Working Practices (International Agreements Committee Report)

Lord Kerr of Kinlochard Excerpts

Thursday 19th May 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I congratulate the noble Lord on his excellent concluding question. I am a member of the International Agreements Committee and should start by paying tribute to our chairman, the noble Baroness, Lady Hayter, and her predecessor, the noble and learned Lord, Lord Goldsmith, for their work on this dossier, with the very considerable help of our former legal adviser, Alex Horne, and our clerk. The exercise of working practices, though I dreaded it, is being well done by the committee and I congratulate the chairman.

I also think that the noble Lord, Lord Oates, is a little hard on the chairman’s achievement in securing today’s exchange of letters with the noble Lord, Lord Grimstone, which settles the issue about which the right reverend Prelate was concerned. I agree that it does not go as far as we would have liked, but it is well worth having. It is good to see the relationship between the committee and the Department for International Trade placed on a more solid foundation, so I genuinely congratulate the chairman.

As the prisoner at the bar says, I need to confess to some previous convictions. I was a Sir Humphrey in my time—a Foreign Office Sir Humphrey—so I am now a poacher where once I was a gamekeeper. In the Foreign Office, I was responsible for a time for the operation of the Ponsonby rule. Ponsonby, 98 years ago, committed the Foreign Office to enable Parliament to exercise supervision of agreements, commitments and undertakings involving international obligations of a serious character, even if they were not given treaty form. In my time, which was a little less than 98 years ago, we were still honouring that rule. Occasionally, it led to disputes in-house as to whether we needed to put an agreement forward. Occasionally, it led to serious discussions about whether security considerations were involved. However, it was being honoured in my time in Whitehall and therefore, like the noble Baroness, Lady Hayter, I was very surprised to hear it asserted at the Dispatch Box a few weeks back that the Ponsonby rule had been overtaken by the CRaG Act.

As we know, CRaG covers treaties, but Ponsonby also covers non-treaties. I am sure that while this House was considering the CRaG Bill it was never suggested that, if we passed it, we would, in doing so, kill off Ponsonby. That was not suggested at the time. I do not think we killed off Ponsonby. I do not think we should. The worrying thing is that the Government are now acting as if we did, and I am pretty sure they should not.

People have mentioned the sort of non-treaty agreements which ought to be drawn to the attention of Parliament. They gave examples such as the Rwanda agreement, which in my view represented a breach of the refugee convention. They mentioned the agreements with Sweden and Finland on defence. I do not know precisely what they say. I do not know what form they took, but it does not really matter; it seems our word has been pledged. That may be a good thing—I personally think it is—but Parliament ought to be aware, and these texts have not been laid before Parliament because they were not treaties and the Government’s interpretation is that if CRaG does not apply, then they do not need to do anything. I would also mention the defence agreement with Australia and the United States. I do not know what it says, but it sounds pretty binding and I would have thought it ought to be laid before Parliament. These examples are all considerably more significant than the many trade treaties which the Department for International Trade is laying before Parliament and which the International Agreements Committee is trying to scrutinise.

That is why the report suggested, at paragraphs 82 and 83, what we should do about non-treaties. That is why I was so surprised at the letter, which has been referred to today, received last week from the FCDO Minister of State, Amanda Milling. I am torn about this letter, because as a former Sir Humphrey, I think it is fabulous. It is a masterpiece of elegant, obscurantist obstructionism, with just the slightest dash of the otiose—marvellous. To quote her:

“The Government does not accept that there has ever been a constitutional convention in the UK whereby non-legally binding arrangements are routinely published or submitted to parliamentary scrutiny.”


Did noble Lords see what she did there? Did they spot the “routinely”? We never said that non-legally binding arrangements were “routinely published”. They never were; Ponsonby never said they would be.

There is a mass of documents exchanged between our Government, our ministries our embassies and other Governments, including exchanges of letters, memoranda of understanding and agreed minutes. That is the currency of daily diplomatic exchange. I recall as an ambassador status of forces agreements and their amendment for different exercises, and privileges and immunities for premises or people—all this stuff that takes some documentary form. But it would never be the committee’s intention that the Government should be required to submit such material for parliamentary scrutiny. Some of it was barely scrutinised by Ministers in my time. I was even allowed to sign off some of it myself because it was so trivial.

Paragraph 82 of our report says:

“We accept that it … would be disproportionate, to notify us of every Memorandum of Understanding that the Government enters into. However, there are some significant agreements which should be notified and sent to us for review”.


That is the essence of our proposal. The Sir Humphrey who drafted the Milling sentence that I read out was creating a straw man—a red herring. The sentence is perfectly correct, and it is totally misleading and irrelevant. That is the mark of the maestro.

The letter goes on to say:

“The Government has acknowledged that it may be appropriate to draw to Parliament’s attention non-legally binding arrangements which raise questions of public importance. Ministers consider this on a case-by-case basis.”


Ah, quite—and so they should. But hang on, what are the criteria they are using as they consider this case by case? That is why our report suggested a set of criteria:

“Notification and deposit should be required only if an agreement … is politically or economically important … imposes material obligations on UK citizens or residents … has human rights implications … is directly related to a treaty; or … would give rise to significant expenditure.”


If the Government do not like our principles, we will change them or have some more—but they have to reply. They have to tell us what their proposed criteria are. Then we can start a negotiation and engage on this. That is what this is all about. They cannot just say, “No, no—we’ll do it case by case.” That is a non-answer, although Sir Humphrey would have been extremely proud of it.

I think Sir Humphrey might also have been quite pleased with the following sentence, which is the last thing I will quote, I promise:

“The relevant factors in deciding whether and how to draw a non-legally binding arrangement to the attention of Parliament will vary according to the arrangement in question, and may include—but are not limited to—human rights considerations.”


I repeat: “may include, but are not limited to”—masterly. I am proud of my old department.

Being serious for a moment, I do not think this will quite do. I really do not. I think we are entitled to ask the Executive to engage. It is in all our interests to reach a sensible understanding here, as we have with the Department for International Trade. We did not get all we wanted with that department, but we now have a clear basis on which to go forward, whereas all we have from the Foreign Office is this refusal to meet us and the rejection of our criteria, rejection of the concept of criteria and refusal to start a discussion. I really do not think that will do. Parliament has powers in matters of this kind, but it would be infinitely preferable not to have to exercise them. We owe it to the Minister, just as we owe it to ourselves, to ask him to go back to the Foreign Office and ask it to have another look at this issue.