Public Administration and Constitutional Affairs Committee
Oral evidence: The Scrutiny of International Treaties and other international agreements in the 21st century, HC 214
Wednesday 10 May 2023
Ordered by the House of Commons to be published on 10 May 2023.
Members present: Mr William Wragg (Chair); Mr David Jones; John McDonnell; Damien Moore; Tom Randall; Lloyd Russell-Moyle; Karin Smyth; John Stevenson.
Questions 323 - 364
Witnesses
I: Professor Holger Hestermeyer, Professor of International and EU Law, Kings College London; Dr Mario Mendez, Reader in Law, Queen Mary University of London; and Dr Emily Jones, Associate Professor of Public Policy, Blavatnik School of Government, University of Oxford.
Written evidence from witnesses:
Witnesses: Professor Holger Hestermeyer, Dr Mario Mendez and Dr Emily Jones.
Q323 Chair: Good morning and welcome to the Public Administration and Constitutional Affairs Committee. Today the Committee is continuing our inquiry into the scrutiny of international treaties in the 21st century. The focus of this morning’s session will be on what legislative or other changes could be brought forward to increase the scrutiny of international agreements in the future.
We are joined this morning by three academics in the field: Professor Hestermeyer from Kings College London; Dr Jones from the University of Oxford; and Dr Mendez from Queen Mary University of London. Could they introduce themselves for the record, starting with Dr Mendez, please?
Dr Mendez: I am Mario Mendez. As noted, I am a Reader in Law at Queen Mary University of London, and I have a long-standing interest in the subject matter of this inquiry.
Dr Jones: I am Emily Jones. I am Associate Professor at the Blavatnik School of Government at the University of Oxford. I am a political scientist and economist by training, so I am grateful to have my colleagues on the panel who are lawyers. I have worked on trade agreements for a long time with a number of countries and, post Brexit, quite a lot with our own Government and Parliament.
Professor Hestermeyer: Good morning. I am Holger Hestermeyer. I am Professor of International and EU Law at Kings College London. On the subject of the inquiry, I worked for a while as specialist adviser to the EU Select Committee of the other place, advising on treaty scrutiny matters, in particular with a continuity agreement.
Q324 Chair: Thank you very much. I will begin with a fairly open question. The Committee has heard that the nature and scope of international agreements has changed significantly over the past century. What is your understanding of how international agreements have changed and what is the significance of this—just your initial reflection?
Dr Mendez: Essentially over the last century we have seen a dramatic explosion in recourse to treaty making in all areas, affecting most aspects of our daily lives. I highlight in particular a well-known dimension of this, namely human rights treaties, which of course are about giving rights to individuals, which is a terrain that we classically think of as something that constitutions actually do. Into the 21st century, human rights treaties continue to be made and the UK continues to become a party to such treaties. To give a few examples of that, in the new framework of the United Nations we have the UN Convention on the Rights of Persons with Disabilities; and in the context of the Council of Europe framework we have the Istanbul Convention on Preventing Violence Against Women, which has recently been ratified by the UK last year.
I highlight in this context as well that treaties can require criminalisation of conduct. A well-known example of that is the Rome statute for creating the International Criminal Court. Another well-known example, which is evident by its title already, is the Convention on Cybercrime, a 21st century treaty requiring criminalisation of conduct. Criminalisation of conduct requirements also appear in less well-known settings. The World Trade Organisation requires criminalisation of conduct in the context of infringements of intellectual property rights. This is a radical transformation in the nature of treaty making.
I will leave my fellow panellists to comment further on trade agreements specifically, but basically binding law is being created by the Executive on the international plane relating to most areas that we can think of and this constrains Governments and legislatures in their freedom of action. As a result of that, Parliament should care about the exercise of the treaty-making power and not only should they care about that, they have an invaluable contribution to make in regulating the exercise of the treaty-making power.
Dr Jones: I fully concur with what has just been said and I will speak specifically to the trade agreements. Likewise in the trade sphere we have seen a huge change in what is in an international trade agreement in the last 100 years. It has gone from a few pages to, as those of you who have read the UK-Australia or the UK-New Zealand deal will know, thousands of pages of dense legal text, again with very broad scope, including everything from agriculture to manufacturing to services—the traditional areas—but also competition policy, subsidies and human rights clauses, as you have said, and environment and labour. The scope has changed enormously.
As has been said, I think we need to be cognisant of the fact that the international trade agreements that we enter into are binding under international law and, therefore, impact what future Governments, not only this Government, can do. It is costly to exit them, as perhaps we know. It is also difficult to amend them. It is a serious business and they deserve detailed scrutiny and proper debate in Parliament precisely because they are expected to outlast Governments. We need a broad buy-in from the wider public as well as our political and business communities.
I know that we will dig into this in depth, but our scrutiny arrangements have not kept pace, so they are largely in line with the arrangements we had in 1924 under the Ponsonby rule, which was then codified under the CRAG Act. Again, we will dive into this but I think they need seriously updating. They are not fit for purpose.
Professor Hestermeyer: I agree with everything that has been said and want to add two points. One is on the reasons why we see this enormous quantitative change in the quantity and scope of agreements. Treaties and international law are the tool that we use when problems cross borders. If you think of today’s problems, almost all of them cross borders and cannot be resolved by one country alone. Accordingly, we will resort to treaties.
The other is that besides the quantitative and scope change, we see a qualitative change of the international treaties signed up to. Past international law treaties were about determining the limits to sovereignty—“This is what we do; this is what you do”—and we put a division between the two. Modern international law is about problem solving as well—problems that cannot be solved alone. That means that the form of treaty goes from what you would recognise as a contract to what you would regard as a statute.
Treaties develop dynamically through tools, particularly treaty bodies that get decision-making powers to some extent, and dispute settlement procedures that render legally binding decisions on the parties to the treaty. That, too, means that how we react to treaties and what Parliament should do is changing. If Parliament wants to retain its role as the primary determiner of the rules that are applied, it cannot just neglect treaties or the rules will be set elsewhere.
Q325 Chair: Thank you very much. Where does the responsibility and power to negotiate and reach international agreements sit in other jurisdictions? How does that compare with the UK’s arrangements through use of the royal prerogative?
Dr Mendez: Nearly all countries have codified constitutions and I believe most have this expressly allocated within their constitutional text to the Executive branch—that is the power to make treaties. If they don’t have it expressly identified as power that should be to the Executive, whether that is a President, Prime Minister, Head of State and so on, that does not change the fact that under the rules of the Vienna Convention, every state can conclude treaties, and what are sometimes known as “the big three” can conclude treaties without needing full powers. The “big three” are the Head of State, the Head of Government and the Prime Minister. Independently of whether constitutional text provides for it expressly, that is essentially the position.
However, it is the case that increasingly constitutional texts—this is a trend that began in the late 18th century—have imposed constraints in certain contexts on the exercise of the treaty-making power in the relevant power in the relevant constitutional text. In short, it is an executive power. It is also an executive power when it is the royal prerogative, as it is in the United Kingdom. I don’t think much currently turns on whether it is a prerogative power, as is the case in the United Kingdom, or if it is expressly allocated in your constitutional text as a constitutional power.
The distinction we might point to is the possibility of seeking to judicially review the exercise of the treaty-making power where one might make the argument in the United Kingdom that because it is a prerogative power the courts should not intervene. Of course, they did intervene in the famous Miller dispute in the context of withdrawing from a treaty, which was about the exercise of the treaty-making power.
It should be noted in this context that, in contrast, other constitutions might expressly accord courts a role in being able to review the treaty-making power. France was the first to do so, in the 1950s, and that has been copied by a lot of other systems, but even when they don’t provide for that power expressly in the constitution, in certain systems the courts have none the less been willing to review the exercise of the treaty-making power. Again, because in the UK it is a prerogative power, that is one distinction they might be less willing to contemplate in reviewing a challenge to the UK’s ability to enter a particular treaty. That is the only real significant distinction that I would draw in this respect.
Q326 Chair: I invite the other members of the panel to give their reflections on the same question.
Dr Jones: I will again speak to trade agreements. I think here it is interesting to think about the balance between the Executive and the legislature in negotiations. In all countries that I am aware of, as you have said, the Executive leads on the negotiations. What varies substantially is the extent to which the legislative branch influences what is negotiated, whether a negotiation is initiated, what the scope of the negotiation is and, at the end of the day, the role they have at ratification.
I know that we will dive into those in depth, but I want to draw your attention to two examples, because I think they are illustrative of the range and an interesting comparison to what we do in the UK, and that is the United States and the European Union for trade agreements. Trade agreements are interesting under the US constitution because responsibility for regulating trade lies with Congress. Then Congress delegates that authority to the Executive. In doing so, the common practice in the United States is to have a five-year act of primary legislation and the Trade Promotion Authority accepts in detail. This is Congress saying, “These are what you can and can’t put in a trade agreement”. It is a broad outline and guidance. Then that authority is delegated to the Executive to enter into trade agreements.
That said, right along Congress pays very careful attention. It needs to be notified before a trade agreement is initiated. It has extensive input into the mandate. It then observes very closely, and again we can dig into this, but it has access to confidential information throughout the negotiating process. At the end of the day, the treaty, once it is under the Trade Promotion Authority, is then brought to both Houses and needs to be voted upon before ratification takes place.
