By Mark Elliott and Stephen Tierney
The topic of parliamentary scrutiny of the making of treaties could hardly be more topical, given the role that Parliament is currently playing in relation to the Withdrawal Agreement that the UK Government is seeking to enter into with the European Union. That role arises from section 13 of the European Union (Withdrawal) Act 2018 (‘EUWA’), which provides that the Withdrawal Agreement can only be ratified if (among other things) it, along with the framework for the future relationship between the UK and EU, has been approved by a resolution of the House of Commons. As is well-known, the Government has thus far found it impossible to secure such approval. The requirement set out in section 13 of the 2018 Act goes further than the usual requirements that apply under section 20 of the Constitutional Reform and Governance Act 2010 (‘CRAG’), whereby the House of Commons can prevent a treaty from being ratified if it resolves against ratification within 21 days of the treaty being laid before Parliament. (In contrast, the Lords has no unilateral veto power.) However, section 22 provides that the requirements set out in section 20 do not apply if a Minister ‘is of the opinion that, exceptionally, the treaty should be ratified without [those] … requirements … having been met’.
The business of treaty-making — and the question of Parliament’s
role in relation to it — is placed in the spotlight by Brexit not only because
an orderly departure is itself possible only via a treaty, in the shape of a
withdrawal agreement, but also because a post-Brexit UK will have to undertake
treaty negotiations in relation to matters — the most obvious example being
trade — that currently fall within the EU’s purview. This week’s report
of the House of Lords Constitution Committee on Parliament’s role in the
scrutiny of treaties is thus, to say the least, timely, albeit that the Committee
is careful to note that while its inquiry was ‘prompted by Brexit’, the report
does not focus on its ‘atypical’ circumstances; rather, the aim is to consider
‘the wider consequences of Brexit for treaty-making’.
The Committee begins by sketching the constitutional
territory, noting that ‘the negotiation and signature of treaties … is a
function of the Government, exercised through the Royal Prerogative’, and that
parliamentary ‘interest and involvement’ in the treaty-making process has
generally been ‘limited’. Indeed, the Committee observes that parliamentary
scrutiny of treaty-making, such as it is, is generally confined to scrutiny of legislation introduced into Parliament
by the Government for the purpose of implementing treaty obligations. By that
point, however, Parliament is in a position to address no more than how such
obligations are to be given effect in domestic law, the existence of those obligations — and their binding effect upon the
UK as a State in international law — being a given at that stage in the
process. In the light of that, and bearing in mind that not all treaties
generate obligations that need to be given legal effect via domestic primary
legislation, it is clear that scrutiny of treaty-related legislation cannot
reasonably be regarded as a substitute for scrutiny of treaties themselves at a
point when they amount to something other than a done deal.
The Committee thus looks carefully at the
opportunities that Parliament currently has for scrutinising treaty-making,
paying particular attention to the impact of the process laid down by CRAG. The
Committee notes that the requirements set out in that legislation ‘encompass
but are broader than’ the constitutional convention (the ‘Ponsonby rule’) that
previously applied in this sphere. But it also notes that neither House has ever
resolved against ratification since the CRAG process was introduced, and that,
according to written
evidence submitted to the Committee by Jill Barrett, Eirik Bjorge,
Ewan Smith and Arabella Lang, ‘[n]o qualifying resolution has ever been tabled’
under CRAG and ‘no meaningful debate or vote on a treaty has ever taken place’
during the 21-day period provided for by section 20 of the Act.
Whether this is evidence of the current system working
well or poorly is a matter of perspective. One witness — Sir Franklin Berman
QC, a former legal adviser in the Foreign and Commonwealth Office — told
the Committee that there was ‘nothing inherently wrong’ with the CRAG process,
which ‘scrupulously respect[s] the different prerogatives of the Executive and
of Parliament’. In contrast, David Howarth argued
that while ‘[f]rom the Whitehall point of view, everything is perfect’ because
‘the whole process is under the control of Ministers’ — meaning that
‘Parliament does not really get a look-in until after signature’ — the
‘opposite is the case’ when the matter is viewed from the Westminster
perspective. The Committee goes on to note concerns about the scope of the CRAG
process (it does not, for instance, apply to treaties that do not require
ratification or to international instruments such as UN Security Council
Resolutions) and a lack of transparency, given that the only information that
the Government is required to provide Parliament with at any stage in the
process is an explanatory memorandum when a signed treaty is laid before
Parliament. Such memorandums, the Committee was told
by Jill Barrett, are often ‘very short and uninformative’.
Against this background, the Committee concludes that,
‘The current mechanisms available to Parliament to scrutinise treaties through
CRAG are limited and flawed.’ It goes on to say that, irrespective of Brexit,
reform is needed in order to enable effective parliamentary scrutiny of
treaties, but that the need for reform is more acute given that the CRAG was
enacted at a time when departure from the EU ‘had not been seriously
contemplated’, meaning that the Act was never ‘designed to support detailed
scrutiny of the volume and breadth of treaties that will be required in
future’.
The Committee then moves to consider
options for improving treaty scrutiny, making recommendations for reform.
Nearly ten years ago, in its assessment
of the Constitutional Reform and Governance Bill, the Committee recommended
that the House of Lords consider establishing a committee to scrutinise
treaties. In light of new evidence endorsing such an innovation, the Committee
repeats its call for a committee that would ‘create a natural home and possible
clearing house within Parliament for all treaty-related activities’. (One
additional point to note is that in his evidence to the Committee, Foreign
Office Minister Sir Alan Duncan stated
that the Government does not oppose this idea.) The Committee does not take a
firm view on whether or not this should be a committee in either or both
Houses, or a joint committee; it proposes that the Liaison Committees in both
Houses ought to consider these options. The Committee is clear however that if
this were not to result in a joint committee ‘it would be appropriate for the
House of Lords to appoint its own treaty scrutiny committee.’
