The role of parliament is to hold ministers to account, while the aim of ministers is to take decisions without undue interference by MPs and peers. The tension between those objectives is nowhere more obvious than in the conduct of foreign affairs: while ministers can use powers derived from the royal prerogative to sign international agreements, parliament has only limited powers of review.
With domestic legislation increasingly circumscribed by international obligations, failure to examine treaties can limit the effectiveness of legislative scrutiny
‘Treaties often deal with matters of significant public importance such as trade, environment, defence, human rights or immigration,’ said Lord Goldsmith KC, the former attorney general who now chairs the House of Lords international agreements committee. He was announcing an inquiry by his committee ‘to assess what changes are needed so that parliament can properly exercise its role of holding the government to account in this area’.
Goldsmith launched the inquiry in February with a seven-page letter to David Lammy, asking the foreign secretary some searching questions and inviting him to give oral evidence. The reply, a month later, came from Catherine West MP, the Foreign Office minister responsible for treaty policy, who told him she would be appearing on Lammy’s behalf.
Goldsmith wanted to know whether the foreign secretary shared the previous government’s view that his international agreements committee had no more than a ‘valuable scanning function’ in relation to treaties. That sounded pretty cursory. West’s reply failed to address the point, merely reminding the committee that it performed an ‘important review function’.
Did the Constitutional Reform and Governance Act 2010 give the committee the powers it needed to hold the government to account? The committee had reported in 2021 that this statutory framework was ‘insufficient to ensure robust and effective scrutiny’. And a Commons committee recommended last year that, ‘as a matter of constitutional principle, all treaties should require the explicit approval of the democratically elected House of Commons before they enter into force’.
Again, the government brushed off Goldsmith’s concerns with a ChatGPT-style summary of the law.
Next question: the committee could have as little as 21 working days – meaning days when both houses of parliament were sitting – to scrutinise a treaty before it was ratified by the government. Was that enough? In what circumstances would it be extended?
Sure, said the minister, 21 joint sitting days was enough in most cases. Extensions would be considered on a case-by-case basis.
Would the government share treaty drafts in advance? ‘Where appropriate,’ replied West. Was the government willing to engage with the committee? ‘Very willing,’ the minister said. Just tell us how.
Goldsmith replied dryly on 1 April. ‘Thank you for your reply to our long letter,’ he said, ‘which for the most part restates prior government positions without engaging in much detail with the committee’s points.’
The international agreements committee has now begun taking oral evidence. One of the first witnesses was Alexander Horne, a barrister and former parliamentary adviser. He and a colleague put in a written submission arguing that the current process of treaty scrutiny in the UK parliament was no longer fit for purpose.
Few outside government would disagree. But Horne and Professor Holger Hestermeyer have taken the unusual step of drafting a private member’s bill that they hope will be picked up by an MP or peer. Its first clause provides that the UK ‘may not ratify a significant treaty unless a draft of the agreement in the terms in which it is to be presented for signature by parties to the agreement has been laid before, and approved by, a resolution of the House of Commons’.
Horne and Hestermeyer argue that treaties deserve at least as much scrutiny as legislation and the only way of ensuring this is through an act of parliament. With domestic legislation increasingly circumscribed by international obligations, failure to examine treaties can limit the effectiveness of legislative scrutiny.
Their bill would provide a special procedure for trade agreements. Parliament would be able to scrutinise the government’s objectives and ministers would have to provide written updates on negotiations.
All this is necessary, the bill’s authors say, because the UK’s trade agreements used to be decided at European Union level where there were effective mechanisms for parliamentary control. These were lost with Brexit.
Parliamentary consent to significant treaties is essential but not sufficient, they add. If treaties do not provide for a formal ratification process, they are exempt from scrutiny under the 2010 act. The same goes for informal agreements known as memoranda of understanding.
Hestermeyer will have the chance to argue for legislation when he gives oral evidence to the committee next week. I suspect he will be pushing at an open door. But it may be much harder for the committee to win support from the government. As the late Lord Lester was fond of saying, all power is delightful and absolute power is absolutely delightful.
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