21
International Agreements Committee
Corrected oral evidence: Review of treaty scrutiny
Wednesday 23 April 2025
2 pm
Watch the meeting
Members present: Lord Fox (The Chair); Lord Anderson of Swansea; Lord Boateng; Lord Goldsmith; Lord Hannay of Chiswick; Lord Howell of Guildford; Baroness Lawlor; Lord McDonald of Salford; Lord Stevenson of Balmacara.
Evidence Session No. 2 Heard in Public Questions 10 - 18
Witnesses
I: Professor Katja Ziegler, Professor of International Law, University of Leicester; Arabella Lang, Head of Public Law, Law Society of England and Wales and Visiting Fellow at Essex Law School and Human Rights Centre, University of Essex; Professor Mario Mendez, Professor of Law, Queen Mary University of London.
USE OF THE TRANSCRIPT
Professor Katja Ziegler, Arabella Lang and Professor Mario Mendez.
Q10 The Chair: Welcome to this evidence session of the International Agreements Committee on review of treaty scrutiny. The meeting is being broadcast via the parliamentary website. A transcript of the meeting will be taken and published on the committee website. Our evidence givers will have the opportunity to make corrections to that transcript where necessary.
I will kick off with the first question and I hope you will introduce yourselves when you start to answer; we will start with Professor Mendez and then pass it through. The UK Government often defend the current system of treaty scrutiny on the basis that the UK is constitutionally a dualist system—that is, treaties are not automatically incorporated into domestic law unless Parliament implements them by legislation. What is your view of the constitutional case for reform of the system of treaty scrutiny based on that thesis?
Professor Mario Mendez: Thank you very much. I am professor of law at Queen Mary University of London, with a long-standing interest in the topic of inquiry of this committee.
My view is that the constitutional case for reforming treaty scrutiny procedures is overwhelming. I do not think that this is a controversial proposition today. Treaties create binding international law that has significant and long-lasting implications for the UK. From the perspective of international law, it is law of superior status. This is so even for the unincorporated treaties. Even when unincorporated, they continue to affect the UK’s legislative freedom of manoeuvre. We are in a situation where we ultimate remain wedded to statutory rules that originate from at least 1924—a very different world in terms of what treaties were being used for relative to today. Of course, we are now in a post-Brexit era as well, to which I hope to come back later on.
The reason why I suggest that it is not controversial to advance the argument that we need reform—and by reform, I would advocate parliamentary approval for certain categories of treaty as a mechanism to generate parliamentary scrutiny over the treaty-making power—is that back in the 1870s, Walter Bagehot was already making the case for parliamentary approval of treaties. Into this century, William Hague appeared before the Public Administration Select Committee in 2003, arguing for parliamentary approval of treaties. The committee itself then produced a report in 2004, also arguing for parliamentary approval of certain categories of treaty. Today, we are in a situation where multiple parliamentary committees have been making the case for parliamentary approval of treaties.
On the dualism point—importantly, in my view—it is the norm across the world that generally you have parliamentary approval of at least certain categories of treaty, but it is also the case that numerous dualist states have such a requirement. When the UK was a member of the European Union, it had this requirement. I will finish by highlighting a few of those examples. First, all five of the Nordic countries are dualist and have parliamentary approval requirements for treaties. Since the 1980s, moving away from the Nordic countries, former or current Commonwealth countries—including Malta, Ghana, Antigua, Belize, South Africa and Fiji, just to name a few countries in the Commonwealth—are dualist but have parliamentary approval requirements for certain categories of treaty.
Professor Katja Ziegler: I am the Sir Robert Jennings Professor of international law at the University of Leicester. My research interest lies in the interaction of legal orders, national and international, and the accountability of the Executive.
To add to what Mario said, the constitutional case for reform springs from factual developments but also from legal norms. Very briefly, the relevance and impact of treaties has grown tremendously. Treaty law reaches deeper. The interaction between national and international law is increasingly deformalised, so the dualist argument in that sense does not hold because treaties, even if not incorporated, reach into the legal order and affect individuals, for example through interpretation of the existing law. Internationalisation usually leads to a shift towards the Executive in the exercise of powers. If this is not compensated for, this leads to accountability gaps at the national parliamentary level.
On the second point, regarding the dualist argument, it is sometimes argued that incorporation, where needed, compensates for this. So if individual rights are created if international law and international treaties apply domestically, they have to be incorporated. This is not a sufficient argument. Incorporation is often selective and relates to only part of the treaty. Parliamentary debates in this regard do not consider the treaty as a whole, so it is selective and fragmented—or pointillistic, if you wish. Also, not all treaties are implemented by statute, so if there is no implementation by statute, there is no scrutiny.
My third point is that the constitutional principles that build the case for reform, which follow from the impact on an individual, raise the constitutional principle of the rule of law, which limits executive powers in the royal prerogative where human rights are concerned. Parliamentary sovereignty, the domestic allocation of competence in foreign policy, is impacted by internationalisation and international treaties, so democratic accountability requires greater scrutiny than it has at present. Let us not forget that compliance with international law is also part of the domestic rule of law, so conflict with international rules is more likely – if there is no positive act of approval of a treaty – in later stages. This would obviously not only harm international law as a universally binding normative legal order but counteract the UK’s standing in the international legal order and its reputation and credibility as a reliable international actor.
The Chair: I am very interested in that last point. It might be that you want to write to us in some detail on that international law bit, because it is an interesting point that we have not heard.
Arabella Lang, if you have nothing to add, that is fine. I have a follow-up question and I will give you first go at it. As you know, the Government argue that it is necessary to have flexibility in the system, as they put it, to allow them to negotiate and conclude international agreements with a free hand, which somehow gives them a strategic edge—that is the implication we get—and that that sort of approach, where it is left entirely to them, is in the national interest. What is your response to that? Clearly if you have some comments on the previous part of that question, do say so.
