Treaty Scrutiny: Working Practices (EUC Report)

Lord Goldsmith Excerpts

Monday 7th September 2020 Grand Committee

Moved by

[Lord Goldsmith]

That the Grand Committee takes note of the Report from the European Union Committee Treaty scrutiny: working practices (11th Report, HL Paper 97).

[Lord Goldsmith (Lab)]

My Lords, it is my privilege as the chair of the International Agreements Sub-Committee of your Lordships’ European Union Committee to move this Motion. In doing so, it is my very pleasant duty to acknowledge and thank the chair of the European Union Committee itself, the noble Earl, Lord Kinnoull, and the chair of your Lordships’ Constitution Committee, my noble friend Lady Taylor of Bolton, for the earlier reports for which they were responsible. They will be moved to be noted immediately after I have spoken. I also want to thank the Secondary Legislation Scrutiny Committee, chaired by the noble Lord, Lord Hodgson of Astley Abbotts, for its continued engagement with the issues that we are to debate this afternoon.

The purpose of this debate is to consider how we will undertake the new and critically important task of scrutinising the international commitments that the Government propose that the country enters into. It is a critically important task because international agreements can be every bit as important as the domestic legislation it is the job of this House to scrutinise, but they receive only a fraction of the scrutiny. This point was made as long ago as 1872 by Walter Bagehot, who said, in his second edition of The English Constitution:

“Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous.”


We have moved on from there, though it has been a slow and, many would say, still incomplete process. Our report traces some of the developments and, importantly, the Ponsonby rule, which goes back to the peace treaties of the First World War. Yet we lag far behind many countries in our parliamentary scrutiny of international commitments. The EU and USA have developed detailed arrangements for approval of agreements. The theme in all the reports that are for consideration today is whether the Constitutional Reform and Governance Act—CRaG—processes will enable this House to perform the task of scrutiny which I believe everyone believes that it should.

We are disappointed that we have not had before this debate the reply of the Government to our report; it would have made it a more constructive and useful debate if we had had that. None the less, we look forward very much to the Minister’s reply. I welcome in that respect the positive engagement of both the Minister here today and the noble Lord, Lord Grimstone, for their repeated statements in correspondence and orally that the Government share the view that scrutiny by Parliament, including by this House, is crucial. I look forward to hearing that repeated as well. I am particularly appreciative of the positive steps of the noble Lord, Lord Grimstone, to keep the committee that I chair informed of developments.

The three major issues I will refer to this afternoon are information, time—those two are connected—and what commitments are covered. We need information; we need to know what agreement is proposed and what its terms are. The worry is that, if we see the information and the text of a treaty only when it is signed, it may be too late for any effective scrutiny. Will the opportunity to improve the arrangements simply have passed, and does it then become an unwelcome choice of take it or leave it? This can be managed by sharing information in different ways, before the CRaG clock starts, through advising Parliament of negotiating mandates and enabling debate on those, keeping us informed of the progress of negotiations and providing notifications of what is likely to be laid soon. That may involve sharing information in private, which is not ideal, as many or perhaps all of us would prefer transparency. But if otherwise we will not see the outcome until much later, we have said that we will be prepared to receive it in private.

The second issue is the time available for our scrutiny. CRaG allows 21 sitting days, which is very tight, especially if we want to consult experts or stakeholders. We are very concerned about this issue. In Command Paper 63 in February 2019, important assurances were given by the Government, which included assurances that adequate time would be available for scrutiny—and scrutiny indeed by both Houses. That was the Government of Mrs May and not of Mr Johnson, but we hope that we can still receive the same assurance from the present Government. Can the Minister provide today the assurances that the present Government will do just as much as was promised in February 2019 and will now reconfirm those commitments? A sliding back, just at the moment that we need to see these agreements which Mr Johnson’s Government much vaunted during the Brexit debates, would be very regrettable. At the very least, it would raise the question of whether CRaG can be made fit for purpose at all.

Before proposing amendments to CRaG, we have proposed a pragmatic approach. We hope to be testing out this sort of arrangement on the agreements that we are scrutinising—or not yet scrutinising, but where inquiries have been opened—including the earliest, which is likely to be the UK-Japan deal. In a spirit of co-operation, Parliament and Government can test what works well, and develop new practices and approaches together. Still, some points that the Government need to act on are immediately clear, and were clear to my noble friend Lady Taylor’s committee and to that of the noble Earl, Lord Kinnoull, including increased and regularised co-operation with the devolved regions and Crown dependencies and overseas territories.

