Society of Labour Lawyers – Written evidence (RTS0017)

Introduction

1. The Society of Labour Lawyers (SLL) is, under the rules of the Labour Party, a Socialist Society affiliated to the Labour Party.  Membership is open to all members of the Labour Party who are, or have been, members of the legal professions, legal academics, students of law and law graduates, and to those members of the judiciary who are permitted to be members of a political party.  It was founded in 1948 by Gerald Gardiner KC, who later became Lord Chancellor.  The SLL advises Labour MPs and peers, develops and scrutinises policy and legislation, contributes to debate within the Labour movement by hosting events and discussions, and mentors future members of the legal profession.  The current Chair and Vice Chair of the SLL are George Peretz KC and Hannah Gomersall.

Background to the review

2. The SLL welcomes the Committee’s Review.  It wishes, in particular, to comment on the scrutiny of free trade agreements (FTAs).
3. Much of the concern about the adequacy of Parliamentary scrutiny of treaties, and in particular FTAs, stems from two central facts.  The first is that FTAs have, over the past decades, increasingly involved commitments on central aspects of economic and social policy: FTAs now typically include a range of commitments on regulatory, immigration, environmental, employment, and economic matters with potentially wide domestic policy implications. The second is that until 2020 FTAs were solely a matter of EU competence, so that questions of whether FTAs were subject to adequate democratic scrutiny were, as far as the United Kingdom was concerned, essentially tied up with the question of the United Kingdom’s membership of the EU.  Now that the United Kingdom negotiates its own FTAs, the question of whether the United Kingdom’s mechanisms for treaty scrutiny are adequate is very much live in relation to FTAs.
4. Of course, in a dualist system such as that of the UK, Parliament remains free as a matter of domestic law to legislate in a way that infringes the terms of FTAs (or not to legislate where failure to legislate is a breach of the FTA).  However, the reality is that (save in very exceptional cases) both the UK government and Parliament will in practice feel constrained to ensure that domestic legislation is consistent with the UK’s obligations under its FTAs. 
5. Against that background, Parliamentary scrutiny and approval of FTAs serves three main functions.  Most obviously, it confers democratic legitimacy on the commitments contained in FTAs.  But an effective system of Parliamentary scrutiny and approval also brings the general benefits of transparency to any decision-making process in a complex policy area, namely ensuring that government is aware of the various concerns and interests at stake and so is in a position to factor those interests and concerns into its decision-making during the process of negotiating the FTA.  Finally, far from weakening the UK government’s position in negotiations, the existence of an effective system of Parliamentary scrutiny typically strengthens the UK government’s position in negotiations: as any lawyer knows, it is very frequently an advantage in a negotiation to be able, accurately, to say to the other side that something sought by the other side is simply not going to be acceptable to one’s client (or, in this case, Parliament). 
6. Finally, the increased scope of FTAs means that FTAs now typically affect policy areas which are matters of devolved competence.  In those case, the considerations set out in the previous paragraph all point to the involvement of the devolved legislatures in the process of scrutiny and approval of FTAs.
7. In the SLL’s view, the record of the Conservative governments in the last Parliament demonstrates many of the weaknesses of current arrangements and that those weaknesses have serious consequences.  In particular, the Johnson government’s negotiation of the Trade and Cooperation Agreement (TCA) with the EU – the first, and on any objective assessment, by far the most important FTA negotiated since Brexit – was an object lesson in the dangers of inadequate mechanisms for Parliamentary scrutiny.  The TCA was negotiated with scarcely any consultation on strategy or detail with Parliament, let alone any representatives of devolved government.  Large parts of the TCA, with profound domestic policy implications (an example being the detailed subsidy control provisions that now, as implemented by the Subsidy Control Act 2022, form a key piece of economic legislation with major implications for a range of domestic economic policy and with serious implications for the devolved legislatures[1]) emerged unheralded[2] but fully formed on publication of the text of the TCA on 24 December 2020, less than a week before Parliament was presented with the Bill necessary to implement the TCA that became the EU (Future Relationship) Act 2020, a Bill that passed all its Parliamentary stages in a single day – the alternative at that stage being that the United Kingdom would leave the Brexit transition period without any FTA in place to cover its trade with the EU.
8. Not only was that objectionable in terms of democratic scrutiny, but it led to what is generally – and in our view accurately – regarded as an entirely inadequate agreement that failed to protect key UK interests: indeed, even Lord Frost (who negotiated it) has admitted that the absence of mobility provisions was “too purist” and “[made] life difficult on both sides [for] youth mobility, movement of specialists like musicians and artists”[3].
9. Another example of the failure of democratic scrutiny of FTAs in the last Parliament is the UK/Australia FTA, where the Johnson government refused a Commons debate on that FTA[4]: again, that FTA has been widely criticised, including by a Cabinet Minister involved in the negotiations[5].

