption would be that there was transparency, backed, where necessary, by confidential discussion with the committee—which, again, featured in the European Parliament, which must be just as likely to be subject to the pressures around leaking that we worry about here.
If noble Lords want to know what the Government really think, they should look at page 8 of their response, where they make this very generous offer:
“If a third country’s domestic procedures mean it will publish a draft treaty at an earlier stage, then the Government will also look to do similar to ensure that the UK Parliament is not receiving less information than the Parliaments of negotiating partners.
In other words, we might get some information if some other country decides to release it and we then have to. The pointer has to be shifted towards real transparency, with full recognition of the need, which any negotiating body has, for a degree of confidentiality. I think the system in Parliament is capable of accomplishing that and we should give it the opportunity to do so, when these things have such a profound effect on the lives of the people we serve.
Lord Boswell of Aynho (Non-Afl) [V]
My Lords, I am pleased to participate in this important debate. Colleagues may be relieved that, having signed one of the reports under discussion today—and the remarkable range of consensus is striking—this will, I believe, be the last duty arising from my seven years of chairing the EU Committee. This stretch was almost bisected by the Brexit referendum and, incidentally, amounted in total to roughly the same time I spent as a Minister in the other place. I remain unsure in which role I acted as poacher and in which as gamekeeper. Today I want to emphasise the importance of effective treaty scrutiny.
First, and emphatically not as a formality, I record my support for the noble Earl, Lord Kinnoull, who has succeeded me as chair, and for colleagues across the House who give their time and formidable expertise, together with my appreciation of our admirable parliamentary staff, whose support has been unfailing. This enabled us swiftly to assume on behalf of the House the additional role of scrutinising continuity trade deals. The weakness of the CRaG Act procedure became quickly apparent. We have fallen behind the scrutiny mechanism available to most of our fellow democracies, to the extent that if we achieve a post-Brexit deal with the EU, ratification could be as much of interest to any EU regional parliament as to this one, although of course the issues today are of much wider application even than Brexit.
Effective treaty scrutiny is an important technical issue, but equally one of high political sensitivity. In my time in the EU Committee I have experienced a variety of poor responses from the Government, ranging from the casual to the downright obstructive. In fairness, sometimes these have been interspersed with more positive engagement with Ministers and contacts between various officials. I believe that scrutiny remains an essential component of good governance—just as, if I may say, Covid testing is essential in handling the pandemic, even if it sometimes reveals inconvenient facts. My strong advice—and it is reflected in all three reports being considered today—is for us collectively to be ready to use our elbows to expand the role of treaty scrutiny. It needs to take place across the whole spectrum, from consideration of negotiating mandates to final ratification and the associated implementing legislation, and to be based on the principle of transparency wherever possible.
There will be a predictable response from government —as a former Minister, I know the playbook—along the lines of cramping government discretion, creating diplomatic embarrassments, and so forth. I recognise that these are sometimes entirely valid objections, but they are not universal ones. If necessary, we are mature enough here to receive sensitive material appropriately without betraying confidences, and we have the collective expertise to make a positive contribution to the national interest. The admirable report of the new sub-committee shows also the need for the implications for the devolved Administrations, Crown Dependencies and other stakeholders to be understood, and it gives a flavour of the growing complexity as treaties evolve from the traditionally purely diplomatic into trade agreements which themselves may also carry other, wider implications.
Finally, although this is not strictly an issue of direct treaty scrutiny, I am sure the House will wish to remain alert in the analysis of the impact of outcomes arising from treaties on our economy and society over the years. To judge by breaking overnight news, we may also wish to interest ourselves in the Government’s compliance with international law in respect of the treaties they have concluded.
The Earl of Sandwich (CB) [V]
My Lords, it is a real pleasure to follow my noble friend. We owe him a great deal for these deliberations. I was a happy member of the EU External Affairs Sub-Committee until a year ago, when, under new Brexit jurisdiction, I entered the jungle of international agreements. These are predominantly trade deals of some complexity. I record my thanks to the clerks and professional advisers who are steering our treaties committee through them.
The German expression “Handel ist Wandel”—trade means change—has been used to describe the positive economic and political changes in eastern Europe, but the wheel may have turned as applied to the ongoing US negotiations with China, featuring strong sanctions and withdrawal from Huawei. Addressing human rights or climate change through trade with some countries now seems inconceivable, but we need to maintain standards, especially with the countries we already know and relate to.
Our Government have embarked positively on several new deals simultaneously, the most critical being with the EU itself. There I believe we are dragging our feet, given the historic importance of this partnership and its importance to other agreements. It is a subject which needs urgent debate, especially if the Northern Ireland agreement is threatened, as we heard today. I am glad that this will come up tomorrow. Every day we get wooden answers from Ministers while vital mutual questions of health, agriculture, climate change and security remain unresolved.
Then there are the other agreements: the important but half-baked US deal; and the more promising agreements with Japan, Australia and New Zealand and, through them, a possible one with the Pacific. It is an ambitious programme to say the least and it is vital that Parliament and the stakeholders concerned keep abreast of it. Using the CRaG framework, as we have heard, has been a good start, encouraged by a number of Select Committee reports. Our new committee, acting in conjunction with the Commons International Trade Committee, has already received evidence on the US and Japan deals, and has heard from both the Secretaries of State. It has also published a report on working practices. In that report there are important recommendations, already mentioned, on transparency, timescale and the need for trust between Parliament and the Executive.
It is important to recognise that the Government have in these early stages co-operated quite closely with the committee, but I repeat the need for the FCO to pay more attention to the human rights sections in the EMs, difficult as this will be. We have had reassurances from our Human Rights Minister, the noble Lord, Lord Ahmad, and he may well refer to these today.
My background being with development NGOs, I am also concerned that NGOs and lobbyists have proper access to information. These days, there are at least as many experts among NGOs as there are in government; in fact, many of them have moved into government. Of course, there are also confidential issues which have to be discussed inside Parliament. The Trade Bill in the Commons was highly disappointing from the point of view of our report. It could have done more to reassure the public as well as Parliament. Jonathan Djanogly and others were trying to insist, through reasonable amendments, that the Government should provide proper reporting on the content of agreements interlined for negotiation and ratification. I did not speak on this at Second Reading and I am using this opportunity to reiterate those complaints made by Members of Parliament.
