Working Practices (International Agreements Committee Report) - Motion to Take Note

– in the House of Lords am 2:00 pm ar 19 Mai 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Baroness Hayter of Kentish Town:

Moved by Baroness Hayter of Kentish Town

To move that this House takes note of the Report from the International Agreements Committee Working practices: one year on (7th Report, Session 2021-22, HL Paper 75).

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Chair, International Agreements Committee

My Lords, I beg to move that the House notes the Working Practices: One Year On report, published back in September last year. This was, of course, produced under the distinguished chairmanship of my noble and learned friend Lord Goldsmith—no, not the Minister, the original one—to whom I pay tribute for his sterling work in setting up and leading the International Agreements Committee, aided and abetted by Alex Horne, our specialist adviser, and our brilliant team led by Jennifer Martin-Kohlmorgen.

As colleagues know, our remit goes well beyond trade. But in regard to that, I pay tribute—if it does not end his political career—to the noble Lord, Lord Grimstone of Boscobel, for his unfailing courtesy in answering our many questions, appearing before us both virtually and in person, and ensuring that his departmental officials were on hand to deal with some of the very fine detail of trade agreements. I especially mention his official who delivered four box files of the Australia deal to my home on Boxing Day; the grandchildren were not equally thrilled.

There are five points that I would like to make in opening this debate. First, on trade deals, what became known as the Grimstone rules, which emerged during the passage of the then Trade Bill though this House, have, I am delighted to report to the House as real news, just been confirmed today in an exchange of letters between the noble Lord, Lord Grimstone, and myself. These are now the official record of the earlier commitments, engineered by my noble friends Lord McNicol and Lord Stevenson at the time of the passage of the Bill, and they will remain in place unless our committee, alongside the International Trade Committee in the Commons, with which we worked, agrees to their amendment.

Secondly—here I have to move to “more work yet to come”—this welcome exchange of letters covers only trade. Treaties can emerge from the Home Office, such as on the Istanbul convention, family issues and immigration; from the Ministry of Justice, on prisoner exchange; from the Department for Transport, on the recognition of licences and navigational aids; and from the Ministry of Defence, as with the UK-US-Australia deal and provision of weapons to Ukraine, which we also dealt with. All those departmental treaties are overseen by the Foreign Office, but on those we have been given no such assurances as to how the relevant department will interact with Parliament to ensure effective scrutiny, given that the Constitutional Reform and Governance Act, or CRaG, is insufficient for the task, particularly when it comes to complex agreements.

Pending amendment of CRaG, there are other ways in which the Government can work with us to ensure that we can do our scrutiny job on all agreements properly. Our interactions with the noble Lord, Lord Grimstone, and today’s exchange of letters have shown that this has been possible for trade agreements. We now ask the Foreign Office to establish an equally constructive dialogue with us on the other types of agreements.

We hope—this is my third point—that CRaG will be reformed. It was passed in the days when the EU negotiated our trade agreements, with the European Parliament doing detailed and very powerful scrutiny, and with the power to say no to a negotiated deal. That ability to say no ensured that the European Parliament was consulted throughout the negotiations, so that the final result would be acceptable to it. We hope there will come a time when this Parliament also has to consent to trade deals and other important agreements.

Relating to this is my fourth point—that when we last negotiated our own trade deals, back before 1973, as some of us remember, there were no devolved Governments, so the UK Government were the sole authority. With devolution, treaty-making remains a reserved power, albeit that such deals can now cover devolved competences and interests. It is vital that, going forward, devolved Administrations are fully involved throughout the negotiations to ensure that their interests and competences are considered and fully respected. Meanwhile, we say to the devolved Administrations that, if they wish to raise any issues on treaties being negotiated, our door is open and we hope to hear from them directly.

My fifth point is about agreements which are not actually treaties. One example is amendments to treaties which, if significant, should also come to Parliament but at present are not always covered by CRaG. Perhaps more important, and certainly more urgent, is the issue of deals being signed by way of memoranda of understanding rather than by treaty. This means they do not even have to be disclosed to Parliament, let alone laid and debated here. I raised this in a Private Notice Question on 25 April in regard to the deal on deporting asylum seekers to Rwanda. That was done by an MoU, without any debate or approval by Parliament. The committee this morning opened an inquiry on this issue, and we will have a call for evidence on the MoU on our website shortly.

This use of “less than treaty” memorandums of understanding flies in the face of the 1924 Ponsonby rule, whereby any significant international agreements, commitments or undertakings would be brought before Parliament. We were astonished on 9 March to hear the noble Lord, Lord Grimstone, in exchanges on my Oral Question, I think in answer to a supplementary by the noble Lord, Lord Kerr, say that

“the Ponsonby rule survived for 86 years before it was supplanted by CRaG. I can completely confirm that now … they are governed by CRaG”.—[Official Report, 9/3/22; col. 1421.]

It was never suggested in 2010 at the time of the CRaG Act going through that it supplanted Ponsonby. Indeed, CRaG covers only treaties and not memoranda of understanding.

After the answer that the Minister gave to the question from the noble Lord, Lord Kerr, we wrote to the Foreign Office on 25 March, but Amanda Milling’s response, received on 11 May, simply says

“the Government and the Committee have different views on the content and status of the Ponsonby Rules. The Government does not accept there has ever been a constitutional convention … whereby non-legally binding arrangements are routinely published or submitted to parliamentary scrutiny”.

She asserts that it is for government to decide what to tell us.

I draw to a close on this issue. Whatever the status of Ponsonby, it is surely not acceptable for the Government to sign far-reaching agreements with foreign powers, with human rights, expenditure, diplomatic or even security implications, without so much as a nod to Parliament, let alone any chance for a debate. We have to do better than that, and I look forward to the Minister being able to supply some more positive and concrete reassurances than his colleague was able to supply.

