Treaty Scrutiny: Working Practices (EUC Report)

Earl of Kinnoull Excerpts

Monday 7th September 2020 Grand Committee

[The Earl of Kinnoull (Non-Afl)]

My Lords, it is a great privilege to follow two such excellent opening speeches. The noble and learned Lord, Lord Goldsmith, has already made a considerable mark in chairing the new International Agreements Sub-Committee, as demonstrated in his speech, and its first report is one of great authority, clarity and importance. The noble Baroness, Lady Taylor of Bolton, and the ever-excellent Constitution Committee once again produced a report of great weight and incisiveness, and just now she produced a speech to match. I warmly thank the noble Lord, Lord Boswell, under whose chairmanship the EU Committee’s June 2019 report was produced just before I took over, but who has graciously suggested that I lead off today.

The three reports we are considering build on each other. The cornerstone is to be found at paragraph 33 of the Constitution Committee’s April 2019 report, which says:

“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed.”


No serious academic or legal voice has challenged that conclusion.

The EU Committee’s interest in the subject derived directly from our scrutiny of Brexit. For many years the committee scrutinised, to varying degrees, the EU’s exercise of treaty-making powers on behalf of the UK, via the system of document-based scrutiny. This role for EU national Parliaments and their European affairs committees has in recent years been supplemented by an enhanced role for the European Parliament. These mechanisms for parliamentary oversight and accountability, honed and developed at European level over half a century, now no longer apply in the UK. Their disappearance leaves a democratic deficit. There are many ways one could address this, but the essential fact is that the task of scrutiny has now fallen back on the Westminster Parliament, and there is a need to design, with the Government, a proportionate new approach that will apply from here on to Governments of whatever colour.

Against this backdrop, and with the blessing of the Procedure Committee, in early 2019 the EU Committee and its sub-committees embarked on the first attempt at systematic parliamentary scrutiny of treaties, within the confines of the CRaG Act. We published 22 reports on more than 50 agreements, all directly Brexit-related. We assessed them against set criteria, modelled on those used by the Secondary Legislation Scrutiny Committee in scrutinising statutory instruments. The report we are debating today sets out the lessons learned from this substantial programme of work. Here, I should take a loop and thank the staff of the European Union Committee, who worked incredibly hard and, as we have already heard, to unbelievably short timetables to produce reports of outstanding quality for the House.

I go back to our 2019 report, in which our first and most important conclusion, echoing the Constitution Committee, is that

“the CRAG Act is poorly designed to facilitate parliamentary scrutiny of treaties.”

As has been said by the noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Goldsmith, it simply does not allow time for meaningful, merits-based scrutiny, let alone evidence-based analysis. The sole agreement on which we were able to take evidence was the UK-South Korea deal, and that was thanks only to the time gained from the non-Prorogation of Parliament last September.

CRaG was, after all, an Act designed to fit into a constitutional layout where the UK was a member of the EU and of all its scrutiny arrangements for new treaties. But, as has been noted, treaties can be as important as much primary legislation and with far-reaching implications: think of the European Convention on Human Rights, the World Trade Organization agreements, the forthcoming trade agreement with the United States, and many others. The post-Brexit position is that the Government can enter into such constitutionally and politically important agreements simply by exercising the royal prerogative, and that Parliament is given just 21 sitting days to rubber-stamp them at the very end of the process, just prior to formal ratification. As noted by the noble and learned Lord, Lord Goldsmith, and the noble Baroness, Lady Taylor, this is not defensible.

More is needed: this is the consistent message of all three reports that we are debating. It does not necessarily require a statute but requires at least a consistent and durable understanding. A good model would be a concordat between the Government and Parliament, analogous to the very successful EU scrutiny reserve resolution. This would cover such issues as: the publication of and consultation on negotiating objectives; the sharing of information with relevant parliamentary committees, either publicly or—as pointed out by the noble and learned Lord, Lord Goldsmith—confidentially, as negotiations progress; and undertakings to allow committees sufficient time to publish their conclusions and recommendations, and to take those views into account. I too feel strongly that it would need to provide for meaningful engagement with the devolved Governments and legislatures. It would have to cover issues such as amendments to agreements and those agreements, including memoranda of understanding, which do not fall within the terms of the CRaG Act. It would also define exceptions: most importantly, for instance, when for special reasons the Government need to bypass the full parliamentary scrutiny. I would be grateful for the Minister’s initial comments on this line of thinking.

We too read the positive notes from the previous Government and the Department for International Trade, in their Command Paper of February 2019, outlining their plans for engagement. We had excellent contacts throughout 2019 at the official level with the FCO, the DIT and DExEU. I should take another loop to thank the officials concerned for the courteous and efficient way in which they came back to us, understanding the timing difficulties for us in producing our reports. They never failed. More recently, however, we have seen rather limited progress from the Government in engaging with our recommendations.

I hope for a positive statement from the Minister today in response to the unanimous view of our three committees—a common view, based on careful consideration of the issues and substantial practical experience. None of us wishes to tie the Government’s hands or to intrude into confidential negotiations. But in today’s world, given the complexity and variety of international agreements, we need structures to provide appropriate democratic oversight and accountability. Now that we have left the EU, we have the opportunity to design those structures. We do not need to ape the existing European Parliament structure or that of any other institution. We can devise our own structure and processes to suit the needs of our Government, our Parliament and our people. I look forward to the Minister’s response.