The European Parliament in the EU has some powers, although not as extensive as the US Congress, but, again, while the negotiations are led by and mandated by the European Council and led by the Commission to the Executive branch, Parliament has an affirmative vote and so a treaty cannot be ratified without the European Parliament’s involvement. We can contrast that with our current practice in the UK where, as you are aware, our Parliament does not have those kind of powers.
Professor Hestermeyer: I don’t think I need to add anything to what has been said already.
Chair: That is a very good answer to the question, if I may say so.
Q327 Mr David Jones: To a large extent, Dr Jones, you have answered the question I was just about to ask you, but perhaps you could expand on that. To what extent would you say having a clear negotiating position established and confirmed by legislatures in advance of negotiations opening weakens or strengthens the hands of the negotiators?
Dr Jones: It is a good question. To my view, there are very strong advantages to having a negotiating mandate—at least the detailed negotiating objectives; perhaps not every single detail—endorsed by the legislative branch. If you look again at the United States and the European Union, where you have Parliament or the legislative branch with that kind of power, they use it in negotiations. The United States will say in the negotiations, “We can’t possibly agree to X because there is no way I can get it passed through Congress.” Similarly, in the EU it is common practice. Where you have priorities for government that are clearly set out or that Parliament voiced, I think it is a distinct advantage and a sort of leverage in negotiations.
That said, I think it is helpful to think about the fact that a very detailed mandate—what our negotiating teams go into the room with—is perhaps not what we want to make fully public. However, I think following the European Union and the United States, it can be very helpful to have much more detail than the UK Government currently set out and not only to have that detail endorsed by Parliament, but for Parliament to be consulted and have proper insight and say. We can discuss this, but by having Parliament involved at the mandate-setting stage properly, you then avoid a situation, which we have seen with the withdrawal agreement, where the agreement was negotiated painstakingly over years, brought back and then rejected. It is in the Executive’s interest to have Parliament’s buy-in from the get-go.
Professor Hestermeyer: I agree that it strengthens you and it also makes you less flexible, of course, and the lack of flexibility makes you stronger in the negotiation. You can say, “This is a red line set by Parliament. I cannot do anything about it,” but of course it also might mean you won’t get to an agreement. Then, if Parliament would not endorse it, you wouldn’t like that agreement anyway, but you learn in the negotiations that having a red line and thinking about your red line clearly before you walk into the negotiations is a good thing and gives you breathing space. Here you could always go back to Parliament and say, “We have tried to negotiate within the mandate. We have noticed that we cannot get to an agreement within that mandate. We need that provision to come out of the mandate,” and then Parliament could reconsider, given the trade-offs that are made in the agreement. It will also slow down the process, but it will strengthen the hand of the negotiator and lead to a more reflective process.
Dr Mendez: I agree with my fellow panellists and the observations they made. I will just throw out a few observations. It is worth noting that in the context of the European Union, the European Parliament has on a number of occasions been willing to vote against the approval of a treaty because it has been unhappy with the outcome in the treaty negotiations. That first instance, if I am not mistaken, was about 2010 and there have been several since then—the anti-counterfeiting trade agreement, the SWIFT agreement with the United States and some fisheries agreements with Morocco—because it has been unhappy with the outcome of the negotiations. That tells the other negotiating party in future negotiations that the European Parliament is serious about its view on particular issues and influences the negotiations in that respect.
An analogy that one might mention here, in light of Holger’s observations about red lines, is that we might also think about the fact that the UK, while it was a member of the European Union, at least for the revision of the EU treaties—that is from the first treaty provisions that took place via the Single European Act in the mid-1980s through to the most recent, the Treaty of Lisbon, all those revising treaties of the European Union needed parliamentary approval in the United Kingdom. This would have shaped, of course, the UK’s red lines within the negotiations for those respective treaties.
It is not that the UK then did not have difficulties getting them through Parliament—it did—but clearly in all those negotiations and all those big summits for all those EU treaties, six of them, the UK had a position on those issues, and negotiators on the other side and everyone knew that this has to get through Westminster. I will put that out as well.
Q328 Karin Smyth: Keeping to that theme, we are interested in, as you said earlier, digging a bit deeper into the process for Parliament as the negotiations progress. We have talked about the US and EU. Is there a standardised view about, if you go to back to legislators, what is felt to be a reasonable expectation that we, as parliamentarians, might be looking back at things, or does each treaty require it differently?
Dr Jones: Again, I will speak to trade and leave my colleagues to fill in the gaps. I don’t think there is a standard view. To some extent it is treaty by treaty and it varies according to country. That said, I think it is iterative and helpful to look at what is common practice. Again, I will refer to the United States and the EU, partly because I think there we see a high level of access that their legislative branches have during negotiations. My understanding of the United States is that Congress has access to the live negotiating text, which is a level of detail—
Q329 Karin Smyth: To be very specific, what does that mean? We have been invited into darkened rooms and seen redacted text in the past. What does that mean? Does that mean a person from a Committee having access to that in a confidential manner?
Dr Jones: I have not been into one of those rooms myself, but from my understanding, in the EU, parliamentarians and security-cleared staff—it is similar to the Congress—have access to the text where it is not redacted and you have the positions of each country that are clearly demarcated. You are able to see what your country is proposing, what the counterpart countries are proposing, and then any sort of square bracketed text where they are starting to flesh out. It is a level of detail that to my understanding is not yet available to our parliamentarians and is not yet available to interest groups within the United Kingdom, even though in some other countries security-cleared representatives would have that level of access.
In addition to that access to the confidential negotiating text, which does remain relatively rare to the US and the EU—it is not super common practice—I think that if you are going to scrutinise agreements, it is very helpful to understand what is going on in the room. In addition to that, negotiations typically happen in rounds and you would typically get a very detailed readout from that negotiating round. Again, it differs as to how much is put into the public domain. The United States puts very little into the public domain. The EU is very interesting on this. After each negotiating round it is now putting its text-based proposals in the public domain as well as giving quite a detailed readout. The UK so far is putting very little in the public domain.
If we are going to have the buy-in of all the interest groups plus Parliament, it is very helpful to have those levels of private access and public access.
Professor Hestermeyer: On legal texts, when it comes to broadly the texts applying to all areas of treaties—if you find anything at all, because in most constitutions you will not find a rule on that—it will be worded somewhat along the lines of the TFEU article 218: the European Parliament shall be “immediately and fully informed”. Then it is up to practice to develop what that means. The US, through the Trade Promotion Authority, has the possibility to be more concrete in its legislative text when it comes to trade agreements. The last version of the TPA—it has run out now, so it is no longer in force—put what exactly needs to be given and I will give you an extract: “Meet upon request with any member of Congress”—that is an order on the United States trade representative—“regarding negotiating objectives, the status of negotiations in progress and the nature of any changes in the laws of the United States or the administration of those laws that may be recommended”, and so on, “and upon the request of any member of Congress provide access to pertinent documents relating to the negotiations including classified materials”. That is just an extract.
On when to meet, trade agreements have the great advantage of usually happening in negotiation rounds. I think it is difficult to generalise how negotiations proceed across the board, because that can be incredibly different. It is also worthwhile to point out that in some parliamentary systems you will just resort to the general parliamentary rules where you can say the Minister now has to give an explanation or members of the Opposition can ask an urgent question—something along those lines. That makes generalisation very difficult.
I want to add one thing. Emily has pointed out the depth of the reports of negotiation rounds. All of these rules tend to fall flat if Parliament does not at the end have a stick to beat the Government with. If Government do not want to give information, even if they have a statutory obligation to report after a trade negotiation round, they can report along of the lines of what we see in public of some trade negotiation rounds: “We made good progress on 14 chapters”. That does not say anything. The stick in most systems will be an up and down vote at the very end of the treaty.
In fact, one of the reasons why TPA is so closely adhered to is that the President has a choice to either go through TPA and have an up and down vote, but no amendments on the implementing law, or face the full wrath of Congress in a normal legislative procedure and never get anything. At the very beginning of the negotiations with Canada, I think the Canadians said, “We will only negotiate under TPA because anything else doesn’t make sense for us.”
Q330 Karin Smyth: I will continue with Dr Mendez, but just to clarify, that would be like in our system a statement to Parliament, coming back to Parliament or, as you said, an urgent question?
Professor Hestermeyer: Something along those lines, yes, but in the TPA there is a statutory requirement.
Q331 Karin Smyth: My follow-up question on that was just to confirm if you think that that requirement should be in statute, rather than it being voluntary that the Government in good faith come back. You cited the US. Is that more standard under statute?
Professor Hestermeyer: If we are looking at the whole process of scrutiny, I think in the end we are looking at changing CRAG. As part of that process, I think a general requirement would be useful, but I also would insist that if we don’t think about the powers of Parliament in the end, and if the only thing Parliament can do is delay the process, we can’t expect any of the procedural safeguards to be really strong.
Q332 Karin Smyth: That is really helpful, thank you. We will come on to CRAG later but, Dr Mendez, do you want to add anything to that about the process of the negotiation and bringing in Parliament?
Dr Mendez: Can I add a point on the initial question from the comparatives? I think there is a bit of a general sense out there, at least in the trade agreement context, that the US and the EU are the gold standard now in the context of how to go about negotiating trade agreements. We see them constantly being invoked in the context of other constitutional systems and how they should go about doing trade agreements.
