Working Practices (International Agreements Committee Report)

Lord Oates Excerpts

Thursday 19th May 2022 Lords Chamber

[Lord Oates (LD)]

My Lords, I am very pleased to follow the noble Baroness, Lady Liddell, and, like previous speakers from the International Agreements Committee, I pay tribute to our excellent chair, the noble Baroness, Lady Hayter, and to her predecessor, the noble and learned Lord, Lord Goldsmith.

As previous speakers noted, the report that we are debating today follows on from a previous report on working practices published in July 2020, and the reports on the scrutiny of international agreements published in 2019 by the Constitution Committee and the European Union Committee. These reports had a variety of recommendations, but the central conclusion of all of them was that current arrangements are poorly designed to facilitate parliamentary scrutiny of international agreements, and that conclusion remains as valid as ever today.

Our committee has been fortunate to have met often with the noble Lord, Lord Grimstone, on trade issues and, as many noble Lords have mentioned, he has engaged extremely positively. By contrast with his constructive approach, we could look at the Government’s responses to the recommendations contained in the report, which are depressingly consistent. In many cases, our concerns are airily dismissed, and, even where the Government do move towards them in terms of making commitments, the commitments are heavily caveated. Indeed, in their response to the committee report, the Government would not even commit to notifying the committee of significant non-trade agreements before they were laid. Despite recognising the value of notification of forthcoming treaties, their response went on to underscore that this is not a government commitment.

Although I join my colleagues in welcoming the fact that the Government have put some of their previous commitments in writing—I am not sure if I am a half-full or half-empty person, but I do not want to be accused of being a pessimist, so perhaps I am a quarter-full person—the problem with this exchange of letters, although it is positive in as far as it goes, is that the commitments contained in it can only be regarded as the absolute bare minimum of what a Parliament might require. As has been noted already, they apply to trade agreements only, rather than to all international agreements.

Overall, it seems to me, from the Government’s response to our report, that they seem determined at all costs to resist a rules-based response to scrutiny, preferring to keep at their discretion what they choose to share with Parliament and what they do not. I think it is vital in the long-term to look again at the overall role of Parliament in scrutinising treaties and agreements, and I strongly support the recommendations that Parliament’s consent should be required before the ratification of all trade agreements. This is in part because I think that that would make the Government more responsive in providing information at an earlier stage, in the same way as happened, as my noble friend Lady Ludford explained, as a consequence of the European Parliament’s rejection of one treaty.

I want to touch on the issue of non-treaty agreements, which other noble Lords, including the noble Lord, Lord Lansley, the noble Baronesses, Lady Donaghy, Lady Hayter and Lady Liddell, have referenced. They spoke specifically about the memorandum of understanding with Rwanda, but there was also an agreement last year with the Government of Zimbabwe on the resumption of deportations of foreign national offenders. To my knowledge, that has never been published. There was a reason why those deportations were suspended, which was the gross abuses of human rights in Zimbabwe. The Government have never come forward and explained why the criteria changed.

The noble Baronesses, Lady Donaghy and Lady Liddell, raised the issue of the security guarantees offered to Finland and Sweden. This was also raised by the noble Lord, Lord Lansley, in our committee this morning. What status do those agreements, or declarations, or statements, have? I hope the Minister will be able to tell us in his reply. Will they subject to parliamentary scrutiny? As has been said, there could scarcely be a bigger commitment than that we would be a security guarantor and would go to war on behalf of another country. If that is the case, we should have the chance to debate and scrutinise that commitment.

Finally, I want to refer to recommendation 27(a) of our report, which is that

“Parliament should be given a formal role in influencing the objectives”

of trade agreements

“when mandates are being set”.

This is perhaps the most important area for parliamentary scrutiny, because it is the point when we can actually influence the process and the outcome. One area particularly close to my heart—and, indeed, the Minister’s—where we might want to influence mandates is on climate and nature objectives in FTAs. The striking contrast between the Australia FTA and the New Zealand FTA in this regard only underlines to me the importance of this issue.

The House will not be surprised to know that the Government rejected this recommendation on the grounds that it was

“not suited to the UK’s … settlement”,

which regrettably seems to mean that the Executive alone will determine what Parliament gets to scrutinise and what it does not. In as much as this view of our constitutional settlement provides for any accountability, it is, as a June 2019 report of the European Union Committee noted, “accountability after the fact”. In reality, that is no accountability at all.

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[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, I thank the noble Baroness, Lady Hayter, for tabling this debate and for the parliamentary report. I am grateful to the members of the International Agreements Committee and all noble Lords for their insightful contributions. I note that kind offer by the noble Lord, Lord McNicol, which I will pass on to the relevant Minister immediately after this debate.

