Working Practices (International Agreements Committee Report)

Lord Purvis of Tweed Excerpts

Thursday 19th May 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, as always, it is a pleasure to follow the noble Viscount in these debates. I am a happy member of the all-party group on trade and trade promotion, which he leads with distinction. He made a point specifically about how many of our friendly trading countries and blocs, such as the EU, Japan or the United States, have a more open way of forming their trading policies. This is very important given that now, in an interconnected and more complicated world, trading relationships are deeper and more comprehensive.

As my noble friend Lord Oates indicated, there is a benefit from the Government involving Parliament actively and earlier. Therefore, I am pleased that the Pimpernel nature of the Grimstone rule has finally been ratified, with the agreement of the committee. I am happy about that and note my noble friend’s pint-in-a-quart-pot position. While the rule is in place, I do not want the Government to say that this has been settled and sorted for ever, because of the amendments that the noble Lord, Lord Lansley, referred to on the Trade Bill, which the noble Lord, Lord McNicol, and I worked on very well together. We still believe that there is a better role for Parliament—not only to be involved but to approve. This is a fundamental difference. I therefore hope that the rule will not be considered the final element of this.

The noble Lord, Lord Lansley, had previously moved a Motion for greater parliamentary accountability in the Trade Bill. At that point, he said that that was not the end of this, and I very much agreed with him. In fact, I agreed with everything he said, as the noble Baroness indicated. But the noble Lord knows me well enough to know that my simply agreeing with everything he said does not necessarily shorten the time that I will speak. However, this has been a much livelier and more fun debate than some might have expected. I even had to get my dictionary out for the contribution from the noble Lord, Lord Kerr, and he has settled a niggle in my mind about whether he cut his teeth, as a young official, in Ramsay MacDonald’s Government. There is great reassurance now that he has confirmed that was not the case.

I am on record in previous debates, as I will happily repeat today, for commending this committee and the noble Baroness, Lady Hayter, for bringing this and previous Motions she has brought forward. The committee is vital to Parliament because it shines a light where it is hard for parliamentarians to do so. She spoke at the launch of a co-ordinating group for inclusive trade, which I had the pleasure of attending this week, and the point she made was that this Parliament also has a role to communicate international agreements and trade to the public. Inclusivity is a vital part of that role. Therefore, I hope that, when the Minister responds, the Government will be enthusiastic about engaging proactively and not simply reactively.

I recall that it was the noble Lord, Lord Lansley, who coined the term “Grimstone rule” during the Trade Bill. I also recall the Minister not being enthusiastic about this at first; in fact, he tried to muddy the waters by saying that there is also a Purvis protocol on pedantry. I am glad that one of those has survived and the other has fallen by the wayside.

The significant point that the noble Lord, Lord Lansley, and others have made in this debate is worth reinforcing. During the Trade Bill, I reread Jack Straw’s contributions in 2010 on the Constitutional Reform and Governance Act, and it was explicit that the CRaG Act provided, as he put it, a form of parliamentary veto—not as much as I would like it to be now, but a form of parliamentary veto—over those agreements that are subject to ratification. That was the limit of it, and that is the egregious element of the letter so comprehensively dealt with by the noble Lord, Lord Kerr. It has not been superseded. Elements of the Ponsonby rule were revised in 1998, then established in 2001 specifically about agreements not subject to ratification, and that has been the substance of much of the debate today.

I hope the noble Lord, Lord Kerr, will forgive me. He allowed me to dust off from my inbox a document that I refer to if I am ever in a depressed mood in my parliamentary career. It is the Civil Service guide—a practical handbook on advising, briefing and drafting for Ministers. I thought I would quote it for his benefit because I like him so much. Chapter 4 is entitled “How to draft Minister’s letters” and it states:

“Every Minister’s case, however obscure, infuriating, tiresome or unnecessary a few of them may seem, is in itself an important part of democratic accountability. It requires government to account for its decisions and actions through Parliament to the people. Ministerial correspondence is democratic accountability in action.”


It ends:

“Our aim for every reply should be to make its recipient feel better for having received it.”


In this case they should get a gold star, because whoever drafted that made the noble Lord, Lord Kerr, a very happy Peer.

There were serious elements in this with regard to treaties and MoUs. We have been asked to refer to the guidance on the difference between treaties and MoUs, so I read it—it was published not that long ago. Paragraph 5, on how to distinguish an MoU from a treaty, states:

“The key difference between MoUs and treaties is whether or not there is an intention to create legally binding obligations ... There is no hybrid ... an MoU is not legally binding”.


It goes on to the language that should be used when drafting a MoU as opposed to drafting a treaty. In the column “Do Not Use” are “agreement” and “undertaking”.

I then went back to what Ministers have told Parliament on the Rwanda agreement, which is of very significant public policy interest. The Minister in this House, the noble Baroness, Lady Williams, said:

“My Lords, it is an agreement which both parties have agreed to be bound by.”


She then said:

“I will leave it to greater heads to unpick the meaning of that.”—[Official Report, 25/4/22; col. 17.]


We are still trying to unpick the meaning of that, but that is what the Minister said, and I remind the Chamber not to use “agreement” for MoUs. That is very clear in the annexe “Terminology to be used”:

“The word “agree” and its derivatives should be avoided”.


On 19 April the Home Secretary said

“This is a bespoke international agreement reached last week with Rwanda; I came to Parliament as soon as was reasonably practicable following the conclusion of that agreement. The agreement is compatible with all our domestic and international legal obligations”.—[Official Report, Commons, 19/4/22; col. 26.]


