Treaty Scrutiny in Westminster (International Agreements Committee Report)
Lord Goldsmith
That the Grand Committee takes note of the Report from the International Agreements Committee Treaty Scrutiny in Westminster: Addressing the Accountability Gap (10th Report, HL Paper 168).
Lord Goldsmith (Lab)
My Lords, it is fitting that my final act as the outgoing chair of the International Agreements Committee is to open a debate about the process of treaty scrutiny in Parliament. I am delighted to see that so many present and past members of the committee will take part today.
The inquiry we launched last year was designed to take stock of how scrutiny has operated in the committee’s first five years. Our conclusion, in short, is that the current framework for treaty scrutiny under CRaG is, to quote one of our witnesses,
“a weak and insufficient mechanism for securing meaningful accountability”.
I will briefly address the main reasons leading to that conclusion.
As many will know, the framework for treaty scrutiny is set out in Part 2 of the Constitutional Reform and Governance Act, commonly known as CRaG. This legislation gives both Houses of Parliament 21 joint sitting days to consider a treaty and decide whether to vote against ratification. This process has not fundamentally changed in 100 years.
The first issue is that the CRaG process does not allow enough time for scrutiny. It is frankly impossible to conduct an in-depth, evidence-based review of a significant treaty within the 21-day CRaG deadline. Remember, this deadline is for Parliament to debate and vote on the treaty; the International Agreements Committee and its officials have even less time to produce their report for Members of the House to consider ahead of a debate. Your Lordships will appreciate that such a rapid timescale takes no account of what is involved in proper parliamentary scrutiny, in particular the evidence gathering.
Most treaties laid in Parliament do not require detailed scrutiny, because they are routine or technical, but the minority of significant treaties deserve more attention than the timetable under CRaG allows. The Government have accepted that some important treaties merit more time. Since EU exit, Governments have, by concession, allowed Parliament more time to consider free trade agreements. Parliament typically has about three to four months to conduct an inquiry into a free trade agreement because, crucially, the International Agreements Committee receives the treaty text and explanatory documents after the agreement has been signed, but before the CRaG clock starts ticking. The recent debate—in this Room—on the comprehensive economic and trade agreement with India was the outcome of such an in-depth inquiry.
But free trade agreements are not the only type of treaty that warrant this kind of enhanced scrutiny. Significant multilateral agreements, such as the Paris climate change agreement or the new World Health Organization agreement on pandemic preparation, is one other obvious category. Then there are bilateral treaties where there is a high degree of public interest; recent examples include the Rwanda asylum partnership agreement and the agreement with Mauritius on the Chagos Archipelago.
In the trade space, your Lordships may not be aware that the enhanced scrutiny procedures that I have described apply only to treaties formally classified as free trade agreements and not to other potentially important trade agreements, such as mini-deals on digital trade, technology or critical minerals. Importantly, they also do not apply to understandings or commitments not included in formal treaties that need ratification, such as memoranda of understanding or the very important understandings on tariffs reached by His Majesty’s Government with the United States of America.
For important treaties that are not FTAs, the only mechanism to secure more time is to ask the Government for an extension of the 21-day period. But the Government have shown themselves reluctant to grant extensions, even in cases where they accept that the public interest is high and there is no urgency to ratify. The Chagos Islands agreement was such a case. I know there are strongly held opinions in this House and elsewhere about that agreement, but whatever differences Members may have on its merits, I hope we can all agree that the treaty deserved more detailed scrutiny than the CRaG process allowed. The IAC had just over three weeks to produce a report in time for the scheduled debate.
Our report asked the Government to make a commitment to accept a reasoned request from the IAC for a single extension of the scrutiny period of up to 21 days, unless there are compelling operational reasons to the contrary. We thought that a modest, eminently reasonable approach, and I regret that the Government’s response did not even directly address the proposal. They said that they need the flexibility to decline an extension but declined to state the specific circumstances in which that might be necessary. Since the committee’s proposal would not prevent the Government declining where there is clear reason to do so, I urge them to reconsider the committee’s request. I invite the Minister to take that away, if nothing else.
A second major problem with CRaG is that scrutiny is triggered by the form of an international agreement, rather than its substance. Some treaties are excluded from scrutiny entirely if they are not subject to ratification, or, the Government may choose—it often is a choice—to use a non-legally binding instrument to achieve their aims. Our report highlights research by the Commons Library which shows that, in relation to the expulsion of illegal migrants, the Home Office frequently chooses non-binding arrangements with third countries rather than treaties subject to CRaG scrutiny—as, indeed, we saw with the first stage of the Rwanda scheme; we pointed that out and the Government then reached a treaty. Even where a treaty is ratified and subject to CRaG, amendments to that treaty might be excluded from scrutiny. Everything depends on the process the Government choose to adopt, rather than the importance of the measures. This in itself creates an obvious scrutiny gap.
The third, and perhaps most fundamental, issue is that even when CRaG applies, the role of Parliament is very weak. The power of this House could be described, at best, as the power to ask the Government to think again about ratification. The Commons at least has the power to delay ratification, but that is more theoretical than real, as the Government have a tendency to refuse time for debate on treaties in the other House, and, without a debate, that recommendation to delay ratification cannot take binding effect.
The weakness of Parliament’s role in relation to treaties is in stark contrast to the position in most other countries. The vast majority of other countries require legislative consent for at least some treaties. This includes many countries with dualist constitutional systems similar to the UK’s, where treaties are not automatically part of domestic law. I do not know how many times I have heard it said that because we are dualist we do not need parliamentary scrutiny. That is completely untrue. Internationally, the UK is an outlier in relation to treaty scrutiny. During our debate on the India CETA, a number of noble Lords powerfully made the argument that the benefit of being able to say, “That will not wash in Westminster”, was of great value in trade negotiations.
At the risk of pre-empting my noble friend Lady Chapman’s reply, I will say a few words about the arguments that Governments of both parties have traditionally advanced to defend the status quo. First, it is said that the light-touch approach of CRaG is justified because Parliament gets to scrutinise treaty-implementing legislation. But scrutiny of implementing measures is not an effective substitute. Parliament needs to be able to look at a treaty as a whole, and the policy reasons underpinning it, but the policy is locked in by the time Parliament looks at implementing measures. Moreover, legislation may not even be required for a specific treaty and, when it is, the legislation is often limited to specific aspects.
Secondly, the Government say they need flexibility to strike deals in the national interest and that CRaG provides an appropriate balance between this flexibility and accountability to Parliament. That is patently not the case. The reality is that the CRaG Act gives the Government so much discretion at different stages of the process that the balance is skewed overwhelmingly in the Government’s favour. Paragraph 46 of our report lists the various ways in which the current framework allows the Government to avoid or limit scrutiny, including by choosing the form of an agreement and deciding whether to extend the time for scrutiny.
We therefore concluded that there is an accountability gap and that reform of the current scrutiny framework is needed. To address problems in the short term, we proposed a set of practical and operational measures to make the current framework under the CRaG Act more effective. I welcome the Government’s willingness to accept many of these recommendations, and I urge the Minister to make it a priority to put them into practice.
However, such operational changes cannot fix the fundamental defects that I have described and the imbalance of power between Parliament and the Executive. I believe that there is a powerful case for legislative reform to address this and I call on the Government and my noble friend to engage with the IAC and with Parliament more widely to bring treaty scrutiny into the 21st century.
At the conclusion of the recent debate on the India agreement, I tried to capture this problem by urging that the scrutiny of treaties should not be a second-class citizen when it comes to parliamentary scrutiny. The point I was trying to make was better and more eloquently made by the great Walter Bagehot, who argued in The English Constitution that, because treaties can have as much impact as domestic laws, it is illogical to require the elaborate assent of representative assemblies to every word of the law while not consulting them even on the essence of the treaty.
While CRaG has made some inroads on the deficiency, our report and the evidence we received shows that it is a miserly and inadequate response to this accountability gap. I hope, therefore, in this final act as outgoing chair—as I finally pass the baton to the noble Lord, Lord Johnson of Lainston, who I am glad is in his place—I can persuade your Lordships to encourage my noble friend the Minister and her colleagues to take a courageous and bold approach to reducing the accountability gap. I beg to move.