Arabella Lang: Thank you. For those of you who do not know me, I am here with three hats on; you are getting three for the price of one today. I am the head of public law at the Law Society, working on rule of law and constitutional issues. For a long time I was an official in the House of Commons and I did a lot of work on treaties. I set up the Parliament and treaties hub there. I have also done quite a lot of academic work and publication in this area.
I will try to make clear which hat I am wearing as I answer your questions, but I think with all three hats I can agree with my colleagues that it is entirely constitutionally appropriate and desirable to increase Parliament’s treaty role. There are rule of law arguments in favour, as Katja mentioned, and it is entirely compatible with dualism. I do not know if we will talk a little bit later about the current position of treaty scrutiny, but there is no early influence from Parliament. Parliament cannot make amendments, unlike its role on legislation. It is sometimes misrepresented as an approval power, but it is more like a pause button. Even then, the Government determine whether they get to press that pause button. It does not stay down for long, and the Government can take the pause button away. As Katja explained in detail, implementing legislation is no substitute for debating the content of a treaty itself.
We touched on the rule of law arguments for reform. One other element that I would add to that is that some treaties remove cases from the domestic legal system. Trade treaties include something called investor-state dispute settlement, which quite a lot of the Law Society members work on. There is also a constitutional argument that Parliament should scrutinise the spending of public money, which is often involved in treaties and other international instruments.
A point that we might touch on later is that public opinion is likely to be in favour of more scrutiny. Although there is no research that I am aware of that touches on this directly, there is detailed research from the Constitution Unit, working with citizens’ assemblies, where 96% supported the statement “when significant new policies are announced by the Government, there should be an opportunity for full parliamentary scrutiny before decisions are made”. That is an interesting indicator.
On the flexibility issue, flexibility is important but so is constructive challenge and cross-party support for treaties, which often have a long life. You often get treaties that began under one Administration and then carried on under another. We have an example with the UK-Mauritius treaty at the moment. Also, the Government can use parliamentary involvement as a negotiating tactic. If they have to say, “I need to go back and get parliamentary approval for this position”, they can use that to get some traction. Involvement does not have to be black and white; it can be proportionate. There can be different levels and degrees of involvement at different stages of the process and for different kinds of treaty.
The Chair: That is very helpful. Are there any other points on flexibility? I know Lord Hannay has a follow-up question.
Professor Mario Mendez: We already have an existing example illustrating the scope for flexibility in the form of CRaG and Section 22, where, clearly, Parliament is sovereign. If we were using flexibility in a legislative sense in that respect, whatever regime we have in place for treaty-making scrutiny in the form of legislation can itself include scope for flexibility. Section 22 means that you do not have to lay a treaty that would otherwise be caught by CRaG in exceptional circumstances. We can obviously write a variant of that into the relevant statutory rules—it exists in other constitutional systems—but we can also have flexibility written in in other ways, such as in parliamentary rules of procedure, where urgent circumstances might require a treaty not be presented to Parliament. You can then have other requirements, such as having to give reasons for why you are not taking this particular route for that treaty.
The Chair: I am aware that we have lots of questions to go through, but Lord Hannay will ask a supplementary.
Q11 Lord Hannay of Chiswick: I have one additional point under this question. I declare an interest because for five years, from 1990 to 1995, I was the United Nations ambassador for the UK. The question relates to trust and the dualist system. I was completely unaware in those five years, in which period I tabled any number of international agreements that had been ratified by the United Kingdom, that although we were notifying the United Nations that we were ratifying them, we did not have the powers to implement them and did not have the slightest intention of taking those powers until the parliamentary timetable permitted—that is, the Greek calends. Can you comment on the issue of trust? I think most countries around the world, apart from those that have very well-informed legal advisers, think that when the UK says it has ratified something, it has ratified it and is treating it as international law. The dualist system does not seem to be entirely compatible with that. Could you comment?
The Chair: Can Lord Howell ask his question, then we will answer both of them together, please?
Lord Howell of Guildford: I know we will probably come to how resources and powers impact on institutions later on in our questions, but I want to ask this more general question: to what extent did any of the three of you take into account the absolutely unparalleled and completely historic revolution in communication that has now been brought about by the digital age? Of course, a child of that is populism, and a child of populism is an unprecedented interest in what Governments are doing. There is a great deal of distrust—following Lord Hannay’s question—and it is a pretty central issue. Can you give us a flavour of how far you have accepted that we are living in a totally different atmosphere of communication, trust and respect, which is altering fundamentally the pattern of governance?
Professor Katja Ziegler: On trust in the system, there are two terminologies of ratification: the domestic and the international. When the UK notifies a treaty to the UN, it basically confirms that it has taken the steps and has expressed consent to be bound at international level. What the implementation is at national level is, in a sense, up to the state. International law is binding, but if there are no tools to implement it then the risk is that international law is breached for lack of implementation mechanisms. Awareness of that risk can affect trust internationally. If the UK says on the international plane, “We do this”, and domestically it is obvious that it cannot do that, or it even produces legislation to the contrary, then of course that affects trust in the UK as an international actor. It also undermines international law as a legal system that creates reliability and the foreseeability of international relations. It is in every state’s interest to maintain that, so states should not be in a double-bind situation.
Arabella Lang: The FCDO’s treaty guidance states that the Government’s intention is to ratify only once any implementing legislation is in place, but more could be done to connect the two. For instance, at the moment there is no timetabling requirement between the CRaG process and implementing legislation, so there is certainly room for improvement there. On the communication question, there is an enormous issue of trust in democracy and where we get our information from. The more we can do to be transparent and have more information about treaties, whether in the digital age or any other, the better.