I end by thanking the noble and learned Lord, Lord Goldsmith, for presenting our report so well, my noble friend Lord Kinnoull for leading for the European Union Select Committee, and the Minister for replying and for the positive remarks that I know he is about to make.
Lord Lansley (Con)
My Lords, I share with other noble Lords an appreciation of the excellent way in which these reports have been introduced, not least by the chairman of the International Agreements Committee, on which I serve. I was formerly a member of the EU Internal Market Sub-Committee. We have looked at the scrutiny of treaties, including the rollover treaties, over the course of the last year. I will reiterate a number of points that have been made but, first, this is not simply about asking the Government to come up with solutions. It is also about Members of this House, and the other place, making sure that we have a really effective system. I urge that the International Agreements Committee should, at the earliest possible moment, be given its own status, rather than be a sub-committee of the EU Committee, since much of what we do is not about the European Union any more. I know that there are positive discussions between the International Agreements Committee and other committees, including the International Trade Select Committee in the House of Commons, and this is important.
We have to make sure that the excellent reputation which this House achieved for its EU scrutiny, not least under my noble friend Lord Boswell, is replicated in our scrutiny of treaties. Speaking as a former Leader of the House of Commons, I know that we cannot rely upon that House to scrutinise in the detail necessary to expose the issues relating to treaties; this House must do that.
When we do that, we will rely on the Government being transparent. I share with the noble Lord, Lord Beith, regret that, in their reply to the Constitution Committee, the Government did not accept a presumption of transparency—not a requirement, nor an obligation in all circumstances, just a presumption. They could yet shift on that ground. As the noble Lord rightly said, and our committee has said in more recent discussions, we want to see the initialled and signed agreements with Japan when the Diet in Japan sees them. What the Government have said about seeing them when third countries see them is, I am afraid, an indication of their lack of willingness to put their own views forward.
As my friend, the noble Lord, Lord Kerr, has repeatedly said in our committee, transparency in these trade negotiations is often a strength for the negotiators themselves. The requirements for ratification by the Diet in Japan are quite restrictive and onerous. I declare an interest as chair of the UK-Japan 21st Century Group, which hears a great deal from our Japanese friends about their requirements to secure parliamentary approval and to run to a parliamentary timetable. I see no evidence that this has impeded or restricted Japan’s effectiveness in arriving at what they wish to see from international trade negotiations.
I hope that we will continue to have a positive approach by Ministers, not only by repeating their commitments in February 2019 but going beyond them in some of the areas discussed in our report. We have had excellent co-operation from Ministers to date; I hope that we will be able to build on that in the months and years ahead.
Lord Whitty (Lab) [V]
My Lords, I am pleased to hear that the chairs of each of these committees agree on so much. We are presented with a unique opportunity to change the balance between the Executive and Parliament in this respect. For many centuries, the elite and the people of Britain seemed to agree that treaties were a matter for Kings and not for Parliament. That changed very slightly in 2010, with the CRaG Act, but my experience, like that of so many speakers, is that that Act is not fit for purpose in these post- Brexit circumstances. When I was my noble friend Lady Donaghy’s predecessor, we started to look at some of the new, post-Brexit, rollover treaties. That was not an easy process; we were improvising. It showed me what an enormously complex job this is, and how CRaG is not really fit for purpose. We were, of course, involved only in looking at the final texts. In reality, the House of Lords had no leverage and the Commons had just 21 days before ratification to comment on an already agreed text. That is not scrutiny; nor does it confer parliamentary legitimacy on the outcome.
I commend the EU Select Committee for setting up the new International Agreements Committee, but that has to be seen as a temporary expedient. We need much more leverage, and that means the involvement of a new, powerful parliamentary committee throughout the process, from setting a negotiating mandate, receiving reports back through the negotiations, and scrutiny and comment on the final text. We also have to take account of the differential role, under CRaG—indeed, under our parliamentary system—of the Lords and the Commons. It has been my view throughout that the optimal parliamentary scrutiny of treaty negotiations should combine legitimacy and expertise and that there should, therefore, be a joint Commons and Lords committee on treaties. This should probably have equal numbers, but a chair from the Commons, and include significant expertise from this House. It should report back to both Houses, which would each have the right to debate and propose amendments to the treaty, although only the Commons could block it or alter it entirely. There is also a need to involve the devolved Administrations in this process.
As my noble friend Lady Taylor and other noble Lords have said, there would have to be confidentiality and security provisions, as there are currently with the joint Intelligence and Security Committee. However, that joint structure is the best form of scrutiny, and this House should propose it. I appreciate that some future Foreign Secretaries and some future—and possibly current—mandarins and political advisers may see this as a constraint and a chore, but in many respects a powerful parliamentary committee could strengthen the hand of the Government of the day, both in negotiating with other countries and in delivering domestic acceptance and ratification of the treaty process. It would help both those processes if Parliament could be seen to be fully involved and to have the final say.
It is Brexit that has triggered our attention to this. Many of our important treaties in the last 40 years have been negotiated for us by the EU, but not all. In those 40 years, parliamentarians, including British Members of the European Parliament, have had a say on those treaties. However, that is true not only of the European Parliament; the US Congress negotiates treaties, particularly ones on trade. It also happens in Canada, Australia and, as the noble Lord, Lord Lansley, said, in Japan. These are countries which are now in our sights for new bilateral trade and other arrangements. The level of parliamentary scrutiny has, in many different ways, been significantly higher than that provided by CRaG. We now have the opportunity to change that.
Baroness D'Souza (CB) [V]
My Lords, treaties are legally binding on signatory states. They have a serious impact on citizens and therefore should be subject to the same level of scrutiny as all other domestic legislation. That this is not the case at present arises from adherence to the 100 year-old Ponsonby rule and weaknesses in the subsequent CRaG Act. CRaG offers little new to help Parliament scrutinise treaties or hold power more accountable. Despite this, the Government have reiterated their satisfaction, both in debate in the Chamber and in their response to the Constitution Committee report, with the current legislation, while conceding the desirability of greater information sharing in advance of CRaG procedures.