Photo of Lord Lansley Lord Lansley Ceidwadwyr 2:09, 19 Mai 2022

My Lords, I congratulate the noble Baroness, Lady Hayter of Kentish Town—my noble friend, for these purposes—on her introduction to this debate and on her chairmanship of the committee. As a member of the committee since its formation—and, indeed, with the noble Baroness, Lady Donaghy, of its predecessor committee—I join her in thanking the noble and learned Lord, Lord Goldsmith, for all the work that he did in helping to establish these working practices.

It may seem slightly self-indulgent for any committee to have a debate that is, essentially, to discuss how we do our job but, in truth, I think that in this House we should devote significant attention to this in the same way as the House has demonstrated its capacity to add value in parliamentary terms to what the other place does in relation to statutory instruments and delegated legislation. Where international agreements and treaties are concerned, this House has a special role to play. We are not a standing committee on treaties, such as there is in, I think, New Zealand, but on international agreements. It is a wide-ranging role and not confined to trade. Although we have a small overlap with the International Trade Committee in the other place when we conduct inquiries, we have a significant role that is not that committee’s role—and it has a lot to do that is not our role. We do not have a trade committee here; the other committee may look at tariff schedules, the generalised scheme of preferences or the Trade Remedies Authority, but that is not our role. We have a duty to look at international agreements in a detail that the other place does not. We have to make sure that our scrutiny is really effective—not least, as the noble Baroness said, because the European Parliament no longer looks at treaties, particularly trade treaties, to which we are a party. It is our role to do that.

I do not think that it is too self-indulgent. What we are doing here is very important; even since we published this report there have been things, such as the negotiating objectives on CPTPP, the AUKUS defence agreement and the Ukraine export credit deal, which gave the House the opportunity to debate military support to Ukraine in literally the first or second week after the new year—I cannot recall, but it was pretty much as soon as we came back. We have demonstrated that there is a wide-ranging and important role for the committee.

What the noble Baroness, Lady Hayter, has been able to announce today by way of the exchange of letters with the noble Lord, Lord Grimstone, is really important. It cements the structure for the scrutiny of free trade agreements and, in that context, I hope that the first part of it, on the scrutiny of negotiating objectives, is really taken up both by the Government and the House. For example, we are in the throes of seeking evidence on the India negotiations; they are very important negotiations and the Government are already in the third round of those. It is really important that we debate in this House what it is that we are seeking to achieve from negotiations, not least so that when we are presented with the results, under CRaG, and the formal processes of scrutiny take place, we are able to look and say whether the Government have been able to achieve what they set out to achieve. It is also important for the Government to respond to the views of both Houses, I hope, in undertaking their negotiations.

Like the noble Baroness did, one can argue that the bottle is either half-full or half-empty. I am slightly in the “It is half-full and getting fuller” camp; I hope that we can fill the bottle over time but, in order to do that, there are number of things that we need to do. I say gently to my noble friend on the Front Bench that I know how civil servants always write into every Minister’s brief how much Ministers welcome the scrutiny of both Houses; that is demonstrated occasionally in reality, but sometimes reluctantly. I have to say that it has been evident in the way in which my noble friend Lord Grimstone, as the Trade Minister in this House, and his officials have co-operated and worked with us in the scrutiny of trade negotiations and trade deals—we, as a committee, pay tribute to him for that. It is not so evident in relation to the work of the Foreign, Commonwealth and Development Office and other departments. It is really important that they take this on board and work actively with us.

In terms of the practicalities, the noble Baroness mentioned a number and I will quickly reference three. The first is amendments to treaties. I will not go through what is in paragraph 71 of our report, but it is very clear that in order for the scrutiny of the development of international agreements and treaties to be effective, the Government must be open and transparent about not only the deals that have been entered into but the amendments to those deals—they can be very significant.

My second point is about the sequencing of legislation. We referenced it in the report. It is not easy to get this right, and we should acknowledge that the Government have a job to do. Sometimes, there can be a significant gap in time between the signing of a treaty or agreement and the point at which it is ratified. There may even be a significant delay between signature and the point at which it is laid under CRaG. That does not mean that we should not sometimes be able to have it implemented. If it requires implementation in domestic legislation, it may be appropriate to use statutory instruments and secondary legislation, where those are available, to bring agreements into force—I do not object to that.

However, we should ask the Government to ensure that, if this House is to be asked to implement an agreement or treaty in primary legislation, then this House, under CRaG, should have been given that agreement or treaty to scrutinise, and to debate it where necessary, where it is reported for that purpose, before the point at which the House is asked to agree the necessary primary implementing legislation; otherwise, I think that we get it the wrong way around and are then at the point where the Government are seeking to implement a treaty before Parliament has had its proper opportunity to scrutinise it—and indeed, where the other House is concerned, not just to scrutinise it but to have the potential, constitutionally, not to accept it and to delay it. We should never get into such a position; I know that the noble and learned Lord, Lord Goldsmith, as our chair, was very clear on this point. We should not arrive at a position where Parliament could deny its support for ratification of a treaty but the Government have gone ahead and implemented it—that should not happen.

My third and final point is to reinforce what the noble Baroness said about the importance of memoranda of understanding. As we say in the report, the Government appear to be moving towards using these as a preferential method for undertaking international agreements. The third limb of the Ponsonby rule was clearly not overridden or displaced by CRaG. I do not think it will hurt to quote, as we did in our report, what was said about the Ponsonby rule and the third limb:

“Parliament should: ‘also exercise supervision over agreements, commitments and undertakings by which the nation may be bound in certain circumstances and which may involve international obligations of a serious character, although no signed and sealed document may exist.’”

What that tells us is that the third limb means that international agreements, in whatever form they may take, if they are of significance, should be reported to and scrutinised by Parliament.

Here we are with a memorandum of understanding with Rwanda—well, I do not know what it is exactly; there is an agreement. On 13 April, the Home Secretary signed it in Kigali. On 14 April, it was published but, because it says in Article 1.6 that it is not binding in international law, it does not fall under CRaG. So the Government’s attitude appears to be that it is not CRaG-worthy and therefore not subject to scrutiny by Parliament. I am afraid that that is not true. It should be scrutinised by Parliament. The Ponsonby limb should apply to it, as to all such agreements or memoranda that are of significance, and it will be our job in the International Agreements Committee to ensure that that scrutiny takes place. I very much support what the noble Baroness had to say about that agreement, and I hope that this demonstrates to Ministers that MoUs should not be a route around parliamentary scrutiny.

