Working Practices (International Agreements Committee Report)

Lord Goldsmith of Richmond Park Excerpts

Thursday 19th May 2022 Lords Chamber

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, I thank the noble Baroness, Lady Hayter, for tabling this debate and for the parliamentary report. I am grateful to the members of the International Agreements Committee and all noble Lords for their insightful contributions. I note that kind offer by the noble Lord, Lord McNicol, which I will pass on to the relevant Minister immediately after this debate.

Having left the EU, the UK is now free, for the first time in half a century, to negotiate treaties in a number of policy areas previously reserved to the EU, so it is right and absolutely positive that Parliament is now taking a heightened interest in how the Government conduct their negotiations on treaties.

The Government consider Part 2 of the Constitutional Reform and Governance Act 2010—CRaG—which has been referred throughout this debate, to be fit for purpose. It respects the balance between the need for parliamentary scrutiny and the fundamental right of the Executive to negotiate for the United Kingdom internationally, exercising their powers under the royal prerogative, as noted by the noble Viscount, Lord Stansgate. Our constitutional set-up allows the British Government to speak clearly, with a single voice, on behalf of the UK as a sovereign state under international law.

As noble Lords will understand, negotiating is usually an art. At some stage, compromises must be offered. Acknowledging my noble friend Lord Lansley’s interest in the India free trade negotiations, as he knows and as the Government have been clear, these are a priority for the Government. We agreed, during the PM’s recent visit, to conclude those negotiations by Diwali in October. However, announcing your negotiating positions and possible compromises in advance risks giving your negotiating partner, or partners, an unnecessary advantage. Confidentiality is therefore not always but often key. If we are too prescriptive in the commitments that we make to Parliament, we risk tying our negotiators’ hands and weakening the UK’s approach. However, we fully recognise that for negotiators to represent the national interest to best effect, it is important to understand Parliament’s views and interests.

Any Minister negotiating a treaty should be and is mindful of Parliament’s important role. They know that Parliament can resolve against ratification, and that it may need to pass subsequent implementing legislation. These are ongoing considerations during negotiations and in engaging Parliament. I acknowledge comments by a number of noble Lords, particularly the noble Baroness, Lady Liddell, and the noble Lord, Lord McNicol, and assure them that the Government do not take a high-handed approach to this. We take Parliament’s role and responsibilities seriously and we make no assumptions about views that may be expressed during scrutiny.

What has changed since CRaG was adopted is the level of public interest now that the UK has full control of its treaty policy. The Government acknowledge that increased interest. We accept that this requires full and proper engagement with Parliament and information-sharing within the CRaG framework. We also recognise that the length, breadth, scope and complexity, as well as the impact of free trade agreements, warrants a bespoke approach. We have therefore agreed a number of additional commitments. We accept that engagement and information-sharing will vary according to individual negotiations, and that this could include engagement during the negotiation process before an agreement is formally laid before Parliament under the Act. Equally, we acknowledge that parliamentary scrutiny does not necessarily end with ratification, a point made by my noble friend Lord Lansley.

I am grateful that the committee’s officials are investing their time in discussions with officials at the Foreign, Commonwealth and Development Office and the Department for International Trade. Together, they are exploring how to make these processes more predictable and how to meet the committee’s expectations. However, with the best will in the world, the International Agreements Committee may struggle to apply equal levels of scrutiny to all the agreements that the Government hope to conclude in any one year.

One area where there has been significant recent interest is trade policy. I am pleased to note the positive response to the bespoke approach taken by my colleagues in the Department for International Trade. Their regime of engagement and transparency allows effective scrutiny of trade agreements. My noble friend Lord Lansley referred to the outline approach publications in respect of new free trade agreements. We saw this in the comprehensive outline approach publications before negotiations with Japan, Australia and New Zealand, and more recently with India and Canada. The Department for International Trade will continue to keep Parliament informed of progress through regular updates.

The Government will endeavour to allow sufficient time between finalising a new free trade agreement and laying it before Parliament under CRaG, in order for relevant Select Committees to produce independent reports. Noble Lords will note that the UK-Australia free trade agreement was published before Parliament over five months ago, and the UK-New Zealand free trade agreement more than 10 weeks ago. Neither has yet been laid under CRaG. This open and detailed process will help Parliament and the public more easily to understand agreements and their implications, including on issues around climate change and the environment, as the noble Lord, Lord Oates, highlighted.