Lord Johnson of Lainston (Con)
My Lords, we have already sung the praises of the noble and learned Lord, Lord Goldsmith, and I am delighted to do so again in relation to this excellent report and his chairmanship of this committee over the past few years. I also commend the team who put a huge amount of effort into creating the report, which I think people have found enormously useful. It is very powerfully written.
It is 100% clear that the current process of treaty scrutiny falls far below what is expected in a democracy and what is seen to operate in other countries, such as Australia. I am embarrassed to quote Bagehot. I have taken him from the other side, because he is clear in my view that the prerogative of treaty making lies with the Executive, which I think the noble and learned Lord, Lord Goldsmith, was referring to. He is correct that the work of making an agreement with another country or multinational body is indeed the work of the Executive. However, these agreements are central to the policy-making and laws of this country, and it is also the prerogative of Parliament—I think he is quite clear about that—to scrutinise the work of the Executive post the treaty’s creation and before it can be properly ratified.
The issue we have is not with the Executive’s role, but with the absurdly short time—which is very clearly demonstrated in this report and has been mentioned by numerous similar committees over many years—given to us to properly assess the validity of any agreements that we as a nation enter into. In my mind, effective scrutiny ensures a better thought-through process. It can actually aid negotiations, and publicise and bring popular support and awareness to the treaties themselves—an issue which I think noble Lords and the Government will acknowledge as vital if they are to be used properly by businesses and people at large.
I am not naive enough to suggest that the Government will change the CRaG process any time soon. In my time as a Minister, the officials—around whom much is designed, I am afraid to say—were equally forceful in their position. But can the Minister assure us that the Government will make as much additional effort as possible to ensure that we have as much transparency and warning as possible for treaties that do not gain the extended CRaG timeline, as FTAs do?
I have been extremely grateful for the engagement the Minister has given me personally on this matter. I met today the FCDO chief legal officer, who was also extremely helpful in trying to ensure that there is an elasticity around the interpretation of concepts such as transparency and pipeline. However, it would be good to have some details on that and some firmer commitments in terms of where we can get extensions and how the other parts of the process can fit together.
My second request is for the Minister to write to me with answers to the following two questions, unless she has them to hand. I am interested in finding out how many treaties we have signed but not yet ratified. This is not unimportant, since it will help us to understand the flow of work for the IAC and to see how we are progressing on executing the broad international agreements plans. The noble and learned Lord, Lord Goldsmith, has already referred to the fact that we are aware of, and indeed in many instances encourage, other kinds of non-binding agreements entered into by Ministers with other countries and bodies. They can be very useful tools for engagement. How many of these types of agreements are there? What sectors do they cover? What has been the effect, positive or negative? I think this is a very serious issue and I am sure the Minister is curious about the answers to this question.
Treaties and agreements are central to our foreign policy—indeed, trade and defence is diplomacy—but we are unsure about the efficacy of our overall plan. Indeed, do we have one? Do we have a foreign or trade policy other than simply to try to do as much as possible? I recommend that the Government develop a plan as rapidly as possible. I do not believe we had such a plan under the previous Government. I mention this because the situation with the WTO and, indeed, our relationship with the USA over the situation in Iran only emphasise the problems we face without a proper idea of where we are heading and why. To this end, the IAC is planning on writing a report that focuses on the changing world order—sadly not for the better, in my view—and in particular on how our trade instruments, which we have just mentioned, both binding and non-binding, and the various treaties and agreements we use, make us as a nation stronger and richer. I hope the Government will support this report and take note of whatever we produce.
I worry that we are entering a phase of global affairs where international law is seen as some sort of woke, left-wing agenda to hinder a nation’s ability to self-govern, and that on principle we should ignore findings or rulings we dislike and withdraw from the international trade system where it suits us. In my mind, this is very dangerous. We are a trading nation and we need to fit within a global order in order to prosper. The nature of treaty scrutiny fits entirely within this. Parliament has to be in a position to endorse the actions taken on our behalf by the Government, and I ask the Minister to take our findings in the report we are presenting today very seriously. If the Government do not, it will lead to further erosion of the systems and structures that, in my view, have allowed us to dominate international trade and have kept us safe from conflict for 70 years. As Hobbes, the philosopher, wrote, a world without enforceable laws is a miserable and unpredictable one, where the arts and industry cannot flourish. That is why I commend this report to the Committee.
Lord German (LD)
My Lords, I am loath to repeat what has been said before, but I want to thank the noble and learned Lord, Lord Goldsmith, for this report and for outlining its principles very clearly, which are, to encompass them in just one sentence, that the current legal framework in which we operate is not good enough and does not work in the interests of our people, Parliament has to work to ensure that it is fit for purpose and we need to make sure that that change is ahead of us. I thank the noble and learned Lord, Lord Goldsmith, for his work and for his clear explanation.
The matter before us is that the Government’s response to what has been put before them is. “Well, we’ll have a look at absolutely anything you want us to, but what we will not do is enter into a statutory change”. In fact, somewhere within the response there is the wonderful phrase that we hear so often, “Parliamentary time is not available”. The reason for this work is primarily contained in a single sentence in paragraph 39:
“Treaties are now not just about high policy affecting relations between states, but deal with a huge range of issues directly touching on matters of domestic law and people’s daily lives”.
It is that function, which is charged by the CRaG legislation, that is so poor in the way it can be interpreted to provide an answer to that single point inside the report.
I would like to ask the Minister how co-ordination works between the FCDO and those who provide the background work on developing the treaties and other matters that come before us. It seems to me that most of what we hear comes from either the Department for Business or the Home Office, and that these proposed treaties coming before us are both devised and run by those departments. I would like to understand better the relationship between the FCDO and the implementing departments that are responsible for the development of the treaties before us, so that we can seek better engagement. At the moment, it looks to me as if the Government’s response is, “Keep taking the paracetamol because there’s no need to bother the doctor”. In other words, the Government are basically saying, “Make do with what you’ve got because we can’t make a firm diagnosis and make the change that is required”. That is not something we wish to hear, and nor does it benefit the purposes of the treaties and their impact on the human lives of so many of our people.
On that, I will address the issue of the devolved Parliaments, which the committee has taken in its stride in trying to understand how they deal with these matters. Given that so many of the treaties affect the devolved Parliaments’ working relationships and working activities, as well as the legislation they apply—on education, health, transportation, roads, planning, the provision of social services, agriculture and much more—it is, at the moment, very difficult for the Assembly and the other devolved Parliaments to respond in the given time. Imagine it: we have 21 days and we give it to them and say, “Why don’t you tell us what you think?” By the time we get an answer back and their committees have sat, we have well exceeded that time. So I want to hear from the Minister what more the Government can do to encourage and assist the Assembly and the other devolved Parliaments so that they can deal with these matters properly.
The third bundle of activity, which has already been referred to, concerns the new way of doing free trade agreements, treaty agreements and so on—what the Government call “NBIs”, or “non-binding instruments”, in their response—which seem to be coming before us in a huge way at present. In their response, the Government give an explanation and say that they will do more of them if they can; we have also heard that in evidence from witnesses on the government side. If that is going to be the practice of the future, who will decide how these matters must be dealt with? The Government say that they will
“treat it like all other significant policy commitments”.
So the Government will decide whether it is a “significant policy commitment” and will then provide
“appropriate and timely information to Parliament”.
Information is not scrutiny, though. That is what this debate and this report are about: looking for appropriate scrutiny of what is happening, so that things can be improved in order to better the lives of the people of this country.
I am, therefore, pleased to support the recommendations in this report and ask the Government whether they intend to take the bold steps stated in the report, even though they have indicated that they cannot find the time.
Lord Hannay of Chiswick (CB)
My Lords, your Lordships’ Institutional Agreements Committee, on which I have the honour to serve, is a relatively newly established committee, with a mandate that in its vagueness perhaps reflects its novelty. It is a good step that we should be debating today the committee’s own report on its early years, so well introduced by our recently rotated chair, the noble and learned Lord, Lord Goldsmith, and the incoming chair, the noble Lord, Lord Johnson of Lainston.
