Treaty Scrutiny: Working Practices (EUC Report)

Baroness Taylor of Bolton Excerpts

Monday 7th September 2020 Grand Committee

[Baroness Taylor of Bolton (Lab) [V]]

My Lords, I am happy to follow my noble and learned friend Lord Goldsmith. I am pleased that his committee has been established. I will say a few words as chair of the Constitution Committee to give some background as to why we took an interest in this issue.

The Constitution Committee launched an inquiry into Parliament’s role in the scrutiny of treaties in October 2018. We did so for three basic reasons. The first and obvious one is that we believed that treaty scrutiny mechanisms were not adequate, had failed and were flawed. That was based not just on the Ponsonby rule, which has been mentioned. We of course also looked at the provisions of the Constitutional Reform and Governance Act 2010, but we concluded that more needed to be done, and not just because times have changed and current procedures are no longer adequate. The fact is that Parliament has little or no chance to influence treaties while they are being negotiated and, indeed, only a very limited opportunity to potentially block ratification at the end of the whole process. That stops Parliament fulfilling some of its obligations and responsibilities to hold the Government to account.

Added to that is the fact that treaties have changed in nature over the years. My noble and learned friend Lord Goldsmith pointed out that modern trade treaties touch on a wide range of policy issues that have a very significant and direct impact on everyday life. That is becoming increasingly clear when we see the treaties currently being discussed. So there was a strong case for change.

On top of that, we have the third factor, which might change urgently, which is, of course, Brexit. These issues have become more pressing because Brexit is now a fact of life and because Parliament will have many more treaties—indeed, some very complex ones—to scrutinise once we are in the situation, as we are now, of replacing EU trade agreements.

The committee worked hard on this issue and we published our report in April last year. I place on record our thanks to Professor Stephen Tierney, Professor Mark Elliott and our excellent parliamentary team of Matt Korris, Matt Byatt and Lloyd Whittaker. I am sure that my committee would want me to express our appreciation for the work they did to help us.

Our report concluded that there was a very real degree of urgency about this situation and that Parliament really needed to act quickly to deal with all these issues. One of our recommendations was that there should be a committee along the lines of the one just suggested by my noble and learned friend Lord Goldsmith. That committee has to scrutinise treaties, as he said, but it also has a responsibility to bring to the attention of the House some of the issues that are important and have to be considered by us all.

However, as I think my noble and learned friend indicated, establishment of the committee in itself not enough. A lot depends on what happens from now on and on the Government’s attitude. Indeed, most of the successful working of the committee will be dependent on the Government’s attitude. We have had some signs of potential progress, but, again as my noble and learned friend touched on, we must make sure that there is sufficient time for the treaties committee not just to look at a treaty’s proposals but to complete its work before things come forward to the House. We are talking about very short timeframes on occasion. This is something we have to be wary of, because Parliament is being bounced into making very hasty decisions on a lot of issues at the moment, and this should not happen so far as treaties are concerned.

The second point is very important. Again, my noble and learned friend touched on this. The Government must provide more information about trade negotiations, and must do so at the appropriate time. The Constitution Committee was not naive about this. We accept that there are areas where there is sensitivity about negotiations and there are times when perhaps things will have to be withheld from the committee, but it is important that we get the balance right. So we recommended that there should be not a legal requirement for transparency but a general principle in favour of transparency throughout the treaty process—a general principle that disclosure to the committee should be the norm and that withholding information should be the exception. The Government have made some comments, some of them potentially helpful. I am sure that the new committee will seek to get the right balance. It is possible for a committee to deal with sensitive information. As someone who chaired the Intelligence and Security Committee for some years, I know that that procedure is possible.

I must highlight one other issue: the question of devolution. The Constitution Committee has on many occasions commented on the difficulties of this Government and the devolved institutions working properly. There have been many times when we have had to comment on the shortcomings of intergovernmental relations. This is a very real and current problem that will cause many difficulties. We really do worry about it. Indeed, in our most recent report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill last week we said:

“It is extraordinary and profoundly disappointing that the official review of inter-governmental relations has yet to reach any conclusions.”


That has been going on for a very long time. We also urged the Government to publish the Dunlop review as soon as possible. We are seeing real problems in this area and the Government have not been taking the issue as urgently as they absolutely need to.

To conclude, we welcome the new committee and I welcome my noble and learned friend Lord Goldsmith to his role. There will be a great deal of work because of Brexit, and it is pertinent to so many areas of life. There are some important issues to contend with, as my noble and learned friend said. The sifting process is right, but we really need to get the right attitude on the part of the Government if the committee is going to be able to fulfil its role.