My Lords, it is my privilege as the chair of the International Agreements Sub-Committee of your Lordships’ European Union Committee to move this Motion. In doing so, it is my very pleasant duty to acknowledge and thank the chair of the European Union Committee itself, the noble Earl, Lord Kinnoull, and the chair of your Lordships’ Constitution Committee, my noble friend Lady Taylor of Bolton, for the earlier reports for which they were responsible. They will be moved to be noted immediately after I have spoken. I also want to thank the Secondary Legislation Scrutiny Committee, chaired by the noble Lord, Lord Hodgson of Astley Abbotts, for its continued engagement with the issues that we are to debate this afternoon.
The purpose of this debate is to consider how we will undertake the new and critically important task of scrutinising the international commitments that the Government propose that the country enters into. It is a critically important task because international agreements can be every bit as important as the domestic legislation it is the job of this House to scrutinise, but they receive only a fraction of the scrutiny. This point was made as long ago as 1872 by Walter Bagehot, who said, in his second edition of The English Constitution:
“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.”
We have moved on from there, though it has been a slow and, many would say, still incomplete process. Our report traces some of the developments and, importantly, the Ponsonby rule, which goes back to the peace treaties of the First World War. Yet we lag far behind many countries in our parliamentary scrutiny of international commitments. The EU and USA have developed detailed arrangements for approval of agreements. The theme in all the reports that are for consideration today is whether the Constitutional Reform and Governance Act—CRaG—processes will enable this House to perform the task of scrutiny which I believe everyone believes that it should.
We are disappointed that we have not had before this debate the reply of the Government to our report; it would have made it a more constructive and useful debate if we had had that. None the less, we look forward very much to the Minister’s reply. I welcome in that respect the positive engagement of both the Minister here today and the noble Lord, Lord Grimstone, for their repeated statements in correspondence and orally that the Government share the view that scrutiny by Parliament, including by this House, is crucial. I look forward to hearing that repeated as well. I am particularly appreciative of the positive steps of the noble Lord, Lord Grimstone, to keep the committee that I chair informed of developments.
The three major issues I will refer to this afternoon are information, time—those two are connected—and what commitments are covered. We need information; we need to know what agreement is proposed and what its terms are. The worry is that, if we see the information and the text of a treaty only when it is signed, it may be too late for any effective scrutiny. Will the opportunity to improve the arrangements simply have passed, and does it then become an unwelcome choice of take it or leave it? This can be managed by sharing information in different ways, before the CRaG clock starts, through advising Parliament of negotiating mandates and enabling debate on those, keeping us informed of the progress of negotiations and providing notifications of what is likely to be laid soon. That may involve sharing information in private, which is not ideal, as many or perhaps all of us would prefer transparency. But if otherwise we will not see the outcome until much later, we have said that we will be prepared to receive it in private.
My Lords, I am happy to follow my noble and learned friend Lord Goldsmith. I am pleased that his committee has been established. I will say a few words as chair of the Constitution Committee to give some background as to why we took an interest in this issue.
The Constitution Committee launched an inquiry into Parliament’s role in the scrutiny of treaties in October 2018. We did so for three basic reasons. The first and obvious one is that we believed that treaty scrutiny mechanisms were not adequate, had failed and were flawed. That was based not just on the Ponsonby rule, which has been mentioned. We of course also looked at the provisions of the Constitutional Reform and Governance Act 2010, but we concluded that more needed to be done, and not just because times have changed and current procedures are no longer adequate. The fact is that Parliament has little or no chance to influence treaties while they are being negotiated and, indeed, only a very limited opportunity to potentially block ratification at the end of the whole process. That stops Parliament fulfilling some of its obligations and responsibilities to hold the Government to account.
Added to that is the fact that treaties have changed in nature over the years. My noble and learned friend Lord Goldsmith pointed out that modern trade treaties touch on a wide range of policy issues that have a very significant and direct impact on everyday life. That is becoming increasingly clear when we see the treaties currently being discussed. So there was a strong case for change.
On top of that, we have the third factor, which might change urgently, which is, of course, Brexit. These issues have become more pressing because Brexit is now a fact of life and because Parliament will have many more treaties—indeed, some very complex ones—to scrutinise once we are in the situation, as we are now, of replacing EU trade agreements.
