Treaty Scrutiny: Working Practices (EUC Report)

Lord Collins of Highbury Excerpts

Monday 7th September 2020 Grand Committee

[Lord Collins of Highbury (Lab)]

My Lords, treaties signed by the Government of the day have enormous ramifications for our country and our partners in their agreements. As the noble Lord, Lord Moynihan, said, they now increasingly have wide policy implications that they have not had in the past, which is why it is so important that Parliament, civil society and the wider public play a role in their development and scrutiny.

I, too, thank the three chairs for their excellent introductions to their respective reports, each of which shines a light on the inadequacies of the current arrangements. As we have heard, the Constitutional Reform and Governance Act 2010 is not necessarily fit for purpose. As my noble friend Lady Taylor, chair of the Constitution Committee, said, there has been little time and virtually no opportunity provided for Parliament to have a say prior to the agreement.

Of course, as we have heard in the debate, it is long established that the agreement of treaties is a matter for the Executive, but as we leave the European Union and take on significant new powers in treaty-making, it is right that we consider what scrutiny should be applied to this prerogative, as many noble Lords have said. As the noble Earl, Lord Kinnoull, said, these three reports can act a cornerstone for those considerations. Each of them makes it clear that the provisions of CRaG do not suffice.

A tick-box exercise whereby the Government can claim that they have engaged with Parliament by laying the treaty under the negative resolution procedure is not a process of scrutiny. Again, as my noble friend Lady Taylor highlighted, the Constitution Committee did not express the view that Parliament should be required to endorse the Government’s mandate prior to commencing treaty negotiations, but it came down firmly in favour of a general principle of transparency from the Government throughout the treaty process. That is what this debate is clearly about, and I hope that the Minister will respond to that specific call.

The Government have also been asked by all the committees about the need to engage more effectively with the devolved institutions throughout the process. We have of course heard about the Constitution Committee’s recommendation and we now have a scrutiny committee, in the form of the EU International Agreements Sub-committee. The point made by my noble and learned friend Lord Golding—no, Lord Goldsmith; it is because I am seeing a note that he is a Whip, but he has hidden it now—is that it is simply not enough to have the committee. We need to ensure that it has sufficient time and is able to consider those necessary reports from the Government. The Government’s response in July 2019 to the Constitution Committee said that the CRaG Act remained

“a viable legal framework for scrutiny.”

However, they committed to engage

“with whatever parliamentary scrutiny structures the Houses implement”,

so it is incumbent on the Minister today to say exactly what that means in respect to the committee that we have established. Exactly what will they do to ensure that there is proper engagement with the committee?

As we have heard, on the general issue of transparency, the Government said in that response that they did not agree that they

“should operate on a presumption of transparency for all treaty negotiations.”

They said that, when deciding what information to make public, they had to balance

“openness against … factors including the risk of undermining the UK’s negotiating position”.

My noble friend Lady Taylor addressed that specific point. Again, it is incumbent on the Minister to set out to us what he sees that balance as being. Exactly how will the Government measure it?

As the noble Lord, Lord Lansley, said in his contribution, our recent trade agreements have included the one announced with Japan, which is of great interest to Members of both this House and the Commons. However, at present, no debate on its provisions is scheduled. We have not had the opportunity to comment properly on it and, unfortunately, present arrangements mean that such trade treaties will be scrutinised only when the Government see fit. I am sure there are many who believe that the Government will never see fit.

The noble Earl, Lord Sandwich, mentioned the need for standards in trade agreements. When considering the predecessor Trade Bill in 2019, noble Lords in this House made some 30 amendments covering employment, food and environmental standards, customs arrangements, Northern Ireland—we know that we will talk about Northern Ireland again tomorrow—and the future of EU collaboration. As the then Minister who was taking the Trade Bill through at that time put it,

“no legislation passes the scrutiny of this House without being improved.”—[Official Report, 6/3/19; col. 615.]

She said that “this is unquestionably true” in relation to these issues.

This side of the House strongly believes that the Government need to establish appropriate parliamentary scrutiny of trade deals, whether as significant changes to the existing EU ones or new, free-standing FTAs. The International Trade Select Committee and the Lords’ new International Agreements Sub-committee should have early access to negotiating mandates, receive ongoing negotiation reports and have the powers to make recommendations for the final approval of trade treaties and agreements. We must ensure that consumers, trade unions and wider civil society, and the nations and regions of this country, are fully engaged in trade policy.

As the noble Baroness, Lady Northover, said, these international arrangements are not limited to trade agreements. She mentioned extradition treaties as an example. This was recently the subject of debates on the extradition Bill. The Minister will recall that I previously tabled a Motion which led to the debate on the extradition treaty with Kuwait. I was pleased that the Government found time for that debate and allayed my concerns over the extradition of those who may face the death penalty. However, there is no single mechanism—no guarantee that Parliament will have that opportunity to scrutinise. As my noble and learned friend Lord Goldsmith said, we need proper structures for appropriate, democratic oversight. I repeat that it is incumbent on the Minister to set that out in very clear terms this evening, in response to these three excellent committee reports.