However, the essential concern remains that new treaties and treaty change can occur in the absence of appropriate scrutiny. This makes it impossible to have a current picture of UK international obligations, including decisions on any amendments to and/or derogations from ratified international conventions. The main scrutiny body prior to Brexit was the EU Parliament, which had considerable powers, including one of veto. As from January 2021, treaties in trade as well as non-trade areas, such as environment security and extradition, will be in abundance. My concerns relate to current and future draft legislation that impinges on human rights treaties ratified by the UK. Some current policy in these non-trade areas would seem to necessitate amendments to treaties on human rights protection. If the existing treaties have to be amended, what mechanisms are there to review the process?
For example, the Overseas Operations (Service Personnel and Veterans) Bill would create a presumption against prosecution for even severe allegations of torture and ill treatment overseas. This would create a two-tier system, in that it would introduce a statute of limitation for all crimes committed by military or other personnel overseas, except those that entail a sexual offence. In brief, those suspected of war crimes, including murder and torture, will benefit from the five-year limitation, but those accused of sexual crimes will be exempt. This is incompatible with the UK’s obligations under Article 7 of the UN Convention against Torture, for which there is no impunity. The Bill also includes a requirement that the UK Government consider derogating from Article 15 of the European Convention on Human Rights. Thus, military personnel would be exempted from the obligation to act within the international rules-based system.
Furthermore, the recently introduced 2019 principles relating to the detention and interviewing of detainees overseas will undermine UK treaty obligations under the UN Convention against Torture. These principles give Ministers discretion to authorise UK actions where there is a serious risk of torture, and in so doing are inconsistent with the absolute non-derogable prohibition on torture under Article 2 of the convention. The report sets out strong recommendations that emphasise the need for additional scrutiny in advance of the CRaG procedures and the establishment of a scrutiny committee that harnesses expertise and the work of other related committees.
The International Agreements Sub-Committee, set up in April this year, is a welcome and valuable addition. However, there has so far been a lack of political will on the part of the Government to agree to a more general presumption in favour of transparency, including the advance publication of implementation plans on UN recommendations and a more co-ordinated approach to monitoring and reporting implementation and impact assessments. Until this happens, Parliament does not have the necessary tools to do its job of scrutiny.
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.
Baroness Noakes (Con)
My Lords, it is a pleasure to be back physically in your Lordships’ House, despite the hostile environment that the risk-averse House authorities have created for us. It is also a pleasure to take part in this debate on a trio of interesting reports from committees of your Lordships’ House.
I particularly welcome the Constitution Committee’s acknowledgement that treaty-making is a function of government exercised through the royal prerogative. I also welcome the fact that the committee did not recommend that our Parliament copied the European Parliament’s procedures.
There is undoubtedly at present a greater appetite in Parliament for detailed involvement in treaties. The Government responded positively to that with the new procedures for FTAs set out in their February 2019 Command Paper, and I understand that that broadly remains government policy. But the three reports being debated show that there is an insatiable beast lurking in the committees of your Lordships’ House. This beast wants more information and more involvement on more aspects of treaty activity.
The beast also has the CRaG Act in its sights. That is clear from all the reports we are considering, although the treaty sub-committee’s report pragmatically accepts that there will be no immediate change to the CRaG Act and has wisely concentrated on its working procedures. The Ponsonby rule, which underpins the CRaG Act, was quite good enough for Parliament in the days before we joined the EU. It should be quite good enough for Parliament now that we are a free-standing nation again. I can see no need to change the Act.
In particular, given that new FTAs will be discussed with Parliament at various stages of their evolution, the 21 sitting days, which is practically five elapsed weeks, seem to provide an adequate window for final scrutiny prior to ratification. It may well be that your Lordships’ House needs to work in more agile ways to accommodate that timeframe, but the starting point need not be that more time is required.
I believe that the root cause of this desire to spend more time scrutinising treaties is a belief in your Lordships’ House that Brexit is a bad thing and that everything the Government do as a consequence of it is potentially bad. Even when our new pro-Brexit Peers arrive, that will likely remain the dominant view of your Lordships’ House. I hope that the House will continue its journey through the various stages of grief over Brexit and arrive at the final stage of acceptance. I predict that at that stage the appetite for spending significant time on treaties will diminish. We will of course still need a treaties committee in your Lordships’ House, unless a Joint Committee is set up. But, like my noble friend Lord Lansley, I hope that it will be a fully fledged Select Committee, not a mere sub-committee of the EU Committee, which will itself of course recede in importance as we start to live in a post-Brexit world.
Baroness Smith of Newnham (LD)
My Lords, it is quite rare to be able to respond directly to another Member in Grand Committee, unlike some other parliamentary business in normal times when we can jump up and respond. I had planned to start by talking about this dystopian world in which the working practice seems to be to sit in little booths—we could be in a call centre, calling people to ask, “Were you mis-sold a treaty? Did you sign up to the European Communities Act 1972 by mistake?” For people watching on television or merely reading Hansard, it is perhaps not quite clear how the Grand Committee is working in the current hybrid system. The noble Baroness, Lady Noakes, referred to it as a hostile environment. That might be the only point of her speech with which I agreed.
I obviously fit into the category of noble Lords who are rather disappointed that the United Kingdom has left the European Union. However, I do not believe for one moment that the need to scrutinise treaties and the importance we are giving to that this afternoon is simply because we are leaving the European Union and Members are unhappy about that. It is precisely the opposite. The clarion call of the Vote Leave campaign was “Vote leave, take back control”. I do not believe for one moment that the people who voted on 23 June 2016, or in the general election last year, thought that they were voting for Mr Dominic Cummings to set the agenda, nor that taking back control meant that Parliament would become supine. The idea that Parliament should become more supine the further we get from membership of the European Union is quite wrong. The role of your Lordships’ House is as a revising Chamber, but it is also to hold the Government to account. A fortiori, it is the role of the House of Commons to hold the Government to account. What each of these reports is saying is that, in the context of a post-Brexit world where international treaties have ever-greater scope, it is essential that Parliament plays that role.