Having left the EU, the UK is now free, for the first time in half a century, to negotiate treaties in a number of policy areas previously reserved to the EU, so it is right and absolutely positive that Parliament is now taking a heightened interest in how the Government conduct their negotiations on treaties.

The Government consider Part 2 of the Constitutional Reform and Governance Act 2010—CRaG—which has been referred throughout this debate, to be fit for purpose. It respects the balance between the need for parliamentary scrutiny and the fundamental right of the Executive to negotiate for the United Kingdom internationally, exercising their powers under the royal prerogative, as noted by the noble Viscount, Lord Stansgate. Our constitutional set-up allows the British Government to speak clearly, with a single voice, on behalf of the UK as a sovereign state under international law.

As noble Lords will understand, negotiating is usually an art. At some stage, compromises must be offered. Acknowledging my noble friend Lord Lansley’s interest in the India free trade negotiations, as he knows and as the Government have been clear, these are a priority for the Government. We agreed, during the PM’s recent visit, to conclude those negotiations by Diwali in October. However, announcing your negotiating positions and possible compromises in advance risks giving your negotiating partner, or partners, an unnecessary advantage. Confidentiality is therefore not always but often key. If we are too prescriptive in the commitments that we make to Parliament, we risk tying our negotiators’ hands and weakening the UK’s approach. However, we fully recognise that for negotiators to represent the national interest to best effect, it is important to understand Parliament’s views and interests.

Any Minister negotiating a treaty should be and is mindful of Parliament’s important role. They know that Parliament can resolve against ratification, and that it may need to pass subsequent implementing legislation. These are ongoing considerations during negotiations and in engaging Parliament. I acknowledge comments by a number of noble Lords, particularly the noble Baroness, Lady Liddell, and the noble Lord, Lord McNicol, and assure them that the Government do not take a high-handed approach to this. We take Parliament’s role and responsibilities seriously and we make no assumptions about views that may be expressed during scrutiny.

What has changed since CRaG was adopted is the level of public interest now that the UK has full control of its treaty policy. The Government acknowledge that increased interest. We accept that this requires full and proper engagement with Parliament and information-sharing within the CRaG framework. We also recognise that the length, breadth, scope and complexity, as well as the impact of free trade agreements, warrants a bespoke approach. We have therefore agreed a number of additional commitments. We accept that engagement and information-sharing will vary according to individual negotiations, and that this could include engagement during the negotiation process before an agreement is formally laid before Parliament under the Act. Equally, we acknowledge that parliamentary scrutiny does not necessarily end with ratification, a point made by my noble friend Lord Lansley.

I am grateful that the committee’s officials are investing their time in discussions with officials at the Foreign, Commonwealth and Development Office and the Department for International Trade. Together, they are exploring how to make these processes more predictable and how to meet the committee’s expectations. However, with the best will in the world, the International Agreements Committee may struggle to apply equal levels of scrutiny to all the agreements that the Government hope to conclude in any one year.

One area where there has been significant recent interest is trade policy. I am pleased to note the positive response to the bespoke approach taken by my colleagues in the Department for International Trade. Their regime of engagement and transparency allows effective scrutiny of trade agreements. My noble friend Lord Lansley referred to the outline approach publications in respect of new free trade agreements. We saw this in the comprehensive outline approach publications before negotiations with Japan, Australia and New Zealand, and more recently with India and Canada. The Department for International Trade will continue to keep Parliament informed of progress through regular updates.

The Government will endeavour to allow sufficient time between finalising a new free trade agreement and laying it before Parliament under CRaG, in order for relevant Select Committees to produce independent reports. Noble Lords will note that the UK-Australia free trade agreement was published before Parliament over five months ago, and the UK-New Zealand free trade agreement more than 10 weeks ago. Neither has yet been laid under CRaG. This open and detailed process will help Parliament and the public more easily to understand agreements and their implications, including on issues around climate change and the environment, as the noble Lord, Lord Oates, highlighted.

It is worth pointing out that, while I certainly do not dispute the points that the noble Lord made about the risks around climate change and the environment from poorly constructed deals, equally, there are huge opportunities, as we have seen from our discussions with New Zealand. It is a reflection of the Government’s commitment to transparency. On the comments by the noble and learned Lord, Lord Morris, the right reverend Prelate the Bishop of St Albans and a number of other speakers, I welcome their having highlighted the trade advisory groups in particular and the important role they play in promoting, among other things and other sectors, the increasingly important agriculture sector.

