Treaty Scrutiny: Working Practices (EUC Report)

Baroness D'Souza Excerpts

Monday 7th September 2020 Grand Committee

[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.