That the Grand Committee takes note of the Report from the International Agreements Committee Treaty Scrutiny in Westminster: Addressing the Accountability Gap (10th Report, HL Paper 168).
My Lords, it is fitting that my final act as the outgoing chair of the International Agreements Committee is to open a debate about the process of treaty scrutiny in Parliament. I am delighted to see that so many present and past members of the committee will take part today.
The inquiry we launched last year was designed to take stock of how scrutiny has operated in the committee’s first five years. Our conclusion, in short, is that the current framework for treaty scrutiny under CRaG is, to quote one of our witnesses,
“a weak and insufficient mechanism for securing meaningful accountability”.
I will briefly address the main reasons leading to that conclusion.
As many will know, the framework for treaty scrutiny is set out in Part 2 of the Constitutional Reform and Governance Act, commonly known as CRaG. This legislation gives both Houses of Parliament 21 joint sitting days to consider a treaty and decide whether to vote against ratification. This process has not fundamentally changed in 100 years.
The first issue is that the CRaG process does not allow enough time for scrutiny. It is frankly impossible to conduct an in-depth, evidence-based review of a significant treaty within the 21-day CRaG deadline. Remember, this deadline is for Parliament to debate and vote on the treaty; the International Agreements Committee and its officials have even less time to produce their report for Members of the House to consider ahead of a debate. Your Lordships will appreciate that such a rapid timescale takes no account of what is involved in proper parliamentary scrutiny, in particular the evidence gathering.
Most treaties laid in Parliament do not require detailed scrutiny, because they are routine or technical, but the minority of significant treaties deserve more attention than the timetable under CRaG allows. The Government have accepted that some important treaties merit more time. Since EU exit, Governments have, by concession, allowed Parliament more time to consider free trade agreements. Parliament typically has about three to four months to conduct an inquiry into a free trade agreement because, crucially, the International Agreements Committee receives the treaty text and explanatory documents after the agreement has been signed, but before the CRaG clock starts ticking. The recent debate—in this Room—on the comprehensive economic and trade agreement with India was the outcome of such an in-depth inquiry.
But free trade agreements are not the only type of treaty that warrant this kind of enhanced scrutiny. Significant multilateral agreements, such as the Paris climate change agreement or the new World Health Organization agreement on pandemic preparation, is one other obvious category. Then there are bilateral treaties where there is a high degree of public interest; recent examples include the Rwanda asylum partnership agreement and the agreement with Mauritius on the Chagos Archipelago.
My Lords, we have already sung the praises of the noble and learned Lord, Lord Goldsmith, and I am delighted to do so again in relation to this excellent report and his chairmanship of this committee over the past few years. I also commend the team who put a huge amount of effort into creating the report, which I think people have found enormously useful. It is very powerfully written.
It is 100% clear that the current process of treaty scrutiny falls far below what is expected in a democracy and what is seen to operate in other countries, such as Australia. I am embarrassed to quote Bagehot. I have taken him from the other side, because he is clear in my view that the prerogative of treaty making lies with the Executive, which I think the noble and learned Lord, Lord Goldsmith, was referring to. He is correct that the work of making an agreement with another country or multinational body is indeed the work of the Executive. However, these agreements are central to the policy-making and laws of this country, and it is also the prerogative of Parliament—I think he is quite clear about that—to scrutinise the work of the Executive post the treaty’s creation and before it can be properly ratified.
The issue we have is not with the Executive’s role, but with the absurdly short time—which is very clearly demonstrated in this report and has been mentioned by numerous similar committees over many years—given to us to properly assess the validity of any agreements that we as a nation enter into. In my mind, effective scrutiny ensures a better thought-through process. It can actually aid negotiations, and publicise and bring popular support and awareness to the treaties themselves—an issue which I think noble Lords and the Government will acknowledge as vital if they are to be used properly by businesses and people at large.
