Treaty Scrutiny: Working Practices (EUC Report)

Lord Purvis of Tweed Excerpts

Monday 7th September 2020 Grand Committee

[Lord Purvis of Tweed (LD)]

My Lords, it is a genuine privilege to follow three such highly respected chairs and, on behalf of my colleagues, I thank them for their chairmanship. I also thank the members of their committees, and the predecessor committees, for their reasoned reports and characteristically sensible and proactive recommendations.

If the reporting in the Financial Times is correct and we see on Wednesday proposals to renege on treaty commitments for joint decision-making, in an agreement not yet a year old, this is a sobering backcloth to a debate on treaty-making and the ultimate trustworthiness of a UK Government in implementing treaties. It shows that this is not just a purely constitutional or theoretical debate but one of practical politics—ones that affect people’s livelihoods across the country.

As all three Lords Committee reports made clear, there are two areas without contention. The first it that is has always been and will continue to be the responsibility of government—not Parliament—to open, negotiate and sign international agreements; the second is that these vary in complexity, scope and significance. But the consensus among the committees, if not the Government, is expressed in paragraph 33 of the report quoted by the noble Earl. He read the first part of that paragraph. It goes on to say:

“Reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions, irrespective of the consequences of Brexit.”


All committees have proposed improvements to the process and some progress has been welcomed, as indicated, such as in Command Paper 63 on trade agreements, but in other areas more improvements can be made. I shall focus the remainder of my time on trade agreements, while my colleagues will cover the wider breadth of the reports and the consequences of their recommendations.

Whereas the committees did not propose that Parliament extends its authority by resolving to approve a trade negotiating mandate, and then an agreement, the House has done so. A clear majority of the House voted for this in the Trade Bill last year. No doubt this will be debated tomorrow, during the Second Reading of another Trade Bill. While a Motion has not been laid relating to Section 20 of the Constitutional Reform and Governance Act to withhold support for a trade agreement, in March last year I moved the first Motions in the House in accordance with Section 21: to extend the scrutiny period for the agreement establishing an economic partnership agreement between the eastern and southern African states. There were similar debates on the Faroe Islands and Switzerland agreements. During the debates, the then Minister apologised for a lack of consultation with the devolved Administrations and committed to changing procedures, and clarified areas of concern that the EU sub-committee had raised in its report, as indicated by the noble Baroness, Lady Taylor. Without the debate that I secured, these commitments could not have been given to the House. I pointed out that it should not really be down to an individual Member to secure Motions, but I am glad I did. I hope the Minister will respond positively on implementing committee recommendations to change this.

Asserting greater parliamentary authority over the setting of negotiating mandates, then approval of the agreements, does not reduce the ability to exercise prerogative powers. It actually strengthens it—the noble and learned Lord, Lord Goldsmith, referred to this—as we saw for the United States and the EU. In the two biggest economies in the world, which we are negotiating with, there is recognition that trade agreements now go well beyond their traditional roles, such as on bilateral tariff rates. In both economies, there is a vote on the text of the agreement. They also have a process for setting the mandate; we have neither. In both the US and EU, the relevant committees can be provided, through agreed protocols, negotiating documents and classified negotiating texts. This was alluded to in the UK Government’s Command Paper but was subsequently watered down. Clarity from the Minister on that would be most welcome.

It thus makes sense to build on the dualist system, and for Parliament to approve the agreements before the process of seeking to support their implementation into domestic law. This is one area where we would see progress. Given the concerns about what we may see on Wednesday regarding the UK internal market process, this is even more important. I hope that the Minister will move beyond the current Government’s position and act to deliver on some of the recommendations from these very sensible committee reports.