In the second blog from our annual conference ‘Parliaments: Coming of Age’, Eleanor Hourigan, Counsel for Human Rights and International Law at the UK Parliament, discusses how to improve parliamentary scrutiny of treaties.
Issue
Treaties are an essential diplomatic tool that are increasingly important for Government policy-making, so much so that treaties increasingly dictate the content of domestic law and policy. However, there is little or no parliamentary scrutiny of treaties in the UK. The challenges and process of Brexit have shone a light on this anachronism and the shortcomings of the treaty provisions of the Constitutional Reform and Governance Act 2010 (CRAG). Improved parliamentary treaty scrutiny is necessary in order for Parliaments to come of age in the modern globalised world. There is now an awareness of the need to act to fill this gap in parliamentary scrutiny and the Brexit process may present opportunities to seek to address this.
Parliamentary Scrutiny of Treaties to date
Government’s role: Treaty-making is for Government using its powers under the Royal Prerogative. This includes the negotiation, signature and ratification of treaties. As well as any decisions on reservations, declarations or withdrawal from treaties.
Parliament’s role: Historically Parliament has had a very limited role in treaty scrutiny in the UK, despite Parliament being responsible for holding Government to account for its treaty actions and passing any necessary implementing legislation needed. CRAG (which largely codified the existing arrangements under the Ponsonby rule) provides for a minimal role for parliamentary scrutiny – but only of treaties requiring ratification. However, given the increasingly crucial role played by treaties in standard-setting over the last 50 years, this limited role for parliament set out in CRAG is out-dated:
- Scope: CRAG only covers certain Agreements (those requiring ratification) and does not cover amendments to treaties, measures adopted under treaties, politically-binding arrangements (often called MOUs), arrangements with non-State entities, treaties entering into force on signature… All of which can contain significant political and legal obligations that can translate into huge chunks of domestic law and policy.
- Time: The time given to Parliamentary scrutiny under CRAG (21 days in total) is too short to allow for effective scrutiny.
- Information: The information provided is often inadequate to allow for meaningful scrutiny.
- Powers: In the event that Parliament has concerns, its powers are minimal (there is a Commons power of delay has never been used). CRAG doesn’t require Parliamentary approval, debate or vote on treaties or even a mechanism for treaty scrutiny.
- Consultation with devolved legislatures: The lack of any formal or adequate consultation with the devolved legislatures to identify concerns in areas falling within their competences creates a further barrier to meaningful and coordinated scrutiny.
Parliamentary Committees are increasingly showing an interest in scrutinising treaties and in wanting improved information and processes. Recent examples include the work of the Lords EU Select Committee; the Commons International Trade Committee; the Joint Committee on Human Rights; the Lords Constitutional Committee; both the Lords and the Commons Liaison Committees; the Commons Public Administration and Constitutional Affairs Committee… Indeed the Lords EU Select Committee has attempted the first systematic scrutiny of treaties in its work scrutinising Brexit-related treaties such as roll-over Agreements. But without improved and timely information for Parliament and without clear treaty scrutiny processes this work will continue to be piecemeal and rushed.
The role of the devolved legislatures: The devolved legislatures are responsible for implementing legislation and scrutinising policy within areas of devolved competence. They too have been increasingly interested in the impacts of international agreements on their areas of law and policy. Recent examples include the work of the Welsh Assembly’s External Affairs and Additional Legislation Committee’s scrutiny of Brexit-related treaties and reports on the Trade Bill; or the Scottish Parliament’s Culture, Tourism, Europe and External Relations Committee’s work on trade agreement continuity and on the negotiation of future international trade agreements.
What change is needed?
There are many questions and potential options for improvement in parliamentary treaty scrutiny. What are the barriers to Parliament’s engagement with treaties? How is this changing and what further change might we see, in particular for Westminster committees and for the devolves legislatures? What information should be presented to Parliament and when? What processes would be workable whilst ensuring adequate scrutiny that is flexible depending of the type of treaty? The key themes are:
Flexibility and Proportionality: Not all Treaties are equal – they can vary enormously in in scale, importance, size, sensitivity, subject-matter or impact. Therefore scrutiny processes and structures must be flexible and proportionate for each treaty.
