21
Examination of witnesses
Professor Lorand Bartels MBE, Professor Emily Jones and Professor Holger Hestermeyer.
Q19 The Chair: Welcome to this evidence session of the International Agreements Committee on the review of treaty scrutiny. The meeting is being broadcast live via the parliamentary website. A transcript of the meeting will be taken and published on the committee website and witnesses will have an opportunity to make corrections to the transcript where necessary. I welcome our three witnesses, one of whom is virtual and the other two are in the room, and you will find out shortly who they are.
My first question is: what are the main reasons that trade agreements merit detailed scrutiny by Parliament? It is a really fundamental question. Could you kick off, Professor Jones?
Professor Emily Jones: Good afternoon, everyone, it is a pleasure to be here. I am a professor of practice in public policy at the Blavatnik School of Government at the University of Oxford. I was also adviser to the International Trade Committee in the House of Commons for a couple of years, so I have a bit of a vantage point on the process there as well.
Why does scrutiny of trade agreements matter? They have probably changed out of all recognition since the 1920s, which is essentially the process we have inherited. They now impact many areas of domestic life and legislation, from agriculture to healthcare to financial services. Therefore, the old school distinction between international treaties being a purview of the executive branch and domestic legislation being something completely different is probably no longer the reference point. They are just as deserving of scrutiny as our domestic legislation and, furthermore, it is important for us to remember that international trade agreements are binding international treaties. They are not easily amended, because it requires the consent of the other parties to the treaty; therefore they tend to live through successive Parliaments. So they are often harder to change than domestic legislation, again underscoring the importance of effective scrutiny throughout the life cycle of the treaty, and we will get to that.
The Chair: Do you see any advantages in a strong scrutiny process for the Government negotiating team? We have sometimes heard evidence to suggest this, but I wonder what your view is.
Professor Emily Jones: If you are negotiating on behalf of the Government, empowering Parliament to have more scrutiny powers is probably a headache, to be honest, for most negotiators, in the sense that it is yet another constituency to think about, and it is complicated enough to negotiate. That said, if we look at the United States, where Congress has the ability to reject a trade agreement, or if we look at the European Parliament and its relationship with the European Commission, we see very clearly that they use that in the negotiating room as a mechanism for saying, “Look, our hands are tied, we cannot possibly agree to that proposal”, or “We need to keep this off the table, because we will not get it ratified”. At the moment, UK negotiators do not have the equivalent credible commitment to be able to say, “We have to keep something off the table”. For instance, thinking about the UK-US negotiations that are ongoing now, there are some really sensitive areas in there and our negotiators may well want to have their hands tied by Parliament in order to keep some particularly important and controversial issues off the table. It can certainly strengthen the hands of our negotiators in some circumstances.
The Chair: Professor Hestermeyer, in Vienna, what are the reasons for having trade agreements scrutinised by Parliament, and does it help our negotiators?
Professor Holger Hestermeyer: I am now a professor at the Vienna School of International Studies. I am also a door tenant at Monckton Chambers. I fear I have been invited mostly for my past life, when I was involved in treaty scrutiny for the House of Lords EU Select Committee and one of its sub-committees.
It is vital for those agreements to be scrutinised and I will give you three main reasons. The first is that they affect constituents in a rather drastic manner. In the United States right now we see what even the most basic tariff deals can do to constituents. The second is that they are of breathtaking scope, influencing legislation now in almost any area. The UK-Australia Free Trade Agreement has 32 chapters committing the UK, in a binding manner, in areas ranging from intellectual property to environment and labour, including things such as investment. Trade agreements can contain investor state dispute settlement mechanisms and so on. The third is that FTAs are living arrangements, with committees to update such agreements. They are updated in a regular manner. They often contain dispute settlement provisions which rule in a binding manner and sometimes come up with surprising interpretations that may not have been clear beforehand. Merely scrutinising and implementing legislation passed at the beginning of the life of a treaty will not capture this aspect of treaties at all.
Professor Lorand Bartels MBE: I am professor of international law at the University of Cambridge. I am also the chair of the UK’s Trade and Agriculture Commission, which performs treaty scrutiny of FTAs, which I imagine is one of the reasons I am here. I do not have anything to add to what Holger and Emily have said on this point; they both said it well.
The Chair: From a negotiating point of view, between it being a pain to have another constituency, as Professor Jones pointed out, and the idea that you could use it as a lever for negotiation, where do you think the balance lies?
Professor Lorand Bartels MBE: I am not sure that that can be answered in the abstract. I will give an example. The US has a famously obstreperous Congress, and when Congress says no to a treaty it is a major hassle for the negotiators. Congress often says no to treaties and they often die, such as the original International Trade Organization, which was about to be said no to, but there are many other examples. One way in which the agreement can be saved is by means of side letters, so it is not necessarily fatal. That was on the point of the additional constituency, which can say no, but it also shows that that is a constituency that needs to be taken seriously, in the US at least.
That is the downside, from the point of view of getting the agreement through, from the Government’s point of view, leaving aside the point of view of Congress or Parliament. In terms of the red lines and how helpful that is to the Government—because I think this question is about looking at this from the Government’s point of view—it does help, because it is the perfect argument when you are negotiating: “Sorry, no can do”. What that stops you from doing is breaching the red lines, but if those are the red lines, you should not be breaching them, so that is actually a good thing.
The Chair: Lord McDonald, would you like to come in with a question?
Q20 Lord McDonald of Salford: In relation to new free trade agreements, the Government have agreed enhanced scrutiny procedures, the so-called Grimstone arrangements, which go beyond the bare minimum requirements of the CRaG of 2010 and include the publication of the negotiating mandate, confidential briefings on negotiations and more time for scrutiny. I have two related questions: what is your view of the effectiveness of these arrangements and do you think they could be improved? As Professor Bartels had the scrag-end of the first question, could we start with him, please?
