Arabella Lang – Written Evidence (TWP0006)
Treaty scrutiny involves cultural change for both government and parliament, to work together in producing treaties that are in the national interest. A good first step would be to develop a joint framework agreement on treaty scrutiny. The IAC could also develop its own set of standard treaty scrutiny checks, and work with government to develop the information it provides on treaties and the balance between transparency and effective negotiation. It may also wish to prioritise its work with a flexible categorisation of treaties as major, minor or technical.
It will be important for the IAC to connect with the interest and experience across many committees in both the Lords and the Commons. It could also consider how treaties and any primary or secondary implementing legislation could be scrutinised together. It might like to develop a role coordinating and keeping oversight of treaty scrutiny across parliament.
When working with the devolved authorities on treaty scrutiny, the IAC could start by asking them what would be most helpful and appropriate. Devolved executives and legislatures are both calling for more involvement in treaty scrutiny, and the IAC could help the legislatures in particular with receiving and disseminating information and views.
Whilst the current treaty scrutiny timetables are too short for meaningful consultation with wider stakeholders, an important role for the IAC could be to increase public awareness and information about treaties. This could include supporting and developing the new parliamentary treaty tracker, and becoming a point of contact on treaties in parliament.
As the IAC’s impact develops, it would be beneficial to have periodic reviews, both private and public. It might face challenges such as how best to work with others to achieve change, or a lack of awareness and understanding of treaties, but a public statement of its initial working methods, priorities and objectives would help the IAC set off on a good footing for its work with government, other UK Parliamentary committees, devolved legislatures and other stakeholders.
- The creation of the International Agreements Committee (IAC) confirms that treaty scrutiny is an important and appropriate function of parliament, in line with the majority of other countries. Because it is a new committee, it is important that its initial working methods and objectives are flexible and adaptable.
- In this written evidence I will suggest how the IAC could approach working with government, with other UK parliamentary committees, and with the devolved legislatures and other stakeholders, using some comparative examples. I will also mention some potential challenges.
Working with government
- Treaty scrutiny involves cultural change for both government and parliament. Given the long life and growing importance of treaties, in my view it is important for parliament and government to see themselves as partners in making the UK’s treaty obligations appropriate, well-supported and in the national interest. This would require a commitment from both sides to building awareness, trust and constructive relationships.
- It will be important to foster good relationships at official level as well as between Members and Ministers. There are good examples in the treaty scrutiny work of the EU Select Committee in 2019-20, which could be developed with other relevant Government Departments (the FCO takes the overall lead on treaties, but each Department is responsible for treaties in its area).
- A good first step would be to work with the Government to develop a framework agreement on treaty scrutiny, for example to:
- acknowledge the appropriate treaty roles of each institution
- establish what information to provide and when
- agree a general principle of transparency with limited exceptions
- recognise the need for flexibility
- establish appropriate engagement with the devolved authorities
- The IAC could also develop its own set of standard treaty scrutiny checks, including for example:
- Is there appropriate information, risk/benefit analysis and consultation, including with the devolved authorities?
- What are the governance/compliance arrangements and dispute settlement procedures?
- Is provisional application allowed?
- Are any reservations or declarations appropriate? Would others be beneficial?
- Will the treaty be appropriately implemented in the UK?
- Are any exceptions to the treaty requirements of the Constitutional Reform and Governance Act 2010 (CRAG) justified?
- Treaty impact assessments will be vital in assessing the extent to which a treaty is in the national interest. The Government is required to publish an Explanatory Memorandum (EM) alongside any treaty laid before Parliament under CRAG, and FCO guidance say it should include subject matter, ministerial responsibility, general and financial policy considerations, reservations and declarations, means of implementation, and consultation outcomes. But this is late in the process and not always sufficient.
- In other countries including New Zealand, treaty impact assessments must be both more detailed and more wide ranging. Parliamentary committees such as Australian parliament’s Joint Standing Committee on Treaties (JSCOT) often hold the government to account on their content.