We are not in the same relationship to the Executive as the European Parliament was to the European Commission. However, just as Ministers say that they welcome scrutiny by Parliament, I hope that they will welcome a partnership between the International Agreements Committee and all Government departments to scrutinise agreements in future.

Photo of Baroness Donaghy Baroness Donaghy Llafur 2:20, 19 Mai 2022

My Lords, I pay tribute to my noble friend Lady Hayter for her introduction today and her work as chair of the committee. It will save a little bit of time to just say that I agree with every word the noble Lord, Lord Lansley, has said.

I took part in the debate on Treaty Scrutiny: Working Practices in September 2020 when my noble and learned friend Lord Goldsmith, the noble Earl, Lord Kinnoull, and my noble friend Lady Taylor presented their three reports. The work of the Secondary Legislation Scrutiny Committee, chaired by the noble Lord, Lord Hodgson of Astley Abbotts, was also acknowledged for its continuing engagement on this important topic. I mention that because this is a responsibility for the whole of Parliament, not just for one committee.

My noble and learned friend Lord Goldsmith quoted Bagehot from 1872:

“Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous.”

My noble and learned friend indicated that

“we lag far behind many countries in our parliamentary scrutiny of international commitments.”

However, he proposed a “pragmatic approach” to testing the new arrangements, rather than proposing amendments to the Constitutional Reform and Governance Act—CRaG.

The noble Earl, Lord Kinnoull, referred back to the exercise in 2019 when the EU Committee and its sub-committees—I had the privilege of chairing the EU Internal Market Sub-Committee and then the EU Services Sub-Committee, both within the confines of the CRaG Act, it has to be said—published 22 reports on more than 50 agreements, following the model set by the Secondary Legislation Scrutiny Committee for its own work. The noble Earl echoed the Constitution Committee’s statement of 2019 that

“the CRAG Act is poorly designed to facilitate parliamentary scrutiny of treaties.”

In all those reports by the EU committees, the only agreement on which we were able to take evidence was the UK-South Korea deal. Had the Government had a welcome change of heart? No. It was thanks to Mr Johnson advising the Queen to prorogue Parliament in 2019 that there was extra time to take evidence. Most speakers in that debate said that the CRaG Act was not fit for purpose. However, in the interests of balance, I should say that the noble Baroness, Lady Noakes, defended the Act and referred to

“an insatiable beast lurking in the committees of your Lordships’ House.”

She felt that having more information about treaty activity, because of the House’s dislike of Brexit, would

“recede in importance as we start to live in a post-Brexit world.”—[GC 105-124.]">Official Report, 7/9/20; cols. GC 105-124.]

Well, that is going very well, is it not?

The International Agreements Committee was quite right to adopt a pragmatic approach. It is clear to me that we are going backwards. However, today’s announcement by my noble friend Lady Hayter that the Grimstone rule survives is perhaps again going towards the glass half-full suggested by the noble Lord, Lord Lansley. So, there was a Grimstone rule, then there was a government response which went into a lot of detail about why there was no Grimstone rule, and now there is a Grimstone rule. So this is all pretty good.

I accept that the Government will never agree to amend the CRaG Act, but apparently we are not even going to get a concordat. This is pretty thin gruel. In the Government’s response to this report—I am repeating a bit of what my noble friend Lady Hayter said, but it bears repeating—they said that they would

“caution against referring to non-legally binding arrangements as ‘agreements’ as the Committee does in the Report, such terminology being more appropriate to describe a treaty.”

The response went on to say:

“It is established Government practice that non-legally binding arrangements are not routinely published” unless they raise

“questions of public importance. Ministers consider this on a case by case basis.”

This brings me to a question I have for the Minister about the security assurances given by the Prime Minister, Mr Johnson, to the Prime Ministers of Sweden and Finland pending NATO membership. I checked yesterday’s Hansard and the noble Baroness, Lady Smith of Newnham, said in a question to the noble Lord, Lord Ahmad, that

“we have seen the Prime Minister go to Finland and Sweden and offer bilateral security commitments. That could be seen as very brave, but is it credible?”—[Official Report, 18/5/22; col. 460.]

I read through the noble Lord’s response. He had 60-odd speakers to respond to, so I do not blame him for not mentioning that matter, but I will mention it now. Sending our troops into battle does not get much higher in terms of “public importance”—as referred to in the Government’s response. I take comfort from the fact that it is not legally binding, but will the Minister clarify what assurances were made, and whether the leaders of Sweden and Finland were aware of what the security assurances amounted to? Alternatively, was it just a bit of springtime hand-patting? It would be unfortunate if the Prime Minister were to be accused of being “prima facie ludicrous”.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 2:27, 19 Mai 2022

My Lords, the noble Lord, Lord Lansley, wondered if it was self-indulgent to debate the work of one of our committees, but no one needs to persuade me, as a former MEP, of the valuable work of committees, which are the main forum—rather than the plenary—for the European Parliament’s work.

I am not an expert on the matter of scrutiny of trade agreements, unlike my colleagues, my noble friends Lord Oates and Lord Purvis of Tweed, and indeed the noble Baroness, Lady Hayter. My focus in the last six momentous years has been on the relationship—which I would call more of a domestic relationship—with the EU, rather than on external trade agreements. So I warmly thank the International Agreements Committee and its chair for their admirably informative report which was so clearly presented today by the noble Baroness, Lady Hayter. I also thank her committee and the EU and Constitution Committees for their earlier reports. It has taken an awful lot of heavy lifting by committees in this place, and the other place, to get even as far as we have on the scrutiny of treaties—although I take the point about the Grimstone rule being here, and then not here, and then here again. Even now, there is still much work to be done. One of the main messages which comes out of the committee’s report is to formalise any understandings in a formal concordat and to consolidate. This point about the Ponsonby rule is clearly one which needs to be pinned down.

