Treaty Scrutiny: Working Practices (EUC Report)

Lord Whitty Excerpts

Monday 7th September 2020 Grand Committee

[Lord Whitty (Lab) [V]]

My Lords, I am pleased to hear that the chairs of each of these committees agree on so much. We are presented with a unique opportunity to change the balance between the Executive and Parliament in this respect. For many centuries, the elite and the people of Britain seemed to agree that treaties were a matter for Kings and not for Parliament. That changed very slightly in 2010, with the CRaG Act, but my experience, like that of so many speakers, is that that Act is not fit for purpose in these post- Brexit circumstances. When I was my noble friend Lady Donaghy’s predecessor, we started to look at some of the new, post-Brexit, rollover treaties. That was not an easy process; we were improvising. It showed me what an enormously complex job this is, and how CRaG is not really fit for purpose. We were, of course, involved only in looking at the final texts. In reality, the House of Lords had no leverage and the Commons had just 21 days before ratification to comment on an already agreed text. That is not scrutiny; nor does it confer parliamentary legitimacy on the outcome.

I commend the EU Select Committee for setting up the new International Agreements Committee, but that has to be seen as a temporary expedient. We need much more leverage, and that means the involvement of a new, powerful parliamentary committee throughout the process, from setting a negotiating mandate, receiving reports back through the negotiations, and scrutiny and comment on the final text. We also have to take account of the differential role, under CRaG—indeed, under our parliamentary system—of the Lords and the Commons. It has been my view throughout that the optimal parliamentary scrutiny of treaty negotiations should combine legitimacy and expertise and that there should, therefore, be a joint Commons and Lords committee on treaties. This should probably have equal numbers, but a chair from the Commons, and include significant expertise from this House. It should report back to both Houses, which would each have the right to debate and propose amendments to the treaty, although only the Commons could block it or alter it entirely. There is also a need to involve the devolved Administrations in this process.

As my noble friend Lady Taylor and other noble Lords have said, there would have to be confidentiality and security provisions, as there are currently with the joint Intelligence and Security Committee. However, that joint structure is the best form of scrutiny, and this House should propose it. I appreciate that some future Foreign Secretaries and some future—and possibly current—mandarins and political advisers may see this as a constraint and a chore, but in many respects a powerful parliamentary committee could strengthen the hand of the Government of the day, both in negotiating with other countries and in delivering domestic acceptance and ratification of the treaty process. It would help both those processes if Parliament could be seen to be fully involved and to have the final say.

It is Brexit that has triggered our attention to this. Many of our important treaties in the last 40 years have been negotiated for us by the EU, but not all. In those 40 years, parliamentarians, including British Members of the European Parliament, have had a say on those treaties. However, that is true not only of the European Parliament; the US Congress negotiates treaties, particularly ones on trade. It also happens in Canada, Australia and, as the noble Lord, Lord Lansley, said, in Japan. These are countries which are now in our sights for new bilateral trade and other arrangements. The level of parliamentary scrutiny has, in many different ways, been significantly higher than that provided by CRaG. We now have the opportunity to change that.