On the question about whether we have a standardised approach on treaties, we certainly don’t. That is already evident by the fact that if you look at the US, for trade there is not an analogous TPA for, say, environmental agreements. Trade agreements are often very long, drawn-out processes in which you have negotiating rounds and where it can happen in the way that has just been outlined. That need not follow for a different type of treaty.
I will highlight in this respect, for example, that South Korea in 2012 passed a new law to try to parallel a bit what the US and the EU are doing with trade agreements. They are having an influence. It is having a diffusion effect on other constitutional systems that they see that this is going on in the EU context and the US context. I believe that there is an element of it taking place in Australia and Canada as well, albeit not with the key issue, to my mind—I share Holger’s views in that respect—about needing an actual vote by Parliament at the end of the process, which also does not exist in Australia or Canada.
Karin Smyth: That is really helpful. Thank you.
Q333 John Stevenson: I will start with Professor Hestermeyer. You have probably answered my question, but I just want clarification from each of you. Do you think that there should be a formal requirement for Parliament to ratify treaties?
Professor Hestermeyer: Yes, I think there should be a formal requirement. I want to point out something on that. Often in documents you read the comment that, “We are a dualist system and accordingly we don’t need that”. The first thing to point out is that there is often a misconception of which countries are not dualist. Many countries on the continent are also dualist systems. Germany and France are dualist systems. The Netherlands, to the extent of my knowledge, is not, but most countries are dualist for treaties.
The devil is in the detail and most scholars these days would say monism and dualism really should not be the starting point. One of the differences, for example, is that in some dualist countries the vote of consent that Parliament gives is also the vote of transformation through which the treaty immediately becomes national law. That entails some changes in procedure, meaning that a lot of what is in a treaty is not directly applicable. If you bring it to courts, the courts will say, “I don’t know what I am supposed to do with this,” but some provisions will be directly applicable. It is also the case in the US that instead of monism/dualism it talks about when treaties are self-executing and which provisions are directly applicable in court.
I would say that we need a vote even though we are a dualist system because the vote that is done in this country on legislation should be a different vote on implementing legislation, which is often quite different from what the treaty entails. Sometimes treaties don’t have obligations to implement. Sometimes the Government will say, “This treaty only contains what we already have on the statute books,” but nevertheless the treaty has an effect. It makes it impossible to change the statute book without international implications because you either have to change the treaty or you will be in breach of the treaty when Parliament says, “We no longer are happy with the substandard rules.”
Q334 John Stevenson: Following on from that, to achieve this, should we therefore amend CRAG or bring in entirely new legislation to cover the points you have just mentioned?
Professor Hestermeyer: From what I have seen so far in this inquiry, I think it will end up looking very different to what is currently in CRAG. It will be different legislation.
Q335 John Stevenson: You are effectively saying we need new legislation to cover the points you have just made?
Professor Hestermeyer: Yes, I would say so.
Q336 John Stevenson: Dr Jones, exactly the same question: do you think we need a formal requirement for Parliament to consent to treaties?
Dr Jones: Yes, I do.
Q337 John Stevenson: Following on from that: new legislation or amend CRAG?
Dr Jones: I defer to those of you with legal expertise and knowledge of the House. If I could add to that, it is important to think about not only the affirmative vote, but which treaties have that affirmative vote. There is a wide range of treaty actions from full, extensive treaties such as trade agreements to minor amendments. We will talk about amendments later, but it implies some form of shifting. Which type of treaties would then have that vote?
Q338 John Stevenson: It is a point about how we, effectively, should have new legislation to define that?
Dr Jones: Exactly.
Dr Mendez: On the first question, Parliament, in my view—I have previously argued this—should have an affirmative vote on categories of significant treaties, just to be clear. Why? We need to not, in a sense, waste Parliament’s time with the less significant treaties. It is the constitutional norm across the world, in fact, that Parliaments are given approval requirements for only certain categories of treaty, not all treaties. Even in constitutional systems that look like it is a parliamentary approval requirement for all treaties, which is how the US Constitution reads—the President shall make treaties with the advice and consent of the Senate by two thirds requirement—in practice very few treaties go that way. The reality is that, whether monist or dualist, few treaties would need Parliament’s approval.
What are the obvious contenders? Trade, which is part of the terrain we are talking about. Human rights treaties. I mentioned some at the beginning. They directly affect the rights and lives of individuals. We could think of a number of other categories. That is how we should go about it, to my mind, and that is how we would, I hope, get parliamentary buy-in to the issue.
Q339 John Stevenson: You have touched upon it. Looking at other regimes and other countries, particularly dualist regimes, how do they deal with treaties? Do they generally have a formal vote at the end of it?
Dr Mendez: There is some controversy over this distinction between the language of monism and dualism as applied to countries and their treaty-making practices.
To use the Nordic countries as an example—I note that the Committee, of course, has interacted with the Norwegians on theirs—those countries have parliamentary approval requirements for certain important categories of treaty. It varies from one Nordic country to another, but they all have it for certain important treaties. They are well known as dualist constitutional systems. If you speak to any person who works in this area in those constitutional systems, they refer to them as dualist systems.
Also, other Commonwealth countries have added a parliamentary approval requirement. Fiji did so with its new constitution in 2013. Malta in the early 1980s had an Act of Parliament providing for parliamentary approval for certain limited categories of treaty. Antigua, the small Caribbean island nation, in about 1987 passed an Act of Parliament to require approval for certain categories of treaty. In short, you can be a dualist country, even of the Commonwealth variety, which is sometimes lost sight of, and have an approval requirement for certain important categories of treaty.
Q340 John Stevenson: Effectively, have we become an outlier with our treaty approval?
Dr Mendez: Relative to the direction of travel of the vast majority of the rest of the world, most certainly, but places like former colonies of the United Kingdom—India, Bangladesh and so on—have no parliamentary approval requirement and less treaty scrutiny than takes place in the UK.
On the other question about how we should go about this and whether we need new legislation, there is a case for having a specific Act of Parliament on treaties rather than having it hidden away in the Constitutional Reform and Governance Act, mixed around with other things. Quite a number of countries in the world have a specific treaties Act. I have mentioned a couple of them—Commonwealth countries, Malta and Antigua—but many others do as well. Spain, the Netherlands and Vietnam have this, and Kenya is another example. They have brief provisions in their constitutional text, but then they have quite long Acts of Parliament that engage with a lot of the nitty-gritty in the treaty-making power, negotiations and that kind of thing.
That is also an option; it is not that you need a long thing. You could have an Act of Parliament plus changes to standing procedures.
Q341 John Stevenson: I get where you are coming from. Can I go back to you, Professor Hestermeyer? You touched upon the fact that in dualist regimes you could have the consent of Parliament but then you still need primary legislation. How should we deal with that point? You could end up with a situation where you have agreed a treaty but then you do other things with the primary legislation.
Professor Hestermeyer: That is true and, to some extent, that is already currently the situation. You have to trust the Government that the implementing legislation is truly an implementing legislation to the treaty that they want to ratify. In my opinion, it would most respect the traditions to just add a vote on the treaty at the beginning and then still have implementing legislation as before, which could—
Q342 John Stevenson: There would be an assumption that because you have accepted the treaty, you will implement primary legislation?
Professor Hestermeyer: Absolutely, but the order of things would not necessarily change. Even now you have the implementing legislation put forward before ratification. It could be put forward together with an Act that ratifies the whole treaty. That has an advantage because right now what happens at times is the debate about the implementing legislation becomes a litmus test for the whole treaty. We have seen that even for statutory instruments with the Rwandan MoU. The debate about the statutory instrument was in reality a debate about the Rwandan MoU.
There is an argument to be made to separate those two and to make it clear that we should treat them differently because treaties have a large bit that does not necessarily require implementation immediately. Accordingly, just have a separate vote on the treaty and then the implementing legislation. It could even be passed in one Act together but, on the technicalities, those are less important.
Dr Jones: I have a brief comment, which illustrates why we want to have a debate on the substantive treaty and then separate that from implementing legislation. One example is the UK-New Zealand free trade agreement where the implementing legislation was on Government procurement because that was the law that needed changing and the primary legislation that was needed, which meant that we did not then have a debate on the other aspects of the treaty, particularly in the case of Australia, where we did not have a debate.
To illustrate the nature of commitments that are made in a trade agreement that would not require primary legislation and why it is important to have a debate, there is an ongoing discussion in the European Union—an analogous one here—about how we regulate AI. That might seem far removed from trade agreements, but we have put specific provisions in trade agreements about the circumstances under which a Government will ask a technology company to reveal its source code and algorithms.
In the EU, they had made commitments in trade agreements. Then when they started drafting the AI Act, they found they did not have the scope or the latitude of action that they would have liked. The DG Trade wrote to the staff drafting the AI Act and said, “I am sorry. You cannot have that scope because of our obligations in trade agreements.” Again, that is an example of how, in a way, a trade agreement will circumscribe your future actions and therefore needs debating. In that case, nothing was needed in the way of primary legislation, but it would have been helpful to have had a proper debate about the ramifications of other provisions.
Dr Mendez: I have a small point. If we think about Theresa May’s withdrawal agreement under the EU Withdrawal Agreement Act 2018, it had that two-stage process, the agreement and then the implementing legislation after. We have seen it attempted in the UK before.
