Working Practices (International Agreements Committee Report)

Viscount Waverley Excerpts

Thursday 19th May 2022 Lords Chamber

[Viscount Waverley (CB)]

My Lords, I wholeheartedly congratulate the committee and all its members, led by the noble Baroness, Lady Hayter. By coincidence, I had the pleasure to have spoken alongside the impressive UK director-general for trade negotiations in the Department for International Trade, Amanda Brooks, this week at an Institute of Directors dinner, on scrutiny of FTAs and the need to rebalance the relationship between Parliament and the Executive. To say she was a master of her brief would be frankly understated.

My contribution will focus on the narrow remarks regarding governance. Trade today impacts all walks of life. The 2018 document A Trade Model That Works for Everyone set out four principles of best practice: consensus building, transparency, democratic oversight and net benefit for all. These four principles provide the foundations on which to build public trust in the trade system. Credit where credit is due, however: the Government have come a long way since the publishing of that document and have negotiated some good deals—with Singapore and New Zealand to name two. For example, I have been asked to meet Beef + Lamb New Zealand, which, I gather, welcomes the agreement, and it looks forward to the opportunities for British farmers to export, as well as sharing best practice in areas such as marketing products abroad, animal welfare and sustainable farming.

There are various models of treaty scrutiny in other countries, which the UK Parliament could benefit from understanding. These can be divided into models of parliamentary scrutiny, transparency and civil society consultation. The UK’s scrutiny process does not tick all the boxes compared to key partners, with the EU coming out on top, followed by the US a more distant second. Considering the evidence provided, the All-Party Parliamentary Group for Trade and Investment, which I co-chair, offered recommendations to government to build on and improve what is in place and included a broad range of views from business, academia and civil society. I shall say a word on three aspects: transparency, democratic oversight and net benefit for all.

First, on transparency, securing trade deals should take place with stakeholder consultation throughout the process, thus allowing all voices to be better reflected throughout key stages of negotiations. There should be a statutory obligation on government to publish all key documentation relating to international trade and easy digital access to those documents. The use of non-disclosure agreements with members of trade advisory groups has limited the ability of experts to advise properly. The need for use of NDAs needs to be balanced with common sense and trust to allow those advising government, having been vetted, to be properly briefed and the constituencies they represent properly consulted. It is felt that NDAs highlight a deeper problem: a lack of trust in business.

Secondly, there is democratic oversight. Parliamentarians, too, are in the dark until it is too late in the process to make a difference. Parliament should be provided with a statutory right to debate the draft mandate in advance of any proposed negotiation. In line with the approach taken by the EU and US, government should have a statutory duty to provide timely, substantive briefings, draft texts and related documents to all MPs and Peers. Government should publish treaty texts before the treaty is tabled in Parliament, thus allowing for proper scrutiny and examination. Parliament should have the final ratification in a timely manner on trade deals proposed, negotiated and agreed by government.

Thirdly, there is net benefit for all. Government should be under a statutory obligation to publish detailed impact assessments which evaluate the economic, environmental and social impacts of any proposed agreement, including a clear statement of the net benefit of any proposed trade deal.

Based on these principles, 10 recommendations might be considered: first, build a strong mandate underpinned by business engagement; secondly, secure comprehensive buy-in for the negotiations by publishing mandates; thirdly, set up a high-level strategic EU trade advisory group for the EU negotiations; fourthly, establish a series of thematic working groups to tackle cross-cutting issues; fifthly, expand the remit of DIT’s expert trade advisory groups to create a series of sector trade advisory groups to provide detailed technical advice for specific sector negotiations for EU and non-EU trade; sixthly, appoint a new chief business trade envoy to co-ordinate the gathering of business intelligence, ensure coherence of policy and provide businesses with a single point of contact; seventhly, take business delegations to negotiating rounds to strengthen the UK’s presence and give negotiators easy access to technical expertise; eighthly, publish proactively the membership of advisory groups; ninthly, release summaries of negotiating rounds as they are completed; and 10thly and lastly, use non-disclosure agreements only when essential.

As the noble Baroness, Lady Hayter, touched on, devolved Administrations ought to be able to co-determine the negotiating mandate in areas of devolved competency enshrined in law as part of a new constitutional settlement. An interparliamentary mechanism should be created to involve devolved legislatures in treaty scrutiny.

In summary, government should be required to ensure that Parliament is immediately and fully informed at all stages and provided that information in sufficient time to take Parliament’s views into account—a point put most admirably by the noble Baroness, Lady Liddell. Government should disclose negotiating mandates immediately after their adoption and publish final trade agreements texts in advance of the legal revision being completed. To further facilitate this, MPs should be provided with access to restricted documents, including negotiating texts, in a secure reading room with a list published of those being consulted. I note that the WTO, for example, publishes submissions made by member states during negotiations. After the negotiations, Parliament must, of course, approve the deal to ensure that negotiation objectives have been met.

I have one brief final point. I am particularly drawn to the model of the Cotonou agreement between the EU, African and Caribbean countries, which sets out a framework for stakeholder engagement, thus enabling groups to put forward alternative market access schemes that offer better development opportunities.

The United Kingdom has the potential to be the global partner of choice for trade, investment and development, promoting a rules-based trade system, forging investment and advancing partnerships and technology that have potential for both sides. To best achieve this, however, the country would be better served by embracing a closer relationship with Parliament; we are more likely to be able to find solutions to challenges if all parties are around the table.

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[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.