It is worth pointing out that, while I certainly do not dispute the points that the noble Lord made about the risks around climate change and the environment from poorly constructed deals, equally, there are huge opportunities, as we have seen from our discussions with New Zealand. It is a reflection of the Government’s commitment to transparency. On the comments by the noble and learned Lord, Lord Morris, the right reverend Prelate the Bishop of St Albans and a number of other speakers, I welcome their having highlighted the trade advisory groups in particular and the important role they play in promoting, among other things and other sectors, the increasingly important agriculture sector.

I would like to address some specific issues that were raised in the committee’s report and highlighted by a number of noble Lords in this debate. The Government are committed to an exchange of letters regarding current commitments on the scrutiny of free trade agreements and, as has been noted, that took place this morning. I am pleased that the noble Baroness, Lady Hayter, considered this exchange a significant step forward; that is good to hear, and I hope it also reassures the noble Baroness, Lady Donaghy, and a number of other speakers who raised the issue. We will continue to review our practices as we and indeed Parliament learn valuable lessons from the passage of new free trade agreements, and our processes will undoubtedly continue to evolve accordingly. Going beyond the exchange of letters at this stage would remove this flexibility to implement lessons learned.

The Review of Intergovernmental Relations, published in January 2022, revised the structures and ways of working between the UK Government and each of the devolved Administrations, including structures of engagement on international policy areas. We will continue to apply and practise many of the agreed principles and engagement approaches originally set out in the concordat on international relations, one of the supplementary agreements supporting the 2013 memorandum of understanding between the UK Government and the devolved Administrations. I hope that that reassures my noble friend Lord Udny-Lister and the noble and learned Lord, Lord Morris. These cover areas such as public diplomacy, the organisation of supported visits and representation overseas, and are based on the principles of good communication, consultation and co-operation.

On Explanatory Memoranda, an issue raised by a number of noble Lords, we welcome the committee’s acknowledgement that the Government’s updates to the Explanatory Memorandum template and guidance have improved matters. We are open to further improvements, and I welcome the collaboration between our officials in supporting this process. Minister Amanda Milling will shortly write to Whitehall colleagues asking them to pay close attention to the FCDO’s Treaties and MOUs: Guidance on Practice and Procedures, and to use the Explanatory Memorandum template contained within them, all of which is published on GOV.UK.

On treaty amendments, the Government have previously indicated their intention that the majority of important amendments should be subject to ratification and submitted to Parliament for scrutiny. However, the terms of the treaty, including those on ratification, are subject to negotiation on a case-by-case basis with treaty partners. It is therefore not possible for the UK to take a unilateral position on this issue by way of domestic guidance. The Government do not agree with the committee’s assessment that they have failed in their commitment to publish treaty amendments, including those made by joint committees. We provide a complete, up-to-date and easily accessible record of the treaties to which the UK is a party.

All amendments to the EU-UK withdrawal agreement and to our new free trade agreements are published in the treaty series. In addition, we publish all joint committee decisions on the same GOV.UK page as the relevant parent treaty. Our monthly treaty action bulletins, also published online, provide a summary of the UK treaty actions and command papers, as well as information on treaties for which the UK is the depository. Treaties are distinct from instruments, as has been pointed out, and arrangements that are not intended to be binding under international law, such as those containing political commitments or administrative arrangements.

In response to a question from the noble Lord, Lord Oates, the recent declarations with Finland and Sweden fall within the category of non-legally binding political commitments. Although the committee refers to those non-binding arrangements as agreements in its report, that terminology is more appropriate to describe a legally binding instrument such as a treaty. Considerable care is taken to make sure that non-legally binding arrangements are drafted appropriately, and guidance on this is set out in the FCDO’s Treaties and MOUs: Guidance on Practice and Procedures, as I mentioned before.

As reiterated by the noble Baroness, Lady Hayter, there has never been a convention in the UK whereby non-legally binding arrangements—I am going to put a helmet on for this moment—are routinely submitted to parliamentary scrutiny. In fact, regarding the so called third limb of Ponsonby, referred to today by the noble Lord, Lord Kerr, and a number of other speakers, the Government do not dispute the statement made by Lord Ponsonby in 1924. However, the Government do not accept that it formed part of the Ponsonby rule as it existed and was practised prior to CRaG.