Q343 Damien Moore: Is the implementation of international agreements effectively monitored in the UK? If not, why not? Are there any other countries you would like to draw on as good examples?
Dr Jones: We discussed this in the corridor beforehand. We do not have a huge amount of evidence on what is done around the world in the implementation stage. It is hard to draw generalisations.
However—this is important—from the point of view of stakeholders, be that our business community, whether what is agreed in a trade agreement is actually followed through conditions determines whether we benefit from that trade agreement. The implementation of an agreement and the ability to monitor is absolutely vital. Within a trade agreement, you have governance arrangements created and often a joint committee that is intergovernmental, which would then monitor and discuss implementation.
The interesting question for Parliament is whether we want an analogous process in Parliament where Parliament scrutinises implementation. To my view, it might be prudent to have that for the larger treaties and to hold inquiries and gather evidence on implementation. Further to that, it is whether you want dialogue with your counterparts in other jurisdictions. For example, the EU in some of its trade agreements has a joint parliamentary committee where the Parliaments get together every now and again to discuss what is being implemented.
Again, there is no set good practice, but a variety of things that Parliament could consider. The implementation of an agreement is where the rubber hits the road and where we need to pay attention to what is being done.
Professor Hestermeyer: I fully agree with that. In particular, there is no consistent practice on implementation and monitoring implementation. It is more common to have such a practice in international law and international bodies. The Commission, of course, is a prime example of an institution that also monitors implementation of the legal obligations of the treaties. But some treaties impose reporting obligations on countries to come back and say how they comply with the treaty. Some Parliaments sometimes do that by passing motions to say that the Government has to report on the implementation of a treaty.
Across the board, this is quite difficult to do because the technical term “implementation” is also difficult. If you think about a trade agreement and tariffs, that is clear. There are concrete tariff obligations. You adapt them. It is done, but think about a human rights treaty and you see that pretty much everything that is done in Parliament to some extent touches upon human rights treaties. Are those implementing matters or are they not? If you then have a separate monitoring body, you start monitoring everything you do for everything you do. That is like a legal adviser who tells you whether statutes are in compliance with international law and that is probably then the approach that is better taken. It is vastly common to have legal advisers who say, “We cannot do this because this would violate our obligations in this regard and that regard”.
Dr Mendez: I have a small point on the implementation because I mentioned the Korean trade Act that they have from 2012, which was a mechanism to try to ensure much more parliamentary oversight over the exercise of trade treaty-making power in Korea and also to try to ensure that the public have greater access to what is going on in this context. That Act is also about implementation of trade agreements outside Korea. I am afraid I do not remember quite the details now off the top of my head but the EU also tries to ensure that other parties to the trade agreements it concludes comply with the obligations therein.
Indeed, this somewhat ties in with the some of the earlier discussion we were having. Sorry, my point is becoming longer. But the EU, for example, particularly the European Parliament, has insisted on having human rights and labour standard clauses inserted into trade agreements to ensure that its trading partners, in light of the EU’s external relations agenda, comply with human rights standards, labour standards and so on. An element of policing of that is going on by the EU on how other parties to those trade agreements comply with those obligations.
Of course, we have seen that in the context as well of the UK’s negotiations with the EU, the future relationship agreement, and the sense in which the EU has used that as an opportunity to insert into the agreement that the UK must comply with this and that obligation of certain, in this context, other international agreements. Another important thing can happen with international agreement negotiations: trying to get other parties to comply with other international agreements that they might not even be party to.
Q344 Damien Moore: Are there any specific countries that you had in mind when you were talking about some of those examples?
Dr Mendez: Colombia and Peru spring to mind in the context of EU trade agreements. The EU has done this so that it can wield a stick if necessary. They can terminate parts, and even the whole agreement, and that is acceptable under the Vienna Convention. They have linked the provisions in the treaties they have negotiated with the other parties to the rules in the Vienna Convention for when you can terminate a treaty for material breach. However, as far as I am aware, at least as of last year, the EU has never had to exercise any of these clauses.
Professor Hestermeyer: It is one thing to speak about how we implement our obligations. One example, of course, is the Human Rights Act. Another issue is to what extent we also want to monitor compliance of our parties. We probably cannot generalise across the board on either of these topics but, for trade, I fully agree that there is a more common practice: to monitor other parties, usually through a reporting system where your traders can report trade barriers and then the Administration thinks about what to do with them. The US has a yearly report on trade barriers, which is quite helpful. The Administration can then decide whether to take things forward and complain about trade barriers or which ones to attack.
Q345 Damien Moore: Moving on, should there be a way of tracking how treaties are implemented and changed through legislation, similar to how changes to legislation are tracked on legislation.gov?
Dr Jones: Again, it is important that Parliament has sight of treaty amendments. I was struck when reviewing the UK-Singapore digital economy agreement that it is an amendment to the UK-Singapore trade agreement. To give you a sense of how substantive a treaty amendment can be, a treaty that was laid before CRAG is in effect an amendment. Again, Parliament needs to be notified. It is not only having a repository of amendments but you want to be actively notified so that you do not have someone trawling through a website to figure out when amendments have happened, but you need a sifting process to say how substantive the amendment is and, where it is substantive, it should be subject to scrutiny and, if necessary, debate and approval. Again, it comes to this question of sifting and what criteria you impose on the higher-level scrutiny and voting.
Dr Mendez: Basically, as we started the discussion today, I underscore that we are talking about binding law here, including the amendments to the treaties. It is anomalous, to my mind, how hard it is to be able to work out what is going on in the context of a particular treaty. Having pertinent information located in one place and accessible so that you can see the relevant amendments as well would be a great development for the UK.
If you look across other systems, it is not that they do a particularly good job in this respect, although Australia is often highlighted as having a reasonably good online treaties database.
Professor Hestermeyer: To add here, some of the rollover agreements and some of the old decisions taken in the EU context are still relevant as well. If you construct a database, it would be helpful to have all of the pertinent information. Otherwise, you have to trawl through separate databases trying to find out which of these decisions are still relevant under the rollover agreement, then new decisions taken and the status of those decisions. Collect them all in one place.
Then we are speaking about the decisions taken at an international level because UK legislation cannot change the treaty, technically. That would be a treaty body decision under powers granted in the treaty to change, amend or add to the treaty. To collect those documents is vital because sometimes it is painful to find those documents.
Q346 Damien Moore: We touched on changes there. Are arrangements for monitoring and scrutinising changes to treaties in the UK effective? You mentioned the Singapore one as an example.
Dr Jones: That was formulated under CRAG and had the 21 sitting days. I was working at the time as an adviser to the International Trade Committee and it had no capacity to scrutinise it. It was scrutinised by the House of Lords International Agreements Committee but that particular one on digital trade was not scrutinised. That is only one example, but we need to think quite carefully about the process we have for scrutinising amendments. In that case, it was the capacity of the Committees of the House and the resourcing. I know we will come on to that, but it is an important issue, as is the timing. We have talked about having statutory obligations for voting, but the amount of time that Parliament is granted to scrutinise should also be in statute. When a treaty or a treaty amendment is substantial, 21 days is nowhere near enough. Again, I am happy to speak more to that.
Damien Moore: It is more no than yes?
Dr Jones: It is more no than yes, correct.
Professor Hestermeyer: I agree with a no. Under CRAG, the wording is in section 25 and is already rather vague: “But ‘treaty’ does not include a regulation, rule, measure, decision or similar instrument made under a treaty (other than one that amends or replaces the treaty (in whole or in part))”. But that leaves ample space for decisions by treaty bodies to not be subject to CRAG when possibly they should be.
Here it is quite instructive to look at the practice of various countries with regard to the EU. In the EU, of course, a lot of decisions require involvement of the Council and then countries attach in their practice parliamentary requirements to that Council decision. In Denmark, it is largely delegated to the European Committee and it is done largely without a legislative basis. In Germany there is a legislative basis for parliamentary involvement in that regard. But we need to be aware that decisions of treaty bodies can be excruciatingly uninteresting and technical. In that case, a sifting process could simply discard those and say they are of no further interest and technical and could identify those decisions that are relevant.
I should add that the powers of treaty bodies are currently quite a hot topic in international law because that is another way to sidestep Parliaments all over the world. The German Constitutional Court has voiced significant concern in that regard. That needs to be taken account of in any form of CRAG.
Dr Mendez: If I come in on Holger’s point there, the crucial point to articulate is precisely that. Part of what is going on here is that binding law is made by the executive branches across the world and they are trying to find mechanisms that make it easier for them to amend their law without going through parliamentary procedures. That ties in with Holger’s earlier point about the nature of international law making to date precisely because it is much more contract-like, much more technical and so on. You find yourself needing more frequent amendments in lots of different contexts, in the field of the environment, for example, or when you are determining under the Rotterdam convention which hazardous chemicals should not be permissible. That gets updated and you need to change. This is what is going on.
It is worth reminding everyone as well about the Windsor framework in this context. That was not caught by section 25 of CRAG. There has long been a concern with section 25(2) of CRAG on amendments. The International Agreements Committee has been highlighting this for quite some time.