My Lords, it is a great privilege to follow two such excellent opening speeches. The noble and learned Lord, Lord Goldsmith, has already made a considerable mark in chairing the new International Agreements Sub-Committee, as demonstrated in his speech, and its first report is one of great authority, clarity and importance. The noble Baroness, Lady Taylor of Bolton, and the ever-excellent Constitution Committee once again produced a report of great weight and incisiveness, and just now she produced a speech to match. I warmly thank the noble Lord, Lord Boswell, under whose chairmanship the EU Committee’s June 2019 report was produced just before I took over, but who has graciously suggested that I lead off today.
The three reports we are considering build on each other. The cornerstone is to be found at paragraph 33 of the Constitution Committee’s April 2019 report, which says:
“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed.”
No serious academic or legal voice has challenged that conclusion.
The EU Committee’s interest in the subject derived directly from our scrutiny of Brexit. For many years the committee scrutinised, to varying degrees, the EU’s exercise of treaty-making powers on behalf of the UK, via the system of document-based scrutiny. This role for EU national Parliaments and their European affairs committees has in recent years been supplemented by an enhanced role for the European Parliament. These mechanisms for parliamentary oversight and accountability, honed and developed at European level over half a century, now no longer apply in the UK. Their disappearance leaves a democratic deficit. There are many ways one could address this, but the essential fact is that the task of scrutiny has now fallen back on the Westminster Parliament, and there is a need to design, with the Government, a proportionate new approach that will apply from here on to Governments of whatever colour.
My Lords, it is a genuine privilege to follow three such highly respected chairs and, on behalf of my colleagues, I thank them for their chairmanship. I also thank the members of their committees, and the predecessor committees, for their reasoned reports and characteristically sensible and proactive recommendations.
If the reporting in the Financial Times is correct and we see on Wednesday proposals to renege on treaty commitments for joint decision-making, in an agreement not yet a year old, this is a sobering backcloth to a debate on treaty-making and the ultimate trustworthiness of a UK Government in implementing treaties. It shows that this is not just a purely constitutional or theoretical debate but one of practical politics—one that affects people’s livelihoods across the country.
As all three Lords committee reports made clear, there are two areas without contention. The first it that is has always been and will continue to be the responsibility of government—not Parliament—to open, negotiate and sign international agreements; the second is that these vary in complexity, scope and significance. But the consensus among the committees, if not the Government, is expressed in paragraph 33 of the report quoted by the noble Earl. He read the first part of that paragraph. It goes on to say:
“Reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions, irrespective of the consequences of Brexit.”
All committees have proposed improvements to the process and some progress has been welcomed, as indicated, such as in Command Paper 63 on trade agreements, but in other areas more improvements can be made. I shall focus the remainder of my time on trade agreements, while my colleagues will cover the wider breadth of the reports and the consequences of their recommendations.
Whereas the committees did not propose that Parliament extend its authority by resolving to approve a trade negotiating mandate, and then an agreement, the House has done so. A clear majority of the House voted for this in the Trade Bill last year. No doubt this will be debated tomorrow, during the Second Reading of another Trade Bill. While a Motion has not been laid relating to Section 20 of the Constitutional Reform and Governance Act to withhold support for a trade agreement, in March last year I moved the first Motions in the House in accordance with Section 21: to extend the scrutiny period for the agreement establishing an economic partnership agreement between the eastern and southern African states. There were similar debates on the Faroe Islands and Switzerland agreements. During the debates, the then Minister apologised for a lack of consultation with the devolved Administrations and committed to changing procedures, and clarified areas of concern that the EU sub-committee had raised in its report, as indicated by the noble Baroness, Lady Taylor. Without the debate that I secured, these commitments could not have been given to the House. I pointed out that it should not really be down to an individual Member to secure Motions, but I am glad I did. I hope the Minister will respond positively on implementing committee recommendations to change this.
My Lords, the consequences of the imminent prospect of the UK having an independent trade policy at the end of the year have been well covered by the noble Lord, Lord Purvis.