Professor Mario Mendez: I share some of the concerns that have just been expressed. On the last point about distrust, digitalisation and related matters, trade agreements are one of the obvious examples of particularly controversial uses to which treaty-making can be put. It strikes me as problematic today—in a social media era as well, where people can clearly be abreast of the fact that we do not have parliamentary approval for the UK’s trade agreement with Australia, for example. You do not have to look far to find that the House of Commons, or the Government, did not make time for Parliament to debate that particularly significant treaty. It is quite astonishing that that could happen this far into the 21st century, one might point out.
In that respect, there was a judge on the European Court of Justice—Pierre Pescatore, a famous Luxembourg judge from a monist system—who viewed dualism as a sleight of hand: you ratify the treaty but then do not do the domestic incorporation. However, I should add in defence that in many countries that are formally monist, treaties are supposed to become part of their domestic legal order. That does not, in fact, mean that they actually become properly domestically applicable in the domestic legal system. That is equally a concern.
The Chair: Lord Goldsmith, I see you have your hand up.
Lord Goldsmith: First, I thank our guests for coming. Welcome back, Arabella. Arabella has been to this committee before, but I thank the others very much indeed too.
Professor Mendez referred to Bagehot. Of course, Bagehot said that one of the oddities was that Parliament can spend a lot of time looking line by line at primary legislation and then completely ignore treaties that have as much importance, perhaps even more. The question I want to ask all of you is whether you can come up with examples—perhaps not now, but later—of treaties where maybe there has been some implementing legislation, or maybe none at all, but that are of importance and you have been surprised that Parliament had not been able to express any view on them, because no scrutiny took place at that stage.
The Chair: You may reveal them now or put them on a postcard, but it would be very useful to have those examples.
Arabella Lang: Certainly one of the post-Brexit trade treaties had a minuscule piece of legislation. I can check for you which one it was, but it was a very tiny piece of a very big trade treaty.
Professor Mario Mendez: The most obvious and famous example that people will be familiar with—it goes back some time—is, of course, the European Convention on Human Rights, which was laid under the Ponsonby rule and so was the creation of its court, but it did not have a debate in Parliament. It was viewed as not requiring implementing legislation because our law was viewed as being in compliance with the ECHR. Over decades, we proceeded to have to change our legislation, if a case concerned legislation needing change, or to require new legislation, as famously was the product from a ruling: the famous Malone case in the 1970s led to the earlier version of the Investigatory Powers Act in 1985 or 1986, I think. That is a particularly famous instance of the UK signing up to a treaty without implementing legislation. The two ICCPR covenants from the 1970s are examples laid under the Ponsonby rule with no implementing legislation.
I might add here that in Sweden, to use a Nordic country with a dualist model, the treaties I just named—the ECHR, the ICCPR, and the International Covenant on Economic and Social and Cultural Rights—had parliamentary approval but Sweden remained a dualist system. They were not implemented into the domestic legal system, but those treaties received parliamentary approval. That shows that we can have dualism while having parliamentary approval and retain the prerogative power model that we have in the UK as well.
Professor Katja Ziegler: I would echo that to say that the same is true for Germany, with its approval of treaties—for example, the International Covenant on Civil and Political Rights—as human rights treaties.
Q12 Baroness Lawlor: Thank you very much for your evidence today. How does the UK approach to treaty scrutiny compare internationally? What examples are there of different approaches in countries with comparable constitutional systems? Here, I would have my own caveat, which is that the UK has had a much longer tradition of a constitution with a separation of powers, which allows for a seesaw between the Executive and Parliament and has allowed for gradual evolution. In some way, this has guaranteed stability. My question relates also to the nature of the UK constitution as it has evolved, where we have seen this seesaw work quite well in terms of stability.
Arabella Lang: That is an important point about gradual evolution; we have seen that so far with all elements of the prerogative powers. Worldwide, we also see a gradual shift towards a different balance of power between Parliament and the Executive over treaties. The UK is very clearly an outlier here. The vast majority of countries—including other dualist countries, as we have said—require legislative consent for at least the most important treaties. Some 2019 research showed that 148 out of 185 constitutions required parliamentary consent for some or all treaties, even though many of those constitutions did not make approved treaties part of domestic law.
We have given some examples, and I am sure we will carry on doing so, but the Norwegian example is one where there has been an evolution. Although parliamentary consent is required, it now also has a parliamentary committee, and the Government discuss in confidence any important foreign affairs and defence decisions before they are made. You have interesting models like that that are not necessarily set in the constitution but are working practices that can be learned from. In other examples, Australia grades treaties into different levels of importance for different tracks of scrutiny. Canada and New Zealand both have a better connection between the implementing legislation and looking at the treaty itself, as we talked about earlier. There is another example from the US about transparency of non-treaty instruments, which we can come back to.
Baroness Lawlor: None of these countries would have had the long evolution. They would be relatively modern constitutions by comparison with the UK constitution.
Arabella Lang: It depends how you look at that, but I think all of them have also seen a gradual evolution themselves.
Professor Mario Mendez: I would just throw out that I would not think of Norway as that modern in this respect. A key question here becomes what we mean by “comparable”: do we mean only the so-called dualist systems? In that case, if we mean only the so-called dualist systems and exclude the so-called monist systems from our analysis, I would agree with Arabella that Norway is certainly an example that we should be thinking about. I would add that PACAC, when it looked at this issue last year, looked into Norway. One of the reasons why Norway is particularly important to look at in terms of the Nordic countries is that the three other Nordic countries, excluding Iceland, are all member states of the European Union. Being a member state of the European Union means that a significant part of your treaty-making is, in effect, done by the European Union. We have a misplaced analogy or comparator, I suggest, if we use the countries in that sense, whereas we could have things to learn from Norway, being a dualist system.