- The IAC could work with the FCO to develop EMs, following the improvements that have already been made as a result of dialogue with the Lords EU Committee and JCHR recommendations. For example:
- the standard headings for EMs could include environmental, health, equalities, human rights, regional and devolution impact assessments
- there could be more detailed guidance on content
- EMs could perhaps be renamed ‘National Interest Analysis’ or similar, to better reflect their purpose
- they could contain independent analysis
- they could be produced at additional points in the process, eg at the beginning of negotiations, or for proposed amendments or withdrawal
- The balance between transparency and effective negotiation will lie in different places for different treaties, and at different stages of negotiation. It may also evolve over time.
- Other systems have developed ways to share confidential treaty information with legislatures during negotiations. For example:
- Norway’s Enlarged Committee on Foreign Affairs and Defence, which is consulted by the government before important foreign affairs, trade and national security decisions are made, provides for a forum for confidential discussions and sharing of information. It has a long tradition of being a confidential consultative body for the Government in sensitive international matters.
- The European Parliament must be “immediately and fully informed at all stages of the procedure” including access to negotiating directives and observation rights for MEPs. More detailed confidential information is available to progressively tighter groups of MEPs (eg the relevant committee receives briefings from negotiators after each negotiating round, and some information goes only to the rapporteur)
- However, much depends on the wider political culture and the particular understanding of confidentiality. It may therefore be more instructive to look at how the UK Parliament already handles confidential information in other contexts, bearing in mind that confidential information might not require the same protection as secret information.
- The IAC may also wish to prioritise its work with a flexible categorisation of treaties as major, minor or technical. Most other countries do this: for example in New Zealand all multilateral treaties but only ‘major’ bilateral treaties are referred to the Foreign Affairs, Defence & Trade Committee; Australia’s JSCOT must issue a report on every treaty but has three-track structure for major (laid) and minor (not laid) treaty actions, under which a ‘report’ can be minimal; France lists types of treaty requiring parliamentary approval; and Germany lists those that do not.
Working with other UK parliamentary committees
- Treaties can be about anything, so it will be important for the IAC to connect with the interest and expertise across many committees in both the Lords and the Commons. This might include:
- regular informal communication between officials
- alerting other committees to treaties in their areas and discussing who will scrutinise
- inviting other committees to appoint treaty rapporteurs and/or appear as guests at IAC meetings
- formally seeking the views of other committees and publishing their responses alongside reports
- setting up ad hoc committees or joint sub-committees for particular treaties or topics
- The IAC could also consider how treaties and any primary or secondary implementing legislation could be scrutinised together. There is currently no standard practice on the relative timings of the CRAG laying period and when any implementing legislation is before Parliament. One idea comes from the New Zealand parliament, which debates the committee report on a treaty instead of the first substantive debate of any implementing primary legislation.
- In general, the IAC might like to develop a role coordinating and keeping oversight of treaty scrutiny across parliament, building and sharing expertise and best practice, and raising awareness of treaty scrutiny matters.
Working with devolved authorities
- A good starting point for working with the devolved authorities on treaty scrutiny would be to ask them what would be most helpful and appropriate.
- The devolved executives are in theory given some involvement in treaty negotiation by a (non-binding) concordat on international relations, but they have called for more, for example in drawing up negotiating ‘red lines’. Another negotiating party might even require their involvement – for example the EU insisted on the Canadian provinces being involved in CETA negotiations.
- But there is no formal role for the devolved legislatures, except passing pre-determined implementing legislation. Again there is an increased interest in treaties, for example recent work of the Welsh External Affairs and Additional Legislation Committee and the Scottish Culture, Tourism, Europe and External Affairs Cttee, as well as plenary debates. But they have no direct way of holding to account those responsible for negotiating treaties that affect them.