One issue is that we need to find a way forward for enabling scrutiny of agreements beyond the strict terms of CRaG, in particular where amendments to existing agreements arise, and memoranda of understanding. Under the third limb of the Ponsonby rule, the Government accepted that Parliament ought to

“exercise supervision over agreements, commitments and undertaking by which the nation may be bound in certain circumstances and which may involve international obligations of a serious character, although no signed and sealed document may exist.”

Yet, despite the fact that this description clearly covers memoranda of understanding, which can have profound political consequences, we have thus far been unable to obtain assurances from the Government that these will be routinely disclosed to the committee, even when they involve significant international obligations.

MoUs can relate to important issues, such as deportation of terror suspects with assurances that they will not be tortured, or, more recently, the diplomatic immunity of individuals not covered by the Vienna Convention on Diplomatic Relations. I refer here to the Harry Dunn issues. So we need to see these. The point was raised in our committee, including by Members with great experience and knowledge, that this might overwhelm the committee because of the number of such arrangements. It cannot be right for the Government to decide which amendments and MoUs are subjected to scrutiny; that must be a matter for Parliament.

So we have proposed a pragmatic and practical approach to sift such documents for scrutiny, and we hope that the Government will engage with this in a positive fashion. Our current solution therefore is to propose a sifting process so that only a manageable number of these would rise to the level of requiring detailed scrutiny. That is a proposal on which we particularly look forward to the Government’s response to the reports and their agreement on a way forward.

What is the timetable for agreeing a system for routinely sending us amendments, and other relevant treaty information? When can we expect to see a system in place that reports amendments and memoranda of understanding that are agreed, so that we can get on with our work? Are the Government willing to commit to providing regular lists of what has been agreed to help the Committee identify where scrutiny needs to be applied? I am looking forward to hearing not just from the Minister but from other noble Lords this afternoon as to how they see the work that we are to do going forward, and I hope that the debate on these reports will very much advance the aim that we have. I beg to move.

--- Later in debate ---

[Lord Goldsmith (Lab)]

My Lords, I want to start by thanking the Minister for what were not just warm words—there was some substance in them as well. We will study them very carefully. I know that he would have wanted to respond in more detail in writing to the report before today, if he had been able to do so, and I recognise that.

With the Minister, this has been an enormously valuable debate, and I think so for two particular reasons. First, it is because of things that noble Lords have said, to which we will go back many times, I imagine, to see just what they are. It is not just about the new touchstone for parliamentary ignorance from the noble Lord, Lord Beith of whether you can distinguish you Ponsonby rule from your CRaG Act. It is also about the very important political statements about the importance of the job of scrutiny of international treaties. The second reason is that, with one notable exception, the Committee has almost unanimously been of the view that scrutiny by Parliament of international agreements is something that has to take place and has to take place in an effective way. The ideas and thoughts that have come from noble Lords are important. I suppose that it has not been before its time. Even in terms of the British Parliament, taking 150 years to come to the recognition that actually treaties are just as important as domestic laws is not that bad.

There are two points that I hope the Minister will take from the debate. One was the comment made by the noble Earl, Lord Kinnoull, about the importance of having evidence-based scrutiny. That is one of the reasons why the time to consider treaties is important. We want to hear from stakeholders and the public what they think, and 21 sitting days is not enough to do that. It is important to have that evidence, and we believe that it will help the Government, because they will need to know what the issues are so that they can, I hope, take them into account when they negotiate the treaties.

The second point, which was made by my noble friend Lady Taylor of Bolton, was about the Government’s attitude. She suggested that that was the most important thing, and we look for not just warm words but an attitude of government that is determined to see scrutiny operate effectively. Of course, ultimately, the Government make the decisions, but we believe that they will be guided and helped by scrutiny from this place.

I would like to feel that this debate, which has gone extremely well, has taken account of what we said, particularly at paragraph 32 of our report, which is that it may be—and we hope it is—that in a pragmatic way we will be able to conduct the necessary scrutiny without amendment to the law. If not, we will look at that and give fair warning of that. This debate has perhaps fired the starting pistol on that warning, and we will come back to it.

Motion agreed.