The first point to make is, as all the evidence we took records, that our Parliament is an outlier—probably better described as a backmarker—among democratic parliaments attempting to scrutinise their agreements with third countries, behind the US Congress and the European Parliament. That is not a place that we should accept as Britain navigates its way through increasingly choppy international waters.
For all the territory that we have traversed since the committee was set up, I record with gratitude that we have been given much help, in particular by the Department for Business and the FCDO. Even so, gaps and weaknesses have been revealed in our task of helping to apply the Constitutional Reform and Governance Act, which is our basic duty. Those gaps and weaknesses could be remedied by modest changes. None of those that I will put emphasis on would require primary legislation. Here are three examples that I hope the Minister will reflect carefully on and respond to.
First, and by a long way foremost, is the need to address the choke point imposed by the limit of 21 working days for the committee to take evidence, report to the House and hold a debate on an agreement that the Government consider is covered by the CRaG procedures. I note, incidentally, that the choice of whether or not an agreement falls within the scope of CRaG procedures is entirely a matter for the Government. They have many other forms of agreement—memorandums of understanding being the favourite—by which they can evade those procedures, and they frequently do. It would be a great help if the Government would publish a text, setting out clearly the criteria that they use to make their choice as to whether the CRaG procedures need to apply.
Of more significance is the need to introduce more flexibility into the application of the 21-day limit. This hampers the taking of evidence by the committee and the drafting of its report. It is with some shame that I admit that, on one occasion recently, the committee was compelled to send forward to the House a report on which it had been unable to take any evidence at all. There is an easy remedy, put forward by the noble and learned Lord, Lord Goldsmith, which I strongly endorse. The Government should agree that, as a general rule, they would grant one—I repeat, one—extension of a second 21-day period when the committee submitted a reasoned argument for so doing. The Government would retain the right to refuse such a request if they could demonstrate that doing so was in the national interest. The committee has shown plenty of flexibility on its side, when, for example, it agreed that the UK-France one-in, one-out agreement needed immediate application, without any of the committee procedures being engaged.
The second example is the rather bizarre fact that the Government accept the need for a CRaG process when an agreement is bilateral, but not when it is plurilateral or multilateral, even if it imposes binding legal obligations on the UK. More and more agreements fall into the latter two categories. A recent example was the decision by the Government—a very welcome decision in the committee’s view—in their trade strategy to join the World Trade Organization’s interim dispute settlement procedure. This requires the UK to accept a ruling in a dispute between it and another country in the interim procedure.
In fact, the committee welcomed this step, but it did not welcome being cut out of the process of approval. Further examples could arise later this year if a pandemic convention is successfully negotiated on a multilateral or plurilateral basis, or if a WTO arrangement covering e-commerce is agreed, as we hope it will be. So, this distinction between bilateral and multilateral legally binding instruments makes no sense at all and certainly does not contribute to parliamentary scrutiny.
Thirdly, as more international agreements with binding legal obligations with the UK are negotiated by departments other than the Department for Business and Trade or the FCDO in the lead, there is a crying need for better co-ordination in briefing the International Agreements Committee and in ensuring that it can effectively carry out its scrutiny responsibilities, on which the noble Lord, Lord German, made some relevant remarks. This could easily be achieved by circulating guidance to all such departments and ensuring that they apply the procedures meticulously and in a similar fashion.
If the three points that I have put forward were addressed, we would have a far better system of parliamentary scrutiny, without any need for primary legislation or any loss of royal prerogative.
Lord Lilley (Con)
My Lords, I congratulate the committee and its chairman on the report. I hesitate to participate in this debate since I have limited expertise in foreign affairs, and still less on the scrutiny of foreign treaties, but I was puzzled by the report’s focus on the scrutiny of treaties after they have been negotiated. By then, surely, it is too late to influence the substantive content of any treaty. Parliamentarians cannot revise a treaty and would reject it only if it were demonstrably malign. All Parliament can do is accept or reject a treaty.
Surely it would be more valuable to scrutinise the Government’s negotiating mandate at the start of negotiations. We do not do so because Governments rarely, if ever, publish the mandate they have given our negotiators. By contrast, the EU often does publish its mandate. As a result, I know more about the aims of the EU in the current reset negotiations than I do about my own Government’s. For instance, I know that the EU intends to secure a—I quote from the title of the mandate it gave its negotiators—
“financial contribution from the UK towards reducing economic and social disparities between the regions of the Union”.
That is in addition to cash payments the EU is demanding towards its administrative costs in each of the sectors now being negotiated.
This is an issue on which I am in rare agreement with the noble Lord, Lord Kerr of Kinlochard, who said very pithily in the debate on these negotiations on 26 November:
“We also suffer from a degree of timidity in what we are putting forward, and the other side suffers from a bit of excessive ambition. I do not think we should be paying contributions into the EU budget, that it is right to try to charge us €10 billion to join SAFE, or that it is right to try to charge us for integration into the EU electricity market. These things are a common benefit—they suit both sides—so why should we pay?”.—[Official Report, 26/2/26; col. 777.]
If Parliament has an opportunity to express a view on issues such as this at the start, rather than when it is too late, that could surely strengthen the Government’s negotiating hand.
I have been struck by how many negotiations seem to have gone awry for the UK over the years. Most recently, the way the rationale for the Chagos deal has unravelled has been very disturbing. The incoherence of the Government’s approach to the reset negotiations suggests that a similar failure is in the making. But it is not just this Government’s negotiations: the withdrawal agreement started off just like the current reset negotiations, as I shall show in a moment.
There seem to be recurrent weaknesses in the way the FCDO negotiates, which might be alleviated if we had debates on the scrutiny of mandates rather than outcomes. I make it clear that any such weaknesses, even if they reflect the culture of the FCDO, are ultimately the responsibility of Ministers and Parliament. Ministers are responsible for the advice they take and the culture they tolerate. In my experience, officials do respond to clear guidance from Ministers. Parliament should, therefore, examine the FCDO culture that Ministers allow to prevail.
I will mention just a couple of weaknesses that seem to beset our approach to negotiations. Both perhaps reflect typical aspects of the British character. The first is a belief that making early concessions will generate good will and elicit corresponding concessions from the other side later. This naive belief makes the UK prey to the EU practice of demanding key concessions as a price for opening negotiations. The EU refused even to start reset negotiations unless we had first agreed—signed, sealed and delivered—to restrict the catch of fish from our waters for another 12 years. This supine Government committed us to that so that, even if the negotiations fail, we will have conceded it.
The EU employed the same gambit in the withdrawal negotiations, refusing to proceed unless the UK agreed that there should be no hard border in Ireland. Since the EU was threatening to erect a hard border, the UK had to accept whatever the EU deemed necessary to avoid it erecting one, in practice subjecting Northern Ireland to EU law and creating a border with Great Britain. My noble friend Lady May sadly signed up to that.
The second congenital or prevailing weakness is a very British aversion to rows, scenes and failure—or the prospect of failure. General de Gaulle in his memoirs said that when he was utterly dependent on Britain to arm and equip his Free French forces, he had only to threaten a row to equip another division. This aversion to rows, scenes and admitting failure results in the most egregious weakness of the British approach to negotiations: the failure to prepare, let alone deploy, what negotiators call their BATNA—their best alternative to a negotiated settlement. Sometimes, no deal can be better than a bad deal. It was Parliament, through the Burt-Benn Act, that deprived government of the option of exercising its BATNA, walking away from negotiations or threatening to do so—with very damaging consequences for the outcome of the withdrawal agreement negotiations.
Normally, I hope that parliamentarians would use the option of scrutiny at the beginning of negotiations to insist on the Government including a BATNA—a best alternative to a negotiated agreement—therefore stiffening our negotiators’ spines in future negotiations.
Lord Stevenson of Balmacara (Lab)
My Lords, it is very welcome that we have, in the space of a fortnight, two chances to debate committee reports from one of our most senior committees—I say that as a recent member of it. I find it is often the case that the House does not see the work going on in committees; we should see more of it, and it is good to do so today. I thank my noble and learned friend Lord Goldsmith for his excellent introduction and, of course, for his chairmanship in the time that he was on this committee.
