Institute for Government – Written Evidence (TWP0008)

 

About the Institute for Government

The Institute is an independent think tank working to make government more effective. We provide rigorous research and analysis and offer a space for discussion and fresh thinking to help senior politicians and civil servants think differently and bring about change. As part of this, we work to help Parliament effectively scrutinise government and hold it to account. We conduct research and analysis on Parliament’s work and have an extensive work programme relating to Brexit.

Introduction

  1. The Institute for Government welcomed the establishment of the House of Lords subcommittee on International Agreements. Outside the EU, the UK will have freedom to strike more international agreements – including free trade agreements (FTAs) – and parliament historically has had a very limited role in scrutinising this process.

Engagement with government’s treaty negotiations

  1. Parliament can engage with treaty negotiations at three stages:

 

  1. The level and shape of parliamentary engagement will depend on a number of factors, including the salience of the agreement and parliament’s formal powers over it. For example, parliament may well wish to be more closely involved in trade talks than in, for example, negotiations on foreign policy coordination. Trade is more politically salient and is likely to have more far-reaching effects on the domestic economy and society.

 

  1. In addition, the fact that trade agreements are likely to require legislation to implement (whether primary or secondary) provides parliament with a lever for securing engagement that it does not have in the case of classical foreign policy that can be implemented using prerogative powers alone.

 

  1. There is an extensive literature on how legislatures can engage with treaty negotiations conducted by executives. Much of this focuses on the relationship between the US Congress and the executive or, to a lesser extent, between the European legislators (the Council of the European Union and, since the Lisbon Treaty, the European parliament) and the European Commission. In these examples the legislatures have established a series of controls over the executive.

 

  1. For example, before opening negotiations with a third country, the European Commission is required to seek the authorisation of the Council, which sets its negotiating directives.[1] The US executive is not required to seek Congressional approval before commencing negotiations, but Congress has nonetheless set binding objectives for US trade negotiations,[2] granting in return expedited procedures for their ratification.

 

  1. This model is not entirely applicable to the UK's constitutional arrangements and political structure. Both the European Commission and the US presidency are independent executives operating in systems with a strong separation of powers. The UK's constitutional system is based, in contrast, on a fusion of powers and requires the executive to maintain the continuous confidence of the House of Commons.

 

  1. For this reason, the UK parliament generally seeks to scrutinise, rather than to control, executive action. While the 2017-2019 parliament took steps towards much more explicit control of the executive during the Article 50 negotiations, the current government’s substantial majority seems likely to lead to a return to type.

 

  1. Parliament’s efforts would therefore best be focused on ensuring transparency and open debate rather than attempts to bind the government’s hands in statute. This is particularly the case for free trade agreements, which could have significant effects on the UK's domestic policy. The current expectation that the government will regularly update parliament on the progress of trade negotiations and engage with relevant select committees is positive.

 

  1.                   However, to enhance the role of parliament at the start of the process, we recommend the government lay a command paper before parliament detailing its negotiating objectives for each FTA to allow a debate. This would be beneficial to increase transparency and enhance scrutiny by parliamentarians. It would also be an opportunity for the government to test where key objections may lie.

 

  1.                   The government and parliament have a common interest in ensuring that it does not negotiate agreements that, when they finally become public, meet such serious objection in parliament and from the public that they prove impossible to ratify.

 

  1.                   The government has outlined guidelines on engagement with parliament while preparing for FTA negotiations – including for specific FTAs, for example with Japan.[3] There has, however, been very little discussion about other international agreements.

 

  1.                   The UK negotiates large numbers of treaties annually, many of which are formulaic – for instance, conventions for the avoidance of double taxation – or of limited political significance, such as agreements on film co-production.

 

  1.                   It would not be desirable to expend civil service resource and parliamentary time on scrutinising the government’s intentions as regards such agreements. But there may well be agreements – for example, on defence and security cooperation – where greater scrutiny than has in the past been usual would be valuable.

 

  1.                   A standing committee on international agreements could ‘triage’ treaty negotiations – drawing the House’s attention to those which may have a more significant impact on UK domestic policy and where further information from the government would be desirable.

 

  1.                   Turning to the end of the process, many legislatures also exercise strong control by requiring legislative approval for the ratification of treaties. The European Commission cannot ‘conclude’ an international agreement (the EU equivalent of ratification): this must be done by the Council.[4] The approval of the European Parliament is in some cases required.[5]

 

  1.                   The US executive can ratify treaties only with the advice and consent of the Senate or where it is authorised to do so by an act of Congress. This latter procedure is usual for trade agreements, which often require implementing legislation in order to be executed: for example, the US ratified the North American Free Trade Agreement only after Congress had passed the NAFTA Implementation Act in 1993.[6]

 

  1.                   These controls attempt to constrain the executive by preventing it from concluding an agreement which does not reflect the legislature’s preferences. Requirements for legislative approval also create incentives for the executive to engage with the legislature during negotiations in order to avoid negotiating an agreement which it is subsequently unable to ratify. This further strengthens legislative control.

 

  1.                   The UK parliament’s ability to exercise control of treaty-making at the end of the process is stronger than its controls at the start. But this is still limited. The weaknesses of the procedures formerly embodied in the Ponsonby Rule and now laid down by the Constitutional Reform and Governance Act 2010 are well known.