I am not naive enough to suggest that the Government will change the CRaG process any time soon. In my time as a Minister, the officials—around whom much is designed, I am afraid to say—were equally forceful in their position. But can the Minister assure us that the Government will make as much additional effort as possible to ensure that we have as much transparency and warning as possible for treaties that do not gain the extended CRaG timeline, as FTAs do?
My Lords, I am loath to repeat what has been said before, but I want to thank the noble and learned Lord, Lord Goldsmith, for this report and for outlining its principles very clearly, which are, to encompass them in just one sentence, that the current legal framework in which we operate is not good enough and does not work in the interests of our people, Parliament has to work to ensure that it is fit for purpose and we need to make sure that that change is ahead of us. I thank the noble and learned Lord, Lord Goldsmith, for his work and for his clear explanation.
The matter before us is that the Government’s response to what has been put before them is. “Well, we’ll have a look at absolutely anything you want us to, but what we will not do is enter into a statutory change”. In fact, somewhere within the response there is the wonderful phrase that we hear so often, “Parliamentary time is not available”. The reason for this work is primarily contained in a single sentence in paragraph 39:
“Treaties are now not just about high policy affecting relations between states, but deal with a huge range of issues directly touching on matters of domestic law and people’s daily lives”.
It is that function, which is charged by the CRaG legislation, that is so poor in the way it can be interpreted to provide an answer to that single point inside the report.
I would like to ask the Minister how co-ordination works between the FCDO and those who provide the background work on developing the treaties and other matters that come before us. It seems to me that most of what we hear comes from either the Department for Business or the Home Office, and that these proposed treaties coming before us are both devised and run by those departments. I would like to understand better the relationship between the FCDO and the implementing departments that are responsible for the development of the treaties before us, so that we can seek better engagement. At the moment, it looks to me as if the Government’s response is, “Keep taking the paracetamol because there’s no need to bother the doctor”. In other words, the Government are basically saying, “Make do with what you’ve got because we can’t make a firm diagnosis and make the change that is required”. That is not something we wish to hear, and nor does it benefit the purposes of the treaties and their impact on the human lives of so many of our people.
My Lords, your Lordships’ International Agreements Committee, on which I have the honour to serve, is a relatively newly established committee, with a mandate that in its vagueness perhaps reflects its novelty. It is a good step that we should be debating today the committee’s own report on its early years, so well introduced by our recently rotated chair, the noble and learned Lord, Lord Goldsmith, and the incoming chair, the noble Lord, Lord Johnson of Lainston.
The first point to make is, as all the evidence we took records, that our Parliament is an outlier—probably better described as a backmarker—among democratic parliaments attempting to scrutinise their agreements with third countries, behind the US Congress and the European Parliament. That is not a place that we should accept as Britain navigates its way through increasingly choppy international waters.
For all the territory that we have traversed since the committee was set up, I record with gratitude that we have been given much help, in particular by the Department for Business and the FCDO. Even so, gaps and weaknesses have been revealed in our task of helping to apply the Constitutional Reform and Governance Act, which is our basic duty. Those gaps and weaknesses could be remedied by modest changes. None of those that I will put emphasis on would require primary legislation. Here are three examples that I hope the Minister will reflect carefully on and respond to.
First, and by a long way foremost, is the need to address the choke point imposed by the limit of 21 working days for the committee to take evidence, report to the House and hold a debate on an agreement that the Government consider is covered by the CRaG procedures. I note, incidentally, that the choice of whether or not an agreement falls within the scope of CRaG procedures is entirely a matter for the Government. They have many other forms of agreement—memorandums of understanding being the favourite—by which they can evade those procedures, and they frequently do. It would be a great help if the Government would publish a text, setting out clearly the criteria that they use to make their choice as to whether the CRaG procedures need to apply.
My Lords, I congratulate the committee and its chairman on the report. I hesitate to participate in this debate since I have limited expertise in foreign affairs, and still less on the scrutiny of foreign treaties, but I was puzzled by the report’s focus on the scrutiny of treaties after they have been negotiated. By then, surely, it is too late to influence the substantive content of any treaty. Parliamentarians cannot revise a treaty and would reject it only if it were demonstrably malign. All Parliament can do is accept or reject a treaty.