Now, it is not clear what the current Prime Minister thinks about scrutiny. There has been reference to the previous Government’s comments in February 2019. The Lords Library also notes that, in response to the Constitution Committee’s report of July last year, Theresa May’s Government said that they thought that the CRaG Act remained a “viable legal framework”. However, they agreed that information sharing between the Government and Parliament could be improved, and they committed to
“engaging with whatever parliamentary scrutiny structures the Houses implement”.
That is our role.
As the noble and learned Lord, Lord Goldsmith, rightly said earlier, it should not be for government to decide which amendments are scrutinised. It should not be for government to set the agenda on scrutiny or set the timeframe; it should be for Parliament to do that. Parliament is not some beast seeking information; Parliament is looking to make sure that any treaties that the United Kingdom Government sign are in the best interests of this country. However, looking at the changes currently being suggested for the withdrawal agreement legislation that went through last year after extensive scrutiny, one might wonder whether this Government take very much notice at all.
Lord Bilimoria (CB) [V]
My Lords, the noble Earl, Lord Kinnoull, wrote in an excellent article earlier this year in The House:
“The Treaties Sub-Committee will be vital in ensuring trade deals and international agreements are scrutinised”.
He stated clearly that
“the Government will negotiate important trade agreements with major economies around the world. These agreements need scrutiny as they have a direct effect on people’s lives in the UK … Treaty scrutiny is a crucial … area for Parliament”,
particularly post Brexit. He also said that, as we know:
“Previously, much of the work negotiating international agreements was … scrutinised in detail by the European Parliament, including UK MEPs. On the domestic front”
the excellent, world-renowned and respected
“European committees … scrutinised the decisions made by UK Ministers at the main EU decision making body—the Council of Ministers. These mechanisms have now come to an end … following our exit from the European Union on 31 January 2020 … At present … under UK law, treaty scrutiny at Westminster only takes place once agreements have already been negotiated and signed.”
This is not the case in other countries; I will come on to that later.
Almost every speaker has mentioned the Constitutional Reform and Governance Act 2010. The noble Earl stated that it provides Parliament with “very restricted” powers, that the House of Lords cannot block anything—although it can pass a resolution to delay things—and that
“there is no mechanism by which Parliament can refuse to consent to an agreement that it thinks is not in the country’s best interest.”
Surely parliamentary scrutiny is absolutely crucial, particularly over the next year when, as the noble Earl explains,
“we expect the Government to negotiate important trade agreements with the United States, Japan and other major economies. These agreements may affect jobs, and the price and availability of goods in the shops.”
The report, Parliamentary Scrutiny of Treaties, outlines the situation clearly:
“The UK is party to over 14,000 treaties and normally negotiates around 30 new treaties each year”—
indeed, many more now that we are looking down the road. It states that everything
“is based on the Ponsonby rule, established nearly 100 years ago and subsequently set out in the Constitutional Reform and Governance Act 2010 (CRAG).”
Really, this needs to be reformed. All three reports address the shortcomings in Parliament’s scrutiny of treaties and recommend that this new treaty scrutiny Select Committee be established. That is going to be excellent.
No one denies that the treaty function is a significant function of government, but Parliament’s scrutiny processes have not kept up. As many noble Lords have said—including the noble Baroness, Lady Smith of Newnham, just now—on the role of Parliament, we are the guardians of the nation. I thank the noble and learned Lord, Lord Goldsmith, the noble Baroness, Lady Taylor, the noble Earl, Lord Kinnoull—and of course the noble Lord, Lord Boswell, for all the excellent work that he has done. On scrutiny of international agreements and lessons learned—again, they have emphasised all the points that we made earlier. The impact of international agreements does not necessarily end on signature.
On the Treaty Scrutiny: Working Practices report, it is excellent that the sub-committee has now been established and effective scrutiny is now required. But will the devolved nations be consulted, as well as other departments, apart from the Department for International Trade? In February 2019, it had a report that said clearly that there was a strong and effective role for Parliament in scrutinising our trade policy and free trade agreements. It said:
“Our departure from the EU does not change the fundamental constitutional principles that underpin the negotiation of international treaties, including FTAs”,
and that it would
“draw on the expertise of Parliament”.
On international comparisons, can the Minister confirm something to us? We keep talking about the Australian points-based system and an Australia-style FTA. Countries such as Australia and the United States give clearly defined roles to their legislatures as part of the process of negotiating and concluding treaties. In the UK Parliament, can we provide equal scrutiny?
To conclude, with the difficult precedent of the withdrawal agreement from the European Union, we must not underestimate the challenges ahead. This is where the expertise of our House comes to bear, and the Government should make full use of it.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, at last in a Grand Committee meeting we are having a real debate, and on three excellent reports, the recommendations of which I agree with, particularly the one from the Constitution Committee. However, I am not as optimistic as the noble Earl, Lord Sandwich, and others, that these will be accepted by the Government. This is a Government who currently see the House of Commons as no more than an electoral college for choosing the Prime Minister. Look at the way they treat this House—suggesting that we might move to York and appointing Russian oligarchs to our membership. Does that show confidence in the role of this House as an effective revising Chamber? I certainly do not think so.
As the reports say, the current process for parliamentary scrutiny, at 21 days, is not enough anyway. With all the treaties that we are now having to deal with because of our unfortunate exit from the European Union, it is certainly not enough, as we move towards an increasing and looming disaster. I support the committees’ recommendations to establish a parliamentary treaty review group to examine treaties, to refer them to Select Committees for scrutiny and to create opportunity for parliamentary debate. Like my noble friend Lord Whitty, I think it should be a Joint Committee of both Houses. It should have the status of the Intelligence and Security Committee but not the way that it is appointed. It should be appointed or elected by both Houses.
As others have said, and I have said in the past—and the noble Baroness, Lady Taylor, emphasised—the devolved Administrations must be consulted, particularly on areas where they have a devolved responsibility. I look forward to hearing what we get from the Government in response from the Minister in relation to that.
I look forward to the Minister’s response on when and how the Government will implement the recommendations of this committee, including with regard to the devolved Administrations. I, for one, will be watching very carefully, as I am sure will the noble Baroness, Lady Smith of Newnham, and a number of others on this side of the House, to see whether the words that we hear today are followed up by actions relevant to those words.