The fundamental problem we are finding now, to my mind, is that the elected House is not engaging in treaty scrutiny. That is the current model. That is why it is so constitutionally anomalous, which is what Bagehot would have been talking about back in the 1870s. If we were to look at the other dualist examples that we could say are more comparable to the UK, such as New Zealand or Australia, the thing to know about them is that Australia has a Joint Committee, which means that its elected House is also doing parliamentary scrutiny. New Zealand is a unicameral system, and the committee that is in charge—the Foreign Affairs, Defence and Trade Committee—it being unicameral in an elected system, means that its elected House is doing treaty scrutiny, as it rightly should. However, both those models are primarily premised on post-signature scrutiny of the treaty-making power. That is where I believe we have a significant problem, because that scrutiny is not very meaningful as a result. In that sense, the Norwegian model is a better reference point for us to think about.
The Chair: That is an interesting point.
Professor Katja Ziegler: Could I add to the organic and stability point? It is worth remembering that, worldwide, constitutions are undergoing a change in foreign policy. Foreign policy has traditionally been viewed as the prerogative executive power par excellence, but that is changing, and virtually all states needed to adjust in one way or another, organically or through more formal amendments. I guess the measure of success for the UK is perhaps not stability per se, but whether that stability also allows organic development of the constitution.
At the moment, the UK has become an outlier in how it treats parliamentary scrutiny of foreign policy. It might be a broad brush, but in 2013, academics at the University of Virginia did an empirical study and the result was that 30% of states have a parliamentary approval requirement for all treaties, plus a further 60% have some form of parliamentary approval requirement and [there is] an increasing requirement for a supermajority for some treaties, such as integration in international organisations. Germany requires some form of parliamentary approval. Traditionally, in the 1980s, Germany—just to exemplify that shift in the foreign relations constitution—had an approach to foreign policy to firmly describe it as areas of exclusive executive competence. Today, the relationship between Parliament and the Executive in treaty-making is described much more as one of co-operation and co-decision. If we are looking at the EU, we have a similar sort of bottom line here, more co-operation than antagonism in treaty-making, which shows the—
The Chair: Sorry to interrupt but, given the point that you have just raised, I suggest that Lord Anderson asks his question, which follows on from the EU bit, then we will get Lord Howell’s question, if that is okay. Lord Anderson, would you like to chip in? Professor Ziegler, you could pick up on that, because I think you are heading in the same direction as the next question.
Q13 Lord Anderson of Swansea: Back to the EU: you presumably are all aware of the system of scrutiny within the European Parliament, to which we were subject until Brexit. What, in fact, have we lost as a result? Is there a democratic deficit in this field as a result of our leaving the European Union?
Professor Katja Ziegler: Shall I continue?
The Chair: Yes. I think you were headed in that direction, which is why I jumped in.
Professor Katja Ziegler: Scrutiny in an EU context has two interesting aspects. We have lost the scrutiny by committees in the Westminster Parliament of executive acts which were not treaties, under the scrutiny resolutions. That is an interesting example of scrutiny of foreign policy decisions. Of course, the other major loss is the scrutiny through the European Parliament of international agreements, largely concluded by the EU, where the competencies have now come back to the UK. Most treaties concluded by the EU come under a consent requirement, so the [European] Parliament has the up or down vote at the end, but perhaps where the system is more interesting and more innovative than many states today is in the extensive parliamentary involvement rights—rights of information, rights of consultation throughout the process—which gives the Parliament more of an influence to shape treaties, not just to vote them up or down at the end, which constrains the range of action.
There are detailed rules in an interinstitutional agreement between the European Parliament and the Commission, providing for things such as information, timelines, consultation rights and the right of the European Parliament to give opinions both on treaties that are subject to the consent requirement but also on other treaties, although the influence is more limited there. The European Parliament can proactively get involved and issue recommendations at any stage. The Commission needs to justify or report back on how it took these opinions and recommendations into account, so there is more of a back and forth, which gives the Parliament a stronger position throughout the process.
Lord Howell of Guildford: I just want a very short point of clarification. You have used the phrase twice now that the UK has become an “outlier”. Do you mean outlier in that we have become more concerned in enforcing and adhering to international law and undertakings in treaties—the sort of views of the late Lord Bingham, who was a great protagonist of the proposition that domestic law and international law were the same thing? Some of us do not agree with that at all, but that was his view. Or do you mean that we have become more cavalier as a nation in addressing international law? Which way are we outlying?
The Chair: Who used the phrase first?
Professor Katja Ziegler: By “outlier”, I meant having a limited role or no role, with no formal approval requirement for treaties. I was not referring to these wider issues.
The Chair: That clears it up nicely. Lord Anderson, you had a subsequent point.
Lord Anderson of Swansea: Going back to the question of information to the European Parliament, we are fortunate in that, during the progress of negotiation, we often meet the chief negotiator and can understand rather more of what is happening. That is not in public. Is it the same as in the European Parliament? Which is preferable and more effective?
Professor Katja Ziegler: There are briefings and reports from the negotiations. The European Parliament can also request observer status to get real-time information, so there are different ways of getting information from the negotiations to Parliament. The combination of various mechanisms makes them effective.
Lord Anderson of Swansea: So some are formal.
The Chair: I think that clears it up: there is a different approach, but a real-time approach.
Lord Anderson of Swansea: I am thinking more about the informal means of gathering information.
The Chair: A sort of grace and favour too, in that we are beholden to it. I am going to move on to the next question, which is from Lord McDonald.