The Constitution Committee breaks down
treaty scrutiny into three discrete stages: mandate, negotiations and
ratification. The idea that Parliament should have any role in mandating treaty
negotiations is a controversial one, given the centrality of Royal Prerogative
to the treaty-making process. On the other hand, however, the Brexit process
has illustrated the problems that can arise when Parliament is detached from
treaty-making policy. The Committee does not believe that the Government should
be beholden to parliamentary approval or mandate prior to commencing treaty
negotiations, but it does assert that governments must be mindful of the
ultimate need for parliamentary approval of treaties. Therefore, particularly
in relation to ‘significant or controversial treaties’, the Government should
consider the merits of a debate or other forms of engagement at an early stage,
thereby involving Parliament even at the point of policy-formation.
The Committee also considers that early
information on the commencement of negotiations and an outline of the subject
areas to be negotiated are vital if Parliament is to have a meaningful role at
this early stage. This process of information-giving should continue during the
negotiations themselves to make the work of the proposed scrutiny committee
effective. The Committee is aware that issues of considerable sensitivity will
often be in play, including confidential information concerning the
Government’s negotiating position. It therefore accepts that the Government
‘must remain in control of what information it considers is appropriate to
disclose about negotiations.’ The Committee is aware that this raises the
delicate issue of trust between the Government and the proposed scrutiny
committee. The Committee welcomes a commitment that the Government has already
given to provide select committees with sensitive information about free trade
agreements on a confidential basis. It expresses the hope that this level of
trust could be established in relation to the proposed scrutiny committee in respect
of other types of treaty.
Turning to ratification, the Committee notes
that section 20 of CRAG applies the negative resolution procedure to
ratification. Rather than recommending an amendment to the Act, the Committee
concludes that the proposed treaty committee should be empowered to recommend a
debate on a treaty and that the Government should commit to providing time for this
within the 21-day period. If there were opposition to the treaty, the debate
would take place on a motion under section 20 that the treaty should not be
ratified. The Committee also suggests that such a debate should be available,
on a neutral motion, when a treaty is significant and worthy of debate, even if
it faces no opposition.
To determine which treaties should be
brought to the attention of Parliament, the Committee recommends use of a
sifting function. It insists that Parliament should not be constrained by the
21 day scrutiny period if it requests an extension to this period for sifting
or scrutiny. The Committee also focuses upon the importance of information to effective
review of treaties. In light of the evidence of Jill
Barrett and others it criticises the quality of explanatory
memorandums that tend to accompany treaties and suggests that the proposed scrutiny
committee could set guidelines for the Government on the expected content of
explanatory material, issuing impact assessments similar to those developed for
statutory instruments by the Secondary Legislation Scrutiny Committee.
The Constitution Committee then turns to
devolution, noting that future trade deals negotiated by the Government are
likely to cover issues that will overlap with devolved competence in areas such
as agriculture and fisheries. Despite this, treaty-making is a reserved matter,
with no legally guaranteed role for the devolved administrations in the
negotiation and ratification of treaties. The Committee took extensive evidence
on this issue and concludes that, in relation to post-Brexit treaty-making,
‘the UK Government must engage effectively with the devolved institutions on
treaties that involve areas of devolved competence.’ A key feature here is
implementation, since the UK Government may well depend upon cooperation across
the UK for the smooth transposition of treaties into law. As the Committee
notes, it is likely that other countries participating in negotiations ‘will
seek to ensure that any new treaty will be implemented fully throughout the
UK’, a fact that emphasises the need to consult devolved governments on the
treaty negotiation process, and where relevant to involve representatives from
the devolved governments in the UK Government’s negotiating team.
This aspiration is all very well, but the
Committee is alive to the poor state of inter-governmental relations at present.
It regrets that the recommendations of its previous reports to address the
shortcomings of inter-governmental relations have not been acted on, as these
might have ameliorated some of the problems with the inter-governmental
machinery exposed by the politically-charged context of Brexit. On this basis
it welcomes the ongoing review of the Memorandum of Understanding on
inter-governmental relations and the operation of Joint Ministerial Committee (‘JMC’)
structures and stresses the need for agreement, particularly on the JMC’s
dispute resolution mechanism, ‘in order to strengthen working relationships and
provide a basis for cross-government working, including the negotiation and
implementation of treaties.’
To conclude, the report is certainly prompted by the
Brexit process and by the major problem this has exposed when the Government’s
treaty-negotiating agenda is so disconnected from the reality of parliamentary
support. Despite this immediate context, the Committee has striven to conduct a
more general inquiry in light of longer-term concerns about the adequacy of the
CRAG processes for parliamentary scrutiny of treaties. The result is a series
of detailed and practical recommendations, most notably that of a treaty
scrutiny committee, which, if properly constituted and resourced, and if given
both the time and necessary information to provide an effective sifting
function, may help Parliament to engage more meaningfully in the treaty-making
process. At the same time, such a committee may assist the Government in determining
whether its negotiating position is politically viable, hence avoiding at an
earlier stage what may later prove to be insurmountable political opposition
from either or both Parliament and the devolved legislatures. As the UK faces
an unprecedented period of treaty-making after Brexit, the implementation of
these recommendations should be a priority for Parliament.
Mark
Elliott is Professor of Public Law at the University of Cambridge. Stephen
Tierney is Professor of Constitutional Theory at the University of Edinburgh.
They serve as Legal Advisers to the House of Lords Constitution Committee. This
post, however, is written purely in their personal capacities.