As far as I can tell, just as a comparative point here, more is getting laid or appearing before the Australian Joint Standing Committee on Treaties that is an amendment than, as far as I can tell, is being caught by CRAG section 25. That is worth noting. But less comes to the attention, potentially, of the New Zealand Parliament under its scrutiny system than comes to the UK via CRAG section 25(2) where it is a treaty amendment. But, yes, something needs to be done about section 25(2) and how we treat amendments in the United Kingdom.
Q347 Damien Moore: Sifting through some of the technical issues was mentioned, for example. What should be the threshold above which Parliament should consider changes to an international agreement? Who should determine that threshold? What parts of it will we look at and what not? Who decides that? What should happen there?
Professor Hestermeyer: I will start off with a bit of comparison. In a lot of countries you would have constitutional rules saying, “The following categories of treaties need to be approved by Parliament.” You have that in the French constitution in article 53. You also have that for the EU in article 218. Then it would list criteria: if it touches on legislative matters; if it has budgetary implications; if it is a trade agreement; if it is an agreement changing borders. You can think of those categories.
There is a wider question to be asked here. I may be a bit revolutionary in this regard. In all of those systems, of course, you create categories. With the category you create, you create leeway for the Government to say, “We do not think it is.” In Germany there is a category of significant political importance, governing the political relations of the state or something like that. Of course, it is a bit in the eye of the beholder. That means the Executive will say, “We think this is not covered and, accordingly, we do not need to go back to Parliament.” The alternative is to say, “We give the Parliament the PIN and make Parliament the master of the sifting process”. That is a lot of work that needs to be recognised. That work will fall on Clerks, but in that case, there is no leeway for the Government. I am always reluctant as a lawyer to say “entirely unprecedented”, but this would at least be largely unprecedented and I cannot think of countries that have that sort of stringent control of treaty-making powers.
Dr Jones: If I may build on that, I have had a quick look at what the joint committee in Australia does. They have a joint committee for treaty scrutiny that covers both houses. That was quite interesting because there, from what I understand, the Government initially, when they put something forward to Parliament, have assigned a category of whether it is of major importance, whether it is substantial or fairly routine, so involving a low level of scrutiny, or whether it is quite technical and boring and needs less scrutiny. It makes a recommendation to Parliament, but the committee has the ability to then challenge and up the level of scrutiny. In a way, the Clerks are not doing the heavy work. The Government do the heavy work about why they think it deserves to be treated in this way. Parliament, from what I understand, has full oversight. The Government then do the initial bit, but Parliament has the right to then challenge and up the scrutiny level. That might be an interesting way to go.
Dr Mendez: On that last point, on the lowest level of treaty scrutiny in Australia, that is where they get the technical amendments to treaties, including examples such as the one I just mentioned about the Rotterdam convention where you change the hazardous chemicals that are being regulated, or the CITES convention where you are making changes on endangered species and so on. But in contrast to the United Kingdom where it would not be caught, as far as I am aware, by CRAG section 25(2), it still means that the Government are laying an explanatory statement before the Joint Standing Committee on Treaties about what is actually happening with this particular treaty amendment. It is not particularly detailed but sufficient for me to understand what is happening here. Normally, because these things are not significant, the Committee does not produce a report on it, although it can produce a separate report. That is what it does with those kinds of treaty amendments that have become a concern of the International Agreements Committee in the United Kingdom and a number of commentators.
On Holger’s point, I am not aware of any other system that will do that approach because I suspect it is linked to the amount of time that would be required. If we are talking about every single treaty action, it could be a great number of treaties in any given year, but I can see arguments in favour of that approach as well.
Q348 Lloyd Russell-Moyle: Following up on this point, all of you have said that that is a great number. It is difficult to quantify what you mean by a great number. Are we talking about tens of thousands or are we talking about hundreds that are very thick? Otherwise, I find it a bit difficult to understand what that means. Do you have a number that you could give me?
Dr Mendez: It depends partly whether we are talking about actual treaties or treaty actions, which is what Australia is doing. That would include all manner of things like treaty amendments, like the small-scale treaty amendments. There you are into the hundreds if you are dealing with all the small-scale treaty amendments plus every single treaty that is being negotiated by the relevant country.
If we deal with just what we might consider, for example, new treaties, in a sense, it used to be said that the UK would be in the region of 35. That has increased since Brexit because the UK has to negotiate more treaties for a range of reasons. If we include new treaties on whatever the issue may be in any given year, it is not actually that many. In that context, it is a sifting process in which you only look at whether this new treaty is of sufficient significance that we should put it to the Committee.
I should add here that even that is problematic. Would we include for a new treaty the accession of Finland to NATO? That is not a new treaty.
Q349 Lloyd Russell-Moyle: To the maximum extent, you are saying a few hundred. We are talking about maybe one a day. We are not talking about hundreds or thousands a day that would require a whole team of legal experts crawling over them. You are talking about a small team of people who could probably manage it full time. I am trying to envisage when we are talking about this.
Dr Jones: It is challenging in the sense that last year we had two substantial trade agreements come before the House. To scrutinise properly thousands of pages of legal text is an incredible amount of work and you need to be able to draw down on legal expertise. It is challenging on the capacity of the House and the resourcing. The vast majority would come under the minor treaty amendments and so, even if there are hundreds, it is a quick flick through and a quick cursory glance.
The genuine challenge for the House is to work out how you have drawdown capacity to analyse the big treaties, and so, even if there are only two or three a year, we should not underestimate the work involved to give them proper scrutiny.
Q350 Lloyd Russell-Moyle: That does not change because one of the solutions you seem to proffer is not to waste your time doing the small ones but focus on the big ones. If it is the big ones that will take all the capacity and the small ones do not take much capacity anyway, we might as well include everything because the little amendments to what chemical or what ape you want to protect this week do not add much capacity. Is that correct?
Dr Jones: You want sight of everything and then you want a mechanism for figuring out how much resourcing you put into that. You then go for a report and get in external stakeholders or others to comment on it. The risk at the moment is that you do not have complete sight and that you do not necessarily have sufficient resources for even the ones that deserve significant scrutiny. Post Brexit, the trade agenda has been moving quite quickly. Hopefully it will slow down for everybody’s sakes and then it will be easier to have the requisite resources.
Professor Hestermeyer: I fully agree with that. A lot of technical documents come out of a lot of international organisations. Quite frankly, you could theoretically go through 100 a day thinking, “This is not of interest to anyone except for a tiny bit of industry.” Then you come to something that is interesting and then comes the problem. You need technical, detailed knowledge. This would be feasible. You would probably find a couple of more interesting documents but, of course, if you then do not have the capacity to do anything with them, the whole scrutiny process falls apart. You would then need the expertise and—one vital thing—the time to look at it.
That is why in trade agreements, for example, it is so essential to be there throughout the whole process. If I just throw an article from a trade agreement at you, you will be unable to say whether this is good or bad or what it does. You will be unable to do so even if you are an expert trade lawyer because you do not know the interest, the industry, the relevance in practice. You need to speak to people for that. That is true not just in the trade field. That will be true whether you speak about maritime matters or IMO scrutiny. You need that capacity and time.
Q351 Lloyd Russell-Moyle: That is all including treaties and legally binding texts. If we were to move on to MoUs or declarations in multilateral agreements—this is what I wrote my international law master’s on—do we need to scrutinise that area as well? We have heard that the use of non-legally binding instruments has increased, particularly if we think about Rwanda and everything. The US has increased its scrutiny. Should all of those be included in this, or is there another category and another form of scrutiny for MoUs, declarations and all the other stuff?
Professor Hestermeyer: I have tried to find some sort of quantitative stuff on MoUs, which is difficult. One of the reasons you do MoUs is you do not have to publish them and so nobody quite knows. That is also an area of international law where it becomes malleable and you are not entirely sure what an MoU is. Is this an exchange of letters? Is that just two people speaking and saying, “This would be nice”, or is this an MoU? MoUs are defined, at least in the British tradition, as non-binding agreements and so I will stick with the term “non-binding agreements” for the moment.
The Mexican treaty office says that about 70% of what it does are now non-binding agreements. The German treaty office has said that it does about 15 MoUs a month, which is more than treaties, of course. It is an increasingly relevant part of practice. The Rwandan MoU is quite fascinating because it is detailed. If you read through it, except for two or three provisions, you would think this is a treaty and it contains the provision that it is non-binding, which makes it a non-binding agreement.
That gets into interesting matters of international law, which I will not bother you with. Is compliance better for treaties than for non-binding agreements? Is there any difference? If the reality is moving towards doing those with a preference and we say we will exclude them because they are non-binding, reality will leave us behind.
The US change was not to go for full sifting. Indeed, this is one of the areas where I would not go for full sifting because, quite frankly, nobody knows. Nobody knows how many of these things are out there. They are not just signed by Governments; they are signed by ministries. In international law, they are also used by bodies that do not have personality to do treaties. UN programmes, which do not have legal personality, will sign MoUs because that is the only way they can sign an agreement. US ministries will sign MoUs. You will have secret MoUs by Defence departments, which should remain secret. No one in the world can say in detail how many there are. There have been attempts to quantify this. The US approach is to qualify the ones that are significant and should be subject to a new reporting requirement introduced recently to get an overview and have them on the books, including publication to some extent, of course with a carveout for secret ones. That is the way to go.
