The Scrutiny of International Treaties and other international agreements in the 21st century

Under the UK’s constitutional arrangements, the power to negotiate and enter into international agreements is a prerogative power; as such, the power still sits notionally with the sovereign, but in practice is exercised exclusively by the executive (i.e Ministers of the Crown). Prerogative powers are legitimately exercised by Ministers owing to the fact that they are understood to have the confidence of the House of Commons and are ultimately accountable to Parliament for any such exercise.

While we believe that the prerogative should continue to be the source of the power for the Government to negotiate and enter into international agreements, it is clear that the manner and way in which that prerogative power is exercised needs to be more clearly and widely understood. The current arrangements grant the Government considerable power as well as flexibility in how they are used. We favour maintaining this flexibility but are alive to concerns about the potential for abuse of this power. As such, it must be understood that there are clear constitutional limits on the use of this power by ministers. The authority for a Minister, and the Government in general, to exercise the prerogative power is derived from the Government having the confidence of the democractially elected House of Commons. Each and every exercise of prerogative power by a Minister should have the confidence of, and conform to the will of, the House of Commons. It is the responsibility of all Ministers, in their exercise of these powers, to assure themselves that they are acting in accordance with the will and confidence of the House of Commons.

The UK is a dualist state, meaning that, in order for obligations entered into through treaties to have effect in UK law, domestic implementation is required. This is an important feature of the UK’s constitutional system, ensuring that any changes to domestic law needed to implement treaties must be considered by Parliament. While treaties bind the UK as a matter of international law, they do not automatically have effect as a matter of domestic law. Often, provisions do not require new primary legislation to have effect in domestic law; delegated powers to make secondary legislation may be used, or only parts of agreements are presented to Parliament to consider as the remaining obligations can be met without legislating. Furthermore, the current process tends towards presenting Parliament with a treaty whose terms have already been finalised, leaving it with no meaningful scope to amend or even influence the terms of the treaty.

We found the arguments that implementing legislation provides an appropriate opportunity for scrutinising and considering treaties in their entirety to be wholly unconvincing. As such, the current arrangements do not deliver a constitutionally sufficient level of scrutiny; nor do they provide an opportunity for Parliament to approve important policies which can have a significant impact on domestic affairs. Parliament’s opportunity to debate and approve or reject implementing legislation is not a substitute for proper parliamentary consideration of a treaty. Agreement to 60 Parliamentary Scrutiny of International Agreements in the 21st century implementing legislation should not be taken to represent approval of a treaty as a whole. This should be clearly set out in the Cabinet Manual and reflected in other guidance to ministers and civil servants.

Over the last century, there have been significant quantitative and qualitative changes to the nature of international agreements; they now reach into people’s everyday lives in the UK and around the world. They seek not only to deal with relations between states, but increasingly to address problems which one state cannot solve alone. In many instances, treaties have, as a consequence, become more akin to domestic legislation. International agreements are now concerned with domestic as well as international affairs, and accordingly this makes them a fundamental concern for Parliament.

Parliament is not sufficiently engaged with international agreements. The UK’s parliamentary democracy operates on the basis of the dual constitutional principles of parliamentary sovereignty and parliamentary accountability. As such it must be understood that scrutiny of international agreements is a core constitutional function of the UK Parliament.

Currently, there is no requirement for Parliament to approve treaties. We find this situation untenable. Parliament’s approval must be sought when the Government seeks to bind or change in any material way the UK’s obligations under international law. We therefore recommend that, as a matter of constitutional principle, all treaties should require the explicit approval of the democratically elected House of Commons before they enter into force. To be clear, this would not change the fact that treaties are negotiated and entered into under prerogative power; instead it would make the exercise of that prerogative to enter into an agreement that places, alters or removes a legal obligation on the UK, or to withdraw from such an agreement, conditional on the explicit, active approval of the House of Commons.

The UK Government carries out negotiations and enters into treaties for the whole of the UK. However, under the UK’s devolution arrangements, day to day responsibility for areas of domestic policy which could be impacted by treaties often lies with the devolved institutions in Northern Ireland, Scotland and Wales. In these areas, consultation and coordination between the UK Government and devolved governments is done under the auspices of the Concordat on International Relations. This Concordat has not been updated since 2013. Since this time there have been significant developments in the field of intergovernmental relations; the devolution statutes themselves have changed, the UK has left the EU, and a new intergovernmental relations system has been established.