Surely it would be more valuable to scrutinise the Government’s negotiating mandate at the start of negotiations. We do not do so because Governments rarely, if ever, publish the mandate they have given our negotiators. By contrast, the EU often does publish its mandate. As a result, I know more about the aims of the EU in the current reset negotiations than I do about my own Government’s. For instance, I know that the EU intends to secure a—I quote from the title of the mandate it gave its negotiators—
“financial contribution from the UK towards reducing economic and social disparities between the regions of the Union”.
That is in addition to cash payments the EU is demanding towards its administrative costs in each of the sectors now being negotiated.
This is an issue on which I am in rare agreement with the noble Lord, Lord Kerr of Kinlochard, who said very pithily in the debate on these negotiations on 26 November:
“We also suffer from a degree of timidity in what we are putting forward, and the other side suffers from a bit of excessive ambition. I do not think we should be paying contributions into the EU budget, that it is right to try to charge us €10 billion to join SAFE, or that it is right to try to charge us for integration into the EU electricity market. These things are a common benefit—they suit both sides—so why should we pay?”.—[Official Report, 26/2/26; col. 777.]
My Lords, it is very welcome that we have, in the space of a fortnight, two chances to debate committee reports from one of our most senior committees—I say that as a recent member of it. I find it is often the case that the House does not see the work going on in committees; we should see more of it, and it is good to do so today. I thank my noble and learned friend Lord Goldsmith for his excellent introduction and, of course, for his chairmanship in the time that he was on this committee.
The problem at the heart of this debate is how we should balance the current right of the Government to negotiate treaties and to ratify them using the royal prerogative against the rights that Parliament has, or should have, in all other policy matters. In the past, treaties were largely concerned with war, peace and international policy more generally but, today, trade policy is growing in importance, not just because of its return to the UK, having previously been dealt with by the EU Commission and EU Parliament but, most importantly, because it is evident that modern trade deals increasingly bring with them changes to a wide range of domestic policies. As we know from recent experiences in what is agreed outside parliamentary sight in bilateral trade discussions and, as referred to already, as we have seen in treaties such as Rwanda and the Chagos Islands, it is often necessary to look at collateral changes that follow in primary legislation. This impacts directly on existing terms and processes.
In short, treaties, whatever form they take, are drivers of policy and are as important to the people of this country as changes foreshadowed in manifestos. As these treaties and trade deals shape who we are as a nation, it surely follows that Parliament should examine them to the same standards as primary legislation. Our report lays out why the current arrangements are not as comprehensive, and certainly not as complete, as they should be. Parliament should have a major role to play in this process, one that can and will aid the Executive as they set up the trade agreements and make the treaties that are so urgently needed if we are to secure growth and prosperity in the future. It is very disappointing that this Government—my Government—are following the lines set by the previous Administration and seem unwilling to improve trade treaty scrutiny. Previous speakers have stressed how bad the current arrangements are. I wonder why we cannot have a workaround—I will propose one later in my speech—which would give us time while new legislation is being proposed.
My Lords, I pay tribute to the noble and learned Lord, Lord Goldsmith, for his fair-minded chairmanship, and intellectually able and collegiate steering of our committee. It was particularly welcome to me, as a refugee from the European Affairs Committee.
Others have discussed the report and its conclusions, the most striking being that there is a strong case for reforming, by law, the arrangements for effective parliamentary scrutiny of international treaties under the CRaG Act 2010. Indeed, the report suggests, as other noble Lords have mentioned, that the UK is an outlier from other countries where Parliament has more of a say over treaties that sometimes require legislative consent.
I believe that treaties should remain a royal prerogative power. We need not be swayed by the example of continental states, most of which are relatively new or have emerged from revolution, war or violent struggle. By contrast, the UK’s constitutional arrangements emerged over centuries; they brought stability and the potential for change, and ensured the accountability of the Government and Parliament to the electorate. This was demonstrated at the 2019 general election, when the central issue was whether Parliament should decide the terms of the treaty with the EU or the Government on behalf of the people’s wish expressed in the referendum. Our system allowed the will of the majority to be followed, where a more continental system would have allowed a parliament, out of touch with those wishes, to thwart it.
