Parliamentary scrutiny of trade agreements must no longer be an afterthought
International agreements ought to be subject to at least the same levels of scrutiny as the laws we make in Parliament.
Just over 18 months ago, Parliament established a committee in the House of Lords dedicated to the scrutiny of treaties. The International Agreements Committee, which I chair, has now examined 46 agreements, covering areas as diverse as trade, transport, the protection of classified information, energy, police and judicial cooperation. Today we have issued a report reflecting on our experience and proposing further reforms to make parliamentary treaty scrutiny more effective.
In short, we have concluded that following our interventions important progress has definitely been made (particularly on trade agreements), but the government needs to recognise that more needs to be done.
Scrutiny of treaties is essential because international agreements increasingly have a direct effect on daily life in the UK. Modern trade agreements tend to include chapters that affect social policy and the domestic regulatory environment. For example, on food standards, animal welfare, intellectual property protections, and the exchange of data are notable examples. New agreements can also bind future Parliaments by setting out obligations not to change laws or regulations (for example, to maintain certain standards).
International agreements therefore ought to be subject to at least the same levels of scrutiny as the laws we make in Parliament. It makes no sense that the government needs Parliament’s approval to make laws, but not for treaties that can be even more important.
We have a statutory process: the Constitutional Reform and Governance Act 2010 (CRAG). It is unsatisfactory and in need of reform. The Act merely requires the government, after laying an agreement in Parliament, to wait 21 sitting days before ratifying it.
While there is a theoretical power for the Commons to delay ratification, it has never been used—and, as we have seen with the UK-EU Withdrawal Agreement and the UK-EU Trade and Cooperation Agreement, even this statutory process can be easily overridden when the government has a sizeable majority.
But the government has agreed a collection of specific commitments in relation to trade agreements. These include: the publication of a response to a public consultation and negotiating objectives before commencing negotiations; private briefings with Ministers and Chief Negotiators during the negotiations; access to the text of the signed agreement a reasonable time before it is laid under CRAG; and facilitation of debates in Parliament.
We have called on the government to formalise these promises in the form of a concordat with Parliament, to ensure that they are respected as the minimum that is necessary.
While welcome and an improvement over the statutory process, these commitments do not amount to a robust scrutiny system, and in fact, there is much to be learned from other models.
The European Parliament, for example, has a veto power over some treaties and the right to propose amendments. When consent is required, it is also regularly consulted throughout the negotiations. Our scrutiny system, by contrast, is structured so that points for formal Committee engagement are set for after key decisions have been taken—therefore, our capacity for influence is limited.
This is felt most acutely when scrutinising trade agreements: we can have parliamentary debates on negotiating objectives, but by then the mandate will already have been set; we can have advance sight of the text of a trade agreement, but only after it has been signed and agreed.
This does not mean that we do not engage with government outside the formal process—in fact, in relation to the trade negotiations with Australia and accession negotiations to the Trans-Pacific Trade bloc (CPTPP) we have already raised questions with Ministers on protections for UK farmers, on animal welfare, environmental standards and intellectual property. However, formalising early engagement by Parliament would send a clear signal that Parliament’s views are important, and that scrutiny is not being treated as a rubber-stamping exercise.
Progress on scrutiny of non-trade agreements has been more limited and many of the agreements we have scrutinised were not notified to us until they were formally laid in Parliament. This reduced the ability to seek expert input and report within the 21-day scrutiny window set by CRAG. Our report therefore asks the government to formally agree to an advance notification system.
Parliamentary scrutiny should not be an afterthought, but should be made an integral part of the overall treaty-making process. And government should recognise if it wants to claim we have a robust and admirable scrutiny system, it should submit itself to just that. The International Agreements Committee will continue to work hard to emphasise the importance and benefits of parliamentary scrutiny to government.
Lord Goldsmith is a Labour peer and chair of the International Agreements Committee.
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