The problem at the heart of this debate is how we should balance the current right of the Government to negotiate treaties and to ratify them using the royal prerogative against the rights that Parliament has, or should have, in all other policy matters. In the past, treaties were largely concerned with war, peace and international policy more generally but, today, trade policy is growing in importance, not just because of its return to the UK, having previously been dealt with by the EU Commission and EU Parliament but, most importantly, because it is evident that modern trade deals increasingly bring with them changes to a wide range of domestic policies. As we know from recent experiences in what is agreed outside parliamentary sight in bilateral trade discussions and, as referred to already, as we have seen in treaties such as Rwanda and the Chagos Islands, it is often necessary to look at collateral changes that follow in primary legislation. This impacts directly on existing terms and processes.
In short, treaties, whatever form they take, are drivers of policy and are as important to the people of this country as changes foreshadowed in manifestos. As these treaties and trade deals shape who we are as a nation, it surely follows that Parliament should examine them to the same standards as primary legislation. Our report lays out why the current arrangements are not as comprehensive, and certainly not as complete, as they should be. Parliament should have a major role to play in this process, one that can and will aid the Executive as they set up the trade agreements and make the treaties that are so urgently needed if we are to secure growth and prosperity in the future. It is very disappointing that this Government—my Government—are following the lines set by the previous Administration and seem unwilling to improve trade treaty scrutiny. Previous speakers have stressed how bad the current arrangements are. I wonder why we cannot have a workaround—I will propose one later in my speech—which would give us time while new legislation is being proposed.
My suggestion goes back to the discussions that led to the Grimstone rule during what is now the Trade Act. I led the Opposition Front Bench in the debates on that Bill, which lasted over three years, and I proposed the rule when it became clear that we were having difficulty in finding a way to engage Parliament. There was then, as now, no appetite to amend the procedures under CRaG. I now suggest that some variation of the Grimstone rule might be needed here. That rule sets up a process under which, when treaties are being contemplated, the IAC gets information about the negotiating rounds, documents that describe the Government’s strategic approach and periodic reports, as well as sight of the draft before it is finally ratified. This works well and could easily be implemented for all treaties, because it gets around the problem we explained in the report: when it comes to the formal approval process under CRaG, the strict timetable and limited powers of the two Houses do not give Parliament the time and authority that it needs.
As we say in our report:
“the scrutiny process under the CRAG Act is a weak and insufficient mechanism for securing meaningful parliamentary accountability… Scrutiny of implementing legislation is no substitute for treaty scrutiny”.
A balance clearly has to be struck between the flexibility that the Government need to negotiate in the national interest and the transparency and scrutiny that the public interest requires. The CRaG Act does not get the balance right, because the Government have too much discretion to act in ways that lead to the evasion of detailed scrutiny, including by refusing to grant adequate time for Parliament to examine and debate treaties. There is therefore a strong case for legislating in this area, and I look forward to hearing the Minister’s response. In the interim, perhaps we could introduce the Chapman rule.
Baroness Lawlor (Con)
My Lords, I pay tribute to the noble and learned Lord, Lord Goldsmith, for his fair-minded chairmanship, and intellectually able and collegiate steering of our committee. It was particularly welcome to me, as a refugee from the European Affairs Committee.
Others have discussed the report and its conclusions, the most striking being that there is a strong case for reforming, by law, the arrangements for effective parliamentary scrutiny of international treaties under the CRaG Act 2010. Indeed, the report suggests, as other noble Lords have mentioned, that the UK is an outlier from other countries where Parliament has more of a say over treaties that sometimes require legislative consent.
I believe that treaties should remain a royal prerogative power. We need not be swayed by the example of continental states, most of which are relatively new or have emerged from revolution, war or violent struggle. By contrast, the UK’s constitutional arrangements emerged over centuries; they brought stability and the potential for change, and ensured the accountability of the Government and Parliament to the electorate. This was demonstrated at the 2019 general election, when the central issue was whether Parliament should decide the terms of the treaty with the EU or the Government on behalf of the people’s wish expressed in the referendum. Our system allowed the will of the majority to be followed, where a more continental system would have allowed a parliament, out of touch with those wishes, to thwart it.
However, I share the view that effective parliamentary scrutiny of government treaties is necessary—particularly that afforded by Parliament as a whole and by both Chambers, as happened with the vitally important agreements of the 1920s and 1930s. I agree that more time is needed, and I am interested in my noble friend Lord Lilley’s proposal for a pre-negotiation mandate debate. Then, as now, treaties were deeply political, which was something to which the noble and learned Lord, Lord Goldsmith, referred to when he mentioned the Chagos question. But does today’s consensus-centred approach of Select Committees tend to mask this central feature of their political nature? The expectation of an inquiry is that officials must do the lion’s share of the initial drafting: they should draft the papers, the terms of reference and the report; they should prepare the draft questions for members to put to witnesses; and they should take the lead in selecting witnesses.
The aim of consensus deprives the committee of its political adversarial dimension. The assumption is that a scientific inquiry based on evidence is being conducted, which is judged to be neutral because it comes from expert witnesses. But those chosen disproportionately reflect the consensus—the centre-left view of our public service, media, academe and establishment. A worthwhile consensus includes and expresses a diversity of views. The noble and learned Lord, Lord Goldsmith, could not have been more encouraging of a diversity of opinions, but the system weighs against their being expressed fully, as does time. By contrast, a debate in and out of Parliament allows for a diversity of opinion.
Perhaps a straightforward way to improve the system we have would be for greater input by members to encourage and reflect a variety of political views, and for specialist witnesses to be of different political persuasions. Instead of the expectation that hard-working officials initiate the draft terms of an inquiry or report and prepare the questions, members’ views should actively be sought and reflected before and during each stage to frame the terms, select witnesses and highlight important points. Minority reports should be permitted and welcomed. In the end, parliamentary scrutiny would be the winner. The House of Lords Select Committee would be doing what it should to make that scrutiny more effective. It would be scrutiny by Parliament on behalf of the electorate, who would have the final say.
Lord Kerr of Kinlochard (CB)
My Lords, I need to respond to the rather surprising compliment from the noble Lord, Lord Lilley. I can do so because I agree with a number of things that he said, in particular on the case for parliamentary scrutiny during negotiation and before a deal is struck. I am sure that we all agreed with his strictures on the negotiating stance of his noble friend Lord Frost. I join in the tribute to the committee and its outgoing chairman, the noble and learned Lord, Lord Goldsmith, under whom I served, and let us not forget the noble Baroness, Lady Hayter, who stood in so well for him when he had to step aside. I also pay tribute to the noble Lord, Lord Grimstone, who was by far the most sympathetic Minister with whom we did business, and to the incoming chairman, who maintained the Grimstone tradition.
There is an accountability gap; the report proves it very satisfactorily and clearly by comparing our procedures with those of comparable countries, including those with dualist systems. They have more say than we do. However, there is also a gap relative to the past. We have much less say now than we did when we were in the EU. With our Ministers taking part in Council decisions on opening, handling and concluding negotiations, Parliament’s scrutiny reserve meant that Ministers could be and were summoned to answer our questions before casting their votes. I served on our EU committee and four of its sub-committees, and I can confirm that their scrutiny, unlike today’s, was real. Moreover, once the Lisbon treaty came into force in 2009, our Members of the European Parliament enjoyed the right to be kept immediately and fully informed at all stages of every treaty negotiation led by the Commission—on trade, investment, agriculture, fisheries; any subject where full EU competence applied. Of course, they also had the right to vote on the outcome—
Lord Kerr of Kinlochard (CB)
I was making the point that the European Parliament has the right to vote on the outcome of any treaty negotiation, of course: treaties require its positive consent. Its debates informed ours. My point is not just that there is an accountability gap relative to the European Parliament, but that our Government are now much less accountable to our Parliament than they were 16 years ago when CRaG was debated and agreed. So it really will not do for the Government to assert, as their reply to the committee does, that
“the CRaG Act strikes a careful balance between the power of the Executive to conclude and ratify treaties and the power of Parliament to scrutinise treaties subject to ratification”.
If CRaG got the balance right, by definition, the balance is wrong today. Or did careful Prime Minister Johnson correct, by Brexit, a mistake made by the careless Prime Minister Brown? I do not think so.