Q14 Lord McDonald of Salford: Quite a few people around this table were involved as part of the Executive in making treaties. I tell you frankly that the role of the legislature was neither clear nor welcome, because treaties are difficult to negotiate. There is someone on the other side of the table who has a completely different set of interests and is sovereign. The more important the treaty, the more difficult the process. By the time you have done all that and you are going to parliamentary approval, you have a product that you do not wish to be touched, because if it is, you have to reopen things with the other party and that is very difficult. You make a very compelling case for having parliamentary approval, but at what point does each of you individually think that the legislature should become involved?
Professor Mario Mendez: My argument for the downstream constraint of parliamentary approval is because of its capacity to allow Parliament to contribute at earlier stages. The normal thing with a parliamentary approval requirement, which overwhelmingly most constitutional systems in the world have for at least certain significant categories of treaty, is an up-down vote on that particular treaty. You obviously cannot amend the treaty at that point, but the idea is that—
Lord McDonald of Salford: There is a cliff edge.
Professor Mario Mendez: I am happy to comment on the fact that there are very few instances of a treaty being rejected in a vote in a Parliament. The US is an outlier there, to use the outlier language, in having a Senate approval requirement that has resulted in more than a dozen treaties being rejected in over a century. Otherwise, in many other constitutional systems you will not find an example. To use France as an example, under its current constitution, France has never rejected. We have to go back to the European defence treaty in the 1950s for the last time it voted against. I am not sure if you were partly going in that direction, but we need not concern ourselves overwhelmingly with the possibility that the Parliament would veto the treaty. I recognise that the European Parliament has rejected on a few occasions—three, I believe—but we have to go back more than a decade for that. The idea is that that allows you to have not a requirement that you must be able to influence a treaty text, but, in certain instances, that you would be able to influence the treaty text, because the idea is for you to approve it later, and you might have a view on the negotiating mandate.
To the question earlier—although it was not quite being asked—on which is more effective, there is no question that the European Parliament is more effective, precisely because you can have chief negotiators come in and talk to this committee, but the difference is that the European Parliament says early on in a trade agreement negotiation, for example, “We want this in the agreement, we want that in the agreement and we want something else as well”. Then you have to respond, as the Commission, to the European Parliament and tell it why you have been unable to get that into the agreement.
Lord McDonald of Salford: So it is the earlier the better.
Professor Mario Mendez: Yes, basically, so that you can have the possibility, in certain contexts, to be able to influence treaty text and then have parliamentary approval. Comparatively speaking, it is not a problem in constitutional systems. It has not been in the US, other than for the so-called Article II treaties. The majority of US treaty-making is not under the famous Article II, with the Senate two-thirds requirement. The overwhelming majority—over 90%—do not even go near that route and do not get rejected by Congress. That is not something that we need to be overwhelmingly concerned about.
The Chairman: Arabella Lang, I imagine you have some comments on this.
Arabella Lang: Yes, thank you. I agree on the earlier the better, but it comes back to the notion that flexibility is crucial and that it would not be appropriate or possible to have early involvement for all treaties.
Lord McDonald of Salford: Could you comment on the categories where you think it is important?
Arabella Lang: My list is taken from my academic study of other countries and other systems. Treaties that require domestic legislation, those with significant financial or political implications, those with impacts on rights, free trade agreements, those relating to international organisations, and those expanding or reducing territory are the important ones for Parliament to be involved in early.
Professor Katja Ziegler: On the Executive point, there is also an argument—which the Executive might like—that early involvement of Parliament restricts Parliament in some ways, so that it would then not suddenly come out of the closet and vote the treaty down on issues that it could have raised previously.
The Chair: Lord Hannay has a follow-up question.
Lord Hannay of Chiswick: I want to look at a different side of this issue we have been discussing, because to those of us with experience in the United States—a previous member of this committee, Lord Kerr of Kinlochard, was ambassador to the United States and I was at the embassy at one stage—it was quite obvious that the United States used the congressional opinion to advance the United States’s interest in the negotiations. That is to say, they would say to you, if you were negotiating with them, “Oh well, Congress will never agree to that”, or, “Congress is going to insist on this”. We, as the third country in those cases, were compelled to pay attention to that because, after all, we wanted an agreement with the United States; we would not have been negotiating otherwise. We wanted one that would subsequently get the approval of Congress in whatever form was needed, whether the full two-thirds of the Senate or other forms involving the finance committee of the Senate and the ways and means committee of Congress. Could you comment on whether the British Government’s view that they get more flexibility and more say in how the treaty is negotiated is missing a crucial point: that parliamentary involvement could be a tool to get to our objectives?
The Chair: Professor Ziegler, you already raised that to some extent, so can you keep your answer to this relatively brief?
Professor Katja Ziegler: I would just say that it restores an equal playing field. I agree that if the UK cannot make the domestic argument then it is somewhat on the back foot, but because most states might be able to make them there is a limit to how much it can twist the arm of the negotiating partner, in that sense.
Professor Mario Mendez: I have no doubt that this is a crucial issue. We saw this in play while the UK was a member of the European Union, which is to say that while the UK was a member of the European Union, while being obviously a dualist system, we had a statutory requirement for parliamentary approval of revisions to the EU treaties. That meant that whenever the UK went into negotiations, from the Single European Act through to the treaty of Lisbon, it was able to say in those negotiations, “We need to get this through Westminster”. Of course, Maastricht had some struggles getting through this Parliament back in the early 1990s, but the UK has been using that argument of a parliamentary approval requirement to try to get better outcomes, as have other member states of the European Union. Denmark used the fact that it was going to have a referendum. In the constitutional treaty, there is work and research on precisely this issue, which is if you had a referendum requirement for the constitutional treaty, were you able to get better outcomes in the negotiations as a member state?
I would point out, of course, that it depends on the size of the player that we are talking about. If the United States decides, post-9/11, that it wants passenger name record data from you as a state, and you are state X with a population of 3 million, you can say that your Parliament may prove problematic in approving this, but it also depends on the size of the player you are dealing with and the parliamentary approval requirements. Basically, I think that you can get better outcomes with parliamentary approval requirements.