However, I share the view that effective parliamentary scrutiny of government treaties is necessary—particularly that afforded by Parliament as a whole and by both Chambers, as happened with the vitally important agreements of the 1920s and 1930s. I agree that more time is needed, and I am interested in my noble friend Lord Lilley’s proposal for a pre-negotiation mandate debate. Then, as now, treaties were deeply political, which was something to which the noble and learned Lord, Lord Goldsmith, referred to when he mentioned the Chagos question. But does today’s consensus-centred approach of Select Committees tend to mask this central feature of their political nature? The expectation of an inquiry is that officials must do the lion’s share of the initial drafting: they should draft the papers, the terms of reference and the report; they should prepare the draft questions for members to put to witnesses; and they should take the lead in selecting witnesses.
My Lords, I need to respond to the rather surprising compliment from the noble Lord, Lord Lilley. I can do so because I agree with a number of things that he said, in particular on the case for parliamentary scrutiny during negotiation and before a deal is struck. I am sure that we all agreed with his strictures on the negotiating stance of his noble friend Lord Frost. I join in the tribute to the committee and its outgoing chairman, the noble and learned Lord, Lord Goldsmith, under whom I served, and let us not forget the noble Baroness, Lady Hayter, who stood in so well for him when he had to step aside. I also pay tribute to the noble Lord, Lord Grimstone, who was by far the most sympathetic Minister with whom we did business, and to the incoming chairman, who maintained the Grimstone tradition.
There is an accountability gap; the report proves it very satisfactorily and clearly by comparing our procedures with those of comparable countries, including those with dualist systems. They have more say than we do. However, there is also a gap relative to the past. We have much less say now than we did when we were in the EU. With our Ministers taking part in Council decisions on opening, handling and concluding negotiations, Parliament’s scrutiny reserve meant that Ministers could be and were summoned to answer our questions before casting their votes. I served on our EU committee and four of its sub-committees, and I can confirm that their scrutiny, unlike today’s, was real. Moreover, once the Lisbon treaty came into force in 2009, our Members of the European Parliament enjoyed the right to be kept immediately and fully informed at all stages of every treaty negotiation led by the Commission—on trade, investment, agriculture, fisheries; any subject where full EU competence applied. Of course, they also had the right to vote on the outcome—
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In the trade space, your Lordships may not be aware that the enhanced scrutiny procedures that I have described apply only to treaties formally classified as free trade agreements and not to other potentially important trade agreements, such as mini-deals on digital trade, technology or critical minerals. Importantly, they also do not apply to understandings or commitments not included in formal treaties that need ratification, such as memoranda of understanding or the very important understandings on tariffs reached by His Majesty’s Government with the United States of America.
For important treaties that are not FTAs, the only mechanism to secure more time is to ask the Government for an extension of the 21-day period. But the Government have shown themselves reluctant to grant extensions, even in cases where they accept that the public interest is high and there is no urgency to ratify. The Chagos Islands agreement was such a case. I know there are strongly held opinions in this House and elsewhere about that agreement, but whatever differences Members may have on its merits, I hope we can all agree that the treaty deserved more detailed scrutiny than the CRaG process allowed. The IAC had just over three weeks to produce a report in time for the scheduled debate.
Our report asked the Government to make a commitment to accept a reasoned request from the IAC for a single extension of the scrutiny period of up to 21 days, unless there are compelling operational reasons to the contrary. We thought that a modest, eminently reasonable approach, and I regret that the Government’s response did not even directly address the proposal. They said that they need the flexibility to decline an extension but declined to state the specific circumstances in which that might be necessary. Since the committee’s proposal would not prevent the Government declining where there is clear reason to do so, I urge them to reconsider the committee’s request. I invite the Minister to take that away, if nothing else.
