Treaty Scrutiny: Working Practices (EUC Report)

Lord Bilimoria Excerpts

Monday 7th September 2020 Grand Committee

[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.