Public Law for Everyone

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.