She later said:

“The MOU that has been published spells out in full detail … the nature of the agreement”.—[Official Report, Commons, 19/4/22; col. 29.]


When asked later whether the Government could guarantee that people who are going to be relocated to Rwanda will be safe the Home Secretary replied:

“Absolutely—we can—and that was part of our negotiation with the Rwandan Government. It has been made very clear in the legal agreement that we have between us.”—[Official Report, Commons, 19/4/22; col. 47.]


What status does this now have as an MoU? It is clearly a legally binding agreement, so it is right that we ask questions about it—even though, as the noble Lord, Lord Lansley, mentioned, paragraph 1.6 states that it

“will not be binding in International law”.

But, as Ministers have said, it is binding in our law.

Paragraph 3.2 states that requests by the United Kingdom will “require approval by Rwanda” for receiving. What legal basis does that have? Paragraph 5.2.4, on people’s data, talks of the establishment of a data sharing process between the UK and Rwanda. What legal basis will this have? Paragraph 5.4 says:

“Nothing in 5.2 obliges the United Kingdom to disclose information if it would be contrary to domestic laws”.


Which ones? What is the information that would be disclosed? Paragraph 9, on the “Asylum processing arrangement”, gives requirements for Rwanda to ensure that it has these obligations. What legal underpinning is there? There is a whole range of areas within this “agreement”, as the Foreign Secretary would say, or “arrangement”, as the MoU title says. What is it, and how will it be approved?

There is also an element that has been underreported, and which I am certain would be important if we were asked to ratify this agreement. Paragraph 16 says:

“The Participants will make arrangements for the United Kingdom to resettle a portion of Rwanda’s most vulnerable refugees in the United Kingdom, recognising both Participants’ commitment”.


What legal basis does this have? It is utterly confused, which is why this now needs to be corrected dramatically.

My final example—and I will be brief—reinforces the point that there are agreements and arrangements of various significance that we are not being asked to ratify and that are not being sent to the International Agreements Committee or being made public. The noble Lord, Lord Udny-Lister, may know more about this than me, but I have asked a number of questions about the UK and the UAE’s sovereign investment partnership agreement. That agreement is important because the Government have promoted it, and the initial tranche is, according to them, worth more than £10 billion. I am not necessarily saying that it is good or bad—but it exists, apparently, and it will now be used as the basis for further agreements. Its scale far outstrips many other trade agreements.

Last week, Parliament approved the Money Laundering and Terrorist Financing (High-Risk Countries) (Amendment) Regulations, which place the UAE among the UK’s high-risk third countries for fraud, money laundering and the financing of terrorism. This justifies full scrutiny. I asked the Minister for this, and the noble Baroness, Lady Penn, followed up by giving me some information about it, but I cannot find the agreement online. I asked the Library where it is, but it could not find the text of it either—it is very kindly asking the Department for International Trade to provide the text of it. The Library provided me with the Prime Minister’s Office communiqué, the United Arab Emirates communiqué and two press releases—but not the text. These are significant agreements with public policy interest, and we have legislated to allow us to ask questions about them, but we have not seen them in Parliament.

The Government now need to change this. One practical step would be to publish a register of MoUs in a co-ordinated way, rather than just allowing them to be stored behind the scenes. If that is the case, that register should be submitted to the committee to at least allow us to know what is there—otherwise, we will end up like Donald Rumsfeld, not even knowing what the unknowns are.

--- Later in debate ---

[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.

[Lord Purvis of Tweed (LD)]

I hope the Minister does not feel that I am being unnecessarily irked if I question the utility of him referring us to the Treaties and Memoranda of Understanding: Guidance on Practice and Procedures from March 2022. I was referring to it quite extensively in my contribution because I have it in front of me. My point was that the Home Secretary recently—just a few weeks ago—was in direct contradiction of this guidance by calling the agreement with Rwanda binding when the guidance is saying that it should not be. I am sure the Minister will say that I have to take the Home Secretary and the noble Baroness, Lady Williams, at their word. If these are legally binding agreements, how have they been approved by Parliament and what is their legal underpinning?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, the UK- Rwanda migration and economic development partnership, to which the noble Lord refers, addresses the shared international challenge of illegal migration. That issue has been discussed in this House; I have answered a couple of Questions on it myself, as have Ministers from other departments. The purpose is to break the business model of people-smuggling gangs. It is an innovative measure within the Government’s New Plan for Immigration to fix what I think everyone accepts is a broken asylum system and ensure that we welcome people through safe and legal—[Interruption.] I am coming to the context of the question.

The partnership captured in a Memorandum of Understanding builds upon the wider collaboration with Rwanda across a wide agenda, from combating climate change to more effective aid delivery. Everything put in place is compliant with our legal obligations, including under international law. All claims for asylum are considered in accordance with international human rights obligations. A non-legally binding arrangement in the form of an MoU is, the Government believe, the most effective vehicle as it allows the partnership to change and the technical details to be adjusted quickly if required, and with the agreement of both partners. An MoU on—

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for giving way. What are the mechanisms for the Home Secretary and the Minister in this House to correct the record? They have actively misled Parliament by saying that these are binding obligations and agreements, because the Minister at the Dispatch Box—and this is serious—has now absolutely contradicted what Priti Patel told the House of Commons and what the noble Baroness, Lady Williams, told this Chamber. Both cannot be correct.

[Lord Goldsmith of Richmond Park (Con)]

The truth is that I am not familiar with the wording used by the Home Secretary. I am not going to answer on her behalf, but I can tell, the noble Lord—

[Lord Purvis of Tweed (LD)]

It is in Hansard.