As has been pointed out, the EU Parliament has been the principal scrutiny body for the many treaties and international agreements negotiated and ratified by the EU, and it is clear that Parliament should now have the additional powers to ensure additional scrutiny of the treaties and international agreements that the UK will enter into in future. This is all the more important because the nature of debate and scrutiny of all legislation in the current living-with-Covid environment has been reduced to a substantial restriction of accountability to Parliament and of the ways in which we would normally hold the Government of the day to account. However, Covid-19 and living in a post-Covid-19 world is not the principal argument in favour of further change to the CRaG framework.
In its excellent report, the Constitution Committee rightly observed that treaty scrutiny, under the function of the Government under royal prerogative and subject to the negative resolution process, has not moved with the times. Treaties now cover far more than broad principles of international relations, encompassing detailed public policy issues—issues that must be subject to detailed scrutiny by Parliament.
For example, one of the sectors in which I specialise, sports policy, is relevant in this context because it is the field in which the EU’s responsibilities were first introduced into treaty obligations under the Treaty of Lisbon in December 2009. This demonstrates clearly the way in which treaties have now descended into the detail of sectoral policy. In the immediate aftermath of the Lisbon treaty, a specific budget line was established for the first time under the Erasmus+ programme. Article 165 referred to the specificity of sport and Article 165(2)(b) refers to
My Lords, first, I congratulate the noble Earl, Lord Kinnoull, my noble friend Lady Taylor and my noble and learned friend Lord Goldsmith on their reports. They provide an excellent basis for the future if the Government are prepared to listen.
I am a member of the EU Select Committee and I chair the EU Sub-Committee on Services. I also chaired the former EU Sub-Committee on Internal Markets. We scrutinised a number of rollover treaties, such as those with South Korea and Switzerland, and experienced the weaknesses of the current CRaG Act procedures. The CRaG Act needs reform, even though the Government have stated that they are not minded to do it. I agree with the Constitution Committee’s conclusion that the current system of treaty scrutiny is “anachronistic and inadequate”.
An article in Parliament Research entitled Treaty Scrutiny: ANew Challenge for Parliament, said that the CRaG Act
“relegates Parliament to a ‘weak form of sign off at the end of the process’.”
Parliament has a responsibility to develop its scrutiny capacity, even within the confines of the CRaG Act. This House has responded with the setting up of the International Agreements Committee, which will aim in principle to be open and transparent and will have a good chance of securing time for debates on significant treaties.
We have had warm words from the Government about drawing on the extensive experience and expertise of both Houses, but we should not be used just as a reference library. Treaties, whether on trade, the environment, protecting our public health service or jobs and employment standards, directly affect our daily lives, which is why parliamentary scrutiny and accountability are so vital. It is also why keeping faith with the devolved Administrations is so important. They have a legitimate interest in any agreement reached on their behalf in terms of both policy and devolved competencies. It might just help to keep the United Kingdom together.
My Lords, I speak as a member of the Constitution Committee. I welcome the fact that our report is being debated and that it is being debated alongside two excellent reports, which have been equally well presented.
The point made by both committees is that treaties now extend far more into the daily lives of people than many did in the past, particularly when their primary concern in the past was either tariffs or international boundaries of countries other than our own. People who do not know their Ponsonby rule from their CRaG will find their daily lives affected on issues that have been mentioned, such as standards and environmental rules of the kind that appear in many trade agreements.
That is one part of the background. Of course, there are lobby groups that know perfectly well what is involved and are very active when trade negotiations are going on. We are about to lose a much higher degree of systematic parliamentary engagement with and accountability for treaty-making in the areas for which the EU had responsibility, notably trade. The European Parliament carried out that scrutiny vigorously, with a degree of engagement and information not to be found in Westminster’s scrutiny of treaties. That will go, and when it has gone, we will not be able to control our laws in the sense of those other than the Executive controlling our laws. They will be subject to much less democratic control than they were before.
Clearly, treaty-making is a function of the Executive, but they must be an accountable Executive, subject to oversight continuously through the process. One thing that happens when Executives are subject to scrutiny is that the question is asked during the process: will Parliament wear this? Is this something that we can get through or will it be opposed? Will we have to rely on loyalty and the fact that people do not want a general election at the moment to ensure that we get it through? It is at that level that our treaty scrutiny has tended to be, I am afraid.