I would like to address some specific issues that were raised in the committee’s report and highlighted by a number of noble Lords in this debate. The Government are committed to an exchange of letters regarding current commitments on the scrutiny of free trade agreements and, as has been noted, that took place this morning. I am pleased that the noble Baroness, Lady Hayter, considered this exchange a significant step forward; that is good to hear, and I hope it also reassures the noble Baroness, Lady Donaghy, and a number of other speakers who raised the issue. We will continue to review our practices as we and indeed Parliament learn valuable lessons from the passage of new free trade agreements, and our processes will undoubtedly continue to evolve accordingly. Going beyond the exchange of letters at this stage would remove this flexibility to implement lessons learned.

The Review of Intergovernmental Relations, published in January 2022, revised the structures and ways of working between the UK Government and each of the devolved Administrations, including structures of engagement on international policy areas. We will continue to apply and practise many of the agreed principles and engagement approaches originally set out in the concordat on international relations, one of the supplementary agreements supporting the 2013 memorandum of understanding between the UK Government and the devolved Administrations. I hope that that reassures my noble friend Lord Udny-Lister and the noble and learned Lord, Lord Morris. These cover areas such as public diplomacy, the organisation of supported visits and representation overseas, and are based on the principles of good communication, consultation and co-operation.

On Explanatory Memoranda, an issue raised by a number of noble Lords, we welcome the committee’s acknowledgement that the Government’s updates to the Explanatory Memorandum template and guidance have improved matters. We are open to further improvements, and I welcome the collaboration between our officials in supporting this process. Minister Amanda Milling will shortly write to Whitehall colleagues asking them to pay close attention to the FCDO’s Treaties and MOUs: Guidance on Practice and Procedures, and to use the Explanatory Memorandum template contained within them, all of which is published on GOV.UK.

On treaty amendments, the Government have previously indicated their intention that the majority of important amendments should be subject to ratification and submitted to Parliament for scrutiny. However, the terms of the treaty, including those on ratification, are subject to negotiation on a case-by-case basis with treaty partners. It is therefore not possible for the UK to take a unilateral position on this issue by way of domestic guidance. The Government do not agree with the committee’s assessment that they have failed in their commitment to publish treaty amendments, including those made by joint committees. We provide a complete, up-to-date and easily accessible record of the treaties to which the UK is a party.

All amendments to the EU-UK withdrawal agreement and to our new free trade agreements are published in the treaty series. In addition, we publish all joint committee decisions on the same GOV.UK page as the relevant parent treaty. Our monthly treaty action bulletins, also published online, provide a summary of the UK treaty actions and command papers, as well as information on treaties for which the UK is the depository. Treaties are distinct from instruments, as has been pointed out, and arrangements that are not intended to be binding under international law, such as those containing political commitments or administrative arrangements.

In response to a question from the noble Lord, Lord Oates, the recent declarations with Finland and Sweden fall within the category of non-legally binding political commitments. Although the committee refers to those non-binding arrangements as agreements in its report, that terminology is more appropriate to describe a legally binding instrument such as a treaty. Considerable care is taken to make sure that non-legally binding arrangements are drafted appropriately, and guidance on this is set out in the FCDO’s Treaties and MOUs: Guidance on Practice and Procedures, as I mentioned before.

As reiterated by the noble Baroness, Lady Hayter, there has never been a convention in the UK whereby non-legally binding arrangements—I am going to put a helmet on for this moment—are routinely submitted to parliamentary scrutiny. In fact, regarding the so called third limb of Ponsonby, referred to today by the noble Lord, Lord Kerr, and a number of other speakers, the Government do not dispute the statement made by Lord Ponsonby in 1924. However, the Government do not accept that it formed part of the Ponsonby rule as it existed and was practised prior to CRaG.

I recognise that the speech by the noble Lord, Lord Kerr, was delivered almost on the basis that he has read much of the speech that has been carefully handed to me. Nevertheless, this is the position of the Government. While non-legally binding arrangements are themselves not routinely published, when they raise issues of public importance it may be appropriate to draw Parliament’s attention to them, for example through a Written Ministerial Statement.

[Lord Oates (LD)]

The Minister stated that the agreements or declarations made with Finland and Sweden are not legally binding. First, does he think that the Finnish and Swedish Governments are aware of that? Secondly, does he think that they are of sufficient public significance that they will be scrutinised by this Parliament?

[Lord Goldsmith of Richmond Park (Con)]

I would be amazed if they were not aware of the non-legally binding nature of those agreements or declarations. My view is that Parliament has a hugely important role to play in scrutinising these arrangements. I cannot provide that answer with any certainty because it is not in the remit of my department or portfolio, but I imagine that that scrutiny will be applied. I am afraid I cannot go into any more detail than that.