Treaty Scrutiny: Working Practices (EUC Report)

Lord Wallace of Saltaire Excerpts

Monday 7th September 2020 Grand Committee

[Lord Wallace of Saltaire (LD) [V]]

My Lords, I was struck by the quotation from Walter Bagehot’s volume, The English Constitution, in paragraph 8 of the most recent report we are debating. He clearly stated 150 years ago:

“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.”


This is not a new issue. Long before the huge expansion of treaties and international agreements that we have seen since 1945, 19th-century constitutional authorities considered Parliament’s role in scrutinising treaties before and after they had been signed to be inadequate. Bagehot saw Crown prerogative as unjustified and outdated on treaties long before any of us were born.

The Vote Leave campaign fought the 2016 referendum with a promise to restore parliamentary sovereignty. This Vote Leave Government are now determined instead to restore executive sovereignty, and to put Parliament back in its box. Yesterday and today, No. 10 has been briefing that UK sovereignty entitles the Government unilaterally to reinterpret international agreements that they have recently signed. Treaties limit national sovereignty. If you assert an absolutist interpretation of sovereignty, as the noble Lord, Lord Frost, has stated in recent speeches, no other Government will trust you to observe international agreements.

There are those on the hard right of American law and politics who deny that international law can override American decisions because of the exceptional nature of the US constitution. But however exceptional our Government think England is, they should be wary of undermining trust in our observance of agreements, whether on Northern Ireland, human rights or commercial regulation. If our Government assert their unilateral sovereignty, no deal with the EU will be followed by no deals with a lot of other countries.

Nine months ago, the Conservative manifesto promised to

“look at the broader aspects of our constitution”

and

“set up a Constitution, Democracy & Rights Commission”.

No. 10 briefings now suggest that the Government have also made a U-turn on this and instead want only to address specific judicial and other issues. But the scale of the transformation of our international obligations and commitments, now we have left the European Union, requires adjustments in our constitutional arrangements which any Government committed to the maintenance of constitutional democracy should address.

The reports we are debating also note that the issues to be covered in future trade arrangements will require an extension of co-determination with the devolved Governments if we are to avoid drifting into a position where England emerges from a broken union, sovereign over only a shrunken country. In the light of her speech, I remind the noble Baroness, Lady Noakes, that constitutional arrangements which may suit your own Government when you are in power must be strong enough to work when other Governments are in power.

The Prime Minister looks to Australia and New Zealand as models for our future relationship with the European Union, as well as for recruits to advise the Government. The Parliaments of both countries have trade committees which play “a significant role”, as Alexander Downer told the Constitution Committee. Our Government should not resist this Parliament gaining similar significance in scrutinising treaties.