Lord Wallace of Saltaire (LD) [V]
My Lords, I was struck by the quotation from Walter Bagehot’s volume, The English Constitution, in paragraph 8 of the most recent report we are debating. He clearly stated 150 years ago:
“Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous.”
This is not a new issue. Long before the huge expansion of treaties and international agreements that we have seen since 1945, 19th-century constitutional authorities considered Parliament’s role in scrutinising treaties before and after they had been signed to be inadequate. Bagehot saw Crown prerogative as unjustified and outdated on treaties long before any of us were born.
The Vote Leave campaign fought the 2016 referendum with a promise to restore parliamentary sovereignty. This Vote Leave Government are now determined instead to restore executive sovereignty, and to put Parliament back in its box. Yesterday and today, No. 10 has been briefing that UK sovereignty entitles the Government unilaterally to reinterpret international agreements that they have recently signed. Treaties limit national sovereignty. If you assert an absolutist interpretation of sovereignty, as the noble Lord, Lord Frost, has stated in recent speeches, no other Government will trust you to observe international agreements.
There are those on the hard right of American law and politics who deny that international law can override American decisions because of the exceptional nature of the US constitution. But however exceptional our Government think England is, they should be wary of undermining trust in our observance of agreements, whether on Northern Ireland, human rights or commercial regulation. If our Government assert their unilateral sovereignty, no deal with the EU will be followed by no deals with a lot of other countries.
Nine months ago, the Conservative manifesto promised to
“look at the broader aspects of our constitution”
and
“set up a Constitution, Democracy & Rights Commission”.
No. 10 briefings now suggest that the Government have also made a U-turn on this and instead want only to address specific judicial and other issues. But the scale of the transformation of our international obligations and commitments, now we have left the European Union, requires adjustments in our constitutional arrangements which any Government committed to the maintenance of constitutional democracy should address.
The reports we are debating also note that the issues to be covered in future trade arrangements will require an extension of co-determination with the devolved Governments if we are to avoid drifting into a position where England emerges from a broken union, sovereign over only a shrunken country. In the light of her speech, I remind the noble Baroness, Lady Noakes, that constitutional arrangements which may suit your own Government when you are in power must be strong enough to work when other Governments are in power.
The Prime Minister looks to Australia and New Zealand as models for our future relationship with the European Union, as well as for recruits to advise the Government. The Parliaments of both countries have trade committees which play “a significant role”, as Alexander Downer told the Constitution Committee. Our Government should not resist this Parliament gaining similar significance in scrutinising treaties.
Lord Taylor of Warwick (Non-Afl)
My Lords, I thank the committees and their chairs for their hard work, expertise and excellent reports. In my view, it is only right that any trade deal or agreement has to result from proper vetting, not just voting. Scrutiny does not mean mutiny. The Government do not need to fear that the direction they are sailing in will be hijacked by a rebellious crew. On the contrary, scrutiny provides opportunity. It allows the UK Parliament the chance to examine closely, and influence positively, trade and other international agreements. After all, this is in keeping with the whole rationale of Brexit.
Transparency is vital because treaties will directly affect our daily lives. The Government have already started discussing important trade agreements with America, Japan and other major economies. These agreements will affect jobs, services, prices and the availability of goods in our shops. As we know, Parliament’s role has been defined by the Ponsonby rule, which is nearly 100 years old. Maybe it is symbolic that the initials of the CRaG Act also describe a high and rough mass of rigid rock that sticks out from the land around it. It is no longer fit for purpose.
It seems that the committees have come up with four very sensible recommendations, and I would like the Minister to indicate whether he is sympathetic to them. The first is that Parliament should be regularly updated during these agreement processes; the second that there should be a general presumption of transparency from the Government. That is not a legally codified or binding point, but just a presumption. There should also be a draft text of the agreement proposed and parliamentary trade reports from the Government, indicating full impact assessments on different sectors of the economy and labour markets. All this would be subject to confidentiality and security provisions. Will the Government indicate when they will give a formal, published response to these recommendations? The concept of a group of counsellors or advisors scrutinising such agreements goes back, in principle, to the Old Testament. This is a tried and tested principle: it is nothing new.
Brexit allows us to trade with the entire world. No longer is this great trading nation shackled by the European Union but, in a true democracy, those trade agreements must have effective scrutiny and that should come from Parliament. Parliament is more than an ornament.
The Deputy Chairman of Committees (Lord Bates) (Con)
I call the next speaker: Baroness Goudie.
The Deputy Chairman of Committees (Lord Bates) (Con)
If we cannot reach the noble Baroness, Lady Goudie, we will go to the noble Baroness, Lady Bowles.
Baroness Bowles of Berkhamsted (LD) (V)
My Lords, the three reports we are considering today—
The Deputy Chairman of Committees (Lord Bates) (Con)
Baroness Bowles, I do apologise. Can we can just pause for a moment while we try to reconnect with the previous speaker?
Baroness Goudie (Lab) (V)
Thank you, my Lords, I am so sorry: I forgot to unmute. I welcome the reports of the noble Baroness, Lady Taylor, the noble and learned Lord, Lord Goldsmith, and the noble Earl, Lord Kinnoull, on the setting up of the new committee. I tend to agree with a number of my colleagues that it ought to be partly made up with Members of the House of Commons. Further, we must talk and be involved with the devolved Parliaments. This is very important, particularly in respect to Northern Ireland.
I am a member of the European Union Security and Justice Sub-Committee, where we have been looking at a number of these issues over the last 12 months. I wish to concentrate today on the final recommendation of the committee report Scrutiny of International Agreements, which draws attention to the fact that the CRaG Act applies only to international agreements that are binding under international law. This leaves a scrutiny gap because it excludes scrutiny of both political agreements and agreements with non-state entities. Important examples of political agreements excluded from scrutiny are memoranda of understanding, which are the same as treaties in terms of political commitment.