Two years ago, the Opposition Front Bench spokesman on trade in the other place stated that
“the CRaG process … is clearly not fit for purpose”.—[Official Report, Commons, 19/3/24; col. 869.]
I agree. So let us not have any more of this “careful balance” nonsense now. I am not naive enough to expect that legislative time will be made available for major CRaG reform. I recognise that the Government’s response to the committee is not all nonsense; nor is it all just, “What we have, we hold”. The Government are prepared to discuss possible improvements in the way CRaG works. My plea to them is: be constructive about that process. Put a parliamentarian in charge of the process: that is, someone who has been a poacher. Do not leave it to the grim official gatekeeper/gamekeepers like me.
The status quo is acutely unsatisfactory and unbalanced, and five years of unbalance is long enough. As I said in our debate last week, our treaty negotiators will be more powerful if the ratification of the outcome of a negotiation is no longer known to be a foregone conclusion of farcical formality.
Lord Anderson of Swansea (Lab)
My Lords, page 8 of our report states baldly that
“governments since 2019 have not listened to Parliament”
in respect of treaty scrutiny at Westminster. So the question before us is, “Does there exist, as is stated in the report, an accountability gap?” Further, do the Government recognise that such a gap exists? If so, are they prepared to respond positively to meet that gap? In short, will they deal with it, with the aim of strengthening parliamentary oversight? Alas, the answer is, “Only marginally, if at all”. The Committee will be disappointed by the Government’s somewhat Panglossian reply to the report.
I recall being a young diplomat in about 1961 and hearing a joke doing the rounds among colleagues. It was a spoof draft for Ministers replying to the recommendations of a parliamentary committee: a model, all-purpose response. I still remember some parts of the suggested reply. “We are most grateful to the committee. We welcome and pay tribute to its hard work, which has made a valuable contribution to our consideration of the subject. We commend its expertise and wisdom and have examined with great care its conclusions. But Rome wasn’t built in a day and we aim to continue to work closely with the committee in a positive dialogue”.
As I read the preamble to the Government’s response, I detected echoes of that spoof from more than 60 years ago. It is of course true that the Government have made some limited advances, but, overall, when I read their response, I saw the echoes of that earlier spoof. The response states:
“The Government respects and values the work of the Committee … The Government has carefully considered the report … the Government is keen to work with the Committee … progress can be made in many areas by the Government and Committee engaging in more dialogue and by working together to improve working practices … The Government does not believe, however, that there is a strong case for more fundamental reform”.
It is very disappointing, but not wholly surprising.
I have made selective quotes, but, essentially, the Government have rejected the committee’s recommendations on the basis that the provisions of CRaG continue to strike “the right balance” between the Government and Parliament, albeit with very limited concessions, and that Parliament has all the tools necessary to do the job of scrutiny. Essentially, we leave by the door through which we entered, and the Government seem wedded to the status quo. I think it is unnecessary to examine each part of the recommendations. That has been done in a very legal and good way by the noble and learned Lord, Lord Goldsmith, and other contributors. The only jarring bit has been an element of the rehashing of the EU debate with the magnificent obsession with the EU of the noble Lord, Lord Lilley.
I will make two final observations. The first is that I was somewhat heartened by the different spirit, the more positive spirit, of Secretary Kyle when he appeared before the committee. I only wish that we could nail that spirit to clear undertakings for the future. He recalled that he had been extremely frustrated as a Back-Bencher in respect of the Government and implied that he was sympathetic to the work of this committee. My final observation is that, if a firmer base is not established, this will be seen as another missed opportunity to fill what we see as the accountability gap, because Parliament and our committee are unlikely to have another chance to raise this issue in this Parliament. Hence, this may be the one and only opportunity in this Parliament to make the democratic advance in scrutiny advocated by the committee.
Lord Norton of Louth (Con)
My Lord, I welcome this report and the reports from other committees, including the Constitution Committee, on the subject, but I rather regret that they are necessary. I was involved in the passage of the Constitutional Reform and Governance Bill. I served on the Joint Committee on the draft Bill and, when the Bill was introduced, I managed to get an amendment accepted covering the provision of explanatory memoranda to Parliament.
With the benefit of hindsight, I realise I should have gone further, utilising the leverage of the wash-up to press for an amendment to provide for every significant treaty negotiated by government to be subject to approval by affirmative resolution by the House of Commons. That is what the Hansard Society has pressed for. What this report recommends—I think at paragraph 70—is crucial, and it is entirely feasible in legislative terms. Alex Horne, a former senior legal adviser to several parliamentary committees, has drafted a Bill to amend CRaG to achieve this.
This leads to the key points I wish to make. I very much welcome this report, but I do not extend that welcome to the Government’s response, which I fear is what is to be expected from the Executive. There is a clear executive view, whichever party is in power, which is at odds with a parliamentary view. Negotiating treaties, as my noble friend Lady Lawlor said, takes place under prerogative powers. Treaty-making always has been and should remain within the gift of His Majesty’s Government. It was wholly inappropriate during the Brexit negotiations for the House of Commons to try to wrest control of the process from Ministers. However, while treaty-making—that is, negotiating the terms of a treaty—should rest with the Executive, treaty approval should rest with Parliament. The provisions of CRaG were designed to give both Houses the opportunity to object to a treaty, and for the Commons, ultimately, to prevent its ratification.
The problem is that the Executive have difficulty accepting that Parliament should have the capacity to say no. They may pay lip service to the principle, but in practice they want Parliament to stay out of the process. They had and have the whip hand in the control of the timetable.
There is a clear difference between the executive and parliamentary views, encapsulated in the different definitions of power. Power can be defined in pluralist, elitist and institutional terms. The pluralist view is the traditional one, where A gets B to do that which B would otherwise not do. It can take two forms: the coercive and the persuasive. The Government clearly favour the latter, believing that Parliament should have a persuasive capacity only. That is clear from their response to this report. The emphasis is on scrutiny—in effect, on examining and commenting. The Government’s response does nothing to concede that Parliament should have the capacity to say no to what they have negotiated. They are prepared only to discuss ways in which Parliament may be better informed as an aid to enhancing scrutiny.
Parliament needs to be more assertive to ensure that the provisions of CRaG have teeth. Having the power to say no would provide the basis for achieving what my noble friend Lord Lilley has advocated. Committees examining treaties need to be complemented by the House having not just the processes but the political will to act on their recommendations. To achieve that, we need to provide that parliamentary approval is required for significant treaties, as defined in Alex Horne’s draft Bill. We have the reports of the various committees. We do not need any more. We need to act to ensure that Parliament is a watchdog with teeth and not simply a bark.
Lord Fox (LD)
My Lords, it is a real pleasure to follow that speech, which was a useful and authoritative view on this topic. I will attempt to sum up some of the issues, but I will first make a couple of observations.
First, since the change in the machinery of government in the last Parliament, the focus of the equivalent committee in the House of Commons has been very much dimmed. Now that it is a Business and Trade Committee, it is absorbed in a whole range of issues and cannot focus on trade as it did. Your Lordships’ committee has been carrying the lantern on this since that change.
I will not comment on many contributions. I thank the noble Lord, Lord Lilley, for reminding me what I had been missing since I last heard him speak. On the comments of the noble Baroness, Lady Lawlor, when on a committee we have an opportunity to debate the terms of reference; there is a full opportunity for every member to affect and change them and to suggest or insist on—if they want to—particular witnesses. I feel that there is room to scrutinise.
We wait for an International Agreements Committee debate and then two come along within a week. It gives us a final chance to thank our now retired chairman for his work, as well as all my colleagues. This will be my last time speaking as an alumnus of the committee. It is an important committee and I am very encouraged that the new chair, the noble Lord, Lord Johnson, is embracing many of the themes of this report.
It was clear from the evidence we received that the Constitutional Reform and Governance Act 2010 offers too little to the legislature while the Executive hold most, if not all, of the cards. If nothing else comes from this debate, I hope that the Minister will develop some empathy for the challenge this committee has in delivering useful information to the Executive. That is what we seek to do, along the lines that the noble Lord, Lord Norton, suggested.