Professor Lorand Bartels MBE: I was hoping you would not ask that. I have to say, I do not know. I watched what happened with the FTAs that the Trade and Agriculture Commission reported on and I can talk about our value, as I see it, to the scrutiny process. However, on the Grimstone arrangements, I do not know partly because it is not public and partly because I do not know how effective it was; one has to be inside Parliament to know that. I can only really speak as an outside observer and it seems to me that whatever the arrangements were, they did not satisfy the desires of all for a robust treaty scrutiny process. That is about all I can say, simply because of a necessary lack of knowledge.
Professor Emily Jones: Let me come in on this. To my mind, the CRaG Act is inadequate for scrutiny. The Grimstone arrangements are a step forward that should be welcomed, but we have also seen some quite significant shortcomings which I have a few thoughts on from an external perspective.
I want to raise four points. First, they are not grounded in statute, so they are essentially something that is good will on the part of the Government and, therefore, can be waived when the Government deem it expedient. Indeed, we saw that with the UK-Australia FTA which was not debated in the House of Commons despite the International Trade Committee asking for a debate. They are always at the gift and can therefore be withdrawn. We also have a challenge where, when you have a new Government, it is not clear whether the Government are going to abide by them, so there is a lot of uncertainty there as well.
A second point is about the quality of information. From an insider perspective, you will be more privy to whether you are getting the level of briefing that you would need for effective scrutiny. It is instructive to look at the United States and the EU and the level of information that your equivalents and counterparts are getting. For instance, the EU-India agreement is ongoing at the moment; I have heard that it has literally been signed in the last few minutes. I do not know the level of briefing you have had, but your counterparts in the EU, who are negotiating an FTA with India at the moment, will have had access to confidential texts throughout the process. So they will be very well briefed, whereas most people in the UK will now be waiting for the first sight of the text. That is the same for stakeholders and external people so, even now, the level of briefing that Parliament is getting is very deficient.
Timeline remains a problem; I think 21 sitting days is inadequate for proper scrutiny. Having served on the International Trade Committee as an external expert, the challenge comes when the treaty text lands; it is often incredibly long and dense. It then has to go to external experts who have to advise the committee on which issues are likely to be pertinent, and you then have to find experts or stakeholders to consult who also have to get their heads around it. You then have to write a report, ask for a debate, et cetera. So the timeline, certainly for very substantive agreements, is inadequate and again we can learn from other countries, where there is often much more time.
Finally, and actually most important, what the Grimstone arrangements do not do, and cannot do, because you need new primary legislation, is give Parliament an affirmative vote. We will come back to this but, to be honest, without an affirmative vote, it is incredibly hard for effective scrutiny to take place.
The Chair: Professor Hestermeyer, anything to add to that?
Professor Holger Hestermeyer: I want to echo some thoughts and emphasise some points. A lot of things in the Grimstone arrangements are very positive, and it is very positive that the Government have recommitted to them in letters concerning this inquiry but, as Professor Jones has rightly pointed out, there are lots of weaknesses.
One main weakness is that a lot of this is currently in the gift of the Government. If the Government want to grant a longer scrutiny period, they can do so. If the Government want to grant a debate, they can do so. It is very good that the Grimstone arrangements start scrutiny much earlier on, with a mandate, but the quality of the information can be excellent or very poor. In the end, it is the Government who decide.
I want to emphasise the last point that Professor Jones made. Without Parliament having a stick, without the ability to say no, even a changed CRaG will not guarantee that procedures are conducted in a way that Parliament sees fit. We have seen that again and again; the Commons was not happy with the debate on CPTPP. Even when the UK was still part of the EU, a parliamentary debate was waived for CETA, so the Walloons in the end had more parliamentary debate than the UK had on CETA and that just does not seem right; it does not seem right that it is the Government who decide.
I know that the Government always emphasise the need for flexibility, but I would like to point out that even if we change the pattern and say there is a consent vote, it is still in the purview of Parliament to say, “We see the need for flexibility, we will waive certain procedures in this instance and you can act flexibly”.
Baroness Verma: Coming back to what Ms Jones was saying about the length of time, and we have discussed this internally too, what would you see as an ideal example of what others are doing in managing the differences in many of the treaties that come across? You cannot have a standard one-size-fits-all period of time. Are there examples of that? Professor Hestermeyer just pointed out that the Grimstone arrangements are better than the CRaG arrangements. Where would you see some of that being able to be being enforced, perhaps into the CRaG arrangements?
Professor Emily Jones: The challenge with treaty scrutiny is that treaties vary enormously: what is fit for one complicated FTA of several thousand pages is not necessarily what you want for an MOU of two pages. It is hard to have a hard and fast rule. The timeline that Congress gets in the United States is useful to gauge what kind of timeline you might want to look at for a big FTA, such as the UK-India FTA, which will be a complex agreement and have many chapters.
There, as I understand it, before the treaty is signed—we have just had the signature today—the draft text is made available. Congress is notified before signing and the text is made public 60 days before it is actually signed, so you have already had view of it for 60 days. After signature, the Executive is then required to release the final signed treaty at least 30 days before it goes to Congress; so, in effect, before you trigger the scrutiny process. It then has 45 days to scrutinise it. In effect, it has many months, which enables external stakeholders to really get their heads around it. Because you have the challenge now, with the UK-India text, that the only constituent it probably has to go to is the Trade and Agriculture Commission. For the rest of us, it will be the gift of the Government as to whether it is made public before it is laid before Parliament under CRaG. If we have to wait until CRaG, we then only have the 21 sitting day procedure for everyone who is external to also get their heads around it and understand its implications.
Professor Lorand Bartels MBE: It may be a good time to say something about the Trade and Agriculture Commission.
The Chair: Yes, you were dragged into it there, so I think you should.