Paragraph 71 of the report highlights
“Air Services Agreements, which had been treaties between the EU and third countries”
but, as part of the Brexit process, have been converted into memoranda of understanding and not published. Air service agreements are important in facilitating international, commercial air-transport servicing and granting economic bilateral rights. These agreements have been around almost as long as flight itself. This scrutiny gap must be plugged. Proper scrutiny must not be circumvented. The committee’s recommendation is helpful so far as it goes, but it is too weak in asking only for consideration to be given. There are likely to be further examples of EU treaties under third countries being replaced by UK arrangements with those countries.
Baroness Bowles of Berkhamsted [V]
My Lords, I will start again. The three reports we are considering today provide a wealth of wisdom and background, as the excellent spoken contributions have done; most things have been said.
My own knowledge is derived more from practical experience in the EU than from UK legislative history and procedure. But I cannot help but think that we have not moved very far when we are left clinging to a 1924 precedent as a best hope, in this age of complex compound treaties and 24-hour international media. If a weak deal is negotiated by the Government, everyone will know. If Parliament has not been informed over time on tricky play-offs, that is when Parliament becomes difficult rather than an ally, and reasonable choices can end up misunderstood and publicly criticised.
The reports emphasise scrutiny and holding the Government to account, which of course is a primary purpose of Parliament. The Government’s approach is overly biased towards maximising their secretive freedom, believing that that always enables playing their best hand. That is not my experience. The Government can be in a stronger negotiating position if Parliament is on their side on the journey.
I first joined the European Parliament before the Lisbon treaty—before the Parliament’s veto came into force. I recall admissions that the Commission found itself weakened because countries would play the “Parliament/Congress won’t agree” card, to which it had no answer. No matter how tough you think you are in negotiations, just saying no—“Because I don’t want it, because it’s not my policy”—is hard. The reply comes back: “We’re blocked and you’re not. You’re the one that has to move.” The backing of a democratic mandate is strong in the pecking order.
When the Lisbon treaty came into force, the first parliament vetoes were on passenger name recognition and banking data transfers via SWIFT, which did result in better data protection standards. As well as holding Governments to account, parliaments provide equality of arms and can assist in discussions with other parliaments—which does not happen so much if there is no power.
I became involved in various public and private meetings on trade in financial services—a trade sector still not well developed. At a conference in the US Congress on one of my visits, I was spontaneously asked by a Senator on the banking committee to explain how the EU’s TTIP proposals on financial services would work in the US legal system. It was not a trick question, and Commission officials present confessed afterwards that they wished they could explain it as well as I had done. They noted that I had the advantage not only of being more specialist but of being in tune with the concerns of US parliamentarians, with whom I already had a working relationship.
We have a long way to go to harness the benefits of parliamentary involvement and grow our own modern method, and I commend the pragmatic proposals in the Treaty Scrutiny: Working Practices report. The Government should not waste the benefits of Parliament as an ally and on the interparliamentary front—both externally and within the devolved UK.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I thank noble Lords for introducing the committee reports and note how strongly worded all three are about the need for change and the inadequacy—not to mention the ancient nature—of much of what currently governs the oversight that we have.
I think it is worth revisiting the words quoted by the noble and learned Lord, Lord Goldsmith: trade deals are as important as most laws. It is one of the ironies of Brexit that, whatever happens, we have lost not only the oversight of laws by a democratic Parliament—as neither House in this place is—but the very strong oversight of trade deals and treaties in general that comes under the Lisbon treaty, as the noble Baroness, Lady Bowles, just alluded to.
I will quote an independent report from the European Parliament think tank, which says that the European Parliament is
“powerful and active in trade policy, on a comparable level to the US Congress.”
We should aim for that level of scrutiny here in the UK. I note the powerful words of the noble Baroness, Lady Smith of Newham, that we can safely conclude that “take back control” did not mean that the people wanted to hand over control of our international treaties to Dominic Cummings.
However, I agree with Boris Johnson that we need to find a new place for the UK in the world, given where things are now. That is crucial to our security. This is an unstable, insecure world, threatened by multiple shocks, of which Covid-19 is just one. That place should be as chair of COP 26 and as a champion of climate action. Given our strong history in the UK as a place where much human rights law originated and much human rights campaigning has been done from, we should be a champion of democracy and human rights. However, we are not in a position to do that, just as we are not in a position to be a champion for climate action, unless we get our own house in order first. These three reports set out very clearly that we currently do not have that in place.
I will briefly refer to the debate in the Chamber today, which referred to the debate around the withdrawal agreement. The noble Lord, Lord Kerr of Kinlochard, noted that repudiating treaties is what rogue states do. I probably spend more time on Twitter than most noble Lords, but I can tell any noble Lords who are listening that the hashtag “#PerfidiousAlbion” has been trending across most of the UK. If we are to be trusted in the world and if we are to take a stable, secure place in the world, democracy, oversight of treaties and full scrutiny have to be part of that process.
Lord McNally (LD)
My Lords, I thank the chairs and members of these committees for their excellent reports, which are as topical as tomorrow’s headlines. I also thank the noble Baroness, Lady Noakes, for her contribution. There was grave danger of this being a rather herbivorous Committee, with us all agreeing and, knowing that the noble Lord, Lord Ahmad, is himself a very skilful soother of worried brows, that we would have gone home tonight thinking that there is no problem and that it is all done and dusted. So I am grateful to the noble Baroness because I suspect that what she said was closer to what No.10 is thinking than any other contribution around this table tonight. I say to her that, yes, I am a remoaner, but the onus is now on her and her Brexiteer friends to deliver what they promised to the British people, which was sovereignty back to Parliament.
The noble and learned Lord, Lord Goldsmith, is giving the new committee a dry run, and I hope it becomes a Joint Committee. There is an absolute reason for reform of the CRaG Act. As somebody else pointed out, it was written while we were fully embedded in the EU, with the European Parliament taking on a lot of the heavy lifting on these treaty matters. The CRaG therefore needs to be reformed.
On the royal prerogative, I do not go as far back as Bagehot, but I do go as far back as Tony Benn. I remember him putting forward reform of the royal prerogative to the then Prime Minister, Jim Callaghan. Unfortunately, Jim was far too much of a small “c” conservative on these matters to tolerate it—but in fact he was right. The quote from Bagehot that was given is right as well. The noble Earl, Lord Kinnoull, suggested some of the ways forward in looking at the royal prerogative, but the status quo is certainly not enough.