My approach to the topic of today’s debate is very considerably shaped by my 15-year experience as a Member of the European Parliament, although even there I was not on the International Trade Committee. However, I was heavily involved as a member of the Committee on Civil Liberties in the tussle over international data transfers and, in particular, the big row, 12 years ago, over an agreement that became the catalyst for the modern EU system of engagement between the Executive and the Parliament over the scrutiny and approval of external agreements. This was the famous SWIFT agreement, whereby it was proposed to transfer the personal bank data of Europeans to the United States via the SWIFT network, which we have heard a lot about recently in the context of sanctions on Russia. The European Parliament rejected this agreement, amid concerns for privacy, proportionality and reciprocity, in the context of rather weak—indeed, almost non-existent—US law on data protection and the scandals of extraordinary rendition and Guantanamo.

There was quite a bit of shocked and outraged huffing and puffing from the Commission, the Council and member states, but we had given them fair warning of our discontents over inadequate data protection standards and human rights-breaching anti-terrorism laws in the US and the inadequate balance between security and civil liberties in the agreement. So the Commission, the Council and member states came to their senses and fairly quickly reached an accord with MEPs on strengthened safeguards, such that the Parliament approved a new stricter version of the SWIFT agreement, renamed the Terrorist Finance Tracking Program agreement, five months later. However, we requested the suspension of that agreement, three years later.

Apart from the substance of that text, what this debacle led to was a better way forward. I was interested to note—I found it on Google—that the European Parliament press release of February 2010 included a quote from one Timothy Kirkhope of the ECR group, who we know better as the noble Lord, Lord Kirkhope of Harrogate. I hope he will not mind that I cite it in his absence; I saw it too late to ask his permission, but it is a good quotation. He said he was “frustrated and angered” by the Council’s treatment of Parliament. He went on to say:

“Parliament’s right to consent should not be used as a retrospective tool. We are finally getting assurances from Council and Commission”— on data protection issues—

“but we now need some time before proceeding further in our considerations.”

This was the key point that is relevant to our debate today. The European Parliament demanded and won, in the name of parliamentary democracy, the right not only to give or withhold its consent to international agreements but to be involved in their genesis, including the development of negotiating objectives and progress reports on the negotiations. What the EU authorities had wisely learned was not just a lesson in respect for parliamentary rights but one about effectiveness, efficiency and coherence as well. Her Majesty’s Government are being somewhat slower to learn and apply these lessons.

This Parliament, unlike the European Parliament, did not have the power to give or withhold consent to the withdrawal agreement and the trade and co-operation agreement with the EU. We were allowed only to scrutinise the relevant implementing legislation, so the points made by the noble Lord, Lord Lansley, about the missing link of approving the treaties themselves were very well made.

The International Agreements Committee makes the point that more needs to be done to improve the effectiveness of the existing scrutiny system to make it more robust, and highlights that

“formal points for engagement with the committee are always set for after Government decisions have already been taken, so we are effectively responding to a fait accompli.”

It says, in what I think is a key point:

“The Government should not see parliamentary scrutiny of treaties as a rubber stamp at the end of the process to convey simple approval.”

For the sake of Hansard, I point out that this is at paragraph 45 of the report. This is the vital lesson that the EU Council and Commission learned: if you front-load the system, you are not only more likely to get approval but you have more chance of getting it in a time-efficient and energy-efficient manner and in a constructive spirit.

Finally, I want to say a word about the involvement of the devolved Administrations. I am very far from being knowledgeable about devolution, but I had an opportunity to raise in yesterday’s debate on the foreign part of the Queen’s Speech—which is meant to include Europe; I am sorry, but that is a bee in my bonnet—the question of human rights compliance in Northern Ireland and the potential challenge to the entrenchment of that compliance in the Belfast/Good Friday agreement and the Northern Ireland protocol. This challenge comes from the government plans to reform the Human Rights Act and their threats to rewrite the Northern Ireland protocol. I urge that full consultation be held with the Northern Ireland authorities, including the Northern Ireland Human Rights Commission, as well as with the Equalities and Human Rights Commission, whose chair, the noble Baroness, Lady Falkner of Margravine, I am delighted to say has fortuitously joined us. I flag that with her and may well pursue it with her. Having said all that, I am very grateful for the report and for today’s debate.

Photo of The Bishop of St Albans The Bishop of St Albans Bishop 2:35, 19 Mai 2022

My Lords, I declare my interest as president of the Rural Coalition. Although I am not a member of this committee, I am very grateful for this report and enjoyed reading it, including its stress on the role of Parliament, not just in approving what has been decided but in the issues we are discussing now.

I found the previous speech very helpful. Why is there such reluctance to allow Parliament—both its Houses—to engage at a much earlier stage? This House is renowned for its extraordinary levels of experience, both in international diplomacy and negotiation and in the actual substance of many of the areas in which we are trying to get treaties and memoranda of understanding. Surely all it will do in the long run, if we can simply go ahead and give Parliament time, is to allow that experience to come out and be brought together. This is precisely what we should be doing.

Reading through the report made me decide to speak in this debate to just say one or two things. I will focus on UK agriculture, an area I particularly focus on. Reading the report, one gets the sense that the Government are very reserved about the level of scrutiny they wish to afford to Parliament, to committees and to bodies such as the trade advisory groups. This is fundamental to the work we should be doing. For that reason, I strongly welcome paragraph 48 of the report and the recommendation to consolidate the various commitments and provide certainty on the exact functions, procedures and levels of oversight afforded to the various bodies. That seems to me to be a really helpful proposal.

It is disappointing to hear that the Government do not believe they can support the draft concordat in appendix 2. I understand the need for flexibility—after all, after five decades of having no independent negotiated trade agreements, we are still getting back up to speed and getting used to negotiating these. Nevertheless, we are two years on from our departure from the EU, and I share the anxiety that many Members have for a clear scrutiny framework that provides Parliament with the oversight that other western economies simply take for granted; this is just the norm.