The other development is within the EU system as a consequence of a judgment by the Court of Justice when an MoU regarding, I think, Swiss money payments was signed and there was then a dispute about competencies. Of course the Commission argument was, “Competencies are irrelevant. This is non-binding and so we can do whatever we want”. The Council was saying, “No, that is not true”. That means the EU also has to act on MoUs now and get more of an overview.
The old argument that these are not legally binding and accordingly we can do whatever we want as long as we put the clause in that this is not legally binding seems to no longer hold water, because the reality is that they have an impact. That is why we do them.
Q352 Lloyd Russell-Moyle: We have heard in previous sessions that sometimes Departments do not even know what MoUs have been previously signed in Departments. It is such a mess. Should there be some sort of Government central depository for MoUs, even if sometimes it is not published or you just have a number and then the word “redacted”, but you know there is something there? Is that such a mammoth task that even if you wanted to do that, it is impossible?
Professor Hestermeyer: Basically, within the Department, there must be a depository. That is just a matter of good bookkeeping. I have heard anecdotes of an MoU being negotiated and then getting lost in the office papers and then afterwards nobody remembering quite what was in the MoU. That is just a matter of good bookkeeping and record keeping that you need to have a record of what was agreed. Also, if the person then leaves the office and nobody remembers what was agreed or the DIT Department is collapsed into the DBT and nobody remembers what was in those documents, yes, they must be there.
There is a caveat here. There is a necessity of fluidity in human interaction. If we define an MoU as a non-binding agreement, of course almost all of our interaction consists of, to some extent, non-binding agreements, where we just say, “What will you do tomorrow evening?” We need a clearer idea of what we want included and what we want excluded. To what extent is this just two negotiators finding common ground on something that is not yet quite relevant even to a non-binding agreement. It is still a conversation where they say, “We might find agreement on this”.
Q353 Lloyd Russell-Moyle: Summing up, you would not want a depository of all the details—“We will meet you for dinner at this time with the Minister”. Anything that is very timebound probably you do not want included, but things that have any longevity you probably do want included. Would that be the kind of distinction on MoUs that you could imagine?
Dr Jones: I have two thoughts. Having read the International Agreements Committee report on the Rwandan MoU, it is interesting that it said the guidelines are not that clear for when it should be an MoU and when it should be a treaty. Clarifying from the Department’s point of view would be helpful.
Secondly, there should be a presumption that they are now made public unless there is good reason to do otherwise. We do not have that presumption at the moment. The onus should be on the Government to say, “This is the reason we have entered into an MoU but we are keeping it off the books,” rather than the presumption being, “We will publish the MoU only when it is good publicity for us,” which is the case at the moment. That might help us then. It puts more into the public domain.
As Holger said, in the trade world we see MoUs all the time. The trade agreements that have been touted with the United States at a state level are in the form of MoUs. Similarly, the UK-Singapore digital economy agreement I mentioned has three MoUs attached to it. Those should be in full sight. They do not particularly need scrutiny but they should certainly be public and accessible through some kind of public repository.
Dr Mendez: If I can make a few points about this, I note that, for example, it seems pretty clear that non-binding agreements are on the rise. In a new article out this year, relevant scholars who used to work in the State Department have categorised them and shown how they are outnumbering the binding international agreements. By that they mean not the MoU where it is a chat with someone else and that counts as an MoU, no, but the ones that are not necessarily quite like Rwanda but sometimes like Rwanda, the more treaty-like MoUs that look more like they do exactly the kinds of things treaties do. In that piece of work, they engaged with more than a dozen experts in relevant countries that suggest that precisely that is happening.
Of course, one of the obvious concerns that we should have in this context is that they can be used to evade parliamentary procedures, just like treaty amendments, if you have a tacit amendment procedure that can be so used.
It is worth noting that, for example, the International Agreements Committee has highlighted the fact that we have a readmission agreement that is a treaty—this is a recent development—with Georgia, while on the other hand, in the same terrain, a readmission agreement with India that is an MoU. In another recent development, we have a recent mutual recognition of driving licences required by the UK’s departure from the European Union with Italy so that British residents in Italy will not have to get an Italian driving licence after 12 months and vice versa for the Italians who live here. That is a treaty, but yet with Germany the same thing is an MoU. The UK’s one with Germany is an MoU. We have a situation where, on precisely the same subject matter, one by definition will go to the International Agreements Committee but for some reason the Government or the other party—it could have been Germany in the mutual driving licence recognition—requested that it be an MoU and that is why it is an MoU. We have that going on.
If I could as well come in on the US and what it actually states, this is important. The US development in this respect will take effect in 2023 and so we do not yet know what will happen. It has the following criteria. First, it excludes Department of Defence non-binding instruments, which is a massive category. Thousands of instruments are just by definition being excluded. DoD and Security Agency agreements are excluded and carved out for them, but then the criterion for inclusion is, and I quote, “Could reasonably be expected to have a significant impact on US foreign policy”. That, to me, seems quite narrow. So much will not get caught by that kind of high threshold, although it is true that if the ranking members of the House Foreign Affairs Committee or the Senate Foreign Relations Committee request an MoU—but then they have to know about it—that will also fall within those requirements. Those requirements are that they report monthly to Congress—but the MoU has already been made and so this an ex-post reporting to Congress—and that they be published on the State Department’s website within 120 days. The ones that are not excluded for confidentiality reasons will become publicly accessible.
It has been suggested that the US is becoming a world leader as a result of this in this context, and I accept that that is a better model than the UK currently has because, when that comes into force, we would at least have a database. With the suggestion about publications here, Government Departments are publishing them or not publishing them. You cannot access them in one place.
As one other example, New Zealand’s treaties online database includes MoUs as well within the database—not all their MoUs. I checked and they have over 700 listed at the moment. They encourage in their treaty-making MoU guide that relevant New Zealand departments put their MoUs—although they do not call them MoUs in New Zealand; they call them arrangements—on to this public database because, and I quote, “It facilitates public transparency”. The UK has nowhere near a model like that. Again, that is a Commonwealth country that is sometimes used in comparative contexts in light of the UK’s own practices.
Q354 Lloyd Russell-Moyle: Do you agree with Emily that there should be a presumption to publish except when there are specific sensitivities?
Dr Mendez: I would not go necessarily as far as a presumption because, to my mind, that encapsulates a huge amount. I suggest, however, that the International Agreements Committee’s proposals in its working practices report, which were category-based—treaties with human rights implications or that affect human rights, significant budgetary implications and so on—from now nearly two years ago, would, to my mind although we will wait and see, capture more than the new US rules. They relate to significant impact on US foreign policy, and the Government decide whether something significantly impacts on US foreign policy. What will significantly impact on US foreign policy?
Professor Hestermeyer: It rarely happens, but sometimes I suggest some caution here. In this regard, we need to distinguish different concerns. When is it even appropriate to proceed in the format of an MoU? Should the Rwanda MoU ever have been an MoU? The fact that a significant amount of money was paid indicates to me—I suggest in most of these systems that we discussed it would indicate—you should not have done this as an MoU. If it involves monetary payment, it needs to be in the form of a treaty.
Secondly, MoUs are also a necessary element of flexibility. I will give you an example. When we were considering how to provide for continuity of the trade agreements, in some countries they could not come into force immediately because Brexit was a priority for the UK but not necessarily for all of the partners. But everyone agreed that there should be full continuity and traders should not one day after the end of the transition period fall out of the benefits of free trade agreements. How do you bring an agreement into force immediately if the domestic requirements cannot be fulfilled in time?
There is provisional application under international law, but some countries do not do provisional application. Then, interestingly, with those countries, MoUs were concluded. To be honest, that is hugely problematic in international law because, as soon as you provide trade benefits, it is problematic under the law for the WTO to do that without having a free trade agreement in place, but this is an instance where you can say nobody would complain and, after a short amount of time, it is done anyway.
This is just one example, but you need to resort to MoUs in a lot of other instances because you need to be flexible. I would be careful with an across-the-board publication requirement immediately because, to be honest, I do not know what this all affects. Some of these might be informal but still relevant agreements. But a sifting process where Parliament gets to see them is probably less problematic even for those that tend to be slightly more sensitive, leaving in place a whole defence carve-out where we need to think about who gets to see them and classification becomes an issue. I would be more careful and maybe distinguish between different aspects of what we need to consider here.
Q355 Lloyd Russell-Moyle: More cautious here, although I suspect a sifting process of Parliament creates the burden that we talked about earlier on.
The House of Lords has the International Agreements Committee and the House of Commons has just disbanded a Committee that I sat on, the International Trade Committee, in response to Government changes. Emily, you were an adviser for us for a bit. We are now thinking about what systems we should have particularly in the Commons, how the Commons should feed into the International Agreements Committee and what advantages and disadvantages there are.
Emily, you mentioned this joint committee in Australia. Is that the model to use or is there another form that the Commons should take now?
Dr Jones: Let me start by saying it is up to the House to decide how it arranges its affairs but it makes sense to me to have some kind of joint mechanism for sifting because you do not want to duplicate effort at that level. Once it has been sifted, the question is whether you want different scrutiny arrangements in the Lords and in the Commons. An option would be then for the International Agreements Committee to pick up the ones that have met the scrutiny bar and then have different systems of scrutiny.
Within the House of Commons, the International Trade Committee did a huge amount with few resources and admirably, but it was not sufficient to have good scrutiny. Part of the problem is the departmental nature of the committees. It makes sense to consider whether we have a committee that is dedicated to scrutinising treaties with, as the Australian system, subcommittees that then build up expertise, for example, around trade.