While many of the principles in the Concordat on International Relations appear to us to continue to be the right ones, the Concordat itself clearly needs to be updated, and the cooperation that it facilitates must take place in earnest. We recommend that the Concordat on International Relations be replaced or updated. This new or revised document should set out clear arrangements for timely and meaningful consultation with devolved institutions on the issue of treaties and clarify how the processes for reaching treaties interact with the recently revised IGR structures. The production of or update to this document should be prioritised, and the agreed arrangements published within six months of the publication of this report.

It is clear from the evidence we received that the arrangements set out in the Constitutional Reform and Governance Act 2010 are unsatisfactory in a modern democratic society. We identified three main areas of concern. First, the legislation provides a passive role for Parliament which need only be notified of a new treaty and has only a limited power (in practice) to delay ratification. These arrangements do not provide Parliament with the opportunity to approve a treaty or not, and do not create the space for the level of scrutiny necessary for genuine democratic oversight and authorisation. Second, while many treaties are captured by the current legislation, there are several categories of treaty that are not. We firmly believe that all treaties need express parliamentary approval. Third, while we understand the historic origin of the 21-sitting day period, and accept that for some treaties it may be sufficient time for scrutiny, we are of the view that it is an arbitrary and, in many cases, insufficient period of time for the scrutiny of treaties, given their increasing complexity, and should therefore not be the default scrutiny period. In light of these findings, it is clear to us that, in order for the arrangements for entering into treaties to respect the core constitutional principle of parliamentary sovereignty, and to bring them into line with international comparators, Parliament must give its express approval to all treaties before they can be ratified or enter into force.

The explicit, active approval of the House of Commons should be a requirement for all treaties (legally binding international agreements) to be allowed to proceed to ratification or for it to be otherwise indicated that the UK gives consent to be bound by an international instrument. This means that the Government should not be able to proceed to ratify or otherwise indicate consent to be bound by a treaty until approval has been signified by a vote in the House of Commons.

To achieve this end, we recommend that the mechanisms contained in Sections 20 to 25 of the Constitutional Reform and Governance Act 2010 are amended to implement the following arrangements in line with this principle of active approval: The legislation should set out that a Minister of the Crown is required to send all treaties to a parliamentary sifting committee, the composition of which will be determined by the House. This sifting committee will have 21-sitting days to recommend either: i that the treaty can proceed to the floor of the House of Commons for debate and that a vote to approve the treaty or otherwise should take place no less than 21-sitting days after this recommendation is made (standard scrutiny period); or ii that the treaty is of such a nature that it requires enhanced scrutiny, and that an appropriate period should be set for that enhanced scrutiny (to be determined by the sifting committee) before which the treaty cannot be brought to the floor of the House of Commons for a debate and a vote (extended scrutiny period). In a situation where, following the expiry of the 21-sitting day sifting period, the sifting committee does not make a recommendation in accordance with either points (i) or (ii) above, the Government may bring a treaty forward to the floor of the House of Commons for a vote to approve the treaty or otherwise as soon as parliamentary time allows.

The exact criteria on which this decision should be made will be for the sifting committee to determine and to set out. The purpose of this longer scrutiny period would be to allow for the relevant parliamentary committees and other interested stakeholders, including but not limited to devolved legislatures and administrations, to carry out inquiries and set out their findings ahead of the parliamentary debate and vote to approve the treaty, so that the full implications of a treaty can be fully understood ahead of that vote. Where a treaty would enter into force on signature alone, a draft of the treaty should be provided in the same way as for other treaties, as Parliamentary approval would still be required to sign such a treaty.

If the Government does not wish to accept the longer period of scrutiny set out by the sifting committee, a Minister of the Crown must make a statement to the House setting out the reasons why they believe the period is not appropriate and schedule a vote in the House of Commons to override the recommendation of the sifting committee. If that vote approves the Government’s motion to override the sifting committee’s recommendation, the Government can then schedule a debate and vote to approve the ratification of the treaty no less than 21-sitting days after the override vote.

We recognise that, while rare, there may be circumstances where a treaty needs to enter into force as a matter of urgency. To account for such circumstances, the amended legislation should set out the criteria under which the Government should be able to bypass the sifting committee and proceed straight to the approval debate and vote, but it must nevertheless require the Minister to make a statement to the House setting out the reasons why the urgent procedure is being used in that particular case. This provision should not be able to be used once the process set out in Paragraphs 65–67 above has started - that is once the treaty has been provided to the sifting committee.

We recommend that the existing requirement to provide an explanatory memorandum along with the treaty in Section 24 of the Constitutional Reform and Governance Act 2010 is retained.