I am pleased that the new Trade and Agriculture Commission is well up and running, having produced its assessment of the Australian free trade agreement. On a personal front, as a lay person when it comes to complex FTAs but as a Member of this House who works closely with farmers and rural organisations, I welcome the candour of its assessment. It is positive to learn that existing protections concerning animal welfare and environmental standards will not be compromised. I found the breakdown of products by prospective future import levels fascinating, but the competition aspects of this agreement are deeply concerning, particularly in setting precedents that could be replicated in other trade deals. Irrespective of my personal reflections regarding the FTA, I am glad that the TAC has begun to act in accordance with its role. I hope that the criticisms that emanate from its Australia FTA report will inform future objectives. For that reason, I look forward to the publication of its assessment of the New Zealand FTA in providing agri-food producers with an accurate picture of this predicament.

It is disappointing to hear that trade advisory groups feel inadequately informed or consulted in relation to free trade agreements. One hopes that this is currently being resolved, as the report suggests, but I also hope that the Government do not view the TAGs as a box-ticking exercise to give the appearance of keeping business and trade bodies onside. Speaking at least for the agri-food sector, I know that the organisations listed have a huge amount of expertise and advice to offer, not just on the specific details of trade agreements but in devising strategies to help make British agri-foods a world-leading brand capable of boosting our exports. For example, the NFU has set a commendable ambition to increase our agri-food exports by 30% in the next decade. I strongly commend its report, Growing our Agri-Food Exports to 2030 and Beyond, which outlines a series of recommendations to make this happen. Surely it is bringing huge expertise and offering help. We need to integrate it as we develop into the future.

We need the ambition of our industries to be truly matched by the Government. I hope that in the coming years we see TAGs playing a more active and effective role in helping to formulate future trade policy.

Photo of Lord Udny-Lister Lord Udny-Lister Ceidwadwyr 2:41, 19 Mai 2022

My Lords, it is a pleasure to be a member of International Agreements Committee, albeit a reasonably new one. I thank the noble Baroness, Lady Hayter, for securing this afternoon’s debate and noble Lords who have contributed to the publication of the report on working practices.

This is an important area of work, and I welcome the steps that Her Majesty’s Government are taking to ensure that we strengthen Parliament’s ability to scrutinise effectively. That is not to say that government could not do more, but at least we are seeing movement in the right direction.

While I acknowledge that there are both practical and trade secrecy issues to overcome, it is imperative that government does that much more to collaborate better with the devolved Administrations, a point just picked up by the noble Baroness, Lady Ludford. Government should involve the devolved Administrations at the earliest opportunity possible. On the flip side of the coin, I would like to see the First Ministers playing their part in supporting government with early engagement on the matters which concern their citizens.

The union depends on government securing agreements that work in the interests of every nation of our United Kingdom, and I hope that in moving forward Ministers will seek to strengthen how they work with the devolved nations on perfecting international treaty agreements. I am keen to understand more from Ministers about what the Government are doing here and whether they have looked into the possibility of facilitating co-determination in areas of devolved competence.

A significant criticism of this Government’s approach to trade agreements has centred on their engagement with external stakeholders. I am reassured by the Government’s recent positive approach to establishing new trade advisory groups. As noble Lords will be aware, these 11 trade advisory groups cover a range of key sectors. I hope they will provide the Government with an enhanced understanding of sector-based needs which will in turn inform and strengthen the UK’s negotiating positions.

We know that the UK is an innovative nation, and that our businesses are rich in expertise and ideas. I therefore welcome greater collaboration between those in government and the private sector, and I am sure that the committee will keep a watchful eye on the effectiveness, scope and delivery of the trade advisory groups as they continue to meet.

I feel, however, that these groups would benefit significantly from an injection of views from civil society, and I would be grateful if Ministers would comment on what the Government are doing in this regard. Further to this, I believe that government should consider whether the non-disclosure agreements currently in place with members of the trade advisory groups are hampering the ability of experts to advise properly. I hope that the Minister will be able to reassure the House that NDAs will be used as sparingly as possible and only when absolutely essential, so that consultation may be strengthened.

The UK has made significant progress under the Government in establishing better governance structures and processes, and I look forward to the Government’s continuing attention to perfecting matters of transparency, consultation and scrutiny.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Llafur 2:44, 19 Mai 2022

My Lords, it has been my privilege to serve on the International Agreements Committee since its inception as a free-standing committee and earlier. My twin interests have been agriculture and the devolved nations. I welcome the remarks just made by the noble Lord, Lord Udny-Lister. I am interested particularly in the interests of my nation of Wales, where I had a part to play in bringing government closer to the people in the form of the elected Assembly, now the Senedd.

As a former Welsh Secretary for six years, agriculture was part of my brief, and I have wide family connections with the industry. As it happens, livestock production plays a very large part in the economy of the devolved nations. Perhaps wearingly for my fellow committee members, I have repeatedly drawn attention to their interests.

Treaty making is a non-devolved matter, but agriculture and food standards are devolved. Decisions made in treaties can substantially involve the economy and other interests of the devolved Governments. Latterly, agriculture production has loomed large in the treaties negotiated with both Australia and New Zealand. We have benefited from the well-argued views of the National Farmers’ Union of England and Wales and from both the NFU in Wales and the Farmers’ Union of Wales.

The short point that I wish to make is that while our awareness of the views of the devolved areas has improved, it has been achieved only as a result of constant pressure. In their views to the committee, the Government have told us, repeatedly like parrots, that the devolved Governments have been consulted, but they plead that they cannot reveal the contents of the consultation because it may be commercially disadvantageous to Her Majesty’s Government in their negotiations.

