When the UK agreed to leave the European Union, one of the main advantages of Brexit advanced by the government was that it would be able to negotiate new free trade agreements (FTAs) with other countries. Now that we have left, the government has sought to take advantage of this new freedom, negotiating deals of varying importance with Australia, New Zealand and India, and seeking to accede to the latest iteration of the Trans-Pacific Partnership (called the CPTPP).
Yet despite the narrative of “taking back control,” ensuring adequate scrutiny of these new FTAs has proved far from straightforward. The question is whether a new development might finally put this right.
When it was an EU member state, the UK benefitted from the trade agreements negotiated by Brussels. These were subject to real inquiry by the European parliament, which has formal powers underscored by European treaties. MEPs must be kept immediately and fully informed at all stages of the negotiation of agreements, right up to their conclusion, and must give their consent before the European Council concludes a trade deal. Those of us who watched the Brexit negotiations first-hand saw how effective these powers were in practice, particularly in comparison to the limited scope that the UK parliament had to obtain information and to influence proceedings.
Following the decision to leave the EU, the UK parliament established committees to scrutinise FTAs in the Commons and the Lords: the International Trade Committee (ITC) and the International Agreements Committee (IAC). But these have no formal powers beyond those granted to a regular select committee. Under UK law, parliament only has a right to see an FTA once it has been signed and laid under the Constitutional Reform and Governance Act 2010. Any other concessions relating to scrutiny of the negotiation and agreement of FTAs is in the gift of the government.
In the years leading up to Brexit, various promises were made on the floor of the House of Lords, in letters to committees and in consultation papers. But these were all offered on a case-by-case basis, with no real consistency and subject to change at the whim of government ministers.
So in September 2021, the House of Lords IAC published a report on treaty scrutiny that recommended that a concordat should be negotiated between the government, the IAC and the House of Commons ITC. This would set out the various individual promises made by the government over the years and transform these into formal commitments to parliament.
The government was initially reluctant. However, following extensive correspondence and interventions from other House of Lords select committees, in March 2022 it conceded that “in the interests of clarity,” and in order to maintain a constructive relationship with the IAC, it would agree to a formal exchange of letters with both scrutiny committees, in order to “record its commitments on the subject of trade agreements.” Today, these letters were published and placed in the libraries of both houses of parliament.
This sounds technical, but it is an important constitutional moment. While it may fall short of a legal guarantee set out in statute, the exchange of letters is a political agreement which has crystalised the undertakings made by the government in a single, published document. Unlike the earlier unilateral pledges, we now have a formal framework for scrutiny. It should not be subject to change without the agreement of the parties.
The commitments made to parliament include promises to hold public consultations on all new FTAs; to publish negotiating objectives and a “scoping assessment” before the start of negotiations; to publish regular updates on the negotiations, normally at the end of each negotiating round; to provide written and oral evidence to the IAC and ITC, including private briefings by officials; and, perhaps most importantly, to ensure that the relevant select committees have a “reasonable amount of time” to scrutinise new FTAs and produce any reports on them that they may wish to, prior to the deal being laid before parliament.
The government has also formally recorded that it will seek to provide time for a full parliamentary debate on new FTAs, should one be requested by either committee. This is particularly important in the Commons, which has the power to temporarily block ratification.
While this list of guarantees falls some way short of the sort of the scrutiny and transparency requirements that many would like to see contained in UK law, it represents progress. It also demonstrates the quietly powerful impact that the House of Lords can have on the UK constitution. I declare an interest, having worked as both legal adviser and special adviser to the IAC. Nonetheless, it is evident that over the past three years the House of Lords has taken the lead on establishing new rules and structures for the scrutiny of international agreements. Its less partisan nature can be an advantage: this exchange of letters would not have occurred without the constructive relationships established between the Conservative trade minister Gerry Grimstone and the Labour chairs of the IAC, Peter Goldsmith and Dianne Hayter.
This should not be seen as the end of the story. A debate will be held in the Lords today on the IAC’s report on treaty scrutiny. Clearly, much more could be done to aid transparency and parliamentary involvement in treaties and trade deals. It is to be hoped that the commitments set out in the exchange of letters will be seen as a floor, rather than a ceiling.
In an ideal world, parliament’s consent would be required, prior to ratification, for all trade agreements. Nonetheless, this latest step should be welcomed by anyone who values parliament’s role in holding the government to account.