My Lords, I am pleased to participate in this important debate. Colleagues may be relieved that, having signed one of the reports under discussion today—and the remarkable range of consensus is striking—this will, I believe, be the last duty arising from my seven years of chairing the EU Committee. This stretch was almost bisected by the Brexit referendum and, incidentally, amounted in total to roughly the same time I spent as a Minister in the other place. I remain unsure in which role I acted as poacher and in which as gamekeeper. Today I want to emphasise the importance of effective treaty scrutiny.
First, and emphatically not as a formality, I record my support for the noble Earl, Lord Kinnoull, who has succeeded me as chair, and for colleagues across the House who give their time and formidable expertise, together with my appreciation of our admirable parliamentary staff, whose support has been unfailing. This enabled us swiftly to assume on behalf of the House the additional role of scrutinising continuity trade deals. The weakness of the CRaG Act procedure became quickly apparent. We have fallen behind the scrutiny mechanism available to most of our fellow democracies, to the extent that if we achieve a post-Brexit deal with the EU, ratification could be as much of interest to any EU regional parliament as to this one, although of course the issues today are of much wider application even than Brexit.
Effective treaty scrutiny is an important technical issue, but equally one of high political sensitivity. In my time in the EU Committee I have experienced a variety of poor responses from the Government, ranging from the casual to the downright obstructive. In fairness, sometimes these have been interspersed with more positive engagement with Ministers and contacts between various officials. I believe that scrutiny remains an essential component of good governance—just as, if I may say, Covid testing is essential in handling the pandemic, even if it sometimes reveals inconvenient facts. My strong advice—and it is reflected in all three reports being considered today—is for us collectively to be ready to use our elbows to expand the role of treaty scrutiny. It needs to take place across the whole spectrum, from consideration of negotiating mandates to final ratification and the associated implementing legislation, and to be based on the principle of transparency wherever possible.
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The second issue is the time available for our scrutiny. CRaG allows 21 sitting days, which is very tight, especially if we want to consult experts or stakeholders. We are very concerned about this issue. In Command Paper 63 in February 2019, important assurances were given by the Government, which included assurances that adequate time would be available for scrutiny—and scrutiny indeed by both Houses. That was the Government of Mrs May and not of Mr Johnson, but we hope that we can still receive the same assurance from the present Government. Can the Minister provide today the assurances that the present Government will do just as much as was promised in February 2019 and will now reconfirm those commitments? A sliding back, just at the moment that we need to see these agreements which Mr Johnson’s Government much vaunted during the Brexit debates, would be very regrettable. At the very least, it would raise the question of whether CRaG can be made fit for purpose at all.
Before proposing amendments to CRaG, we have proposed a pragmatic approach. We hope to be testing out this sort of arrangement on the agreements that we are scrutinising—or not yet scrutinising, but where inquiries have been opened—including the earliest, which is likely to be the UK-Japan deal. In a spirit of co-operation, Parliament and Government can test what works well, and develop new practices and approaches together. Still, some points that the Government need to act on are immediately clear, and were clear to my noble friend Lady Taylor’s committee and to that of the noble Earl, Lord Kinnoull, including increased and regularised co-operation with the devolved regions and Crown dependencies and overseas territories.
One issue is that we need to find a way forward for enabling scrutiny of agreements beyond the strict terms of CRaG, in particular where amendments to existing agreements arise, and memoranda of understanding. Under the third limb of the Ponsonby rule, the Government accepted that Parliament ought to
“exercise supervision over agreements, commitments and undertaking by which the nation may be bound in certain circumstances and which may involve international obligations of a serious character, although no signed and sealed document may exist.”
Yet, despite the fact that this description clearly covers memoranda of understanding, which can have profound political consequences, we have thus far been unable to obtain assurances from the Government that these will be routinely disclosed to the committee, even when they involve significant international obligations.
MoUs can relate to important issues, such as deportation of terror suspects with assurances that they will not be tortured, or, more recently, the diplomatic immunity of individuals not covered by the Vienna Convention on Diplomatic Relations. I refer here to the Harry Dunn issues. So we need to see these. The point was raised in our committee, including by Members with great experience and knowledge, that this might overwhelm the committee because of the number of such arrangements. It cannot be right for the Government to decide which amendments and MoUs are subjected to scrutiny; that must be a matter for Parliament.