I say in passing that in their negotiations with both Australia and New Zealand, there is little in it for British agriculture. In the case of Australia, it is a win-win situation, as they seem to be lessening their beef exports to China and will probably seek to close the gap with increased exports to the United Kingdom. A small increase in offers can have a disproportionate effect on prices in the market. I have grave doubts as to how economic it will be for our small farmers to produce lamb in 10 or 15 years given the economic advantages of scale in New Zealand and Australia.

Because of this defiance of the committee by the Government’s assertion that commercial secrecy is paramount, the committee has been driven to seek the views of the devolved Governments directly. By so doing, we will be able to present your Lordships’ House with the full extent of the effect of a treaty on the economy of the United Kingdom as a whole. I fear that in the pandemic Whitehall has been slow to accept that, so far as decision-making in so many areas is concerned, there are four Governments in the United Kingdom.

As a lawyer, I endeavour to avoid using extravagant language. On this occasion, I am forced to say that Her Majesty’s Government’s claim that they need to keep the views of the devolved Governments away from the committee because of commercial confidence is rubbish. It is an unhappy situation. I need go no further than the evidence of the noble Lord, Lord Grimstone, to the committee on 27 April:

“I can say categorically that they”— that is, the devolved nations—

“are not satisfied.”

I urge and invite the Government to mend their ways.

Photo of Baroness Liddell of Coatdyke Baroness Liddell of Coatdyke Llafur 2:49, 19 Mai 2022

My Lords, I will not delay the House for long, because I think a lot of the key arguments have been made, not least by my noble friends Lady Hayter and Lady Donaghy, and by the noble Lord, Lord Lansley. This debate has come about because of a sense of frustration with the Government; the aim of the International Agreements Committee is the practical and effective scrutiny of forthcoming treaties, not to thwart the will of government. Those who have the self-confidence of government should be able to look to others to see points that they have missed or points that could be improved on, and perhaps even occasionally compliments.

We do not get that impression from the present Government. I was delighted to see the letter from the noble Lord, Lord Grimstone, this morning, and it assuaged to some extent the sense of irritation I felt with the Foreign, Commonwealth and Development Office when we received the letter from the right honourable Amanda Milling, which more or less said, “I’ll only come and talk to you if you agree with me”. That is not how government works. The way it works is to look for more information and detail to find the right way of doing things. What we have sought, and I hope—touch wood—are going to achieve, is to be in the process much earlier, so that we can see the objectives and strategy of government, and perhaps add our tuppenceworth.

The right reverend Prelate was right when he talked about the expertise that is available in this House. The only legitimate argument for having an appointed second Chamber is that you can put expertise in it. Well, we have got that. If I may say so, most of us, with a few honourable exceptions, have been round the houses a few times, and using that to try to improve how a treaty develops is a very important thing.

It is called the International Agreements Committee, not the International Trade Committee. Agreements are wider and more germane, and we need to take them into account. Rwanda is a classic case in point. I am delighted that the committee is putting out a call for evidence in relation to that, because it is nonsense to suggest that we should not scrutinise, in the most effective way possible, something as significant as that. My noble friend Lady Donaghy made the point about the Prime Minister’s statements on Sweden and Finland. We need to know what they mean—or were they just something to make the day go a little bit better? It is critically important to all of us.

I enjoy the work in the committee, but I often find it quite frustrating—and it should not be, because we should be working together to move forward with these treaties. I remember the Brexit debate, and it was all about, “Oh, these foreigners are having a say in how we lead our lives”. Now it is not the foreigners who are having a say in how we lead our lives—it is a cabal of Ministers who are doing it, and one or two officials as well. It should not be like that. Parliamentary scrutiny matters, in this House and in the other place, and I am sure that the continuing work in the International Agreements Committee will ensure that it does.

Photo of Lord Oates Lord Oates Democratiaid Rhyddfrydol 2:54, 19 Mai 2022

My Lords, I am very pleased to follow the noble Baroness, Lady Liddell, and, like previous speakers from the International Agreements Committee, I pay tribute to our excellent chair, the noble Baroness, Lady Hayter, and to her predecessor, the noble and learned Lord, Lord Goldsmith.

As previous speakers noted, the report that we are debating today follows on from a previous report on working practices published in July 2020, and the reports on the scrutiny of international agreements published in 2019 by the Constitution Committee and the European Union Committee. These reports had a variety of recommendations, but the central conclusion of all of them was that current arrangements are poorly designed to facilitate parliamentary scrutiny of international agreements, and that conclusion remains as valid as ever today.

Our committee has been fortunate to have met often with the noble Lord, Lord Grimstone, on trade issues and, as many noble Lords have mentioned, he has engaged extremely positively. By contrast with his constructive approach, we could look at the Government’s responses to the recommendations contained in the report, which are depressingly consistent. In many cases, our concerns are airily dismissed, and, even where the Government do move towards them in terms of making commitments, the commitments are heavily caveated. Indeed, in their response to the committee report, the Government would not even commit to notifying the committee of significant non-trade agreements before they were laid. Despite recognising the value of notification of forthcoming treaties, their response went on to underscore that this is not a government commitment.

Although I join my colleagues in welcoming the fact that the Government have put some of their previous commitments in writing—I am not sure if I am a half-full or half-empty person, but I do not want to be accused of being a pessimist, so perhaps I am a quarter-full person—the problem with this exchange of letters, although it is positive in as far as it goes, is that the commitments contained in it can only be regarded as the absolute bare minimum of what a Parliament might require. As has been noted already, they apply to trade agreements only, rather than to all international agreements.

Overall, it seems to me, from the Government’s response to our report, that they seem determined at all costs to resist a rules-based response to scrutiny, preferring to keep at their discretion what they choose to share with Parliament and what they do not. I think it is vital in the long-term to look again at the overall role of Parliament in scrutinising treaties and agreements, and I strongly support the recommendations that Parliament’s consent should be required before the ratification of all trade agreements. This is in part because I think that that would make the Government more responsive in providing information at an earlier stage, in the same way as happened, as my noble friend Lady Ludford explained, as a consequence of the European Parliament’s rejection of one treaty.