Professor Lorand Bartels MBE: I have noticed that not all submissions have even referred to it, and they should have. At the moment, it is the treaty scrutiny body. I am not sure that is great, but it is the reality, so it is important to know what it does.
We get the agreement when it is signed, so the news to hand is not good for the rest of my spring. We then get three months to scrutinise it, sometimes four and a half months for a long one. We may get four and a half months for this: we did for CPTPP. The report that we then write—technically speaking, it is an advice—goes to two constituencies. One is the Secretary of State and the other is here. That is set out in Section 8 of the Trade Act 2021, amending Section 42 of the Agriculture Act which establishes us. I am using the present tense and I should not, because Section 8 of the Trade Act 2021 has not yet been brought into force, so we are de facto, but everybody is treating this de facto as though it were de jure, so that is fine. But I might as well make a plea for that to be established properly, but it depends on time in the House and so on.
Why is it important? Because by statute—if the statute were in fact passed—you would have, as you do anyway, an advice that we would have spent three months at least thinking about and writing. The point of this is to give something useful to Parliament.
Who else looks at this? It used to be the International Trade Committee, to which I was a specialist adviser for a year when it was first set up, then the Business and Trade Committee, which is now too busy in dealing with other things, which is a problem, and this committee. So where can it all go? We might talk about this later on, but whoever it goes to in Parliament should have the benefit of this report.
What do we look at? We have a limited mandate and look only at certain issues to do with effects on the environment, animal welfare, safety of animal feed, pesticides and that sort of thing. So not everything in an agreement will be of interest to the usual constituencies, but is of interest to the agricultural sector. I think it is a good model, but I do not think it is the only scrutiny there should be by any means. It is also a unique model in global terms. Nobody else has an independent but government-sponsored treaty scrutiny body outside Parliament and consideration ought to be given to setting up similar types of bodies on different issues with different experts to help Parliament. That is something that is worthy of consideration, because we have the time, expertise and support to be able to do that.
I would put that on the table as a unique model. We can talk about the US and timelines and it is all very important—the Australians and their joint select committees and whatnot—but we should also look close to home because there is, dare I say it, a world-leading model there that works very well. It has worked very well in this area, not only to help Parliament but to help the public understand what is going on. That is one of our main constituencies; it is not written into the legislation but it is important.
The Chair: Briefly coming back on that, it is clearly a world-leading product, but you have indicated that the use of that product is somewhat sub-optimal at this end. Ideally, what would be the world-leading approach to taking your report and running with it? How do you think Parliament should deal with it?
Professor Lorand Bartels MBE: At a minimum, there has to be a debate based on the information, or at least informed by the information that is in that report. For some agreements, there was a debate and I regret to say that some of it, even in the Lords, was clearly ill-informed. When we talk about agriculture, there was a lot of talk about the torture of animals in Australia and so on. We dealt with all that and it was a bit dispiriting to see it ignored, even in the Lords, when it came up for discussion. I would say that those who are interested in debating this should actually read it.
There needs to be debate. That is fundamental and goes back to what we have been talking about. On the idea that CPTPP can be waved through; what is the point of us doing all this if it turns into nothing much in Parliament? There is one point; the Secretary of State reads it, but that is only half the statutory point.
The Chair: I have Lord Hannay waiting in the wings but did you have anything to add to the original question of Baroness Verma, Professor Hestermeyer?
Professor Holger Hestermeyer: I would like to add one point on the TAC report. It is a world-leading report but I would go one step further than Professor Bartels and say that it is ultimately ideal as a basis for a vote. Because as long as you do not have power or influence on the process in the end, even if you have a debate, the incentive to use your time—I have read time and again that MPs are hard-pressed for time—to inform yourself is minimal. It is much higher when you know there will be a vote and that will raise the value of these products. That goes for the TAC report and any IAC report, as well as any possible future scrutiny of departmental Select Committees in the Commons.
Lord Hannay of Chiswick: To round off these questions, a previous group of experts from whom we took evidence a short while ago—you have probably seen it because it has been published—said that the UK could be regarded as an outlier in the paucity of information it provides Parliament on all these trade issues. Do you agree with that?
Professor Lorand Bartels MBE: Absolutely not. Not when it comes to that.
Lord Hannay of Chiswick: Perhaps you could explain why not.
Professor Lorand Bartels MBE: It depends on what they were talking about, but if we are talking about everything, then no, because it ignores the existence of the Trade and Agriculture Commission which, frankly, is missing a fairly large part of the picture.
When it comes to trade agreements, agriculture is always important. It is usually one of the most important parts of trade agreements and is always the part that holds them up. I do not see how anybody could say that Parliament is bereft of information, especially by world standards, when we produce a fat 70-page report which goes through, in detail, both the law and the impacts on the UK’s standard-setting, which is what interests the agricultural sector, NGOs and the general public. How can one describe that as a paucity of information? It makes no sense.
Lord Hannay of Chiswick: I do not know how it can be said, but it has been said.
Professor Lorand Bartels MBE: I firmly disagree.
The Chair: No equivocation there. Professor Jones?
Professor Emily Jones: I am going to respectfully disagree; this is going to become interesting now.
There is a question over how much information you get, post-signature. The quality of the TAC report is impressive on agriculture, but it comes very late in the day. In terms of the level of information you get, and I am not sure of the extent of confidential briefings you get, but your counterparts, certainly in the United States and the EU, see confidential negotiating texts in real time. They have full information and are able to see a huge amount more than I understand you and your colleagues in the House of Commons see.
There is a question over how much information you get pre-signature, from inception right the way to signature, and there is a question over, outside agriculture, how much robust analysis and information you get on everything else. Agriculture is, of course, incredibly important but, for an economy whose GDP is largely in services and those services are incredibly important in terms of investment, intellectual property and digital economy issues—the list goes on—I think you have a paucity of information.
I do not want to make sweeping claims about where we stand with regard to the rest of the world, but I certainly know there are jurisdictions where the legislative branch is much better informed than it is in the UK at the moment.