We believe that adequate time should be available for both Houses to conduct meaningful scrutiny of treaties. However, it is a matter for the House of Lords how it chooses to arrange its business, both in its committees and chamber. We would, however, hope that a practice might develop whereby the House of Lords carries out scrutiny and holds a debate and vote on a treaty prior to that which will take place in the House of Commons under the amended legislation, so that the views of that House can be taken into account when the elected chamber votes on whether to approve a treaty.

The negotiation and conclusion of treaties is a reserved matter. As such, devolved legislatures do not currently have a formal role in the scrutiny of treaties. However, many treaties, in particular following the UK’s withdrawal from the European Union, may cover subject matters that touch on areas of devolved competence. It is important that the devolved legislatures are able to consider the impact of a treaty on these areas. We believe that adequate time should be available for devolved legislatures to conduct meaningful scrutiny of treaties that impact on areas of devolved competence. However, it is a matter for the devolved legislatures how they Parliamentary Scrutiny of International Agreements in the 21st century 63 choose to carry out scrutiny and arrange their business, both in their committees and their chambers. We would, however, hope again that a practice might develop whereby the devolved legislatures carry out scrutiny, produce reports and hold debates on a treaty in sufficient time so that the views of the devolved legislatures can be taken into account when the House of Commons votes on whether to approve a treaty.

There is clearly potential for significant changes to be made following the conclusion of a treaty, and for those changes - for various reasons - not to be subject to parliamentary scrutiny under the current arrangements. All treaties, including any subsequent amendments or decisions of bodies made under those treaties that either modify the treaty itself or modify the UK’s obligations under the treaty - regardless of whether those amendments or decisions have an impact on the domestic level - must be subject to parliamentary approval. Under the new arrangement for approval of treaties we have recommended in paragraphs 65–68 above, many amendments to treaties would be subject to a parliamentary vote. It is our view however that, moving forward, it would be impractical for Parliament to be required to debate and vote on every treaty amendment. It is our view however that, moving forward, it would be impractical for Parliament to be required to debate and vote on every treaty amendment. When the Constitutional Reform and Government Act 2010 is amended in line with our recommendations in paragraphs 65–68 above, it should include a mechanism to ensure that all amendments to treaties, or decisions made under them, are considered by the sifting committee. That committee can recommend, within 21-sitting days following notification by the Government, that the amendment is either: i of such a nature as to not require a debate and vote; or ii is, in its view, of such a nature that it should be subject to the process set out in paragraphs 65–67 above. In a situation where the sifting committee has does not make a recommendation within the 21-day sitting period, it will be considered as if that committee had recommended that the measure is of such a nature as to not require a debate and vote.

While non-legally binding instruments (NLBIs) do not place legal obligations on the UK, they can impose ‘political obligations’ that can guide government action and even result in financial obligations being placed on the UK. The UK is an internationally trusted nation; when it makes a political commitment, this should be viewed as essentially equivalent to making a legally binding obligation. We do however recognise that NLBIs can range from the very mundane to the very significant.

There was considerable concern expressed to us that adequate records of NLBIs were not being kept and that there is insufficient public access to those NLBIs which have been reached. We received calls for a central repository of all NLBIs to be established. We were encouraged by the Government’s assurance that individual departments do 64 Parliamentary Scrutiny of International Agreements in the 21st century indeed keep records of the NLBIs that are reached. However, we were not convinced by the argument that establishing and maintaining a single repository for non- legally binding instruments would be overly burdensome. We therefore recommend the establishment of a central repository for all non-legally binding instruments, to be coordinated by the Foreign, Commonwealth and Development Office and made public on GOV.UK, and call for Parliament be notified of all new or updated documents added to that repository by way of a Written Ministerial Statement.

It is clear that NLBIs are already a significant part of how states manage relations between one another and make policy decisions internationally. Arrangements therefore need to be put in place for Parliament to be informed of new NLBIs and, if necessary, to scrutinise them. We would not expect routine and regular votes to approve NLBIs, but this does not diminish the obligation on ministers to assure themselves in reaching such agreements that they are acting in accordance with the will of, and with the confidence of, the House of Commons.

We further believe that if a request is made by a parliamentary committee or the Leader of the Official Opposition for a debate and vote on an NLBI, the Government should make time for this on the floor of the House. This practice should be set out in guidance to ministers and civil servants.

We recognise that, on occasion, there may be good reasons why the Government has to reach NLBIs in secret, for instance in relation to matters of defence or national security. This does not diminish the Government’s accountability to Parliament for placing obligations on the UK. As such, we recommend that when such an agreement is reached, arrangements are made to brief the appropriate House of Commons committee(s) in confidence, to facilitate a degree of scrutiny to take place, and provide the opportunity to express any concerns to the Government.