I want to touch on the issue of non-treaty agreements, which other noble Lords, including the noble Lord, Lord Lansley, the noble Baronesses, Lady Donaghy, Lady Hayter and Lady Liddell, have referenced. They spoke specifically about the memorandum of understanding with Rwanda, but there was also an agreement last year with the Government of Zimbabwe on the resumption of deportations of foreign national offenders. To my knowledge, that has never been published. There was a reason why those deportations were suspended, which was the gross abuses of human rights in Zimbabwe. The Government have never come forward and explained why the criteria changed.

The noble Baronesses, Lady Donaghy and Lady Liddell, raised the issue of the security guarantees offered to Finland and Sweden. This was also raised by the noble Lord, Lord Lansley, in our committee this morning. What status do those agreements, or declarations, or statements, have? I hope the Minister will be able to tell us in his reply. Will they subject to parliamentary scrutiny? As has been said, there could scarcely be a bigger commitment than that we would be a security guarantor and would go to war on behalf of another country. If that is the case, we should have the chance to debate and scrutinise that commitment.

Finally, I want to refer to recommendation 27(a) of our report, which is that

“Parliament should be given a formal role in influencing the objectives” of trade agreements

“when mandates are being set”.

This is perhaps the most important area for parliamentary scrutiny, because it is the point when we can actually influence the process and the outcome. One area particularly close to my heart—and, indeed, the Minister’s—where we might want to influence mandates is on climate and nature objectives in FTAs. The striking contrast between the Australia FTA and the New Zealand FTA in this regard only underlines to me the importance of this issue.

The House will not be surprised to know that the Government rejected this recommendation on the grounds that it was

“not suited to the UK’s … settlement”, which regrettably seems to mean that the Executive alone will determine what Parliament gets to scrutinise and what it does not. In as much as this view of our constitutional settlement provides for any accountability, it is, as a June 2019 report of the European Union Committee noted, “accountability after the fact”. In reality, that is no accountability at all.

Photo of Lord Hendy Lord Hendy Llafur 3:00, 19 Mai 2022

My Lords, I too congratulate my noble friend Lady Hayter of Kentish Town on securing this debate and on the excellence of her introduction to it. I find it hard to see how anybody could disagree with anything she said—maybe that will be the case. I also congratulate the committee she chairs on its report. Again, I find it hard to see how anybody could disagree with its contents.

I am very conscious that most of the members of the committee are present this afternoon; perhaps they will forgive me if I draw attention to one passage, from paragraphs 94 and 95, of the report. There, the committee speaks of looking forward to the future and says:

“if a future administration is open to reforming the statutory framework, then priority should be given to ensuring the following three improvements:

(a) In respect of trade agreements, Parliament should be given a formal role in influencing the objectives when mandates are being set and this should be done transparently;

(b) In respect of all other agreements, Parliament should be provided with a final draft text, in advance of signature, so that any significant issues can be raised before the agreement is signed and the text is set in stone;

(c) That Parliament’s consent should be required, prior to ratification, for all trade agreements, and other significant treaties which are drawn to the special attention of either House.

Without such powers, Parliament’s scrutiny of agreements is extremely constrained.”

I find it difficult to see how anybody could disagree with those recommendations, but in its response, the Government did disagree. The basis of that disagreement is that those proposals were

“not suited to the UK’s constitutional settlement.”

I have two questions for the Minister. First, to what principles or provisions of the constitutional settlement are those proposals not suited? Secondly, given that we do not have a written constitution but merely a constitutional settlement, what can be the objection to adopting those proposals now? It will not do to say simply that they are not consistent with CRaG.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench 3:03, 19 Mai 2022

My Lords, I congratulate the noble Lord on his excellent concluding question. I am a member of the International Agreements Committee and should start by paying tribute to our chairman, the noble Baroness, Lady Hayter, and her predecessor, the noble and learned Lord, Lord Goldsmith, for their work on this dossier, with the very considerable help of our former legal adviser, Alex Horne, and our clerk. The exercise of working practices, though I dreaded it, is being well done by the committee and I congratulate the chairman.

I also think that the noble Lord, Lord Oates, is a little hard on the chairman’s achievement in securing today’s exchange of letters with the noble Lord, Lord Grimstone, which settles the issue about which the right reverend Prelate was concerned. I agree that it does not go as far as we would have liked, but it is well worth having. It is good to see the relationship between the committee and the Department for International Trade placed on a more solid foundation, so I genuinely congratulate the chairman.

As the prisoner at the bar says, I need to confess to some previous convictions. I was a Sir Humphrey in my time—a Foreign Office Sir Humphrey—so I am now a poacher where once I was a gamekeeper. In the Foreign Office, I was responsible for a time for the operation of the Ponsonby rule. Ponsonby, 98 years ago, committed the Foreign Office to enable Parliament to exercise supervision of agreements, commitments and undertakings involving international obligations of a serious character, even if they were not given treaty form. In my time, which was a little less than 98 years ago, we were still honouring that rule. Occasionally, it led to disputes in-house as to whether we needed to put an agreement forward. Occasionally, it led to serious discussions about whether security considerations were involved. However, it was being honoured in my time in Whitehall and therefore, like the noble Baroness, Lady Hayter, I was very surprised to hear it asserted at the Dispatch Box a few weeks back that the Ponsonby rule had been overtaken by the CRaG Act.

As we know, CRaG covers treaties, but Ponsonby also covers non-treaties. I am sure that while this House was considering the CRaG Bill it was never suggested that, if we passed it, we would, in doing so, kill off Ponsonby. That was not suggested at the time. I do not think we killed off Ponsonby. I do not think we should. The worrying thing is that the Government are now acting as if we did, and I am pretty sure they should not.

