The role parliament should play in international negotiations is a thorny constitutional question. Negotiations must be conducted by a single actor which should be able to move quickly and take decisions—in practice that means the government. But international treaties can materially impact a domestic population, meaning thorough scrutiny of some kind is essential. The question is how to reconcile those imperatives.
Brexit has given that question new relevance. The government is seeking to sign comprehensive new trade deals and has just applied to join the revised Trans-Pacific Partnership, an 11-member trade bloc including Australia and Japan. A committee has been established in the House of Lords—the International Agreements Committee (IAC)—to interrogate negotiations and scrutinise treaties, while amendments currently working their way through parliament seek to give further powers to the House of Commons. The role of the legislature in international deal-making is a newly pressing issue.
With that in mind I contacted David Anderson QC, a barrister at Brick Court Chambers and crossbench peer. Having made his name in landmark cases before the European Court of Justice, he went on to specialise in UK national security issues, becoming our independent reviewer of terrorism legislation. He took his seat in the Lords in 2018, and now contributes to the public understanding of parliament via a must-follow Twitter account. Over the phone, we discussed the shortcomings of our current institutional arrangements.
“Making treaties, certainly in this country, has always been purely a function of government,” Anderson began. “Negotiating, signing, ratifying a treaty is all done under the Royal Prerogative”—an ancient power of the Crown which is, in practice, vested in ministers. “And that’s been defended for many years. Blackstone, the great 18th-century jurist, said a powerful executive brings ‘unanimity, strength and dispatch,’ and those words have particular force when it comes to international relations.”
Nevertheless, “there have always been voices saying that treaties need to be explained. Bagehot, the great [constitutional] theorist… in 1872 said that ministers ought to be obliged to explain clearly their foreign contracts before they were valid, just as they have to explain their domestic proposals before they become law.”
Parliamentary influence was first formalised in the “Ponsonby rule,” named after a minister in Ramsay MacDonald’s first Labour government—the convention says most treaties should be laid before parliament 21 sitting days before ratification. “That was introduced in 1924” and “it’s basically what we have now,” enshrined in legislation more recently as the Constitutional Reform and Governance Act (CRAG).
But much has changed in the intervening century. It’s not just that the UK today is a signatory to over 14,000 international treaties. “The nature of treaties has changed,” Anderson explained: “treaties used to be about peace settlements and alliances… now they’re about trade arrangements, investment arrangements, and they include clauses with implications for everyday things like environmental standards, animal welfare, data protection.”
“And leaving the EU has brought things to a head. Because of course, all our trade deals have been negotiated for us over the last 47 years by the EU and its predecessors... And all of a sudden, that has ended.” He added: “Now we’ve ‘taken back control’… And yet we have a system of parliamentary scrutiny that is effectively frozen in time. That in my view simply has to adapt.”
The current system is “by international standards, pretty weak. There is no involvement of parliament in formulating the negotiating mandate. Information about the progress of negotiations is patchy at best. There is no right to scrutiny of a treaty prior to signature. Parliament does get to implement treaties into domestic law, but by that stage they’ve already taken shape.”
Even CRAG results in little real influence and can be easily circumvented: the government can use its control of the parliamentary timetable to refuse a debate. Once the 21 days expire “then the government can simply ratify the treaty, even if parliament might not like it.” Ministers can even claim “exceptional circumstances” to avoid the 21-day period altogether.
So what advantages would lie in greater scrutiny? For one, it improves policy, since “the need to explain what it is doing to parliament requires the government to produce evidence and analysis.” There is also a democratic case: “If you’re looking at an agreement which may have great political significance... if parliament has been involved in the process, then trust in the democratic legitimacy of treaty-making is improved.”
A stronger role for parliament can even strengthen a government’s negotiating hand “by enabling it to say: ‘we'd love to give you this, but there’s no way we’d get it through,” arguing it needs concessions to sell the deal back home.
So what processes should the UK introduce? Some answers may be found in the highly contested Trade Bill, first introduced to parliament in 2017 and now in its final stages. Amendments have been tabled which attempt to mandate the non-regression of standards in areas from health, animal welfare and food quality to the environment, labour standards and the protection of children online. But at least as important, says Anderson, is a meaningful role for parliament before, during and after major negotiations.
“I don’t think you can require parliament to write the negotiating mandate; you can certainly require it to be involved in a debate on the negotiating mandate,” he said, citing a recent amendment that if retained would allow negotiations to proceed only with Commons approval. During negotiations, parliament and its committees should be given “as much information as can safely and sensibly be shared: the EU… requires the European Parliament to be immediately and fully informed at all stages of the [treaty-making] procedure.”
What about when the deal is struck? “You need to strengthen the arrangements under CRAG,” said Anderson, which crucially “would involve the Commons and Lords being able to insist upon a debate when they are unhappy with a deal.” “The power of the Commons under CRAG repeatedly to delay ratification is barely used in practice, and is not as strong as a veto. But it is a form of influence, particularly when time is pressing.”
Doesn’t the government have a reputation for aversion to scrutiny? “Yes,” came the reply, “but it’s in their interests too for weakness or unfairness to be spotted at an early stage, and for parliament to take a degree of ownership. There is a logic… in sharing the responsibility around a bit. If you can achieve that without weakening the hand of the negotiators, you are behaving rather wisely.”
Detailed scrutiny is best performed in specialised committees such as the Commons International Trade Committee, which take evidence from businesses and other affected groups. The new IAC meanwhile “is an absolutely crucial element in future change.
"And in fact, the government has already been rather cooperative… we’ve seen, for example, that the Department for International Trade has promised to give time for the IAC to scrutinise any new trade agreement once it has been initialled, prior to laying it under CRAG.” A productive relationship will depend on building trust: “that’s how the committee will get the sensitive information and the private briefings it’s going to need from government and negotiating teams.”
More broadly, finding the right settlement is “a question of coupling those virtues of strength and dispatch that Blackstone spoke about… with the democratic accountability appropriate to deals that affect all of our lives.” Parliament should not be in charge: but it does need to be heard.
With Anderson’s permission, this interview incorporates comments provided over email the following day