The Chair: Lord McDonald, I know you have a tiny follow-up.
Lord McDonald of Salford: It is a tiny supplementary. At the moment, we are talking about scrutiny at the end and we have the 21 sitting day limit under CRaG. Do you think that is sufficient?
Arabella Lang: I might just say, from my previous experience working in Parliament, that it could be sufficient in certain circumstances and it will be for some. However, the main way in which it can be made sufficient is if there is early involvement. If a committee understands a treaty, it has already had its discussions with negotiators and there is a sense of an understanding that has been reached already, then the 21 days would be a formal process for agreeing something that is already well understood and on which there has been time to take evidence and get expert opinion and have had public involvement already.
The Chair: That is helpful. I will move on to Lord Stevenson.
Lord Hannay of Chiswick: Could I just have one more question on the 21 days, please?
The Chair: We are running out of time and we have had an answer to that question. Can I ask Lord Stevenson to ask his question, please?
Q15 Lord Stevenson of Balmacara: I think that we have covered some of the ground, but it might be worth repeating and focusing on it. This inquiry is mainly about CRaG but we have touched on the question that there are other important treaties, mainly the ones that are subject to ratification, which could be covered by parliamentary scrutiny. Perhaps when you answer you could focus again on that. I was intrigued by the suggestion that one of the countries—I think Australia—already had a classification of treaties that would get certain types of treatment. Do you think that system would work in this country if we were to adopt it?
The Chair: Professor Mendez, I see you nodding.
Professor Mario Mendez: Yes, I think that there is a case. We see it reflected in other constitutional systems aside from Australia, but in Australia as well. We have information being presented to Parliament beyond the category of treaties that were required to be laid under what was the Ponsonby rule and is now Section 20 of the Constitutional Reform and Governance Act. To throw out an example, Spain, which has a parliamentary approval requirement in its constitution for categories of treaty, none the less requires that the Spanish Government lay the other treaties before the Parliament, just not for approval. There is a very strong argument for differentiating between different types of treaty relative to their significance. One of the issues that is raised sometimes and is potentially relevant is about treaties that come into force exclusively via signature. That is also a concern that we might think about: whether we need to have a stronger role over treaties that are not caught by CRaG. So I share those concerns.
Arabella Lang: I would echo that point and say that at the moment we have a system where the level of scrutiny is determined by the form of an instrument, whether it requires ratification, signature alone, or whether it is not even concluded as a treaty but as something else. The Government get to decide that entirely. There is some guidance around some aspects of that, but basically there is no way of challenging that decision. It is that that determines the level of scrutiny, rather than the content and importance of the instrument itself.
Professor Katja Ziegler: I would echo that. There is a need to articulate the criteria of why scrutiny of executive action has to happen to then argue and make a case for, for example, withdrawal or one-step treaties approved by signature to come under scrutiny arrangements.
Lord Stevenson of Balmacara: The problem about scrutiny is one we have touched on. Is there an answer to that, or do we just have to live with it and learn lessons for the future?
The Chair: Can you repeat that question, Lord Stevenson?
Lord Stevenson of Balmacara: Sorry. We did touch on it and I do not think that it needs a long answer, but treaties that come into force on signature are a category that we keep bumping into and we do not quite know what to do with. Is there an answer to that or is it just one of these things we are going to have to live with—they happen?
Professor Katja Ziegler: The answer is earlier involvement of Parliament and perhaps voting on a draft, or you could create an international timeline that the signature is delayed after the final text has been initialled. There would be ways, either domestic or at the international level, to include parliamentary approval in the process.
Q16 Baroness Lawlor: Of the list of things that are not covered by mandatory scrutiny—withdrawals from treaty, decisions adopted by bodies set up by treaty, particularly trade bodies, and other MoUs—where would you put this shopping list of non-treaty agreements in your pecking order? If we were to have a list of what we ought to scrutinise, which ones would you put first, second and third?
The Chair: Arabella, you started with a list before; I do not know whether that is the same one.
Arabella Lang: A strong argument can be made for giving treaty withdrawal a parallel process to that for entering into a treaty. It is increasingly happening in constitutions worldwide. I think that we are up to about a third of constitutions that have that parallel structure, and it is going up.
The decisions of treaty bodies is an issue where, to come back to the same point, if Parliament was involved earlier it might catch that clause in a treaty and impose some requirements on those decisions, if a treaty amendment made by a treaty body should have some further scrutiny. They tend to be much more technical, so that is a little bit further down the priority list than withdrawals for me.
On the issue about non-treaty instruments, I would come back to the question about content rather than form and say that that is where the distinction should be made, rather than whether it is this kind of instrument or that.
Professor Katja Ziegler: Briefly, on the decisions of treaty bodies, where there is already an empowerment in the original approval, I do not think that Parliament necessarily needs to approve again but it is a question of surveillance and reporting of treaty activities, because it could also prove quite problematic to get involved at every level of detail. To some extent, the EU involvement, for example, with Council of Europe conventions points in that direction.
One more point is the provisional application of treaties. Many, especially trade treaties, are applied for years before they are properly in force to bridge the gap between all parties ratifying the treaty. There is perhaps a point here also to involve Parliament in the decision whether provisional application should be allowed or consented to by the Government.
The Chair: That is an interesting addition.
Lord Goldsmith: I just want to say that this is very helpful. I will ask again if it is possible to give some concrete examples of cases where scrutiny was not possible because, for example, the treaty entered into force on signature alone without ratification, or something like that. It would be very helpful to have that for an evidence-based report if you are able to provide anything—again, not necessarily now, but later.