A genuine challenge is to work out how you draw down on the expertise that is across the House on different subject areas, particularly on trade. Again, I alerted that digital Singapore agreement to the Digital, Culture, Media and Sports Committee, but they were busy doing domestic legislation and did not see it as something they would then pick up. The challenge is how to draw on the expertise of the House in these different subject areas and then feed that through into treaty scrutiny.
My thought would be to have a dedicated scrutiny committee of some description within the Commons.
Q356 Lloyd Russell-Moyle: It would be dedicated in the Commons separately, unlike the Human Rights Committee, which is joint between the two?
Dr Jones: There are pros and cons to both. I have been impressed by the quality of work of the International Agreements Committee in the Lords. The incentives are slightly different. In a way, it is helpful to have perhaps two different processes for the big ones. That said, from the point of view of all the experts feeding in and all the stakeholders coming to give evidence, it feels like duplication because you submit evidence to several different inquiries on pretty much the same topic. Given the resources of both Houses, it might make more sense to combine them. There are pros and cons to both.
Professor Hestermeyer: I definitely agree on the resources issue, particularly when you see that a lot of the people who will speak to these committees are the same people and then you start to compete against yourself. That goes back to the timing issue. If you accompany a large agreement over four years, it is no problem to have separate processes in the Lords and in the Commons because there will be a lot of time. Yes, the same people will eventually have spoken several times to both committees. But if there is, as there is at the moment, a hot phase of treaty scrutiny, it becomes difficult to get appointments because both compete for the same resources.
Another model would be to say that we have a sifting committee that does the sifting task and then include treaty scrutiny as a core task of all the committees, saying, “This is a digital trade agreement and it can go to a specialised committee. This is an agriculture treaty and this can go to a specialised committee”, and make certain that it is then in the specialised committee.
Lloyd Russell-Moyle: We have had problems with getting committees to pick it up even with intergovernmental arrangements within the UK. Getting that done internationally—
Professor Hestermeyer: There are different models to do it. I feel most confident in saying there needs to be a centralised sifting part. I like the idea of a joint committee but I have been told repeatedly that it is difficult to ever get a joint committee and so I have withdrawn a bit from that idea, given the difficulties there are, but difficulties can be overcome eventually.
Q357 Lloyd Russell-Moyle: Is there any other arrangement, other than a committee, that needs to be included in the scrutiny process of the Commons, such as the embedding of members into delegations or negotiations? Holger, you mentioned the US clause that said that any member of Congress can request a meeting, not even members who are members of the committee. Do those things need to be included also?
Professor Hestermeyer: That is a specific trade agreement issue to some extent because trade agreements are the equivalent of budgetary US Acts. They are like a Christmas tree. If you have a new concern, you can attach it to the trade agreement. IP is in trade agreements. Human rights now are in trade agreements. Labour standards are in trade agreements. Environmental matters are in trade agreements. Hardly anything is not trade-related. I do not mean that ironically. It is actually true, which is the reason you can attach anything to a trade agreement.
In the US, my understanding is that they have a dedicated computer system because they also have for trade agreements external industry committees and involvement. They also get to see texts. To some extent, that is inevitable because those people are supposed to use those agreements. If they are surprised by the language, it is not a good sign. They should be able to look at the language and say, “This is what we want. This is what we aim for. This would help us and this would not help us.”
Q358 Lloyd Russell-Moyle: Who do those external advisory committees feed into?
Professor Hestermeyer: They feed into the negotiation process.
Q359 Lloyd Russell-Moyle: They feed into the negotiation process but are they then accountable to the Congress committee or are they accountable to the department?
Professor Hestermeyer: The accountability is the other way around. They are there to assist the negotiators and the negotiators are the accountable bit of the Government, but because they have such a broad range of stakeholders already involved, the feeding in and bringing members of Congress into the negotiation process tends to be easier because already so many people are cleared to see documents.
Q360 Lloyd Russell-Moyle: I ask because we have the Trade and Agriculture Commission and we also have these advisory groups, but they are all appointed by the Department. If we look at international development, ICAI reports to the Committee and is appointed jointly by the Committee. The Committee then produces its reports and sends them to the Government, rather than the other way around with the TAC, where it goes into a Government black hole and then comes out for all of us to see. I wondered if it was that way around. I do not know if you want to comment on that and then I suspect I need to finish.
Dr Jones: I have a couple of points. It is important for you to have much more sight and access to the negotiating texts than you currently have. It is important that you have a much more effective timeline laid in statute as well. You have the right to more time when you request it. The default might remain the 21 sitting days but, if you request longer, you get it. Thinking of the US system, it is 60 days prior to signature and 30 days prior to legislation being laid that then will be considered. That is 90 days before you even start and so 21 days is ridiculously short for the big treaties. That is the first point.
The second point is to think about—and I am glad you have brought them up—the trade advisory groups in particular. As you all know, we now have these committees that the Government appoint. They are not multi-stakeholder committees. There has been concern about how representative they are of all stakeholders. Another option to consider if we think about statute and having a treaty scrutiny piece of statute is to put in there what types of committee should be formed. Even if they report to the Government, they are multi-stakeholder. At the moment, there is a huge amount of discretion. If I am not mistaken, primary legislation in the US—perhaps it is the TPA—stipulates that the Government should listen to a multi-stakeholder. Again, think about how we have a rigorous system for different stakeholders to feed in. The development one is interesting as a possibility.
Dr Mendez: I have been in favour of having a joint committee on treaties because, that way, you bring on board the elected House, not just the unelected House. Of course, we had the JSCOT model at the time. The Constitution Committee had called for this in its report in 2019. Of course, it is rather different now that we have an International Agreements Committee up and running and doing good work. In that sense, I see the case for having the sifting committee, as Holger suggests, with treaty scrutiny work taking place by departmental select committees when it pertains to their area.
Just to throw some comparative points out here, in this respect, if we think about the EU model, it has its trade committee for trade agreements but fisheries agreements go to the fisheries committee, not the trade committee. The reason is that you have the expertise of that particular committee on that particular topic. If we look at the Australian model, JSCOT is the committee that does it from both houses. In the New Zealand model, it is the Foreign Affairs, Defence and Trade committees combined. It is mainly that committee that does it and it does the majority of treaty scrutiny that comes to the New Zealand House, but it also sifts and it gives treaties to other committees as well, like the environment committee. For taxation, the Foreign Affairs, Defence and Trade Committee does not do it. There is a good argument for that proposition.
Chair: Thank you very much. I am mindful of the time. We will crack on, if we may, with John McDonnell.
Q361 John McDonnell: You covered largely the information that is required by committees. Is there anything you want to add to what you have said already on that, particularly around sensitive information?
Professor Hestermeyer: So far we have spoken about the access of Parliament to documents. In the TTIP process, the EU gave access in a limited manner. Those were the dark reading rooms that we spoke of. Everyone was unhappy. They changed and remodelled that process entirely to one of excruciating openness where you can find lots of negotiating texts online and offers online.
There are limits to doing that to some extent because, if you do that in negotiations and you cannot get what you want, people will be unhappy. In trade in particular, what the big players—the US, EU and China—do is to some extent also due to the fact that they can impose their will effectively on other parties, which we are not in a position to do. Bearing in mind that eventually industry and stakeholders will need to use this agreement, more openness also to stakeholders at least would benefit the agreement.
The other point here to make is that this is not just about scrutinising what the Government do but ameliorating the outcome. You will be aware of lots of things in your constituencies that the Government do not necessarily know. I include here overseas territories, which often get neglected and sometimes are cut out entirely. The Falklands are appalled by the TCA because they do not get to benefit and they see their main industry crashing because that was catering to the EU market. I am not entirely sure how aware many people were and are of that. More openness means also that you can feed these concerns back into the process. In the end, agreements are trade-offs. People will often be hurt for the benefit of the overall good but, if we do not know we hurt people without insisting on benefits for it and that should not be the case.
Dr Jones: I have two brief points. First, the people we have spoken to on the trade advisory groups do not often have sight of the texts or confidential information despite having signed non-disclosure agreements. Some do and some do not. Again, more information needs to be shared, particularly in those spaces.
Secondly, the UK does a pretty good job on the impact assessments but we have to think about whether a third-party independent research group should be commissioned or at least rigorously audited.
Related to that, we will move on, hopefully, to the devolved Administrations, but we have to think about in the impact assessments assessing the impact on regions in our trade agreements as well as the environment, as well as human rights, with a broader amount of information and more rigorous information coming to Parliament to accompany the feed-in you get that is fairly ad hoc from specific stakeholder groups.
Q362 John McDonnell: Let us move on to the devolved Administrations. You have seen that we have taken evidence from representatives from the devolved Administrations. They are concerned about the lack of information and involvement. How best would we involve those Administrations? What best practice from other countries can we adapt?
Dr Jones: It is vitally important. If I understand, again, from reviewing the statements that have been made recently by members of the devolved Administrations, from what I understand, information sharing and consultation has got much better in areas of devolved competence. The question is the reserved competencies.