I also worry because the noble and learned Lord, Lord Judge—I am sorry that he is not here today to contribute—has given us ample warning of the overuse of Henry VIII powers in legislation. Along with Tony Benn, another voice from the 1970s and 1980s, Lord Hailsham, warned us of the danger of the democratic dictatorship, where, unless Parliament builds in the checks and balances to ensure both transparency and accountability, we will not be in a new era of parliamentary democracy in this country. We will find it very difficult.
This is the moment for a Parliament to exert itself. In a year’s time or two years’ time, we will be blithely told from the Dispatch Box, “Well, the precedent was established when we saw X Bill through or Y Bill through.” This is the moment of maximum leverage for Parliament. The Government have a lot of business to get through. If they want the co-operation of both Houses of Parliament in doing that, they should give cast-iron assurances that they will make the kind of amendments to our checks on the Executive called for in these three reports.
Lord Balfe (Con)
Let me first put on record my thanks to the three chairs for producing these reports, which have given us an excuse and a reason to debate where we go from here.
I welcome the government response to the Constitution Committee report on the parliamentary scrutiny of treaties, because it brings out into the open what the Government are really up to. On page 5, it states:
“The Government welcomes the Committee’s recognition of the fundamental right of the Executive to negotiate for the UK on the international plane.”
In other words, returning power is returning power to Whitehall and not to Parliament. It continues:
“At the start of negotiations, the Government will publish its Outline Approach … Parliament will have a role in scrutinising these documents … The committee(s) could have access to sensitive information … and could receive private briefings … the committee(s) would have the power to produce a detailed report”—
but it does not say how long we might spend doing it.
I must say that I find this whole procedure depressing; no one has ever doubted where I have stood on this exercise. I am convinced that multilateralism is the only way forward in the modern world. Only in Moscow and Washington are there other Governments who believe that they can repudiate inconvenient parts of international agreements. I spent 25 years in Brussels in the European Parliament and have spent 15 years since then doing odd jobs for it and the Commission, and I can tell noble Lords that the only way forward is negotiation. You have to work with your colleagues; you do not win all the battles, but we are a big a country and we had a record of winning most of them. We won far more battles than we ever lost in the European Parliament.
We are losing sight not only of treaties as they retreat into the Foreign Office but of what is happening in Brussels. We are losing sight of the Lisbon process, and the inevitable end will be what happened when I was on a delegation to Vietnam last year. We interviewed the Trade Minister and he said, “Yes, of course we will be looking forward to a full, comprehensive trade agreement with you.” Then there was a pause of about five seconds before he said, “Of course, we couldn’t put anything in it that Brussels objected to because they are quite big, you know, in our trade arrangements.” This is the reality of where we are going. I hope that we get a treaty scrutiny committee. I am not sure whether it should be a Joint Committee of the two Houses, because the way in which the Commons treats the Lords is not always conducive to equality, but we certainly need something. We need to be informed and to be taken into consideration by the Government.
The European Union has many faults; it also has many strengths. One of its strengths is the system of rapporteurs, who are independent individuals appointed to look at specific trade and other agreements, and who have expertise in those countries. I had 20 years on the EU-Turkey Joint Parliamentary Committee. I knew everyone from the President down to the Ministers, and I could get in to see them. If we could look at a way of combining the trade envoys and the rapporteurs, it would be a good way forward. There is a lot to be gained in the future, but I would not in any way want to be where we are today. We are making the best of a bad job.
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.
Lord Collins of Highbury (Lab)
My Lords, treaties signed by the Government of the day have enormous ramifications for our country and our partners in their agreements. As the noble Lord, Lord Moynihan, said, they now increasingly have wide policy implications that they have not had in the past, which is why it is so important that Parliament, civil society and the wider public play a role in their development and scrutiny.
I, too, thank the three chairs for their excellent introductions to their respective reports, each of which shines a light on the inadequacies of the current arrangements. As we have heard, the Constitutional Reform and Governance Act 2010 is not necessarily fit for purpose. As my noble friend Lady Taylor, chair of the Constitution Committee, said, there has been little time and virtually no opportunity provided for Parliament to have a say prior to the agreement.
Of course, as we have heard in the debate, it is long established that the agreement of treaties is a matter for the Executive, but as we leave the European Union and take on significant new powers in treaty-making, it is right that we consider what scrutiny should be applied to this prerogative, as many noble Lords have said. As the noble Earl, Lord Kinnoull, said, these three reports can act a cornerstone for those considerations. Each of them makes it clear that the provisions of CRaG do not suffice.
A tick-box exercise whereby the Government can claim that they have engaged with Parliament by laying the treaty under the negative resolution procedure is not a process of scrutiny. Again, as my noble friend Lady Taylor highlighted, the Constitution Committee did not express the view that Parliament should be required to endorse the Government’s mandate prior to commencing treaty negotiations, but it came down firmly in favour of a general principle of transparency from the Government throughout the treaty process. That is what this debate is clearly about, and I hope that the Minister will respond to that specific call.
The Government have also been asked by all the committees about the need to engage more effectively with the devolved institutions throughout the process. We have of course heard about the Constitution Committee’s recommendation and we now have a scrutiny committee, in the form of the EU International Agreements Sub-committee. The point made by my noble and learned friend Lord Golding—no, Lord Goldsmith; it is because I am seeing a note that he is a Whip, but he has hidden it now—is that it is simply not enough to have the committee. We need to ensure that it has sufficient time and is able to consider those necessary reports from the Government. The Government’s response in July 2019 to the Constitution Committee said that the CRaG Act remained
“a viable legal framework for scrutiny.”
However, they committed to engage
“with whatever parliamentary scrutiny structures the Houses implement”,
so it is incumbent on the Minister today to say exactly what that means in respect to the committee that we have established. Exactly what will they do to ensure that there is proper engagement with the committee?
As we have heard, on the general issue of transparency, the Government said in that response that they did not agree that they
“should operate on a presumption of transparency for all treaty negotiations.”
They said that, when deciding what information to make public, they had to balance
“openness against … factors including the risk of undermining the UK’s negotiating position”.