In truth, I felt that many of the recommendations in this report were modest. We are suggesting evolution rather than revolution, and clearly the Government’s response was disappointing, but I will come to that. I will just go through some of the issues that were raised.
First, the committee’s well-worked justification for flexibility of scrutiny time seems reasonable to me. Your Lordships heard that we recommended that the Government should normally agree to any reasoned IAC request for a single extension of the 21-day CRaG period for significant treaties and should refuse only where they can give operational reasons. Of course, there are sometimes justifiable operational reasons for something to be done within a certain time. To date, the Government have rarely used their power to extend the 21-day CRaG scrutiny period for significant treaties, despite IAC calls for automatic or reasoned extensions.
The quality of our reports is directly linked to the time that we have to make them, and the number and variety of witnesses that we can call and hear. Nothing about the amount of time that we have has significantly changed since Ponsonby. I remind your Lordships that we are talking about the 1920s, not the current noble Lord, Lord Ponsonby. But here, as others have, we should credit the noble Lord, Lord Grimstone, and indeed the noble Lord, Lord Stevenson, for chivvying him. I was on the equivalent Front Bench pushing at the same time, and things have improved as a result of the modifications that the noble Lord, Lord Grimstone, brought forward—we have had access to documentation prior to discussion of free trade agreements—but I remind noble Lords, as our retiring chairman said, that this covers only FTAs, not other significant treaties. They are equally—sometimes more—in need of extra time to get the input that the committee needs to give them proper consideration. We need to get that evidence and we need time to consider it, irrespective of whether the treaty is an FTA or a significant other treaty.
The excuse given is that scrutiny of implementing legislation is somehow a meaningful proxy for scrutiny of the original treaty. Even when there is such legislation, this is simply wrong. In that regard, I cite the Chagos treaty: the International Agreements Committee was unable to get the time we needed to give that treaty real scrutiny. We could not get witnesses; we just did not have time. Had we had time, we could have produced a much more comprehensive and useful report, which the noble Baroness and her colleagues might have used to avoid some of the problems that have appeared in the paving legislation following that treaty. The committee is a utility that the Government can use to look in advance at the sort of problems that might arise in paving legislation, before that legislation is actually framed.
In looking at the longer-term legislative reform of CRaG for significant treaties, particularly trade agreements, I am clear that there should be a requirement for positive parliamentary consent before ratification, rather than relying on the current and never-used power to delay. I note in passing that even the theoretical power of delay relies on the Commons getting time in the House to have that debate, which we know is not a guarantee; indeed, it has not happened in significant cases.
We have heard about treaty explanatory memorandums, and I am grateful to the noble Lord, Lord Norton, because I did not know about that piece of work, which he just told us about. Treaty explanatory memorandums should be upgraded and they should clearly explain why the Government believe that the treaty should be ratified, including its impacts and policy rationale. These should also be extended to encompass the roles of the devolved authorities—a point that my noble friend made.
As we have heard, there has also been an increasing creativity when it comes to making agreements that are not treaties under CRaG, thus avoiding proper process altogether. These are primarily through a memorandum of understanding, but also through manipulating the actual process itself. This takes, in essence, a huge body of important work out of scrutiny at all. An example of that is the agreement on pharmaceutical policy with the United States of America. It is an agreement and it has far-reaching powers over our NHS, but it received absolutely no scrutiny whatever because it is not within CRaG. That is a very good example of when important things are pushed through without the scrutiny that they need. We have to move from the Executive-dominated system to one where Parliament can shape things along the lines suggested by the noble Lord, Lord Lilley—mandates are something that we discussed a lot when I was on that committee—and properly scrutinise them when they come to us.
Given the importance of this, the Government’s response was all the more disappointing. The response to our report is, in essence, cursory, and I thought the spoofing of it by the noble Lord, Lord Anderson, was uncanny in its accuracy. The only thing it did not add was consultations, which I think is the other issue. This response is fobbing off what we wrote—I am afraid to have to say that—and it fails to address the core findings of the inadequate scrutiny time, poor information-sharing and excessive executive discretion. At no point do the Government respond to the core criticisms levelled by the IAC and experts such as the Hansard Society that demonstrate how the process tilts far too much towards government lagging behind international standards, as was made. We should not be surprised.
Similar reports making similar criticisms have received about the same length of shrift from the Government of the day since 2011 or 2014: each has found a way of rejecting mandatory votes; rejected central repositories for non-binding instruments or broader reforms, such as a debate on mandates; and sought to prioritise so-called agility over enhanced scrutiny. I should be downhearted about this Government’s engagement with this report—and I am—but it seems to be a law of nature that any Government, of whatever stripe, will seek to avoid the purview of any part of the legislature. Perhaps this is the time for a Government to kick against what seems to be ingrained DNA in the process.
I say to the Minister that the issues laid out in this report are important. Parliamentary scrutiny should be there to help government work and it should be there for the process of democratic scrutiny. I hope that she will rethink the Government’s response and embrace the spirit, if not the letter, of this report.
Lord Callanan (Con)
My Lords, like others, I am grateful to the noble and learned Lord, Lord Goldsmith, for so ably introducing this debate and setting out the findings of his committee. It is indeed a thought-provoking and timely report, and the committee is right that Parliament should be given a full opportunity to scrutinise the terms of the Government’s treaties with other nations. I also particularly enjoyed the contribution of the noble Lord, Lord Anderson. If I was not so afraid of the results, I would be tempted to look back through Hansard at the number of times that I as a Minister might have used some of those phrases in reports before the House. I suspect the results would not be good, so I probably will not.
As the noble and learned Lord, Lord Goldsmith, outlined, the current position is that His Majesty’s Government make treaties under the royal prerogative, and foreign policy more generally is the responsibility of the King’s Ministers. Of course, Members of Parliament may seek to bind the Secretary of State to recognise a state, as with the Palestinian Statehood (Recognition) Bill, and parliamentary committees may seek to recognise states, as the Commons Foreign Affairs Committee did in 2023 when it declared that Taiwan is already an independent country under the name “Republic of China” and it possesses all the qualifications for statehood. I probably agree with the second statement rather than the first.
Even though I profoundly disagree with the current incumbents, it is, in my view, Ministers who ought to decide these matters. We have to protect the role of the Government to ensure that Ministers are able to respond to the challenges and give leadership on the world stage. Again, although I believe that the current crop does not do that, they should have the right to do so once elected. Changing that fundamental principle by shifting power from the Government acting under the prerogative to Parliament would, in my view, be unworkable. We agree with the Government that there is not a strong case for more fundamental reform of parliamentary scrutiny.
Parliament may of course scrutinise, challenge and deny the Government the necessary implementing legislation—as indeed we are seeking to do at the moment on a treaty of which I will not remind the Minister lest she roll her eyes again—but it may not overrule His Majesty’s Government in their exercise of the prerogative in signing a treaty. By that, I do not mean to say that Parliament’s sovereignty is limited—the Crown is of course sovereign in Parliament—but there is, in practice, no mechanism available to Parliament to veto a treaty. I hope that the Committee will bear with me for a second as I develop that point.
The introduction to the committee’s report gives a useful background to the Ponsonby rule of 1924, which was referred to earlier, but its description of the rule is incomplete. The committee is correct to say that the Ponsonby rule requires the Government
“to lay treaties before the House after signature for a period of 21 days”,
but has neglected to recognise that, as reported in Hansard on 1 April 1924, Arthur Ponsonby went on to say:
“as the Government cannot take upon itself to decide what may be considered important or unimportant, if there is a formal demand for discussion forwarded through the usual channels from the Opposition or any other party, time will be found for the discussion of the Treaty in question”.—[Official Report, Commons, 1/4/1924; cols. 2004-05.]
The laying of treaties before the House is just one part of the Ponsonby rule, and it is unfortunate that the committee failed to reflect that in its report. I know that I have previously explained this point; I looked at it in detail for our debates on the Diego Garcia Bill.
While I am on that point, I also note that the committee dubiously claims that:
“until recent times Parliament on the whole paid little attention to treaties laid before it by the Government”.
Given the amount of parliamentary time devoted to debates on the treaty of Rome, the Maastricht treaty and the Lisbon treaty in the past, I find that claim slightly vague.