A second major problem with CRaG is that scrutiny is triggered by the form of an international agreement, rather than its substance. Some treaties are excluded from scrutiny entirely if they are not subject to ratification, or, the Government may choose—it often is a choice—to use a non-legally binding instrument to achieve their aims. Our report highlights research by the Commons Library which shows that, in relation to the expulsion of illegal migrants, the Home Office frequently chooses non-binding arrangements with third countries rather than treaties subject to CRaG scrutiny—as, indeed, we saw with the first stage of the Rwanda scheme; we pointed that out and the Government then reached a treaty. Even where a treaty is ratified and subject to CRaG, amendments to that treaty might be excluded from scrutiny. Everything depends on the process the Government choose to adopt, rather than the importance of the measures. This in itself creates an obvious scrutiny gap.
The third, and perhaps most fundamental, issue is that even when CRaG applies, the role of Parliament is very weak. The power of this House could be described, at best, as the power to ask the Government to think again about ratification. The Commons at least has the power to delay ratification, but that is more theoretical than real, as the Government have a tendency to refuse time for debate on treaties in the other House, and, without a debate, that recommendation to delay ratification cannot take binding effect.
The weakness of Parliament’s role in relation to treaties is in stark contrast to the position in most other countries. The vast majority of other countries require legislative consent for at least some treaties. This includes many countries with dualist constitutional systems similar to the UK’s, where treaties are not automatically part of domestic law. I do not know how many times I have heard it said that because we are dualist we do not need parliamentary scrutiny. That is completely untrue. Internationally, the UK is an outlier in relation to treaty scrutiny. During our debate on the India CETA, a number of noble Lords powerfully made the argument that the benefit of being able to say, “That will not wash in Westminster”, was of great value in trade negotiations.
At the risk of pre-empting my noble friend Lady Chapman’s reply, I will say a few words about the arguments that Governments of both parties have traditionally advanced to defend the status quo. First, it is said that the light-touch approach of CRaG is justified because Parliament gets to scrutinise treaty-implementing legislation. But scrutiny of implementing measures is not an effective substitute. Parliament needs to be able to look at a treaty as a whole, and the policy reasons underpinning it, but the policy is locked in by the time Parliament looks at implementing measures. Moreover, legislation may not even be required for a specific treaty and, when it is, the legislation is often limited to specific aspects.
Secondly, the Government say they need flexibility to strike deals in the national interest and that CRaG provides an appropriate balance between this flexibility and accountability to Parliament. That is patently not the case. The reality is that the CRaG Act gives the Government so much discretion at different stages of the process that the balance is skewed overwhelmingly in the Government’s favour. Paragraph 46 of our report lists the various ways in which the current framework allows the Government to avoid or limit scrutiny, including by choosing the form of an agreement and deciding whether to extend the time for scrutiny.
We therefore concluded that there is an accountability gap and that reform of the current scrutiny framework is needed. To address problems in the short term, we proposed a set of practical and operational measures to make the current framework under the CRaG Act more effective. I welcome the Government’s willingness to accept many of these recommendations, and I urge the Minister to make it a priority to put them into practice.
However, such operational changes cannot fix the fundamental defects that I have described and the imbalance of power between Parliament and the Executive. I believe that there is a powerful case for legislative reform to address this and I call on the Government and my noble friend to engage with the IAC and with Parliament more widely to bring treaty scrutiny into the 21st century.
At the conclusion of the recent debate on the India agreement, I tried to capture this problem by urging that the scrutiny of treaties should not be a second-class citizen when it comes to parliamentary scrutiny. The point I was trying to make was better and more eloquently made by the great Walter Bagehot, who argued in The English Constitution that, because treaties can have as much impact as domestic laws, it is illogical to require the elaborate assent of representative assemblies to every word of the law while not consulting them even on the essence of the treaty.