So we have proposed a pragmatic and practical approach to sift such documents for scrutiny, and we hope that the Government will engage with this in a positive fashion. Our current solution therefore is to propose a sifting process so that only a manageable number of these would rise to the level of requiring detailed scrutiny. That is a proposal on which we particularly look forward to the Government’s response to the reports and their agreement on a way forward.
What is the timetable for agreeing a system for routinely sending us amendments, and other relevant treaty information? When can we expect to see a system in place that reports amendments and memoranda of understanding that are agreed, so that we can get on with our work? Are the Government willing to commit to providing regular lists of what has been agreed to help the committee identify where scrutiny needs to be applied? I am looking forward to hearing not just from the Minister but from other noble Lords this afternoon as to how they see the work that we are to do going forward, and I hope that the debate on these reports will very much advance the aim that we have. I beg to move.
The committee worked hard on this issue and we published our report in April last year. I place on record our thanks to Professor Stephen Tierney, Professor Mark Elliott and our excellent parliamentary team of Matt Korris, Matt Byatt and Lloyd Whittaker. I am sure that my committee would want me to express our appreciation for the work they did to help us.
Our report concluded that there was a very real degree of urgency about this situation and that Parliament really needed to act quickly to deal with all these issues. One of our recommendations was that there should be a committee along the lines of the one just suggested by my noble and learned friend Lord Goldsmith. That committee has to scrutinise treaties, as he said, but it also has a responsibility to bring to the attention of the House some of the issues that are important and have to be considered by us all.
However, as I think my noble and learned friend indicated, establishment of the committee in itself is not enough. A lot depends on what happens from now on and on the Government’s attitude. Indeed, most of the successful working of the committee will be dependent on the Government’s attitude. We have had some signs of potential progress, but, again as my noble and learned friend touched on, we must make sure that there is sufficient time for the treaties committee not just to look at a treaty’s proposals but to complete its work before things come forward to the House. We are talking about very short timeframes on occasion. This is something we have to be wary of, because Parliament is being bounced into making very hasty decisions on a lot of issues at the moment, and this should not happen so far as treaties are concerned.
The second point is very important. Again, my noble and learned friend touched on this. The Government must provide more information about trade negotiations, and must do so at the appropriate time. The Constitution Committee was not naive about this. We accept that there are areas where there is sensitivity about negotiations and there are times when perhaps things will have to be withheld from the committee, but it is important that we get the balance right. So we recommended that there should be not a legal requirement for transparency but a general principle in favour of transparency throughout the treaty process—a general principle that disclosure to the committee should be the norm and that withholding information should be the exception. The Government have made some comments, some of them potentially helpful. I am sure that the new committee will seek to get the right balance. It is possible for a committee to deal with sensitive information. As someone who chaired the Intelligence and Security Committee for some years, I know that that procedure is possible.
I must highlight one other issue: the question of devolution. The Constitution Committee has on many occasions commented on the difficulties of this Government and the devolved institutions working properly. There have been many times when we have had to comment on the shortcomings of intergovernmental relations. This is a very real and current problem that will cause many difficulties. We really do worry about it. Indeed, in our most recent report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill last week we said:
“It is extraordinary and profoundly disappointing that the official review of inter-governmental relations has yet to reach any conclusions.”
That has been going on for a very long time. We also urged the Government to publish the Dunlop review as soon as possible. We are seeing real problems in this area and the Government have not been taking the issue as urgently as they absolutely need to.
To conclude, we welcome the new committee and I welcome my noble and learned friend Lord Goldsmith to his role. There will be a great deal of work because of Brexit, and it is pertinent to so many areas of life. There are some important issues to contend with, as my noble and learned friend said. The sifting process is right, but we really need to get the right attitude on the part of the Government if the committee is going to be able to fulfil its role.
Against this backdrop, and with the blessing of the Procedure Committee, in early 2019 the EU Committee and its sub-committees embarked on the first attempt at systematic parliamentary scrutiny of treaties, within the confines of the CRaG Act. We published 22 reports on more than 50 agreements, all directly Brexit-related. We assessed them against set criteria, modelled on those used by the Secondary Legislation Scrutiny Committee in scrutinising statutory instruments. The report we are debating today sets out the lessons learned from this substantial programme of work. Here, I should take a loop and thank the staff of the European Union Committee, who worked incredibly hard and, as we have already heard, to unbelievably short timetables to produce reports of outstanding quality for the House.