When the aforementioned Diego Garcia base treaty was laid before the House of Commons, a request for a substantive debate was made through the usual channels by the Opposition, but on that occasion the request was denied. That decision by this Government was in clear breach of the commitment by Arthur Ponsonby on behalf of the Labour Government at the time, albeit over a century ago.
Where the Government refuse to grant time for a debate on a substantive Motion in the House of Commons, as they have done in this case, the provisions in Section 20(3) to (6) of the CRaG Act, which set out the process by which the House of Commons may prevent the ratification of a treaty, become, in essence, worthless.
Lord Callanan (Con)
My Lords, I was developing a point about the Government’s refusal, under the Ponsonby rule, to grant a debate in the House of Commons on the Diego Garcia Bill. Their refusal to do that prevented the ratification of the treaty, making the CRaG Act, in essence, worthless in that respect.
Of course, this principle was not just outlined by Sir Arthur Ponsonby so long ago; it was also repeated in the House of Commons by the then Europe Minister, Chris Bryant MP, a member of the current Government. At the time, he said:
“If Members—whether Front Benchers or Back Benchers—sought to debate a motion, the Government would ensure that there was a debate within the time”.
He went on:
“I hope that I have reassured the House that the Commons would always have the right of veto, should it choose to implement it”.—[Official Report, Commons, 19/1/10; cols. 216-18.]
Following the passage of the CRaG Act, we have learned that these assurances were empty words, in a sense, and that the Government have ditched a Labour principle that lasted almost a century.
I have tabled a Written Question on this point; perhaps the Minister might be kind enough to answer it today. Do the Government still consider themselves bound by the Ponsonby rule in full? If they have decided to abandon it, that may be defensible, but what is not defensible is the lack of transparency around this apparent, fairly major change in government policy—if, indeed, that is what has happened. I hope that the Minister will clarify that in her remarks at the end.
Turning to some of the wider points made by the committee, there may well be a case for extending the period in Part 2; I agree with Members who spoke on that matter. Greater transparency around decisions to extend that period would be extremely useful. The example of the Australian and New Zealand practice of publishing a national interest analysis alongside a treaty is also convincing, and I hope that Ministers will look at that proposal closely.
The New Zealand approach to sequencing, which the committee highlighted in its report, is also a very sensible proposal. We agree with the committee that sequencing is important, but I gently ask whether a rule is needed on this. Does Parliament not already have the necessary procedural tools at its disposal to ensure proper sequencing in respect of treaty ratification if the House of Commons, in particular, chooses to use those powers?
Finally, I again thank the noble and learned Lord, Lord Goldsmith, and the rest of the committee for this extremely useful report on this important topic, and I look forward to the Minister’s reply.
The Minister of State, Foreign, Commonwealth and Development Office (Baroness Chapman of Darlington) (Lab)
My Lords, it is a pleasure to speak on behalf of the Government in response to this debate. I am well aware of the poacher-turned-gamekeeper nature of the response that I am about to give. I remember saying something very similar to what the noble Lord, Lord Lilley, shared with us earlier. I probably said it to the noble Lord opposite, regarding some implementing legislation around Brexit, and I definitely said it in the other place when we were debating various approaches to the Brexit negotiations between 2016 and 2019. It is important that we all approach this in the spirit of openness and candour. I very much enjoyed what my good noble friend Lord Anderson had to say; it was almost as though he was reading from my script.
Having said all that, I have in my mind what the noble Lord, Lord Fox, said; I always enjoy his speeches. He said that he did not anticipate a surprising reaction from the Government today, but that he was looking for empathy for the arguments made. He will get that. It is one thing to complain about a process while in opposition, or even to read the excellent report conducted by the committee; it is very different to hear the arguments made in the way that we have this afternoon. I admit that when I first saw this debate in my diary I thought, “Well, that’s an afternoon”, but it has been a really interesting and engaging opportunity. All noble Lords here are people I have found myself debating on various sides of both Chambers over quite a few years now. There is a band of—mostly—brothers who are interested in this topic. I will take forward with empathy the arguments made by the noble Lord, Lord Fox.
The Government’s position today is what it is, but that does not mean that it can never change and things cannot evolve over time; they often do. Some of that is in the hands of those who want to see change and depends on how effective they are at corralling the argument and drawing others to their cause. Let us see how noble Lords here get on in the next few years.
I am grateful to my noble and learned friend Lord Goldsmith for tabling this debate and to all members of the committee who have taken part. I am particularly grateful to my noble friend for his work as chair until January this year. I also welcome the noble Lord, Lord Johnson, to his role. It was good to meet him and discuss some of these issues in anticipation of this debate, and I very much look forward to working with him as we go forward.
As many noble Lords have said, treaties are a cornerstone of the international system. By turning aspirations and commitments into legally binding obligations, they provide the certainty that states, institutions and individuals need for stability, security and prosperity. Scrutiny is, as noble Lords have said, a vital part of the process. The Government—this is where I get into the speech made by my noble friend Lord Anderson—respect and value the committee’s role. The committee’s report raised a number of key issues. The Government’s response—I completely hear how disappointed some members of the committee have been in it—was clear, if somewhat disappointing to some. We want to address the issues where possible. We think some progress can be made without legislation.
I was asked about the number of treaties that are signed but not ratified right now. I do not know the answer to that. I would like to know the answer to that. One thing that we could do to assist the committee in the future is to be clearer about the pipeline of agreements that are coming so that it can anticipate better. I think that would be a helpful thing that the Government could and should do, so we are taking some steps in response. We are committed to ensuring that the committee has better sight of forthcoming treaties. The FCDO’s treaty unit is working with committee secretariat staff on a more robust system to ensure that the secretariat has a clearer picture of the pipeline of treaties to be laid in Parliament. We hope that this will help the committee in planning its work.
We have also committed to updating the template used for Explanatory Memorandums, which we are now doing in consultation with the committee secretariat. That should help on the devolved Administrations issue as well. This Government have a very clear desire to improve the way that we work with our devolved Administrations and Parliaments. That template might assist, in a small way, in making sure that that happens more effectively. It should help departments focus on the information most useful for scrutiny, such as a clear articulation of the UK’s national interest in becoming a party to a treaty. The updated guidance will also encourage departments to explain any implications of a treaty for devolved functions and the consultation carried out. It will also encourage departments to provide advanced information about treaties that the committee is likely to be interested in. This includes sharing the text of such treaties with the secretariat after signature, unless policy considerations prevent it. Actions such as these should help the committee to make better use of the 21-sitting-day scrutiny period. These actions reflect the evolution of treaty working practices. They add to earlier arrangements relating to trade agreements—the Grimstone commitments—instigated under my noble friend Lady Hayter’s time as chair, but clearly my noble friend Lord Stevenson also had an important role to play in that.
The noble Lord, Lord German, asked about cross-Whitehall and how the FCDO works with other departments on their treaties. My most recent experience is the biodiversity beyond national jurisdiction treaty. That policy area was led by my friends in Defra. They hold the policy expertise but, because it is a treaty, we took the parliamentary lead. There are cross-Whitehall processes, there are write-rounds; lots of people will have an opinion about whether we should do something like that. In that case, it was relatively straightforward because it had a long lead-in time, there was good awareness of the issues around it and widespread support. I do not have a huge amount of experience of how that would work when it would be more contentious, but I would anticipate that, if there were a serious objection to the UK entering into some sort of negotiation around a treaty, that process would be used to make sure that those issues were resolved before the United Kingdom took any steps towards becoming a signatory.
The noble Lord, Lord Fox, said that implementing legislation is not a substitute for scrutiny. This is an important point, and I think he is right. It is not. When there is implementing legislation, noble Lords often do not feel that they have had adequate opportunity to take part in a debate prior to that; or perhaps they did, but some time has elapsed. Often, during implementing legislation, you find yourself debating whether you should do the treaty in the first place and having to say that actually we have already voted on that. It can make it slightly confusing for those trying to participate and to shape what happens.