We stress the importance of the UK Government consistently informing devolved governments when it reaches an NLBI that has implications for devolved competence, and for this to be indicated in the central repository recommended in paragraph 94 above. Furthermore, we would expect devolved governments to keep a record of all NLBIs that they reach with international partners and for these agreements to be notified to the Foreign, Commonwealth and Development Office for recording in the central repository held by the UK Government. It is a matter for those administrations to make arrangements with their legislatures regarding the monitoring and scrutiny of such agreements.

To carry out its constitutional function effectively in regard to the scrutiny of international agreements, it is not enough for Parliament to be involved only at the end of the process. A new approach to conceptualising international negotiations and international agreements needs to be developed in the UK whereby Parliament is involved throughout the process or ‘lifecycle’ of an international agreement, from early considerations on whether to open negotiations, through the negotiation rounds themselves, and on to indications of consent (for example, by way of a formal vote on whether or not to approve treaty), and then beyond, into implementation and review.

Given our recommendation that all treaties need to be subject to a parliamentary process for the UK to indicate consent to be bound, it would be in a Government’s best interest to consult and update Parliament regularly. We recommend that a working practices agreement is reached between the Government and Parliament which would set out the arrangements for how Parliament will be informed of the progress of negotiations. Such an agreement should also set out that Parliament would normally be consulted on, and may be asked to approve, the setting of negotiating mandates.

The current arrangements in Parliament for the scrutiny of international agreements are not commensurate with their constitutional importance. The House of Lords has taken steps to address this constitutional lacuna with the establishment of the International Agreements Committee. By contrast, the scrutiny arrangements in the House of Commons are currently insufficient to carry out what is a core function of Parliament, namely the scrutiny of international agreements. This core function should be understood to include involvement in the mandate setting and negotiation phases, the ultimate approval of treaties, and holding the Government to account for their exercise of powers to negotiate and reach these agreements. The important work done by the International Trade Committee during its existence has demonstrated the vital nature of a strategic approach to the parliamentary scrutiny of treaties. Furthermore, we are of the view that the statutory changes we have recommended earlier in this report, requiring all treaties to be subject to parliamentary process and, in appropriate cases, expressly approved by the House of Commons, should result in a greater focus from committees on international agreements. It is clear that the House of Commons is well placed to use its existing subject specialism in the departmental committee structure to provide detailed policy-focused scrutiny of international agreements. However, we note that this may not be sufficient by itself. We recommend that the Liaison Committee adds the scrutiny of international agreements to the core tasks of all relevant committees. To further support this aim, we call on the Government to bring forward a motion to amend the Standing Orders to add “scrutiny of relevant international agreements” to the remit of all relevant committees. Moreover, to ensure that scrutiny of international agreements is given the necessary attention in the House of Commons, we further recommend that a bespoke committee is estab

Effective scrutiny of international agreements requires both policy expertise and expertise in international agreements and law. We recommend that a review is carried out to consider whether and what additional resource is required to support effective scrutiny of international agreements in the House of Commons.

How the devolved legislatures choose to carry out effective scrutiny of relevant aspects is a matter for them to determine. However, we believe that their scrutiny of international agreements which involve areas of devolved competence is important. 66 Parliamentary Scrutiny of International Agreements in the 21st century As set out above, the need for this scrutiny to take place should be a consistent factor in the sifting committee’s determination of the appropriate period for scrutiny of a treaty.

We are encouraged by the evidence we received on the regular and effective discussion and consultation between both the Ministry of Justice and Crown Dependencies and the FCDO and the Overseas Territories with regard to treaties that could be extended to them. We call on the Government to ensure that it notifies the new sifting committee - as well as Justice Committee and Foreign Affairs Committee where appropriate - when it is in discussion with Crown Dependencies or Overseas Territories on the potential extension of treaties to them when negotiating an agreement on their behalf, or when it has provided a letter of entrustment.

We are satisfied that the existing conventions are strong enough to ensure that a treaty will not be extended to the Crown Dependencies and Overseas Territories without their consent. This consent should also be communicated to Parliament at the point where the Government seeks to extend territorial applicability to include one or more jurisdictions. The changes to require the Government to seek Parliament’s approval for all treaties will mean that treaties which include, or are to be extended to, Crown Dependencies and Overseas Territories, would require the approval of the House of Commons. A convention should be established between Parliament and the Government whereby the House of Commons would not be called upon to approve a treaty or extension of a treaty solely relating to a Crown Dependency or an Overseas Territory when the relevant jurisdictions had not yet expressed their approval.