The Chair: I was going to bring in Professor Hestermeyer but I will give Professor Bartels a right of reply.
Professor Lorand Bartels MBE: To be clear, I am not talking about what happens outside agriculture, because that is beyond my purview, but I would say that, particularly when it came to the Australia agreement, agriculture was the only thing that anybody talked about. That is why we were set up, so I would not minimise that.
We had digital services and so on but, let us face it, FTAs do not do much there. What they do is about market access and, in particular, market access on agriculture. Yes, we are a services economy, but I do not think of it as a balance of important services versus agriculture, because agriculture is minute when it comes to the economic effect of FTAs. I do not think that that is reflected in people’s interests, nor in the effect on their welfare.
The Chair: The difference in the two things you are talking about is understood. Professor Hestermeyer?
Professor Holger Hestermeyer: I can see an agreement there and I concur with that agreement, which is—
The Chair: Negotiated.
Professor Holger Hestermeyer: Post-signature, the UK gets a lot of world-class information. That goes for the TAC, which goes without saying, but also for some documents that you get from government and for the results of your committee inquiries. The defects are in the process of negotiation where, generally, there is a view that the less that is disclosed, the better. I cannot speak to the confidential briefings you get, but you will know, for example, what is really on the table with the US at the moment. We have seen Trump’s demands, but the public has not and you will be able to judge the quality of that information. What is made public is rather poor in terms of briefings of the negotiation rounds. These are often very generic wordings. I saw instances, when I worked for the Lords, where in the end we got texts from the negotiation partners rather than from the UK. That is a bit strange.
The Chair: We now have you down for a question, Lord Hannay.
Q21 Lord Hannay of Chiswick: I would like to turn away from bilateral new FTAs to sectoral or plurilateral ones, which are becoming quite frequent now. I give you two examples: first, if the World Trade Organization were to set up a dispute settlement procedure which found a way around the American blockage, because by then it will probably not be participating at all. Secondly, there are other sectoral things at the WTO, such as e-commerce, and there are non-trade but trade-affecting things, such as the Convention on Pandemics with the World Health Organization, and others.
What I would like to ask is whether you think these multilateral or plurilateral agreements, which seem to be prevalent now and are likely to be more prevalent—plurilateral ones anyway—should be subject to a process similar to Grimstone, where this House of Parliament is kept informed, as we have been, to a large extent, on bilateral FTAs, with the single exception of the UK-US agreement, on which we have heard precisely zero.
The Chair: Could we start with Professor Hestermeyer, as he has picked up the tail a couple of times already?
Professor Holger Hestermeyer: This is a vital question, because the nature of trade agreements is changing very quickly. In fact, this started before Trump, when FTAs, understood as free trade areas in the sense of Article 24, began. Substantially, trade agreements were no longer the big thing and instead we got a lot of what were often called mini-deals, from SPS agreements to technical standards and sustainable trade.
I would argue that there is a good reason not to distinguish along the lines of FTA and non-FTA, but rather significant agreement and non-significant agreement, with the ultimate voice in determining what is and is not significant being Parliament itself. Because even minute agreements on IP can disrupt the national health services in countries. A possible SPS agreement with the European Union can make any deal with the US impossible and the other way around. That is a significant decision that, in the end, Parliament should have a voice on. It deserves full information and the scrutiny of Parliament along the lines not just of the Grimstone arrangements but, as I suggested, along the lines of a parliamentary consent vote in the end.
The Chair: Professor Bartels, you professed ignorance, or indeed innocence of the Grimstone process. You may want to say something, but I will let Professor Jones go next.
Professor Emily Jones: I fully concur with what Holger has just said. The UK-US agreement is a really good example of that, because it is unlikely to be an FTA. Therefore, it is vital that it is properly and robustly scrutinised. Absolutely, we need to make sure that Grimstone arrangements apply, and I concur that we need much more than the Grimstone arrangements, albeit they are progress.
I have been looking at digital economy agreements; the UK-Singapore agreement went through rapidly. I do not think it properly got the time of the International Trade Committee in the Commons; it was not properly examined, because the committee was busy dealing with FTAs. It has major ramifications for the digital economy and digital regulation and it was not really scrutinised. I know it got more attention in the House of Lords, but it is another example of the type of agreement we should be looking at.
We can look at the JSCOT sifting process in Australia, where Parliament differentiates between major, minor and technical treaties. Essentially, it has a set of criteria to figure out when an agreement is major and therefore needs robust scrutiny. I would not draw the distinction, as Holger said, between FTAs and other types of trade agreements or, indeed, between trade agreements and other types of treaty. We should just ask, what are the criteria by which we decide that a treaty is worthy of scrutiny and falls into that major category, and therefore we give it a very full and robust process of scrutiny.
The Chair: Professor Bartels, did you have anything?
Professor Lorand Bartels MBE: I also agree. I do not think that form should be more important than substance. One can have an agreement that seems small—for instance, on the MPIA, which would essentially mean that the UK is now bound by dispute settlement. That should not be too shocking to the UK, given that it has traditionally been happy with that. It is shocking to the US, of course, but it is a significant element of international law: to sign up to and be bound by the decision of three people. That is significant and I think counts as major. On the other hand, the mini-deals can be a variety of things, but what they often are is co-operation agreements which mean absolutely nothing and are not significant. One should really look at what is happening. Maybe one needs the JSCOT metric, or one could look at Article 218 of the Treaty on the Functioning of the European Union, which grants the European Parliament veto rights, or co-legislative, whatever it calls them, but they are essentially veto rights over significant international agreements. There is a list of them. One is where there are significant budgetary implications. Another is whether it impacts on the normal legislative procedure. That does not really work here, but one metric might be, does this requires legislative change? Or is it just “blah, blah” and does not require anything? It is just co-operation, which is not very important.
