Treaties matter. But parliament is barely given a say

When the government shields its agreements from proper scrutiny, we all pay the price

February 08, 2022
Photo: Image Professionals GmbH / Alamy Stock Photo
Photo: Image Professionals GmbH / Alamy Stock Photo

Almost a year ago, Peter Goldsmith, the then-chair of the newly established House of Lords International Agreements Committee (IAC), set out the importance of scrutinising treaties in an article in Prospect. He highlighted the fact that, post-Brexit, new trade agreements and partnerships across the globe would likely be required, to kickstart the UK’s economy, ensure its security and protect rights and environmental standards. This is starting to happen, with trade deals with Australia, New Zealand and India currently under discussion, as well as the conclusion of a trilateral security pact with Australia and the United States, commonly referred to as AUKUS.

Prior to Brexit, the UK Parliament’s supervision of government treaty negotiation was weak. In part, this was because major trade agreements were subject to comprehensive inquiry in the European Parliament, which has significant powers under the European Treaties. These include a right to information and veto powers in respect of many types of agreement. 

By contrast, the only statutory commitments in the UK were contained in the Constitutional Reform and Governance Act 2010. This merely requires the government to lay most new treaties before Parliament for 21 sitting days prior to ratification. There is no requirement for parliament to consent to these agreements. Since treaties are provided to parliament after they have been signed, there is no power to amend them. Parliament could object to a new agreement. But while, in theory, the 2010 Act allows the House of Commons to delay ratification, this power has never been used. 

One year on from its establishment as a full committee of parliament, the IAC has sought to establish new working practices between the government and parliament to ensure that parliament can play a more prominent role in the scrutiny of new international agreements. However, despite its best efforts and a promising start, the government’s reluctance to commit to consistent and predictable standards has proved a significant road block to ensuring that new agreements are always subject to effective analysis.

During the passage of the Trade Act 2021, the House of Lords sought to amend the legislation to guarantee that significant trade agreements were subject to additional scrutiny. But these reforms were resisted by the government, which instead offered political commitments from the Despatch Box. These commitments, which have come to be referred to as the “Grimstone Rule” (after the minister who made them, Gerry Grimstone), were essentially promises to hold debates on negotiating objectives and the final trade agreements which had been reached.

There have been some other positive steps, including commitments to disclose new trade agreements to the IAC and Commons International Trade Committee for scrutiny before they are formally laid before parliament. However, in spite of its warm words, the government has yet to take significant steps to introduce real accountability. 

In particular, there are issues with non-trade agreements, where scrutiny in advance of an agreement being signed remains almost non-existent.

In a report published in autumn 2021, the IAC sought to agree a number of further reforms which would have improved the scrutiny and transparency of the treaty-making process. It recommended that the government should agree a concordat with parliament on the scrutiny of trade agreements to formalise and consolidate the various commitments which have already been made by the government on the floor of the House, in letters to select committees and in the government’s own consultation papers. The idea was to reflect the practices that have been established to-date, ensure that the commitments were observed by future administrations and help parliamentarians and stakeholders navigate this new terrain. The recommendation was endorsed by the House of Commons International Trade Committee (ITC) in a subsequent letter to the then-Secretary of State for International Trade, Elizabeth Truss, but was rejected by the government, which claims the time is not right.

The IAC has also requested that both substantive amendments to international agreements and important memoranda of understanding (political agreements that are not legally binding treaties but can contain important commitments between state parties), which fell within certain clearly specified criteria, should be deposited with the Committee for scrutiny.

A recent debate in the House of Lords over part of AUKUS, relating to the confidential exchange of naval nuclear propulsion information, underlined the issue over amendments. The Chair of the IAC, Dianne Hayter, highlighted that a report from the Australian Joint Standing Committee on Treaties stated that any amendments to the agreement, or subsequent transfers of equipment, materials or technology would be subject to further scrutiny in Australia. When the government was asked to match this commitment, it equivocated, citing the potential need for commercial confidentiality and national security considerations.

The point on memoranda of understanding (MoUs) is also important because they have been used for significant arrangements: for example for diplomatic assurances on the treatment of terror suspects who are returned to their country of origin. At the high point of the trade continuity programme in 2019, when the government was seeking to roll over a significant number of trade deals which applied when the UK was a member of the European Union, the Department for International Trade proposed using MoUs to bridge the gap until new trade agreements could be signed. This blurred the distinction between the two categories of agreements.

If the government takes the view that some MoUs and important amendments to treaties do not need to be disclosed to parliament, then parliamentary scrutiny would become optional in some circumstances. 

Unfortunately, the IAC’s proposals for reform have, thus far, met with very limited enthusiasm from the government. However, the House of Commons has recently begun to consider its position on treaty scrutiny and some movement is still possible. Notably, the Public Administration and Constitutional Reform Committee will be taking public evidence on some of these issues in February.

When the House of Lords established the IAC, it was in part designed to put in place a mechanism to replace the scrutiny work of treaties previously undertaken by the European Parliament. While the government has introduced some new measures, these fall far short of the European Parliament’s powers. This will often leave the UK Parliament without a real say on some significant agreements which can affect the food we eat, the price of goods in the shops, and even our liberty and security. The current difficulties we face over the Northern Ireland Protocol show the dangers of agreeing new treaties without adequate scrutiny.

In order to achieve real reform, legislative change will likely be needed: the statutory framework must be updated to ensure that parliament’s consent to important treaties is required prior to ratification. Without such a power, while parliament may highlight issues, increase engagement and conduct technical scrutiny, its ability to achieve meaningful change will continue to be exceedingly constrained.