Again, having looked at their feed-in, for example, from what I understand, in Australia and New Zealand they are not properly consulted and certainly do not have co-decision making on tariff liberalisation. It is a sensitive area for them. You can think of New Zealand lamb and Welsh hill farmers. That is clearly of vital importance. What has happened in the tariff liberalisation is incredibly important to that devolved Administration. Having greater co-decision making over the negotiating mandate and objectives would certainly be important and greater sight of the negotiations themselves.
Then there is an interesting question about devolved legislatures as well if we move to a point of ratification and powers there. In short, it is an important issue that we would do well to pay more attention to.
Q363 John McDonnell: Are there examples elsewhere of involvement of substate actors like that?
Dr Jones: It is tricky. One particular example that I know of is the Canadian model, where they were not particularly good at involving the provinces. The provinces were then acting and implementing domestic legislation that was not necessarily in coherence with their international obligations. They learned the hard way and have then consulted with them much more effectively.
As you would expect, from what I understand, a committee structure meets periodically at the ministerial level and then more frequently at the technical level. For us, the real question is these competencies and how we manage access and information, but there are certainly examples from around the world, some better and some less effective, that we might draw from.
Professor Hestermeyer: There is a problem here that a lot of the examples come from federal systems with specific but strong competencies, all of them with their contradictions and all of them with their problems. The EU has an interesting model: these are EU competencies, these are member state competencies, the treaty covers both, and both become parties to the treaty. That is specific and leads to a complex category of treaties, mixed agreements and the phenomenon of mixity.
Most federal models I know take a different path. Most have powers of the states also to sign treaties. That exists even in the US, although it is so cumbersome that they prefer MoUs. Then the reality is that the federal system can sign up also usually in matters of competence of the states. That entails the risk that state competencies get lost but, in the US, that has been held to be legal at least.
Then the next problem is implementation and compliance. If you sign up to an agreement in matters of we would say devolved but they would say state competencies, how do you make the states compliant?
That is a long-standing problem that the US has at the international level. They have International Court of Justice judgments against the US in the matter of the death penalty in two cases. In one case, at that time President Bush wrote to the governor of Texas saying, “Please do not execute. We have an order against us,” but the governor of Texas, being the governor of Texas, even though his predecessor was now President, said, “We do not listen to the International Court of Justice.” The US is liable for those violations and cannot do anything about them under this constitutional set-up. Germany is starting to see a similar problem in the area of human rights and integration in schools because the competence there is a state matter.
All of these are interesting for us to look at, but none of them helps us much because the set-up here is so different. But it seems to be clear that more involvement is required. It cannot be that afterwards you have the implementing legislation and consent is withheld and you just have to go ahead anyway. That, in the long run, will mean a mounting level of discontent with the treaty making.
We must move away from a model in which we pride ourselves for inclusion by showing them the text after it has been negotiated but before it is ratified and saying, “Look, we are good players. We involve you”. They must be involved early in the process and informed early. That does not change the constitutional model in the UK, which is not a federal model but a devolution model. Early involvement, again, can improve the product. Particularly in trade, Scotland has large interests. The largest trading interest in the UK is Scotch whisky. That will improve the outcome and that might improve in the end also the content if they are taken seriously and if their input is taken seriously. Again, that could be provided for in a new version of CRAG saying when to involve them and how to involve them.
Dr Mendez: I see a strong case for some analogy with federal systems in this set-up in the sense that it seems to me that the UK should pursue a model of a co-operative treaty-making endeavour including the other constituent parts of the United Kingdom. In that sense, that is a reflection, generally speaking, of what a federal model would look like. That is what we should remember here.
The Belgian model is different because, as we saw with the Wallonian context in the CETA, the European Union trade agreement with Canada, it has given substate actors a veto point in Canada. I do not suggest that aspect of that federal model, but it is crucial to keep in mind that that is a total outlier in a federal system. The federal systems do not give the subunits a veto point. That is important to keep in mind.
They have a model, generally speaking, of a co-operative approach to treaty-making where, to use Switzerland as an example, which has one of the most advanced systems in this respect, the cantons get sight of the draft negotiating objectives and have input into those draft negotiating objectives and the central level has to justify why it does not take on board their concerns. This is at an early stage in the process.
By the way, Spain, which is a quasi-federal but not properly federal model, has a similar approach, which is partly outlined in its Treaties Act from 2014, if I am not mistaken. It is a co-operative endeavour with subnational entities.
It is important to keep in mind another thing going on with states that have approval requirements for trade agreements, like the US that are federal, like Germany that are federal models, like Switzerland that are federal models. Of course, it is not just that first stage but they have a chamber that represents as well, unlike the UK because it is not a federal model. The House of Lords does not represent the subnations of the UK. In Spain, the upper chamber also does not in that same way. It is not a federal model, but in those other systems it is a properly federal model. The Swiss who work in this area would argue that it is also the case—that is also why the cantons do not have a veto point—and that their interests are also represented by that chamber, which must also approve the output of any treaty that is made.
Chair: Thank you. We will, for reasons of time, move on to Tom Randall, because we have stored him up to the end.
Q364 Tom Randall: We have explored this in some depth this morning but, just to bring that all together and look at the system overall, if each of you had the absolute power to redesign this system, what would be the best model for the UK to adopt to ensure sufficient scrutiny so that the UK can effectively negotiate international agreements and how would that compare with the current arrangements?
Professor Hestermeyer: I confess that I would insist on one simple change: the vote at the end. I would otherwise put in some minimal requirements with open language—early, fully informed, access to negotiators, and those matters—but keep them vague because every treaty is inherently different from another.
We have learned from the European Parliament that, with the power to vote down treaties, the reality changed. That reality quickly developed a practice. Trying to copy or overly dictating details of a process will soon get you into trouble depending on the nature of one treaty versus another. Giving Parliament the power at the end and having Parliament then use that power will mean that the Government starts to be self-interested in getting Parliament more involved to make sure that they get their treaties through.
That did not happen immediately with the European Parliament. That happened when the European Parliament voted down the treaty because at first the mood of the Commission was that this was painstakingly negotiated over years and they will not vote it down. That would be an affront. But then they did and that meant that they had to be taken into account.
Have minimum rule-setting on the areas we have mentioned across the board, access to documents, which documents have changes to be included, MoUs to some extent but a more limited extent, and access to negotiators, but, most crucially, have the vote at the end. Then the details of the practice will develop over the years following the long tradition that this House has of developing practices.
Dr Jones: We should be mindful that treaties are designed to outlive any given Government or any given Parliament. Therefore, I underscore the importance of reforming our scrutiny and strengthening it.
I fully agree with what Holger has just said. The affirmative vote is the one power you absolutely need if Parliament is to be taken seriously. If there is one change, that is it. Much will fall in place. I agree on the access to information. Also, on the timeframe, Parliament should have the right to have more time to scrutinise when it so requests. Those are perhaps the main ones. Perhaps this is the ideal world. We might not get there immediately. It is a big statutory change.
You can do things in the short term. I want to quickly bring those to your attention. Immediately solving this problem of who scrutinises treaties in the House is within your powers to sort and needs to be actioned quickly. It takes time to build up that expertise and to arrange that you have the experts to draw down on. We will have treaties arriving soon. It is important to move on that as quickly as possible and the resourcing for that.
Make it clear or have some sort of arrangement with the Government on treaty amendments that is clearer than the one we have now and the scope of what comes and what gets notified. You can do things that are less about changing the statute and more about pushing for greater notification and greater oversight and upping your scrutiny resources in the short term.
Dr Mendez: I agree with the approval requirement for at least certain important categories of treaties. That is an indispensable requirement. To my mind, that should be included in a new treaties Act, given that we already have an Act of Parliament. If we did not have an Act of Parliament that engages with this issue, I could see the argument. Why should we have an Act of Parliament? But we do have one and so the debate is to retain it where it is or to have something more comprehensible and transparent that people can understand, not just expert lawyers, so that a layperson can look at that and have some sense of what is going on there. That is invaluable.
I note that it is not an ambitious proposal to have an approval requirement for certain categories of treaty. This argument has been made for more than a century. William Hague made the argument before a predecessor of this Committee when attaining the prerogative report. Giving evidence to this Committee 20 years ago, he argued for an approval requirement for treaties. Although it is sometimes seen as, “Wow, for the UK an approval requirement is ambitious,” it is not. I have given examples like Antigua and Barbuda that had this in the late 1980s. An approval requirement serves those objectives that we had been talking about before of getting Parliament to take seriously the treaty-making power, which is producing binding law that affects all our daily lives.
I want to have a system where, ideally, we have a mainstreaming of treaty scrutiny in the House of Commons, like is happening in the European Union. If it is fisheries, it is the fisheries agreement, as I suggested, but the committees can work together, as indeed they do in the European Union. Agreements can be cross-cutting and therefore the committees work together to do that.
Crucially, all the details do not need to go in a statute. I see the argument for having a separate concordat with a lot of the detail. To finish off in that respect, I note that the European Union’s model has a test in the treaty, effectively its constitutional system, but a lot of the other stuff is going on in a separate framework agreement between the European Parliament and the Commission and that has a lot of detail. Then some of the detail is in its own rules of procedure. You do not need to have a long treaties Act. You can have stuff outside it that is more readily amendable than a statute.
Chair: Thank you. That concludes our session today. I am grateful to each of our three witnesses for sharing their expertise. We will conclude our inquiry fairly shortly. For the moment, thank you all very much indeed.