I agree with what my colleagues say entirely and the important thing is to come up with an objective metric for what is important and what is not.
Lord Hannay of Chiswick: Thank you for illustrating the point about us being an outlier.
The Chair: Lord German, I am going to jump to your question.
Q22 Lord German: In fact, most of this question has been floated in the answers we have been hearing, about where people do these things better and where we could look for examples of what we should push for. There is the issue of important or less important; the issue of before or after signature; but if you were looking at this as a league table, who is in the Premier League in this scrutiny and what should we take from that? Professor Jones, you started pulling out the different places where it might work. Who would you pick?
Professor Emily Jones: I am very reluctant to get into a conversation about league tables, but there are important lessons to learn.
Lord German: It is a metaphor.
Professor Emily Jones: Yes, I hear you. There are important lessons we can learn. There are different models, and we can probably learn useful things from several different ones. I would pick up the sifting process from Australia. The joint committee does a really robust process of sifting. Australia has other parts that have similar weaknesses to ours, but sifting is a strength in Australia. The United States and the European Union do have an affirmative vote at the end. For me, and I know Professor Hestermeyer thinks similarly and I suspect Professor Bartels does too, having an up or down vote at the end is a game-changer.
We saw that in the European Union. The European Parliament got those powers only in 2009, and it was interesting to watch that play out, because in 2012, the veto right was used for the first time and struck down the anti-counterfeiting trade agreement. I think that came as a surprise to the European Commission, which then dramatically increased the extent to which it shared information. As soon as you empower the legislative branch and give it a veto, you change all the incentives. To my mind, if there is one thing we should learn from both the European Parliament and the US system in Congress, it is that empowering the legislative branch with veto power is a game-changer.
Perhaps the last thing to think about is the level of information. The EU and the United States are quite different in some respects. The US has a very behind-closed-doors negotiation. It is very hard for a member of the public to get any information whatever about what is happening. Members of Congress and their advisers are then security cleared to go and see the confidential negotiating texts, as, I might add are businesses and some stakeholders. So in a way, you have a security-cleared group of people who get access to live negotiating treaty texts during the process.
The EU is radically in the other direction. It publishes a lot of its position papers and the proposals it is putting forward on the website. The EU-India FTA negotiations have been ongoing for a long time. You can literally read the draft chapters that the EU has proposed; there is much more detailed information in the public domain. So, the EU is more radically transparent. Both systems have pros and cons, but they are certainly worth looking at; we have a lot to learn.
The Chair: Before passing that on, do you think there is an advantage to Parliament approving the Government’s negotiating mandate in advance? You talk about transparency.
Professor Emily Jones: From what I have seen, the game changer is Parliament having the veto power at the end. Once that happens, it is in the Government’s interest to make sure that they brief Parliament right from the start. Whether you have the formal ability to vote on and debate the mandate, what actually happens as a matter of practical policy-making is that the Government want to make sure that they do not have the diplomatic disaster of having their treaty rejected at the very last stages. Therefore, they start consulting Parliament right at the start, because they want to absolutely avoid the situation where they bring it to Parliament and it does not get ratified. So, you get a completely different alignment of incentives. If you can get the vote on the final text, you will necessarily get the ear of Government when it comes to the negotiating objectives and mandates. If you only have so much political capital, if you like, I would put the weight on getting a vote on the final treaty text.
The Chair: I know Baroness Verma wants to come in but let us just continue with this question first.
Professor Lorand Bartels MBE: I am maybe more of an incrementalist. I am not against Parliament having a vote, but it is important not to completely revolutionise the constitutional structure that exists. Before taking that step, a lot more can be done by way of transparency, but most importantly, legitimacy. One point which should be made is that if we are back to the FTAs or these sorts of agreements, there are different aspects to them and some should not really be all that controversial. For instance, standard-setting rules: you have your red lines and you say, for instance, “We want to have minimum environmental standards”. That means that, whether it is the Kyoto Protocol or the Paris Agreement, or whatever it may be, with these sorts of values rules, which are common in trade agreements, there is no particular need for that to be negotiated up or down, or if there is, it is the sort of thing that Parliament really should have a say about and the public should know about.
There is an argument for greater publicity of those sorts of regulatory values-based rules than, for instance, whether there is a cut in customs duty on beef, whisky or whatever, which is the sort of thing that negotiators like to keep close to their chest. One can distinguish between different types of commitments in terms of whether they need to be secret. Where it is possible for these to be publicised in advance, they should be. For instance, it would make sense that when a treaty such as the India one is signed, it should be public. I cannot really see a reason for that not being public. When there is a negotiation mandate to be followed, I cannot see why Parliament, in camera or not, should not have a strong say and keep a close eye on what is going on. So, this could all be pushed a little further, even without necessarily having an up or down vote.
The Chair: And the international paradigms that Lord German mentioned?
Professor Lorand Bartels MBE: The EU is very good at involving Parliament. It could be because it got the vote in 2009, but you could do it without the vote and still have a role. The Americans have control over the negotiating mandate as well. In fact, it is in legislation. It does not have control over it, it is written down in legislation. It would have to change the legislation to change the mandate on certain issues, for instance, the ones I am referring to. There is a lot more that can be learned, even without a final up or down vote. Again, I am not necessarily against it, but I do not think it is necessary; you can achieve a lot without it.
The Chair: Professor Hestermeyer, do you have anything to add to that?
Professor Holger Hestermeyer: I do not have a lot to add to the mandate debate. I strongly think that an up or down vote at the end is the only way to ensure that the information actually gets to Parliament. Beyond that, I have nothing to add on the mandate question. I tend to err on Professor Jones's side: it is the vote at the end that matters.
Baroness Verma: I listened very carefully to Professor Bartels and agree a lot with what has just been said. The only issue I have is that these are already very protracted agreements that take so long and what Professor Jones is suggesting might increase the length of time. The vote is probably the thing, rather than constantly giving out information to Parliament so that they can scrutinise, which may just extend something that already takes a long time.
