Treaty-making and parliamentary scrutiny: recent developments

This paper builds on Commons Library Briefing Paper 9247, How Parliament treats treaties, 1 June 2021, and includes more recent developments in treaty scrutiny practices and recommendations by parliamentary Select Committees.

Overview

During the 2019-2024 Parliament, parliamentary committees across both Houses examined the existing arrangements for parliamentary scrutiny of treaties and concluded they were no longer fit for purpose. Treaties are a type of law making that takes place at an international level to regulate relations between states or between states and international organisations (such as the European Union or agencies of the United Nations). Parliament’s formal role in treaty scrutiny remains limited even though treaties can be as important and their impact as great as domestic legislation which requires Parliament’s approval.

The government is in the driving seat …

Unlike legislation, treaties are made by governments. The UK Government is responsible for negotiating, signing, ratifying, amending and withdrawing from treaties involving the UK using its ‘prerogative powers’. These powers are not set out in statute and their use does not require Parliament’s approval.

… but Parliament has some roles

Part 2 of the Constitutional Reform and Governance Act 2010 (“CRaG”) sets out some requirements for parliamentary scrutiny of treaties which largely codify a practice dating back to 1924. It gives the Commons (but not the Lords) a power to delay the ratification (formal approval) of a treaty indefinitely. The Commons has never used this power.

Aside from this theoretical power to delay ratification, Parliament has limited oversight of treaties. Not all treaties are covered by CRaG. Furthermore, Parliament cannot amend a treaty. Sometimes Parliament may be asked to pass legislation if changes to domestic law are needed to implement a treaty. This is because treaties do not form an integral part of UK domestic law. Legislation will not always be necessary. Where it is, it will often only concern specific provisions of a treaty, not the whole treaty. And legislation may be secondary (involving minimal parliamentary scrutiny) rather than an Act of Parliament.

Scrutiny of trade agreements – the impact of Brexit

When the UK was a member of the EU, the trade agreements in which it participated were negotiated by the European Commission. Detailed arrangements were developed to ensure that the European Parliament was fully informed at all stages of the negotiations because its ‘consent’ or approval was needed before the EU could conclude an agreement.

Following Brexit, the UK Government is responsible for negotiating new trade agreements. The UK Parliament has a far weaker scrutiny role under CRaG as compared to the European Parliament. As a result, some ‘enhanced arrangements’ specifically for trade agreements were put in place, in piecemeal fashion, during the 2019-24 Parliament. They were not included in CRaG and most take the form of non-statutory commitments.

The role of parliamentary Select Committees

Only the House of Lords has a committee dedicated to the scrutiny of treaties. Various Commons Select Committees took a keen interest in treaty scrutiny during the 2019-24 Parliament, demonstrating the breadth of policy areas that treaties increasingly cover. Many of these Committees published reports highlighting shortcomings in current arrangements for treaty scrutiny.

Perceived shortcomings in Parliament’s treaty scrutiny role

The Commons Public Administration and Constitutional Affairs Committee, has described Parliament’s scrutiny of treaties as “constitutionally inappropriate”. Its concerns included:

• no formal role for Parliament in setting objectives for treaty negotiations, monitoring progress and influencing outcomes.
• too little time for meaningful scrutiny of treaties, especially complex trade agreements once the texts are made available to Parliament.
• inadequate provision of information to support treaty scrutiny.
• CRaG’s limited scrutiny powers which mean that not all treaties are covered, exemptions are possible, and other types of international arrangements (such as Memorandums of Understanding) are outside its scope.
• no guarantee that time will be made available to debate a treaty if either House requests it – debates and votes on treaties remain largely at the discretion of the Government.
• no requirement for parliamentary approval of treaties.
• where implementing legislation is needed, it may be far narrower in scope than the treaty to which it relates and provide an incomplete picture of the obligations contained in the treaty.

Government says CRaG remains “appropriate”

In responding to these concerns, the previous (Conservative) Government Response (PDF) maintained that the enhancement of the UK’s treaty making powers following its exit from the EU did not change the constitutional principles by which the UK operates. It said that its use of the Royal Prerogative to negotiate and conclude treaties did not undermine the legislative supremacy of Parliament and that the existing framework for parliamentary scrutiny of treaties in Part 2 of CRaG “strikes the appropriate balance”.

Increasing momentum for change

All the Select Committees involved in treaty scrutiny during the 2019-24 Parliament agreed on the need for reform of existing arrangements. A recurring theme was Parliament’s inability to ensure that treaties could be debated before ratification and a sense that this goal was only likely to be achieved in practice if Parliament’s formal approval of a treaty was required.

Other important themes included a need for transparency in treaty negotiations, more systematic and reliable arrangements for information sharing, better engagement with the devolved administrations, and greater opportunity for Parliament to influence and inform the content and progress of negotiations before treaty texts are finalised.

Various ideas have been advanced to improve Parliament’s role in treaty scrutiny. They include suggestions for a framework agreement between both Houses of Parliament and the Government or a working practices agreement to ensure that Parliament’s role is clear and meaningful. It will be for the new Government and Parliament to decide whether and how to bring these to fruition.