I go back to our 2019 report, in which our first and most important conclusion, echoing the Constitution Committee, is that
“the CRAG Act is poorly designed to facilitate parliamentary scrutiny of treaties.”
As has been said by the noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Goldsmith, it simply does not allow time for meaningful, merits-based scrutiny, let alone evidence-based analysis. The sole agreement on which we were able to take evidence was the UK-South Korea deal, and that was thanks only to the time gained from the non-Prorogation of Parliament last September.
CRaG was, after all, an Act designed to fit into a constitutional layout where the UK was a member of the EU and of all its scrutiny arrangements for new treaties. But, as has been noted, treaties can be as important as much primary legislation and with far-reaching implications: think of the European Convention on Human Rights, the World Trade Organization agreements, the forthcoming trade agreement with the United States, and many others. The post-Brexit position is that the Government can enter into such constitutionally and politically important agreements simply by exercising the royal prerogative, and that Parliament is given just 21 sitting days to rubber-stamp them at the very end of the process, just prior to formal ratification. As noted by the noble and learned Lord, Lord Goldsmith, and the noble Baroness, Lady Taylor, this is not defensible.
More is needed: this is the consistent message of all three reports that we are debating. It does not necessarily require a statute but requires at least a consistent and durable understanding. A good model would be a concordat between the Government and Parliament, analogous to the very successful EU scrutiny reserve resolution. This would cover such issues as: the publication of and consultation on negotiating objectives; the sharing of information with relevant parliamentary committees, either publicly or—as pointed out by the noble and learned Lord, Lord Goldsmith—confidentially, as negotiations progress; and undertakings to allow committees sufficient time to publish their conclusions and recommendations, and to take those views into account. I too feel strongly that it would need to provide for meaningful engagement with the devolved Governments and legislatures. It would have to cover issues such as amendments to agreements and those agreements, including memoranda of understanding, which do not fall within the terms of the CRaG Act. It would also define exceptions: most importantly, for instance, when for special reasons the Government need to bypass the full parliamentary scrutiny. I would be grateful for the Minister’s initial comments on this line of thinking.
We too read the positive notes from the previous Government and the Department for International Trade, in their Command Paper of February 2019, outlining their plans for engagement. We had excellent contacts throughout 2019 at the official level with the FCO, the DIT and DExEU. I should take another loop to thank the officials concerned for the courteous and efficient way in which they came back to us, understanding the timing difficulties for us in producing our reports. They never failed. More recently, however, we have seen rather limited progress from the Government in engaging with our recommendations.
I hope for a positive statement from the Minister today in response to the unanimous view of our three committees—a common view, based on careful consideration of the issues and substantial practical experience. None of us wishes to tie the Government’s hands or to intrude into confidential negotiations. But in today’s world, given the complexity and variety of international agreements, we need structures to provide appropriate democratic oversight and accountability. Now that we have left the EU, we have the opportunity to design those structures. We do not need to ape the existing European Parliament structure or that of any other institution. We can devise our own structure and processes to suit the needs of our Government, our Parliament and our people. I look forward to the Minister’s response.
Asserting greater parliamentary authority over the setting of negotiating mandates, then approval of the agreements, does not reduce the ability to exercise prerogative powers. It actually strengthens it—the noble and learned Lord, Lord Goldsmith, referred to this—as we saw for the United States and the EU. In the two biggest economies in the world, which we are negotiating with, there is recognition that trade agreements now go well beyond their traditional roles, such as on bilateral tariff rates. In both economies, there is a vote on the text of the agreement. They also have a process for setting the mandate; we have neither. In both the US and EU, the relevant committees can be provided, through agreed protocols, negotiating documents and classified negotiating texts. This was alluded to in the UK Government’s Command Paper but was subsequently watered down. Clarity from the Minister on that would be most welcome.
It thus makes sense to build on the dualist system, and for Parliament to approve the agreements before the process of seeking to support their implementation into domestic law. This is one area where we would see progress. Given the concerns about what we may see on Wednesday regarding the UK internal market process, this is even more important. I hope that the Minister will move beyond the current Government’s position and act to deliver on some of the recommendations from these very sensible committee reports.