Professor Emily Jones: If I may just come back on that, I think it comes back to the word you just used: legitimacy. These are lengthy agreements because they are incredibly substantive. Putting information in Parliament’s hands or in the public domain does not protract the negotiating process. It often reassures the public that they have a better understanding of what is going on and will therefore have greater faith in the outcome. It need not delay things if it is done well. It is very much just saying, “Look, this is what we are doing in the negotiating room”. Therefore, when it is laid before the House, everybody has got their head around it and are in a better position to have a well-informed debate.
Baroness Verma: I suspect the argument will be that some element of surprise around negotiations is good: you do not always have all the information out there, and that gives you the surprise in how to negotiate.
Professor Emily Jones: Yes.
Q23 The Chair: Lord Marland has elected me to jump in again. One of the Government’s defences of CRaG maintains that the requirement for Parliament to adopt implementing legislation means that CRaG is sufficient. This is really coming back to the point one of you made about subsequent legislation being the issue, and their view is that because Government have a say in this dualism, if you like, then CRaG is sufficient, because it can deal with the legislation. What is your response to that? I will come to Professor Hestermeyer first.
Professor Holger Hestermeyer: I feel very passionate about that point. I think the Government are wrong for several reasons. First, a lot of these agreements are living agreements, so they change over time and those changes can be drastic. I will give you some examples. The Windsor Framework was passed as a decision of the Withdrawal Agreement Joint Committee; the UK-Switzerland agreement has a provision that allows the joint committee to just roll over a whole treaty that is currently not in force; the EU-Turkey customs arrangement is actually a decision of the EU-Turkey co-operation council. If you want a very drastic model, the EU of course is, if you want, a free trade agreement and all the decisions taken by EU organs are part of the living thing. So, if you say we only need implementing legislation at the very beginning, that is a problem.
Related to that, the scrutiny does not scrutinise the institutional provisions usually, because it is about the implementing legislation, and that is different from the organs that are set up. Sometimes, FTAs say that there is a need for implementation over time; some obligations come into force later. Then there is even a theoretical problem. Let us assume that the UK has all the implementing legislation in place and the FTA just contains that very same legislation in treaty format. That locks it in, which means Parliament no longer has the possibility to change that legislation without putting the UK in breach of international law. That is substantively different from the situation without the treaty, and there was no need for implementing legislation at all, as it was already in force.
Finally, you can sometimes have a power to implement through secondary legislation, and that too would create problems for that type of scrutiny. So overall, I do not think that a vote on implementing legislation can replace a vote on the treaty itself.
The Chair: That is a very helpful answer. Professor Jones, do you agree, and is there more you would like to add?
Professor Emily Jones: I fully agree. To give one example, I have been looking very closely at the provisions on the digital economy. The CPTPP text has a provision about this sort of future proofing: that we will not in future ask technology companies to disclose their source code, except under a very limited range of circumstances. Now that we are looking to regulate AI, a lot of the proposals that are coming up are asking companies to release source code. That means that it is very hard for us to manoeuvre without breaching that treaty commitment, so we then need to have recourse to all the exceptions in the treaty. Essentially, it raises the burden for the Government to say, “Yes, we can ask technology companies to disclose their source code”, for example, and then make use of a treaty exception. We have bound our hands. Again, we need to make sure that we are doing that in such a way that we understand those are the ramifications. We need to make sure that we are not just thinking about the implementing treaty; we need to be thinking about the treaty obligations themselves and how they might constrain future legislation.
Professor Lorand Bartels MBE: I agree. Holger put it very well; I might just emphasise one or two points. One is that the treaty organs can have different powers. Holger mentioned the EU, which was a fantastic example. I had not actually thought of that as an example. An organ can have the power to amend the underlying treaty, and Holger gave examples of that. On the other hand, some organs do not have the power, in which case you do not have that particular problem. By the way, we highlight this as an issue in our TAC advices and recommend that Parliament keep an eye on subsequent decisions of the organs that are established under these treaties, precisely for that reason. So, I fully agree with all that.
The broader point though is that even if you do not have an organ that can change the treaty, the treaty itself constrains what happens domestically. Again, Holger and Emily put it very well. When I teach international law and treaties, I say that the basic secret to international law when it comes to treaties is that you, as the state, use international law to bake in your policy preferences, so that subsequent Governments cannot undo it. This is seen most obviously in human rights treaties. We have human rights treaties because we are a human rights-loving Government. Why would we sign a treaty to stop us harming our people? The reason is not us; the reason is the next Government that comes along. They are the ones that we are worried about, and that is why we sign treaties. It is exactly the same with trade agreements.
Why do we have trade agreements? The political economists say, and Emily will know this very well, that one of the secrets to reciprocal trade negotiations is to get your liberalised commitments in—because you can of course do it unilaterally, and the economists will say everybody should do it unilaterally. Why do we even have trade agreements? It is for the same reason that we have human rights treaties. We have them to stop the next socialist Government, or extreme right-wing Government, whatever the label you use, or those parties that do not like liberalisation, to stop them undoing it. That is exactly why we have agreements. That just proves the point, I think, that the agreements themselves are important, regardless of any legislation.
Lord Hannay of Chiswick: Everything you have both said surely runs contrary to the dualist concept, because you are basically saying that British Governments sign international agreements in order to tie the hands of their successors. I would think that most British Governments sign agreements in order to tie the hands of the people they are negotiating with. The main objective is to achieve reciprocity with the person you are negotiating with; it is not to go into very complex thoughts about what a successor Government might do.
Could you answer on the dualist point, because it continues to worry me endlessly that we do not tell anyone about that except ourselves. We use it when we feel like it. We tell all our interlocutors—countries with whom we agree free trade agreements, plurilateral agreements and so on—“Don’t worry; our word is our deed; when we have signed up, we’re on”, and we are not.