This is a really interesting point. I do not think that implementing legislation is a substitute, as it can help to tease out some of the misgivings around a particular treaty. This is not an irrelevant point to make, but I do not think that legislation would ever be seen entirely as a substitute for scrutiny. We understand the appetite for changing scrutiny procedures. The procedures specified under the Constitutional Reform and Governance Act 2010—this goes to another point made by my noble friend Lord Anderson—strike a balance between the critical role in Parliament in scrutinising treaties and the Executive’s right to negotiate for the United Kingdom internationally.
However, there is clearly a strong sense among many parliamentarians that this balance is not right. I can commit to thinking about this matter some more; I cannot commit to changing it, but I hear where noble Lords are coming from. Even though this is not a priority for the Government to change immediately, Governments should not ignore these strong feelings when they come from their fellow parliamentarians. It is good to commit to considering this further, although I must be straightforward with noble Lords this afternoon that the Government are not in a position of wanting to revisit this issue or make any legislative change.
As it is, the CRaG Act gives Parliament the power to vote against ratifying treaties, and Parliament can of course use other mechanisms, such as Questions, to hold the Government to account. The statutory framework allows the Government to speak clearly, with a single voice, on behalf of the United Kingdom—this is important; former Ministers have pointed to it relatively recently as something that they have found to be of value, and I would tend to agree with that—and retains flexibility to enable the UK to act nimbly. In a world that is becoming more complex and fast-moving, we should not underestimate the importance of this. I heard what the noble Lord, Lord Kerr, said about grim official gatekeepers or gamekeepers; that was a bit harsh, if I may say so, but I heard the noble Lord’s argument and his desire for change.
Noble Lords had a lot to say about debates and votes. The Government accommodate committees’ requests for debate during the scrutiny period where they can. In the case of the 100-year partnership treaty with Ukraine, for example, the Government extended the scrutiny period to enable a debate to be held. In answer to the question from the noble Lord, Lord Callanan, I do not know why the other place declined to offer the debate that was sought on the British Indian Ocean Territory treaty. However, requiring an affirmative vote on treaties would risk limiting the Government’s flexibility to negotiate treaties effectively. I note what noble Lords have said on this matter and expect that it will continue, as it should, to be a subject of interest and consternation to noble Lords. I think it was the noble Lord, Lord Kerr, who called the process miserly and inadequate; it sounds like it would have been him, as it was a very eloquent way of putting things. On the other side of it, is it appropriate and flexible? That is really the nub of what we are trying to resolve.
On the 21-day scrutiny period, which several noble Lords spoke about, the Government will of course properly consider requests for an extension to the scrutiny period on a case-by-case basis. This is slightly different from the requests made by the committee. I am happy to take this away. Sometimes deadlines need to be agreed by either side in a treaty and we need to move at pace to fulfil international obligations, but it is a fair challenge. We set out in our written response how we will approach these requests. We will consider carefully other factors raised by the committee and the length of extension it requests. I take the point made by the noble Lord, Lord German, about whether 21 days is enough for devolved Administrations to consider these things.
The noble Lord, Lord Hannay, was particularly concerned about international comparisons. The UK approach is broadly in line with countries with similar parliamentary systems. The UK Parliament has the same length of time to scrutinise a treaty as the Parliament of Canada, and more than those of Australia and New Zealand. The EU’s scrutiny arrangements will be different because it is a multinational organisation with 27 countries, so one would expect them to take a very different form.
I differ in substance on non-legally binding instruments. The noble Lord, Lord Johnson, asked a fascinating question about how many of these things there are. I do not even know how many I have signed, and I have been a Foreign Office Minister for almost two years. They are an incredibly useful diplomatic tool. They are not legally binding because they do not contain anything particularly contentious in terms of policy. They are about shared history and values, respecting the rights of women, agreeing to work together on supporting indigenous people to save the rainforest, the sorts of things that Parliament would not want us to be constantly presenting to it. Nevertheless, how many there are is a fascinating question. We may have to decline to give the noble Lord an answer on the grounds that it would take too long to find out, but a department-by-department inquiry might be made. I will think about it and work out how we could give a more helpful answer.
Non-legally binding instruments can contain important policy content and should be treated in the same way as other expressions and statements of existing government policy. They are not about new policy. Where they raise questions of public importance, the Government may need to bring them to the attention of Parliament. There is a question about the process for that and whose judgment it is. There have been elaborate sifting committee mechanisms to do this. I am not sure that that is what Parliament really wants to do, but if it is, it should say so. It could be done in a variety of ways. We often use Written Ministerial Statements for these kinds of instruments. As I say, they are not binding and they have a very different status and standing with states and organisations.
To conclude, this debate has demonstrated a shared belief in the critical role of Parliament in scrutinising international treaties. It has highlighted a range of views on how that scrutiny should work in practice, although I would not want to say that that was an evenly balanced—
Baroness Chapman of Darlington (Lab)
My Lords, I am sorry that I did not manage to conclude what was left of my speech before the Division Bells rang, slightly earlier than we expected. There is an important debate on media to follow, so I will not take too much longer.
The Government believe that the Constitutional Reform and Governance Act 2010 continues to provide a suitable and proportionate framework. However, the FCDO’s treaty unit will continue to work with the committee and its secretariat to ensure that our ways of working best deliver the balance between efficient executive function and accountability. I will consider further the issue of multilateral and plurilateral agreements. We very much welcome the committee’s continued engagement and I once again thank my noble and learned friend Lord Goldsmith for tabling this debate.
Lord Callanan (Con)
Before the noble Baroness sits down, do the Government still consider themselves bound by the Ponsonby rule?
Baroness Chapman of Darlington (Lab)
I answered that in saying that I did not know why the debate in the other place, which the noble Lord thought the answer to that question hinged on, did not take place. I thank noble Lords for their contributions.
Lord Goldsmith (Lab)
My Lords, I have a few things to say, though I recognise that there is another debate to follow. I thank all noble Lords who have contributed. This has been another debate where a lot of thoughtful things have been said, most of which I agreed with. I actually agreed with the noble Lord, Lord Lilley, that there is merit in the negotiating mandate being the subject of debate, and that has happened. I am afraid that the noble Lord, Lord Callanan, was not right that two things were missing from the report; it touches on the negotiating mandate in paragraph 55(a) and sets out the Ponsonby rule fully in paragraph 30.
I again thank all the members of the committee who participated in making the report, but I particularly thank the officials. I have made this point before, but they do an extraordinary amount of work in a very short time. If I may, though it is invidious, I will slightly embarrass her by particularly thanking and singling out Cathy Adams, who is leaving the committee and your Lordships’ service as international legal adviser. She has been an extraordinarily valuable member of staff and I thank her personally as well as on behalf of the committee.
I listened very carefully to what my noble friend said. I listened more carefully to what she said than to what she read out, if she does not mind my saying so, as there were hints of what my noble friend Lord Anderson of Swansea said, as she recognised, in her responses. I know that work is going on; I have heard that and we are thankful for it, but there is more to do. I suggest that she rereads this debate in those long hours when she has nothing else to do. I recognise that that is a tall order, but it is important, as everyone in this debate has recognised, as treaties affect the lives of people every day, to spend time on them in the way that we spend time elaborately looking at primary legislation. We do not do this for treaties, but we should. I am sure she will keep that in mind and direct her colleagues’ attention to it.
I ask her also to understand what goes into the process of writing one of these reports. I was a bit surprised, talking to officials on a previous occasion, that they did not really understand why we needed to get the evidence that we do. I know the noble Baroness, Lady Lawlor, thinks we should not, but I would take issue with that. It is important to have an evidence basis for the work done by the committee. That takes time to bring together, and it is one of the reasons why the noble Lord, Lord Hannay, was quite right to underline the need for additional time.
Baroness Lawlor (Con)
I did not say we should not take evidence, but simply that we should have a greater diversity of expert witnesses.
Lord Goldsmith (Lab)
I thank the noble Baroness. I think we have much more diversity than she is giving us credit for, but she has perhaps not been a member of the committee for quite as long as I have.
I am also grateful to my noble friend the Minister for recognising that the defence of, “Do not worry, there is implementing legislation”, is not an answer to the concerns raised by the committee. With those comments, and the kindly meant suggestion that the Minister comes back to this debate, I beg to move.