While CRaG has made some inroads on the deficiency, our report and the evidence we received shows that it is a miserly and inadequate response to this accountability gap. I hope, therefore, in this final act as outgoing chair—as I finally pass the baton to the noble Lord, Lord Johnson of Lainston, who I am glad is in his place—I can persuade your Lordships to encourage my noble friend the Minister and her colleagues to take a courageous and bold approach to reducing the accountability gap. I beg to move.
I have been extremely grateful for the engagement the Minister has given me personally on this matter. I met today the FCDO chief legal officer, who was also extremely helpful in trying to ensure that there is an elasticity around the interpretation of concepts such as transparency and pipeline. However, it would be good to have some details on that and some firmer commitments in terms of where we can get extensions and how the other parts of the process can fit together.
My second request is for the Minister to write to me with answers to the following two questions, unless she has them to hand. I am interested in finding out how many treaties we have signed but not yet ratified. This is not unimportant, since it will help us to understand the flow of work for the IAC and to see how we are progressing on executing the broad international agreements plans. The noble and learned Lord, Lord Goldsmith, has already referred to the fact that we are aware of, and indeed in many instances encourage, other kinds of non-binding agreements entered into by Ministers with other countries and bodies. They can be very useful tools for engagement. How many of these types of agreements are there? What sectors do they cover? What has been the effect, positive or negative? I think this is a very serious issue and I am sure the Minister is curious about the answers to this question.
Treaties and agreements are central to our foreign policy—indeed, trade and defence is diplomacy—but we are unsure about the efficacy of our overall plan. Indeed, do we have one? Do we have a foreign or trade policy other than simply to try to do as much as possible? I recommend that the Government develop a plan as rapidly as possible. I do not believe we had such a plan under the previous Government. I mention this because the situation with the WTO and, indeed, our relationship with the USA over the situation in Iran only emphasise the problems we face without a proper idea of where we are heading and why. To this end, the IAC is planning on writing a report that focuses on the changing world order—sadly not for the better, in my view—and in particular on how our trade instruments, which we have just mentioned, both binding and non-binding, and the various treaties and agreements we use, make us as a nation stronger and richer. I hope the Government will support this report and take note of whatever we produce.
I worry that we are entering a phase of global affairs where international law is seen as some sort of woke, left-wing agenda to hinder a nation’s ability to self-govern, and that on principle we should ignore findings or rulings we dislike and withdraw from the international trade system where it suits us. In my mind, this is very dangerous. We are a trading nation and we need to fit within a global order in order to prosper. The nature of treaty scrutiny fits entirely within this. Parliament has to be in a position to endorse the actions taken on our behalf by the Government, and I ask the Minister to take our findings in the report we are presenting today very seriously. If the Government do not, it will lead to further erosion of the systems and structures that, in my view, have allowed us to dominate international trade and have kept us safe from conflict for 70 years. As Hobbes, the philosopher, wrote, a world without enforceable laws is a miserable and unpredictable one, where the arts and industry cannot flourish. That is why I commend this report to the Committee.
On that, I will address the issue of the devolved Parliaments, which the committee has taken in its stride in trying to understand how they deal with these matters. Given that so many of the treaties affect the devolved Parliaments’ working relationships and working activities, as well as the legislation they apply—on education, health, transportation, roads, planning, the provision of social services, agriculture and much more—it is, at the moment, very difficult for the Assembly and the other devolved Parliaments to respond in the given time. Imagine it: we have 21 days and we give it to them and say, “Why don’t you tell us what you think?” By the time we get an answer back and their committees have sat, we have well exceeded that time. So I want to hear from the Minister what more the Government can do to encourage and assist the Assembly and the other devolved Parliaments so that they can deal with these matters properly.
The third bundle of activity, which has already been referred to, concerns the new way of doing free trade agreements, treaty agreements and so on—what the Government call “NBIs”, or “non-binding instruments”, in their response—which seem to be coming before us in a huge way at present. In their response, the Government give an explanation and say that they will do more of them if they can; we have also heard that in evidence from witnesses on the government side. If that is going to be the practice of the future, who will decide how these matters must be dealt with? The Government say that they will
“treat it like all other significant policy commitments”.