- The IAC’s role should arguably focus on the devolved legislatures. It could include:
- helping ensure the devolved legislatures get appropriate and timely treaty information
- amplifying the voices of the devolved legislatures and getting their views heard by the UK government
- coordinating treaty scrutiny across the devolved legislatures
- inviting devolved representatives to submit their views to IAC inquiries
- involving them if the UK Parliament handles implementing legislation
- Mechanisms to help with this could include:
- regular meetings of Chairs of relevant committees across the UK
- inviting members of devolved committees to join IAC meetings
- good staff networks
- developing the role of the Inter Parliamentary Forum on Brexit
- a formal agreement between presiding officers
Working with other stakeholders
- The obvious way for the IAC to work with other stakeholders is to invite them to give oral or written evidence. The CRAG period (21 days when both Houses are sitting) is too short for proper consultation and evidence sessions, which suggests either that the IAC should start its scrutiny earlier in the process (if there is enough information to do so), or that government should be more open to significant extensions of the CRAG period.
- An important role for the IAC could be to increase public awareness and information about treaties. This is a rule of law issue as well as helping to improve information flows and debate to determine what is in the national interest.
- Information about UK treaties is currently very hard to navigate. It is spread over numerous sites, with overlaps (eg treaties that are in force appear twice in the list of Treaty Command Papers) and gaps (there is very little information about treaties under negotiation, and no way of searching for treaties that have been signed by the UK but not ratified).
- The Parliamentary Digital Service has developed a treaty tracker website for treaties before Parliament, but it is hard to find unless you know it exists. The IAC could play an important role in taking this further, for example sponsoring this work and helping to develop it, and working to ensure it is linked to government and devolved databases so that treaty actions can be tracked right from proposal through negotiation, reports, and debates to approval, implementation, amendment and withdrawal.
- Other countries provide some useful examples. The Australian Treaties Database, managed by the Department of Foreign Affairs and Trade, contains searchable treaties and background material including JSCOT reports and government responses. New Zealand Treaties Online includes information on treaties in progress.
- Relatedly, the IAC could become an important point of contact for stakeholders and others looking for someone in Parliament to talk to about treaties.
- The IAC’s impact could develop in various ways, for example:
- increased transparency, debate and broader participation in treaty scrutiny
- leadership and a centre of expertise on treaties in parliament
- coordination and oversight of treaty scrutiny across the UK
- expanded timing and scope of treaty scrutiny, from mandate-setting right through to implementation, amendments, derogations and withdrawal, and possibly including non-treaty arrangements such as Memorandums of Understanding which can cover important policy matters.
- As the committee’s work develops, it would be beneficial to have periodic reviews, both private and public. JSCOT, for example, had a big 20th anniversary conference and reports.
- Some of the challenges the IAC might benefit from being alert to include:
- how best to work with others to achieve change
- a lack of attention from within Parliament, perhaps because of a lack of awareness/understanding of treaties, because treaties are still seen as being for government alone and as having no impact without legislation, because parliamentarians consider they get enough of a say on treaties through implementing legislation, or because they cannot amend treaties themselves
- being viewed as a safety-valve – theoretically meeting demand for treaty scrutiny but making little practical difference
- workarounds (non-treaty arrangements) emerging if the government feels parliamentary demands become too onerous
- Meanwhile a public statement of initial working methods, priorities and objectives would help the IAC set off on a good footing for its work with government, with other UK parliamentary committees, and with the devolved legislatures and other stakeholders.
3 June 2020
 See Arabella Lang, ‘Draft Principles for a Parliament-Government Framework Agreement on Treaty Scrutiny’, written evidence submitted to Commons Liaison Committee, July 2019, SCA83
 21% of all countries allow legislatures to attach reservations to treaties: Pierre-Huges Verdier and Mila Versteeg, ‘Separation of powers, treaty-making, and treaty withdrawal’, in Curtis A Bradley (ed), The Oxford Handbook of Comparative Foreign Relations Law, 2019, p142
 The proportion of countries requiring parliamentary involvement in treaty withdrawal has risen to 28% from 11% in 1970s: Pierre-Huges Verdier and Mila Versteeg, ‘Separation of powers, treaty-making, and treaty withdrawal’, in Curtis A Bradley (ed), The Oxford Handbook of Comparative Foreign Relations Law, 2019, p149