I recognise that the speech by the noble Lord, Lord Kerr, was delivered almost on the basis that he has read much of the speech that has been carefully handed to me. Nevertheless, this is the position of the Government. While non-legally binding arrangements are themselves not routinely published, when they raise issues of public importance it may be appropriate to draw Parliament’s attention to them, for example through a Written Ministerial Statement.

[Lord Oates (LD)]

The Minister stated that the agreements or declarations made with Finland and Sweden are not legally binding. First, does he think that the Finnish and Swedish Governments are aware of that? Secondly, does he think that they are of sufficient public significance that they will be scrutinised by this Parliament?

[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.

--- Later in debate ---

[Lord Goldsmith of Richmond Park (Con)]

I am afraid, as I said, that I am not familiar with the words she used. I am sure that if an error was made, that error will be corrected, but I am not aware that an error has been made. MoUs on international migration are not uncommon. For example, there is a memorandum of understanding in place between the UN High Commissioner for Refugees, the African Union and Rwanda on the relocation of migrants at risk in the conflict zones of Libya.

On implementing legislation, the United Kingdom’s dualist system means that treaties do not automatically become part of our law, a point made by a number of noble Lords today. In accordance with parliamentary supremacy, entering into international obligations under the royal prerogative cannot change UK law; that can happen only through legislation. Having said that, not every treaty requires implementing legislation. The Government are always mindful of the potential need for domestic legislation to implement the UK’s international obligations when negotiating a treaty. Where such legislation is required, it is beneficial, and sometimes essential, to have the flexibility to pass it before, during or after CRaG scrutiny of a treaty. This flexibility should, we believe, be preserved.

In several continuity agreements the Government ensured that the relevant secondary legislation was in place prior to beginning CRaG and published the details of the legislation in the accompanying Explanatory Memorandum. We consider CRaG an appropriate legislative framework, providing sufficient flexibility to enable Parliament to undertake effective scrutiny prior to ratification of a treaty. We do not agree with the three proposals for reform of the statutory framework made by the committee in paragraph 94 of its report. These proposals are not suited, we believe, to the UK’s constitutional settlement as a dualist state where treaties are negotiated under the royal prerogative. This may not reassure the noble Lord, Lord Hendy, but I hope it at least answers his question.

I welcome the experience of the EU system that the noble Baroness, Lady Ludford, conveyed to us in her speech. The Government agree that the UK’s treaty scrutiny system is broadly comparable to other dualist, Westminster-style systems; in particular, those of Canada and Australia. Indeed, in some respects, particularly with regard to free trade agreements, the Government’s commitments to Parliament go beyond what is provided for in other systems. I underscore the point that we consider CRaG fit for purpose, allowing the Executive to negotiate for the UK and Parliament to conduct the necessary scrutiny. Indeed, the Constitution Committee agreed with the Government’s position in its report of 30 April 2019, noting that existing parliamentary mechanisms, supported by the work of the designated treaties committee, should be sufficient to provide effective scrutiny.

That committee also noted that mandates for treaties should not be subject to parliamentary approval. In fact, a number of the issues raised by the committee in its 2019 report were discussed at length by Parliament during the passage of the Trade Act 2021. In particular, amendments regarding Parliament’s role in the objectives and mandate-setting process and pre-signature scrutiny were explicitly considered on a number of occasions and rejected by considerable majorities in the House of Commons.

There have been multiple exchanges between the Government and the International Agreements Committee in the last two years on matters of transparency and predictability. We have listened to the Committee’s views and adapted our processes. These exchanges are clearly working, they are certainly valued and I have no doubt that they will continue. We welcome the committee’s scrutiny and I thank the noble Baroness, Lady Hayter, once again for tabling this debate and all noble Lords for their contributions.

[Viscount Waverley (CB)]

My Lords, the Minister might wish to consider speaking to the Rwandan high commissioner here, who is an august Minister for Justice and will, I am sure, be looking at his overall remarks most closely. He gave us a full briefing about various matters relating to the agreement and understanding. It would be appropriate, if there is to be a strong relationship with that country, that the situation be explained to him.

[Lord Goldsmith of Richmond Park (Con)]

That is noted. Thank you.