Information: Information provision is crucial to accountability and the rule of law. This is also a key area for easy improvement – provided Government is willing to improve the information provided. There is work ongoing to ensure that Explanatory Memorandums are of better quality and contain the right information and this is welcome. In relation to trade agreements specifically, DIT has shown willingness to provide more in-depth information. But more needs to be done to ensure good quality information is provided with sufficient time to allow for adequate parliamentary scrutiny. Should there be a Framework Agreement setting out the information requirements? How should information requirements be enforced? There is also a need to consider whether all information needs to be publicly available in line with the principle of transparency, or will confidentiality be required at times, for example during sensitive negotiations in order to ensure that the UK can negotiate effectively? If so, is there a need for a mechanism to ensure the confidential sharing of information? There is also a need to consider who should provide treaty information to devolved legislatures.
Parliamentary processes: Parliamentary processes need to be clarified (and streamlined). But there are many different elements to consider when looking at these processes. Which Committees should scrutinise treaties? Should there be a new treaty Committee? If so, should it be a Joint Committee, Lords or Commons? Should it only cover trade agreements or all treaties? Should there be a sifting system that then sends Agreements requiring further scrutiny to relevant subject-specific Committees? Or should it also undertake detailed scrutiny of agreements? How should it interact with other Committees and with inter-governmental mechanisms? What provision should there be for scrutiny after implementation? Should there be a treaty scrutiny reserve? What should be the trigger for debates and votes? A secretariat would be needed with the relevant expertise to support this work.
Timing: Parliamentary involvement needs to be early enough to help shape treaties – should it cover scrutiny of the negotiating mandate? Should Government provide updates on negotiations? The CRAG timings are unworkable as adequate scrutiny cannot be done in only 21 days. Should there be an informal understanding that more time is given that is set out in CRAG or should CRAG be amended?
Scope: Parliamentary scrutiny needs to be proportionate to each treaty. But in principle parliamentary scrutiny should cover all treaties, including amendments to treaties and also politically-binding arrangements. CRAG is currently too narrow as many agreements and arrangements are not covered by CRAG, but nonetheless contain policy and legal obligations of huge significance. Can parliamentary scrutiny of these agreements be achieved from an understanding or is amendment of CRAG required? What should parliament’s role be relating to treaty reservations, derogations and withdrawal?
Culture Change: In order to treaty scrutiny to be meaningful, effective and useful, Government must accept that Parliamentary cooperation and scrutiny is needed. And Parliament must accept its role in the process and dedicate appropriate time expertise and resource to it. Trust between the two institutions will take time to build. Work is needed to give effect to the culture change needed in order for Government and Parliament to work with each-other constructively in this field. Moreover parliamentarians will need to be sufficiently interested in and able to scrutinise treaties. Are current levels of interest in / understanding of treaties amongst parliamentarians adequate? Would a new approval power incentivise more scrutiny? What can be done to improve the ability of Government and Parliament to work together constructively in this field?
Devolved legislatures: There is general agreement that greater involvement of devolved legislatures (and authorities) is needed. And that greater coordination between the legislatures is needed. But when and how? Should coordination be formal or informal? Improvements of information provision should also benefit the devolved legislatures – but who should provide that information to them? Should the role of devolved legislatures be embedded into the Westminster process or run as entirely separate processes? How should scrutiny by the different legislatures fit together? Who should respond to recommendations from devolved legislatures? Who should make implementing legislation?
Standard Clauses: Many concerns have been voiced about a drop in standards and protections post-Brexit – noting that the European Parliament insists on mandatory clauses to protect human rights and democracy and to prevent arms proliferation in treaties negotiated by the EU. Should the UK Parliament be asking for treaties to contain standard clauses to protect key issues such as basic human rights?
Transposition: Parliament already has a core role in relation to legislation – whether in passing primary legislation or in scrutinising delegated legislation. However, it isn’t always clear how or whether the UK has given effect to a treaty in domestic law. And it isn’t always clear when a provision of domestic law or policy is giving effect to international obligations. Transposition notes for treaties would greatly assist in understanding the links between international obligations and domestic law and policy – and therefore in helping Parliament’s roles in scrutinising treaties, scrutinising delegated legislation and as legislator.
How: How should changes be given effect? Would changes need informal arrangement, new conventions, Standing Orders, legislation…? Does CRAG need to be amended and brought into the modern era? What changes can be made now without needing to wait for an amendment to CRAG? Who should take the lead in taking forward these changes?
Potential key principles for parliamentary treaty scrutiny:
- Recognising the different treaty roles of each institution [Government; Parliament; devolved executives; devolved legislatures].
- Transparency
- Timeliness
- Flexibility
- Appropriate engagement with the devolved institutions.
Eleanor Hourigan is Counsel for Human Rights and International Law at the UK Parliament. Follow her on Twitter: @ellie_hourigan