So the Government will decide whether it is a “significant policy commitment” and will then provide
“appropriate and timely information to Parliament”.
Information is not scrutiny, though. That is what this debate and this report are about: looking for appropriate scrutiny of what is happening, so that things can be improved in order to better the lives of the people of this country.
I am, therefore, pleased to support the recommendations in this report and ask the Government whether they intend to take the bold steps stated in the report, even though they have indicated that they cannot find the time.
Of more significance is the need to introduce more flexibility into the application of the 21-day limit. This hampers the taking of evidence by the committee and the drafting of its report. It is with some shame that I admit that, on one occasion recently, the committee was compelled to send forward to the House a report on which it had been unable to take any evidence at all. There is an easy remedy, put forward by the noble and learned Lord, Lord Goldsmith, which I strongly endorse. The Government should agree that, as a general rule, they would grant one—I repeat, one—extension of a second 21-day period when the committee submitted a reasoned argument for so doing. The Government would retain the right to refuse such a request if they could demonstrate that doing so was in the national interest. The committee has shown plenty of flexibility on its side, when, for example, it agreed that the UK-France one-in, one-out agreement needed immediate application, without any of the committee procedures being engaged.
The second example is the rather bizarre fact that the Government accept the need for a CRaG process when an agreement is bilateral, but not when it is plurilateral or multilateral, even if it imposes binding legal obligations on the UK. More and more agreements fall into the latter two categories. A recent example was the decision by the Government—a very welcome decision in the committee’s view—in their trade strategy to join the World Trade Organization’s interim dispute settlement procedure. This requires the UK to accept a ruling in a dispute between it and another country in the interim procedure.
In fact, the committee welcomed this step, but it did not welcome being cut out of the process of approval. Further examples could arise later this year if a pandemic convention is successfully negotiated on a multilateral or plurilateral basis, or if a WTO arrangement covering e-commerce is agreed, as we hope it will be. So, this distinction between bilateral and multilateral legally binding instruments makes no sense at all and certainly does not contribute to parliamentary scrutiny.
Thirdly, as more international agreements with binding legal obligations with the UK are negotiated by departments other than the Department for Business and Trade or the FCDO in the lead, there is a crying need for better co-ordination in briefing the International Agreements Committee and in ensuring that it can effectively carry out its scrutiny responsibilities, on which the noble Lord, Lord German, made some relevant remarks. This could easily be achieved by circulating guidance to all such departments and ensuring that they apply the procedures meticulously and in a similar fashion.
If the three points that I have put forward were addressed, we would have a far better system of parliamentary scrutiny, without any need for primary legislation or any loss of royal prerogative.
If Parliament has an opportunity to express a view on issues such as this at the start, rather than when it is too late, that could surely strengthen the Government’s negotiating hand.
I have been struck by how many negotiations seem to have gone awry for the UK over the years. Most recently, the way the rationale for the Chagos deal has unravelled has been very disturbing. The incoherence of the Government’s approach to the reset negotiations suggests that a similar failure is in the making. But it is not just this Government’s negotiations: the withdrawal agreement started off just like the current reset negotiations, as I shall show in a moment.
There seem to be recurrent weaknesses in the way the FCDO negotiates, which might be alleviated if we had debates on the scrutiny of mandates rather than outcomes. I make it clear that any such weaknesses, even if they reflect the culture of the FCDO, are ultimately the responsibility of Ministers and Parliament. Ministers are responsible for the advice they take and the culture they tolerate. In my experience, officials do respond to clear guidance from Ministers. Parliament should, therefore, examine the FCDO culture that Ministers allow to prevail.
I will mention just a couple of weaknesses that seem to beset our approach to negotiations. Both perhaps reflect typical aspects of the British character. The first is a belief that making early concessions will generate good will and elicit corresponding concessions from the other side later. This naive belief makes the UK prey to the EU practice of demanding key concessions as a price for opening negotiations. The EU refused even to start reset negotiations unless we had first agreed—signed, sealed and delivered—to restrict the catch of fish from our waters for another 12 years. This supine Government committed us to that so that, even if the negotiations fail, we will have conceded it.