“developing the European dimension in sport by”,
inter alia,
“protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest”—
a catch-all clause that could be interpreted to cover the criminalisation of doping, for example.
The Bosman case, the tripartite agreement—which is critical to the free, unimpeded movement of racehorses across the borders between France, Ireland and the United Kingdom; without it, Cheltenham and the Derby meetings would be decimated—international agreements that cover competitive professional football, the criteria under which players can move from club to club and the number of players permitted under the Cotonou agreement to play in individual professional sports in this country are all covered by treaty and are critical to the continued smooth running of professional sport. Any changes will have far-reaching consequences.
Where treaties and international agreements continue to descend the political waterfall into the minutiae of sectoral policy, I ask the Government to consider going considerably further than recommending that the Constitutional Reform and Governance Act provides adequate scrutiny. Systematic parliamentary consideration beyond committee consideration is essential as we move forward, so that Parliament can undertake its key role of holding the Executive to account. All three reports are very much welcomed. I hope that the Government’s response will be sympathetic and urgent.
The content of future treaties is for another debate. However, the House might be interested to know that one of the witnesses to the Internal Markets Sub-Committee produced a complete table of contents of modern free trade agreements—a massive piece of work. Countries bind themselves to various restrictions, standards or regulation in order to reach a deal. We should remember that when we hear all the stories of the UK freebooting on the high seas.
Incidentally, all such treaties contain some reference to level playing fields or non-regression clauses. Disguise it as you will, any Brexit deal will have to cover this—as will all other treaties. The irony is that we are applying for membership of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, where the UK will be expected to conform to some kind of restrictions on standards, dumping or dispute resolution. If it is half a world away, it is okay; if it is a country within half a day’s travel, apparently it is not okay.
Governments worry that demanding effective parliamentary scrutiny prevents the Executive doing their job, but that clearly was not the case with the European Commission, which had to accept detailed scrutiny by the European Parliament. It comes strangely from those who thought that the Commission was too powerful to ignore the fact that when we want to create a system here, there is no reason we should not have that level of accountability.
We have argued in our report for a Westminster alternative. Indeed, the process has been going on because existing and newly created committees have started to assume that role. There are some things which a trade scrutiny committee can do itself; there are others which might be better done by a committee which specialises in a particular field. But the committee structure of the two Houses of Parliament really needs to engage with this task.
There is some government recognition in their response of the need for improvement, but the rejection of the presumption of transparency is a mistake. It is not that everything by law would have to be transparent; the working assumption would be that there was transparency, backed, where necessary, by confidential discussion with the committee—which, again, featured in the European Parliament, which must be just as likely to be subject to the pressures around leaking that we worry about here.
If noble Lords want to know what the Government really think, they should look at page 8 of their response, where they make this very generous offer:
“If a third country’s domestic procedures mean it will publish a draft treaty at an earlier stage, then the Government will also look to do similar to ensure that the UK Parliament is not receiving less information than the Parliaments of negotiating partners.
In other words, we might get some information if some other country decides to release it and we then have to. The pointer has to be shifted towards real transparency, with full recognition of the need, which any negotiating body has, for a degree of confidentiality. I think the system in Parliament is capable of accomplishing that and we should give it the opportunity to do so, when these things have such a profound effect on the lives of the people we serve.
There will be a predictable response from government —as a former Minister, I know the playbook—along the lines of cramping government discretion, creating diplomatic embarrassments, and so forth. I recognise that these are sometimes entirely valid objections, but they are not universal ones. If necessary, we are mature enough here to receive sensitive material appropriately without betraying confidences, and we have the collective expertise to make a positive contribution to the national interest. The admirable report of the new sub-committee shows also the need for the implications for the devolved Administrations, Crown Dependencies and other stakeholders to be understood, and it gives a flavour of the growing complexity as treaties evolve from the traditionally purely diplomatic into trade agreements which themselves may also carry other, wider implications.
Finally, although this is not strictly an issue of direct treaty scrutiny, I am sure the House will wish to remain alert in the analysis of the impact of outcomes arising from treaties on our economy and society over the years. To judge by breaking overnight news, we may also wish to interest ourselves in the Government’s compliance with international law in respect of the treaties they have concluded.
Treaty Scrutiny: Working Practices (EUC… · Order Paper · Order Paper