My noble friend Lady Taylor addressed that specific point. Again, it is incumbent on the Minister to set out to us what he sees that balance as being. Exactly how will the Government measure it?
As the noble Lord, Lord Lansley, said in his contribution, our recent trade agreements have included the one announced with Japan, which is of great interest to Members of both this House and the Commons. However, at present, no debate on its provisions is scheduled. We have not had the opportunity to comment properly on it and, unfortunately, present arrangements mean that such trade treaties will be scrutinised only when the Government see fit. I am sure there are many who believe that the Government will never see fit.
The noble Earl, Lord Sandwich, mentioned the need for standards in trade agreements. When considering the predecessor Trade Bill in 2019, noble Lords in this House made some 30 amendments covering employment, food and environmental standards, customs arrangements, Northern Ireland—we know that we will talk about Northern Ireland again tomorrow—and the future of EU collaboration. As the then Minister who was taking the Trade Bill through at that time put it,
“no legislation passes the scrutiny of this House without being improved.”—[Official Report, 6/3/19; col. 615.]
She said that “this is unquestionably true” in relation to these issues.
This side of the House strongly believes that the Government need to establish appropriate parliamentary scrutiny of trade deals, whether as significant changes to the existing EU ones or new, free-standing FTAs. The International Trade Select Committee and the Lords’ new International Agreements Sub-committee should have early access to negotiating mandates, receive ongoing negotiation reports and have the powers to make recommendations for the final approval of trade treaties and agreements. We must ensure that consumers, trade unions and wider civil society, and the nations and regions of this country, are fully engaged in trade policy.
As the noble Baroness, Lady Northover, said, these international arrangements are not limited to trade agreements. She mentioned extradition treaties as an example. This was recently the subject of debates on the extradition Bill. The Minister will recall that I previously tabled a Motion which led to the debate on the extradition treaty with Kuwait. I was pleased that the Government found time for that debate and allayed my concerns over the extradition of those who may face the death penalty. However, there is no single mechanism—no guarantee that Parliament will have that opportunity to scrutinise. As my noble and learned friend Lord Goldsmith said, we need proper structures for appropriate, democratic oversight. I repeat that it is incumbent on the Minister to set that out in very clear terms this evening, in response to these three excellent committee reports.
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.
Lord Goldsmith (Lab)
My Lords, I want to start by thanking the Minister for what were not just warm words—there was some substance in them as well. We will study them very carefully. I know that he would have wanted to respond in more detail in writing to the report before today, if he had been able to do so, and I recognise that.
With the Minister, this has been an enormously valuable debate, and I think so for two particular reasons. First, it is because of things that noble Lords have said, to which we will go back many times, I imagine, to see just what they are. It is not just about the new touchstone for parliamentary ignorance from the noble Lord, Lord Beith of whether you can distinguish you Ponsonby rule from your CRaG Act. It is also about the very important political statements about the importance of the job of scrutiny of international treaties. The second reason is that, with one notable exception, the Committee has almost unanimously been of the view that scrutiny by Parliament of international agreements is something that has to take place and has to take place in an effective way. The ideas and thoughts that have come from noble Lords are important. I suppose that it has not been before its time. Even in terms of the British Parliament, taking 150 years to come to the recognition that actually treaties are just as important as domestic laws is not that bad.
There are two points that I hope the Minister will take from the debate. One was the comment made by the noble Earl, Lord Kinnoull, about the importance of having evidence-based scrutiny. That is one of the reasons why the time to consider treaties is important. We want to hear from stakeholders and the public what they think, and 21 sitting days is not enough to do that. It is important to have that evidence, and we believe that it will help the Government, because they will need to know what the issues are so that they can, I hope, take them into account when they negotiate the treaties.
The second point, which was made by my noble friend Lady Taylor of Bolton, was about the Government’s attitude. She suggested that that was the most important thing, and we look for not just warm words but an attitude of government that is determined to see scrutiny operate effectively. Of course, ultimately, the Government make the decisions, but we believe that they will be guided and helped by scrutiny from this place.
I would like to feel that this debate, which has gone extremely well, has taken account of what we said, particularly at paragraph 32 of our report, which is that it may be—and we hope it is—that in a pragmatic way we will be able to conduct the necessary scrutiny without amendment to the law. If not, we will look at that and give fair warning of that. This debate has perhaps fired the starting pistol on that warning, and we will come back to it.
Parliamentary Scrutiny of Treaties (Constitution Committee Report)
(4 years, 2 months ago)
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Baroness Taylor of Bolton
That the Grand Committee takes note of the Report from the Constitution Committee Parliamentary Scrutiny of Treaties (20th Report, Session 2017–19, HL Paper 345).
Scrutiny of International Agreements: Lessons Learned (EUC Report)
(4 years, 2 months ago)
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The Earl of Kinnoull
That the Grand Committee takes note of the Report from the European Union Committee Scrutiny of international agreements: lessons learned (42nd Report, Session 2017–19, HL Paper 387).
The Earl of Kinnoull (Non-Afl)
My Lords, I want briefly to say one or two things. First, I thank all the speakers, going in reverse order. I say to the noble and learned Lord, Lord Goldsmith, that it has been an interesting debate. Even the things that I did not agree with were of immense interest and the standard of debate was very high. I am grateful for that.
I am also grateful to the Minister, who was, as ever, charming. I thought that I was going to be disappointed but, in the end, he came back and said a number a things that, on reading, showed a lot of hope for the situation. I always thought that the general principle of Brexit was replication of EU law in British law; this appeared to be in danger of being the exception, in that the man in the street had the protection of the scrutiny of the European Parliament and others but was then not going to have any. I was heartened by what the Minister said, especially about the engagement with the International Relations Committee.
That brings me to today’s guiding theme: the importance of an international agreements committee for the House. We have had a sense of the excellence that has already been injected into the committee by the noble and learned Lord, Lord Goldsmith. Like others, I very much look forward to it being established on a stand-alone basis for the House—and in short order. I know that that potentially means a long time in House of Lords-speak, but I mean in short order because the committee is already proving very valuable. I beg to move.
The Deputy Chairman of Committees (Lord Bates) (Con)
My Lords, that completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room.