The need for legislation

10. As matters stand, and as identified in the Committee’s call for evidence, the only legislative provisions for Parliamentary scrutiny of proposed treaties lie in Part 2 of the Constitutional Reform and Governance Act 2010 (“CRAG”): in relation to FTA provisions relating to agriculture, sections 42 of the Agriculture Act 2020 and 9 of the Trade Act 2021 also require a report to be laid before Parliament on the consistency of the FTA with UK food and animal welfare standards, prepared with the advice of the Trade and Agriculture Commission. 
11. As the Committee is well aware, Part 2 of CRAG does not require Parliamentary approval of a treaty: rather, it provides (in essence) for the possibility of votes against ratification that (if passed by the Commons[6]) preclude ratification.  The government is then permitted to lay the treaty again, from which point a further vote by the Commons within the next 21 days would preclude ratification.  As illustrated in the case of the UK/Australia FTA, it is possible for government to use its control of the Commons timetable to avoid such a vote by refusing to give time for a debate.  As the Committee is also well aware, the scope of Part 2 of CRAG is also importantly limited in several ways: in particular, it does not apply to treaties that do not need ratification and (perhaps more importantly in relation to FTAs) it does not apply to modifications of the terms of FTAs that are frequently made in accordance with procedures set out in those FTAs: now a routine feature of FTAs and very much an aspect of the TCA.
12. Of course, if ratification of an FTA requires primary legislation in order to bring domestic law into compliance with the requirements of the FTA, then Parliament is in a position to prevent ratification by refusing to pass that legislation.  However, in practice – and especially given the wide powers in section 2 of the Trade Act 2021 – FTAs can be implemented by secondary legislation, where (as is well known) Parliamentary scrutiny is often entirely inadequate. 
13. It is obviously within the power of government to enable the Commons to discuss and vote on whether any particular treaty should be entered into (or whether any modification in an FTA that would not fall within the scope of CRAG should be agreed).  It is also within the power of government to place details of its negotiating objectives for potential FTAs before Parliament (as well as devolved legislatures and wider society) and to engage with Parliament and the wider public as negotiations proceed.  We are confident that the Labour Government will substantially improve on the record of its Conservative predecessors in those respects.
14. Nonetheless, we see a strong case for legislation requiring FTAs, and other treaties identified by some form of sifting mechanism under Parliament’s control, to be approved by a positive vote of the Commons before the government can ratify them.  Such a provision would prevent any future government from following the unfortunate precedent set by the Johnson Government and refusing a debate on the terms of an important FTA.  Bearing in mind the conduct of the Johnson Government in relation to negotiation of the TCA in mind, we also consider that, in relation to FTAs, there should be provision requiring government to lay negotiating objectives before Parliament and to update it on the development of the negotiations.  We also consider that a requirement to consult the devolved governments on the terms of proposed FTAs would be appropriate in order to avoid any repeat of the systematic failure of the Johnson Government to consult them in any adequate way over the TCA and other FTAs, and recognises the considerable impact that FTAs can have on their policies and powers.
15. In relation to both those proposals, we see considerable merit in these elements of the draft Bill proposed in written evidence to this Committee (RTS0002) by Alexander Horne and Professor Holger Hestermeyer.
16. In saying that, we are conscious of the danger that legislation of that kind could lead to undesirable inflexibility (although, as we have already pointed out, increased domestic scrutiny can actually strengthen to position of the government in its negotiations with foreign countries).  We also consider that the proposed requirement to consult the devolved governments on the text of a proposed FTA before moving a resolution for its approval[7], while addressing the point we made in the previous paragraph in relation to those governments, is also flexible enough to enable speedy conclusion of FTAs where that is needed. However, the requirement for a confirmatory vote does not in itself preclude agreements being reached, approved by Parliament, and then ratified very quickly when circumstances demand it[8]: if (as in the case of the TCA) it is possible for Parliament to pass a sizeable Act of Parliament in one day between Christmas and New Year, it is hard to see any circumstance in which a single confirmatory vote could not be held in very short order and at any time if so needed.
17. On that basis, we believe that the Committee should seriously consider recommending that the Government put forward legislation as regards FTAs drawing upon elements of the Horne/Hestermeyer Bill, and that the Government should seriously consider doing so.

14 May 2025