Professor Lorand Bartels MBE: On the first point, I wonder. If that were entirely true, could one not say that we would not have Brexit, and we would not have all this angst about the European Convention on Human Rights? That is the domestic effect of an agreement that we signed, not one that we signed purely to put pressure on the other side, but these are just examples. One can say the same thing about trade agreements: they have domestic effects and Governments sign agreements in order to enshrine policy positions which they believe in; it is not just for the other side. That is what political economists say about trade agreements, not just me. That is just the way one thinks of them.
On the dualist point, yes, formally speaking, nothing happens domestically until there is legislation, but that is formal. In the real world, it is very rare for legislation not to be in place before the agreement is signed. It is Foreign Office best practice that the necessary legislative changes should happen before the treaty comes into effect. So, yes, there is control at that stage, but there is a bit of a disjunction, which is also possible. It is really a question of what is there in theory, where I would agree with you, and what happens in practice, where I think the international side of the equation is quite strong.
Lord Hannay of Chiswick: Thank you, but the European Convention on Human Rights was in fact signed by a British Government that wished to impose those human rights on countries that had abused them during the 1930s and 1940s.
Professor Lorand Bartels MBE: And look what happened.
Lord Hannay of Chiswick: What do you mean, “look what happened”?
The Chair: Bearing in mind the time, this is a discussion that you can have in the corridor, because I am not sure you are going to agree. Anything to add on that point?
Professor Emily Jones: I tend to agree with you: I am not sure it is always the primary intent of the Government to tie the hands of a successor Government, but it is a material reality that that is what happens. So, irrespective of intent, we need to be absolutely aware that when we are entering into an international agreement, an international free trade agreement, it will tie the hands of successor Governments. Therefore, it is even more important that we have a robust scrutiny process.
In an ideal world, every Government of every stripe would be on board with what we are putting into our international agreements and saying, “Yes, if I am in power in 15 years’ time, I am happy to be held to this, and therefore our word is our deed on the international stage”. What worries me is that when we have Governments entering into international treaty commitments that are not properly scrutinised, we are not sure if we have broad political or public buy-in. The challenge then comes that the Government are tying themselves up to a treaty obligation that might well be undone in the future, because people have become concerned. We are then flip-flopping on the international stage, and our international reputation is sullied as a consequence. So, robust scrutiny will help us.
The Chair: We are coming close to the end, but can I beg a few more minutes of your time in order to get to the end of our curriculum? Do you have anything to add on that last point, Professor Hestermeyer?
Professor Holger Hestermeyer: I have a very positive view of the UK and its international obligations, and I therefore concur with the members of the committee, but that is precisely part of where the problem will result. Take a whole swath of intellectual property law, the laws that define our futures; Parliament does not have a lot of power over them in terms of actually being able to do something. If Parliament does something, it will put the UK in breach of previous commitments. To legitimise that, you need a vote on those treaties, particularly where the treaties develop, be it through committees or dispute settlement, and in that respect, why the treaty was signed is almost irrelevant. The effect is there.
Q24 The Chair: That is a beautiful segue into the next question. I have taken it as read that all three of you think that trade agreements should be subject to an affirmative vote in Parliament. I think that is what I have heard, certainly from two of you, and I would like to confirm that for the record. But the point Professor Hestermeyer just made is, how do you decide which trade agreements to put to an affirmative vote, rather than simply put them all to a vote? Some would not make much sense, so what is the sifting process, or do you put them all to an affirmative vote? Perhaps we should start with Professor Hestermeyer, as you were starting to warm to that theme already.
Professor Holger Hestermeyer: Yes, and I apologise for taking the liberty of answering more broadly than just on trade agreements, because I do not think there is a difference between trade agreements and other agreements in the extent to which they deserve scrutiny. If you look comparatively at constitutions, a lot of constitutions identify that treaties are subject to parliamentary votes, and they usually create categories. Do they have budgetary effects? Will they affect legislation, existing or otherwise? Do they create institutions? I think the better system for UK purposes is not to create rigid categories, but rather indicators, and simply stick with “Is this a significant treaty?” Put the judgment as to whether it is significant in the hands of a sifting mechanism in Parliament that says, “This is not a relevant document; nobody cares about this one; this is very technical; but this is significant, even if it does not fall into a category”. You can name examples. The MoU with Rwanda was not even a binding treaty, but the interest and the possible effect on immigration policy were there. Whether you are for or against it, there is a good argument to be made that these path-breaking decisions should ultimately be taken by Parliament.
Professor Lorand Bartels MBE: I agree. Having rigid categories probably does not help, but categories do help, or indicators—perhaps we just need to find the right term. I am talking about trade again, but where there is a market access commitment, that is going to change people’s lives. Market access commitments involve economic redistribution in the country. They just do, that is the effect of making them, so they deserve a parliamentary vote. Maybe a broad framework, co-operation or understanding does not really require that, and maybe the best way to work with this is incrementally but with a sense, over time, of what counts as significant. It is perhaps hard to predict that something like Rwanda will happen in the future, but when something is of major public interest, then that obviously should be there as well. It is probably more important who gets to decide this. Holger mentioned this and I agree: Parliament should be the judge, whatever the processes are, of when an agreement should qualify. Just for the record, I am agnostic on whether there should be an up or down vote.
Professor Emily Jones: I fully concur with everything you have both said except perhaps I am less agnostic: I think we should have an affirmative vote. Other than that, I fully agree with everything that has been said on the point of sifting.
Baroness Lawlor: I apologise for being late; I had train chaos to deal with. In this system we are talking about, and Lord Hannay has mentioned the dualist system, I would add one where the Executive have the right to make international treaties. Where would each of you draw the line between how far Parliament can stop or hold up an international treaty?