The EU employed the same gambit in the withdrawal negotiations, refusing to proceed unless the UK agreed that there should be no hard border in Ireland. Since the EU was threatening to erect a hard border, the UK had to accept whatever the EU deemed necessary to avoid it erecting one, in practice subjecting Northern Ireland to EU law and creating a border with Great Britain. My noble friend Lady May sadly signed up to that.
The second congenital or prevailing weakness is a very British aversion to rows, scenes and failure—or the prospect of failure. General de Gaulle in his memoirs said that when he was utterly dependent on Britain to arm and equip his Free French forces, he had only to threaten a row to equip another division. This aversion to rows, scenes and admitting failure results in the most egregious weakness of the British approach to negotiations: the failure to prepare, let alone deploy, what negotiators call their BATNA—their best alternative to a negotiated settlement. Sometimes, no deal can be better than a bad deal. It was Parliament, through the Burt-Benn Act, that deprived government of the option of exercising its BATNA, walking away from negotiations or threatening to do so—with very damaging consequences for the outcome of the withdrawal agreement negotiations.
Normally, I hope that parliamentarians would use the option of scrutiny at the beginning of negotiations to insist on the Government including a BATNA—a best alternative to a negotiated agreement—therefore stiffening our negotiators’ spines in future negotiations.
My suggestion goes back to the discussions that led to the Grimstone rule during what is now the Trade Act. I led the Opposition Front Bench in the debates on that Bill, which lasted over three years, and I proposed the rule when it became clear that we were having difficulty in finding a way to engage Parliament. There was then, as now, no appetite to amend the procedures under CRaG. I now suggest that some variation of the Grimstone rule might be needed here. That rule sets up a process under which, when treaties are being contemplated, the IAC gets information about the negotiating rounds, documents that describe the Government’s strategic approach and periodic reports, as well as sight of the draft before it is finally ratified. This works well and could easily be implemented for all treaties, because it gets around the problem we explained in the report: when it comes to the formal approval process under CRaG, the strict timetable and limited powers of the two Houses do not give Parliament the time and authority that it needs.
As we say in our report:
“the scrutiny process under the CRAG Act is a weak and insufficient mechanism for securing meaningful parliamentary accountability… Scrutiny of implementing legislation is no substitute for treaty scrutiny”.
A balance clearly has to be struck between the flexibility that the Government need to negotiate in the national interest and the transparency and scrutiny that the public interest requires. The CRaG Act does not get the balance right, because the Government have too much discretion to act in ways that lead to the evasion of detailed scrutiny, including by refusing to grant adequate time for Parliament to examine and debate treaties. There is therefore a strong case for legislating in this area, and I look forward to hearing the Minister’s response. In the interim, perhaps we could introduce the Chapman rule.
The aim of consensus deprives the committee of its political adversarial dimension. The assumption is that a scientific inquiry based on evidence is being conducted, which is judged to be neutral because it comes from expert witnesses. But those chosen disproportionately reflect the consensus—the centre-left view of our public service, media, academe and establishment. A worthwhile consensus includes and expresses a diversity of views. The noble and learned Lord, Lord Goldsmith, could not have been more encouraging of a diversity of opinions, but the system weighs against their being expressed fully, as does time. By contrast, a debate in and out of Parliament allows for a diversity of opinion.
Perhaps a straightforward way to improve the system we have would be for greater input by members to encourage and reflect a variety of political views, and for specialist witnesses to be of different political persuasions. Instead of the expectation that hard-working officials initiate the draft terms of an inquiry or report and prepare the questions, members’ views should actively be sought and reflected before and during each stage to frame the terms, select witnesses and highlight important points. Minority reports should be permitted and welcomed. In the end, parliamentary scrutiny would be the winner. The House of Lords Select Committee would be doing what it should to make that scrutiny more effective. It would be scrutiny by Parliament on behalf of the electorate, who would have the final say.