The Chair: That is helpful. I will ask Lord Anderson to ask his question and then perhaps witnesses can come back with two things.
Lord Anderson of Swansea: I am a little puzzled. If a treaty has already entered into force, what is the point of scrutiny? Surely that implies that Parliament should have a role from the ground floor at each stage that would allow it to insist on certain changes.
Professor Mario Mendez: There was a time when we had secret treaties. We still can have secret treaties that are not notified to the United Nations, so that is not scrutiny as such, but there is a form of accountability at least for the fact that you have drawn to the attention of your Parliament, as you should, that you have entered into this binding treaty. The scrutiny obviously cannot change that treaty.
I might add that, frankly, the current model that is primarily operating in the UK, in which, obviously, this committee takes the lead in the unelected House and the elected House is not doing anything of significance, is a model where, although the treaty is not yet in force, it is not shaping the treaty either. The scrutiny that operates prior to ratification is of a treaty that has already entered into force for the United Kingdom, but it is a treaty that, at this point, you are not able to change.
The one thing that you could do, which was not mentioned in the prior question but we could highlight as being of importance here, is propose reservations. Something that we should be thinking about doing is giving Parliament a role in reservations in relation to treaties, because then Parliament would be able to propose reservations for treaties that have not entered into force because they have not been ratified. However, with the ones that have not entered into force, that clearly is not scrutiny as I would understand it. That is a form of transparency and accountability in some way for the fact that you have used the treaty-making power.
Arabella Lang: I just had one example of a treaty that entered into force on signature alone. It is usually for bilateral treaties, not for multilaterals, and it is usually where no domestic legislation is required. That does not mean that it is not important, necessarily. The example I have is a 1996 treaty between the UK and Russia on co-operation on the peaceful uses of nuclear energy—so a pretty important topic.
The Chair: Thank you. If others come to mind from all three of you, could you write to us? Lord Goldsmith also asked for examples of scrutiny. We have almost reached time, but are you able to stay for about five or 10 minutes more, please? Thank you.
Q17 Lord Hannay of Chiswick: That is very kind, thank you. First, Arabella Lang said very crisply that 21 days was enough as long as there had been background briefing. Are you aware that there has been a letter from a Minister in the last year stating that 21 days is normally, in most cases, enough? Surely the implication of that, you would recognise, is that in some cases it is not enough. Secondly, if the Government were to publish the criteria by which they decided whether to subject something to CRaG, not just in general terms but in precise terms, would this help? Thirdly, could each of you say whether there are non primary legislation changes to CRaG that could improve the CRaG process?
Arabella Lang: I certainly meant to say that 21 days could be enough.
The Chair: You did say that.
Arabella Lang: I would certainly recognise that there are cases where it is not enough. There is a process for requesting more time under the existing arrangements and the Government sometimes agree and sometimes do not. That is an example of where there could be more flexibility in practice and where it is needed.
I think that publishing the criteria for subjecting a treaty to CRaG—by that I take it to mean deciding which treaties require ratification and which are signature alone—would be very helpful. I am not aware of any published criteria for that at the moment.
Thirdly, on non-legislative changes, there is a large number of changes that you could make. Many years ago I drafted a concordat between the Government and Parliament for the Commons Liaison Committee, which could be used as a vehicle for setting out a whole range of agreements between the two branches on information requirements, providing time for a vote and a debate, and on defining what different categories of treaty get different levels of information, scrutiny or time. One topic we have not covered is the involvement of the devolved Assemblies—a crucial thing that could be covered.
The Chair: It would very much help if you could share that with us. I think that we have a version but not necessarily that version, so it would be helpful.
Arabella Lang: Yes, absolutely. I have a couple of other examples. Resolutions of each House could be a powerful tool, like the example of the EU scrutiny reserve resolutions, which gave a lever for increased scrutiny and increased information. That is what we see throughout the examples that we have given: where Parliament has a lever, it can get more information, more time and more influence. A lot of other countries, including Commonwealth countries, have more detail in their Standing Orders and involve their committees to a greater extent. That is another rich route for change.
The Chair: Would resolutions require parliamentary time?
Arabella Lang: Yes.
The Chair: You talked about the pause button earlier and I have not seen sight nor smell of the pause button since I have been sitting on this committee. As long as the Government control parliamentary time, none of this means anything. Are there any other points to add to the three questions?
Professor Katja Ziegler: On the 21-day period, it is less the standard period than the lack of reliability that, when more time is needed, it will be granted. Parliamentary rights in requesting this could be strengthened and that could be an interinstitutional agreement. There could be many improvements without legislative process. As Arabella mentioned, one could, for example, interpret CRaG widely to extend its application. I am not sure whether this is the way forward, but one could think of a constitutional convention, even, to create an approval requirement. In the European Union (Withdrawal) Act 2018 there was the meaningful vote, so things seemed to go in that direction. Of course, we know how that ended.
I guess an interinstitutional agreement to change what is a more antagonistic culture to a culture of co-operation would be a way to stay below a legislative framework. For comparison, in the German Parliament, a minority of 5% can request a debate, so perhaps there is more of a case to increase the general parliamentary rights outside of foreign policy. On MoUs, the key issue here is less the abstract criteria—there is FCDO guidance on practice and procedures on treaties and MoUs—but to have perhaps a declaration in the explanatory memorandum why it is named in a certain way, especially if it is called an MoU, and whether the content contains binding obligations in spite of its name. As an aside, from the practice of the German Foreign Office, it discourages the use of MoUs precisely because of the ambiguity that creates.
Professor Mario Mendez: On the first question about the 21 days, clearly that has proved problematic on a number of occasions. The predecessor to this committee, when dealing with EU replacement agreements, struggled enormously with that. It strikes me that it is very problematic in lots of cases, but I recognise that in the less significant treaties it is unlikely to prove problematic to be able to have the stakeholder engagement that you would want to have for significant treaties if you are operating on that model.