Professor Lorand Bartels MBE: I suppose that depends on our view on the up or down vote at the end of the day, which is one of the reasons why I am sitting on the fence a little, because the truth is that I do not know. Maybe this is also where it is important to talk about the significance of the agreement. Some agreements might be more significant and more deserving of Parliament having an affirmative vote. Provisional application of treaties is another interesting one that we have not really discussed yet, because a lot can be done there. In the event that something needs to be done quickly, not all provisional application is for that reason, but where that is the case, there might be an argument for giving the Executive a little more leeway. We will probably all agree that it is hard to come up with a hard and fast rule, but there are certainly important agreements where, if Parliament were to have an up or down vote, that would clearly work, and others where there may be reasons for not giving Parliament quite that power.
Professor Emily Jones: I would empower Parliament across all treaties to decide whether they merit a vote. Parliament is the one to decide, as opposed to the Executive branch. In a parliamentary democracy, especially one with a first-past-the-post system, the Executive generally have a lot of power. As a matter of how things will play out by empowering Parliament in that way, the reality is Parliament will vote down very few treaties because the learning mechanism will kick in, where the Government know they have to have Parliament on side, and a majority of parliamentarians. They will therefore make sure they have briefed Parliament and will be cognisant of the sensitive issues. Parliament in turn will understand that a treaty has been painfully negotiated and put before the House, at which point it is highly unlikely to want to disrupt things. So, all that is going to happen is that there will be a much more effective scrutiny process. Parliament stopping a treaty going forward is going to be a very rare occasion, when there is an absolute public outcry. So, I see only upsides, and I struggle to see the downsides from that. That is my thought on the matter.
The Chair: I admire your optimism.
Professor Holger Hestermeyer: I agree with that last statement. Brexit can serve as an example: the feeling was that the decisions were being taken without the UK being properly consulted. When you look at the reality, more often than not, the UK Executive was engaged in the decision-making. Parliament was not being consulted a lot of the time, and they tried to change that. I can bring up the CETA proceedings again, where the Government actually waived parliamentary debate, which was not the case in other EU member states. I fear that in the international sphere, not shifting the responsibility to Parliament might create similar feelings towards international law when people find out just how much we are already bound by a framework of international law that we once considered as very stable, but that current developments show us to be actually rather fragile but that the UK benefits from enormously.
Q25 Lord Hannay of Chiswick: I just want to ask one question pressing a little on the generosity with which you have spoken to us about various ideas the three of you have had for defining Parliament’s role in trade. Could you identify, perhaps after this meeting and in writing, which of the proposals you have put forward could be operated without a change to primary legislation and which would require a change to primary legislation? I am sure you will understand that that is likely to make a very big difference in the fate of any proposal.
The Chair: Adding to that, are there ways of using secondary legislation creatively in order to make that happen? It would be helpful to us if there is anything you want to say briefly or just undertake to drop us a note. We had one final question around the scrutiny of trade agreements. Do you think they should be conducted by a joint parliamentary committee, rather than as currently, where there is a committee the Lords and not much in the Commons?
Professor Lorand Bartels MBE: First, it is a great shame that the Business and Trade Committee in the Commons does not have the bandwidth to look at trade agreements in the way that the International Trade Committee did. It did excellent work which was of great service to all, and to see that disappear institutionally, because of the tradition of following what the Government do with their departmental arrangements, is a really great shame. I would welcome whatever can try to replicate a dedicated body that understands trade agreements, has an institutional memory and can provide proper scrutiny. It may be that a joint committee is what is needed, or maybe the old arrangements, with a dedicated trade committee and a separate Lords committee with a broader range is the best way forward. I do not know, but I think the current situation is deficient.
Professor Holger Hestermeyer: I agree with the deficiency of the current situation. It is quite peculiar that most of the limited power that Parliament has lies with the Commons, but at the same time the Commons do not have any dedicated process. That needs to change. I discussed a joint committee and a joint research project I had with Alex Horne. I confess I have never worked for a joint committee, so I do not know the inner workings, but the feeling we got from interviews we conducted was that members were not very fond of the idea, and as he is credited in a footnote, Lord Goldsmith also pointed out that the question of majorities might constitute a problem for those committees. So, it seems it is not likely to happen, even though it has been discussed quite a bit.
What should be pursued instead is a more permanent sifting committee in the House of Commons that decides both where scrutiny in the departmental Select Committees lies and which of the very many documents deserve fuller scrutiny. Then there should be a mechanism in which witnesses can be heard jointly. One of the problems we encountered in the past was that it was very hard—let alone in the 21 days, that was impossible—to get good witnesses for proper scrutiny, because so many people wanted to speak to them. If that could be done jointly, it would lessen the imposition on the time of experts. It would make it easier, but that could be handled by acting jointly for witness sessions, rather than a joint committee.
Professor Emily Jones: It makes eminent sense to avoid duplication, especially given that parliamentary resources are constrained. Therefore, the sifting decision is an obvious thing that could be done jointly—a group of clerks, or similar, with some oversight doing the sifting for both Houses. I just do not see the point of duplicating the sifting process. The Houses can then operate separately. I fully concur that the House of Commons needs a much more effective system; ideally, one that draws on the expertise of different committees. I know from a digital trade angle that the digital trade chapters were being scrutinised by the International Trade Committee, but, for example, the Communications and Digital Committee, which had a lot of substantive expertise, was not necessarily aware of it or being drawn on. There is a lot of sectoral expertise in the House of Commons that was not getting tapped into under the old arrangement. Some mechanism that draws on the sectoral expertise would be smart.
The Chair: This has been a very helpful session for us. We await your homework in writing in answer to Lord Hannay’s question on secondary versus primary legislative moves we could do. From a personal point of view, Professor Bartels, I was intrigued by your point about your committee and the fact that it is de facto rather than fully adopted. If you could drop a note on that, I would personally be very interested in that as well. With those work programmes to take home, I thank you very much for a really illuminating evidence session.