 

  1.                   A stronger vehicle for parliamentary control of treaties is offered by the UK's dualist legal order, under which international treaties do not automatically have the force of law in the UK but must be implemented by domestic legislation. In order to avoid the uncomfortable situation of having bound itself in international law to provisions which it is unable to apply, the UK government by longstanding practice does not ratify treaties for which the implementing legislation is not yet in place. This allows Parliament the de facto ability to prevent the ratification of a treaty which requires primary legislation for its implementation.

 

  1.                   Not all treaties, however, require primary legislation. Many can be implemented using prerogative powers alone (for example, treaties on security cooperation) while others can be implemented using secondary legislation.

 

  1.                   The last government committed to introduce a bespoke bill for the implementation of FTAs where primary legislation was required. This is a positive step, but it should not be assumed that FTAs generally would require primary legislation.

 

  1.                   Parliament has already given the government many of the powers it would need to implement FTAs. Any tariff reduction the government negotiates can be implemented by negative statutory instrument under section 9 of the Taxation (Cross-border Trade) Act 2018. Wide regulatory powers are conferred on the government by acts such as the Environmental Protection Act 1990 and the Food Safety Act 1990, which could in many cases be used to amend domestic regulation so as to make it compatible with the provisions of an FTA. While many of these powers must be exercised by affirmative SI, even that offers limited opportunities for scrutiny.

 

  1.                   The major obstacle to the government making radical changes to the UK's regulatory landscape is now section 7(2) of the European Union (Withdrawal) Act 2018, which, with certain exceptions, prevents the amendment of retained EU law by UK secondary legislation.

 

  1.                   Parliament’s ability to check the government’s implementation of future international treaties will therefore depend to a large extent on vigilant scrutiny of proposed legislation (which may appear purely domestic) containing empowerments to amend retained EU law in relevant areas.

 

  1.                   Beyond the implementation of an agreement through legislation, Theresa May’s government committed to allowing time for parliamentary committees to report on finalised FTAs before they are ratified under CRAG.[7] This commitment should be repeated. But this does not address what role parliament should have in the ratification of other international agreements.

 

  1.                   The Joint Committee on the Scrutiny of Treaties in the Australian Parliament has the authority to report on any international agreement finalised by the government.[8] These are divided into three categories: 1 and 2 are reported on, while category 3 treaties (relatively minor treaties) are usually tabled with an explanatory statement – although the committee can choose to hold a formal inquiry. This model may prove useful for the UK parliament, accepting that some international agreements will not be as important as others.

Engagement with stakeholders

  1.                   The most obvious way that parliament can engage with relevant stakeholders around international agreements is through holding evidence sessions with relevant stakeholders. However this can be time-consuming and can limit the extent of engagement. The International Agreements subcommittee could look to best practice in public engagement from other select committees in the House of Lords and House of Commons.

 

  1.                   For example, the European Statutory Instruments Committee in the House of Commons – set up to scrutinise statutory instruments passed under the EU Withdrawal Act 2018 – had to develop a way to engage with stakeholders easily and quickly as they only had ten sitting days to recommend an upgrade of each statutory instrument. The committee launched an engagement tool where anyone can submit comments on the statutory instruments the committee was scrutinising at that time.[9]

 

  1.                   A similar tool may be useful for the scrutiny of relevant international agreements, as any member of the public would be able to express their views – or highlight concerns. This could also inform any decisions around which witnesses should be invited to give evidence on particularly sensitive international agreements.

Parliament’s role in ensuring the government takes into account the devolved administrations

  1.                   Parliamentarians can place pressure on the government to engage the devolved administrations in the course of international negotiations. This will be particularly important when treaties touch on areas of devolved competence as legislation may need to be passed by the devolved legislatures – or at Westminster with their consent – to reflect any new international obligations. This will not just be relevant to FTAs, but also, for example, to environmental and fisheries agreements. 

 

  1.                   But stronger interparliamentary relations would also encourage the perspectives of Scotland, Wales and Northern Ireland to be taken into account – particularly when scrutinising international agreements. The Interparliamentary Forum on Brexit was a positive step in building relations both between members of the different legislatures but also officials. Creating a space for informal discussions about international agreements which affect the whole of the UK would be a positive step.

 

5 June 2020

 

 

 

 

 


[1] Article 218(2) of the Treaty on the Functioning of the European Union (TFEU).

[2] Most recently in the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, s 102.

[3] Department for International Trade, Processes for making free trade agreements once the UK has left the European Union, (February 2019), retrieved 3 June 2020 www.gov.uk/government/publications/processes-for-making-free-trade-agreements-once-the-uk-has-left-the-eu; Department for International Trade, UK’s approach to negotiating a free trade agreement with Japan, (May 2020), retrieved 3 June 2020, www.gov.uk/government/publications/uks-approach-to-negotiating-a-free-trade-agreement-with-japan

[4] Article 218(6) TFEU.

[5] Ibid.

[6] 19 U.S.C. Ch. 21, since repealed.

[7] Department for International Trade, Processes for making free trade agreements once the UK has left the European Union, (February 2019), retrieved 3 June 2020 www.gov.uk/government/publications/processes-for-making-free-trade-agreements-once-the-uk-has-left-the-eu

[8] Joint Standing Committee on Treaties, ‘Role of the Committee’, Parliament of Australia, retrieved 3 June 2020, www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/Role_of_the_Committee

[9] ‘European Statutory Instruments Committee Engagement Tool’, (no date), retrieved 3 June 2020, https://esic-parliament.uk/