I recognise that we have a different model in play, in theory, in relation to trade agreements, where obviously that is not happening, so the fact that we, frankly, have a different model operating in trade agreements that is operating outside of the text of CRaG is testament to the fact that CRaG is not adequate for the scenario we are dealing with. What about if we are dealing with the problem of our times: a multilateral environmental agreement? Are we going to stick to CRaG’s rules for a multilateral environmental agreement and just say, “Okay, you can lay it for 21 working days and we will consider an extension if you request one on that particular issue”?
I agree with some of my colleagues on the non primary legislation changes that we could have. It might be cheating to say this, but can we not have as a non primary legislative change therefore the House of Commons taking a meaningful interest in scrutinising the treaty-making power by, for example, having its own committee tasked with treaty scrutiny, but mainstreaming treaty scrutiny into the subject-specialist committees? That is obviously outside CRaG’s text, but that would give meaning to the possibility that the elected House, which is the only one of the two, can delay the ratification of a treaty. This House cannot delay the ratification of a treaty because the Government can just proceed, as they did with the Rwanda agreement, to ratify the treaty none the less. Let us have the House of Commons doing some work on treaty scrutiny.
Q18 The Chair: Thank you, that is helpful. We have come to the last question, which is a catch-all question but it is also a priority question, given that you have all suggested lots of things. What do you think is the highest priority for us to call on in the reform of CRaG?
Professor Katja Ziegler: We talked about this outside.
The Chair: Oh, right; you prepared.
Professor Katja Ziegler: Yes. There are so many gaps in CRaG that it is a bit hard to choose. However, having to make a choice, my bet is on the parliamentary approval requirement, because of the significance of approval but also because it indirectly provides leverage incentives for more information along the way and perhaps time for debate. I guess there would be two variants of this requirement: to approve all treaties or to approve only certain treaties. There are pros and cons with each of these approaches. The advantage in having a requirement to approve all treaties is that it serves as a stronger incentive to provide information and make time for debate, and it avoids controversy about the criteria if we define which treaties are to be scrutinised.
In many jurisdictions that have a list or criteria—categories of treaties—this comes through [to] litigation. This is litigated in constitutional courts, for example, or in the EU Court of Justice. We might question whether a requirement that specifies which treaties are to be approved would be as effective in the UK. On the other hand, the defining categories of treaties that should be scrutinised would give an articulation of the substantive rationale for scrutiny rather than focus on form.
Professor Mario Mendez: The focus is on CRaG, but I suggest that we move the few provisions and sections that are in CRaG relating to treaties into a treaties Act. If we look comparatively, the constitutional systems normally have a couple of provisions, if that, on treaties in constitutional texts—the EU’s treaty text has more on it—and then they will often have a treaties Act, Spain, Vietnam and many other places being examples. Why do we need those few sections to be in this collection of the Constitutional Reform and Governance Act, with stuff in there on parliamentary expenses and the statutory place of the Civil Service? If we want people to understand this topic better, why do we not have a treaties Act?
If we are going to have such an Act, as I have suggested earlier, a parliamentary approval requirement for at least certain significant categories of treaty—I share Arabella’s observations about the categories that we could include, and this is widely replicated in many other constitutional systems in the world, including of the dualist variety—with a view to ensuring that you can have the possibility of parliamentary input into the scrutiny of the treaty-making power at earlier stages prior to the end of the process would be my priority. Then you could put other stuff as well in rules of procedure.
The Chair: Again, it would be helpful if you could put that in writing—you have obviously thought quite long and hard about it—with some more detail about how we might go about that.
Lord Howell of Guildford: If we have time, we have been dancing around the obvious proposition that, in the information revolution age and the age of populism, there is far more popular demand and interest in what the Government and the Executive are up to over our foreign policy, whether it is treaties, memoranda or anything else. That is the basic problem behind all our discussion today. When it comes to priorities, which this question is about, what increase in the resources and powers of Parliament and its committees does the group think is vital to meet, whether we welcome it or not? As we have heard from Lord McDonald, bureaucracy does not welcome it very much. Whether we welcome it or not, we will have far more activity. What is the main priority in terms of resources?
The Chair: We are 15 minutes over time, so I will give just Arabella Lang the honour of answering that question, as well as setting out her own priorities.
Arabella Lang: That is an important point: you do not want to create a new power that is empty for a lack of resource. For instance, in the Commons there is no dedicated treaty scrutiny committee but there is also very little dedicated treaty scrutiny staff. When I was there, I was the only person, for a long time, with that in my terms and conditions.
On the priorities for reform, strengthening the parliamentary approval requirement is top of my list. The fact is that it is a Law Society policy as well—not known for its radical stances on things. As we have said before, it is to act not as a block but as a lever for transparency, for accountability and for trust.
As I have sketched out, my second priority would be for non-legislative change. I have suggested what some of those things might be.
The third thing underlying all this, and coming back to your point about the information age and public appetite, is increasing both public and political understanding of treaties and the will for scrutiny and accountability. I will give an example of this. Sussex University did a series of citizens’ juries in 2023 on trade treaties in particular. It showed that workshops for people’s understanding of the issues would increase participants’ view of the need to involve MPs in trade treaties, so the more they understood the issues, the more they wanted Parliament to take part. Some really interesting work could be done there.
The Chair: That is a brilliant closing thought. Thank you, all three of you. It has been a fantastic evidence session. We appreciate your time. If you have things that you think of subsequently, please write to us. I know that Lord Goldsmith has given you some homework with some lists to send to us as well. We would really appreciate all that. Thank you, all three of you, for your contributions today.