People have mentioned the sort of non-treaty agreements which ought to be drawn to the attention of Parliament. They gave examples such as the Rwanda agreement, which in my view represented a breach of the refugee convention. They mentioned the agreements with Sweden and Finland on defence. I do not know precisely what they say. I do not know what form they took, but it does not really matter; it seems our word has been pledged. That may be a good thing—I personally think it is—but Parliament ought to be aware, and these texts have not been laid before Parliament because they were not treaties and the Government’s interpretation is that if CRaG does not apply, then they do not need to do anything. I would also mention the defence agreement with Australia and the United States. I do not know what it says, but it sounds pretty binding and I would have thought it ought to be laid before Parliament. These examples are all considerably more significant than the many trade treaties which the Department for International Trade is laying before Parliament and which the International Agreements Committee is trying to scrutinise.

That is why the report suggested, at paragraphs 82 and 83, what we should do about non-treaties. That is why I was so surprised at the letter, which has been referred to today, received last week from the FCDO Minister of State, Amanda Milling. I am torn about this letter, because as a former Sir Humphrey, I think it is fabulous. It is a masterpiece of elegant, obscurantist obstructionism, with just the slightest dash of the otiose—marvellous. To quote her:

“The Government does not accept that there has ever been a constitutional convention in the UK whereby non-legally binding arrangements are routinely published or submitted to parliamentary scrutiny.”

Did noble Lords see what she did there? Did they spot the “routinely”? We never said that non-legally binding arrangements were “routinely published”. They never were; Ponsonby never said they would be.

There is a mass of documents exchanged between our Government, our ministries our embassies and other Governments, including exchanges of letters, memoranda of understanding and agreed minutes. That is the currency of daily diplomatic exchange. I recall as an ambassador status of forces agreements and their amendment for different exercises, and privileges and immunities for premises or people—all this stuff that takes some documentary form. But it would never be the committee’s intention that the Government should be required to submit such material for parliamentary scrutiny. Some of it was barely scrutinised by Ministers in my time. I was even allowed to sign off some of it myself because it was so trivial.

Paragraph 82 of our report says:

“We accept that it … would be disproportionate, to notify us of every Memorandum of Understanding that the Government enters into. However, there are some significant agreements which should be notified and sent to us for review”.

That is the essence of our proposal. The Sir Humphrey who drafted the Milling sentence that I read out was creating a straw man—a red herring. The sentence is perfectly correct, and it is totally misleading and irrelevant. That is the mark of the maestro.

The letter goes on to say:

“The Government has acknowledged that it may be appropriate to draw to Parliament’s attention non-legally binding arrangements which raise questions of public importance. Ministers consider this on a case-by-case basis.”

Ah, quite—and so they should. But hang on, what are the criteria they are using as they consider this case by case? That is why our report suggested a set of criteria:

“Notification and deposit should be required only if an agreement … is politically or economically important … imposes material obligations on UK citizens or residents … has human rights implications … is directly related to a treaty; or … would give rise to significant expenditure.”

If the Government do not like our principles, we will change them or have some more—but they have to reply. They have to tell us what their proposed criteria are. Then we can start a negotiation and engage on this. That is what this is all about. They cannot just say, “No, no—we’ll do it case by case.” That is a non-answer, although Sir Humphrey would have been extremely proud of it.

I think Sir Humphrey might also have been quite pleased with the following sentence, which is the last thing I will quote, I promise:

“The relevant factors in deciding whether and how to draw a non-legally binding arrangement to the attention of Parliament will vary according to the arrangement in question, and may include—but are not limited to—human rights considerations.”

I repeat: “may include, but are not limited to”—masterly. I am proud of my old department.

Being serious for a moment, I do not think this will quite do. I really do not. I think we are entitled to ask the Executive to engage. It is in all our interests to reach a sensible understanding here, as we have with the Department for International Trade. We did not get all we wanted with that department, but we now have a clear basis on which to go forward, whereas all we have from the Foreign Office is this refusal to meet us and the rejection of our criteria, rejection of the concept of criteria and refusal to start a discussion. I really do not think that will do. Parliament has powers in matters of this kind, but it would be infinitely preferable not to have to exercise them. We owe it to the Minister, just as we owe it to ourselves, to ask him to go back to the Foreign Office and ask it to have another look at this issue.

Photo of Viscount Stansgate Viscount Stansgate Llafur 3:16, 19 Mai 2022

My Lords, I rise to support my noble friend Lady Hayter of Kentish Town, but can I say at the beginning what a pleasure it is to follow Sir Humphrey? It is a rare privilege afforded any of us to follow such a masterful example, and I felt as I listened to the noble Lord that his speech provided a script for an entire episode of “Yes Minister”. If they ever make it again, he should send in his speech and get the credit accordingly, because it was a wonderful example.

I was not a member of the committee, but I congratulate its chair, members and staff on producing a very good report. It is remarkably frank in its conclusions, but they contain a warning for those of us who want to make sure that government remains properly accountable to Parliament. Its title does not seem very glamorous; “Working practices” has a sort of technical, rather boring aspect to it. It made me wonder how the Government of the day would have presented Magna Carta: “A technical adjustment to the working practices of the monarch.”

However, these things do matter. Of course, the Motion before us says that the House should take note of the report—well, it is the Government who should take note of it. My noble friend introduced it so comprehensively, and other Members have spoken with such expertise, that I really have very little that I can add today, other than perhaps just emphasising one or two points. Perhaps that is the fact of being put so late in the list, but I had the pleasure of following Sir Humphrey, as I said.

When I look at the report, I am looking at the Government’s arguments. Paragraph 91 says that the Government’s position is that

“the legislative framework in Part 2 of CRAG is appropriate and provides sufficient flexibility to permit Parliament to undertake effective treaty scrutiny prior to ratification.”

The report says that the committee disagrees—and so do I. Another phrase I find of great interest is this:

“The Government believes that the scrutiny system that is currently in place is appropriate in light of the UK’s constitutional settlement.”

The phrase “constitutional settlement” conveys a certainty and finality that does not, in fact, exist—constitutions evolve. Sometimes I think that you cannot see the wood for the trees because we are so close to it, but it does evolve, and I think that it needs to evolve further.

The right of a King or a Queen to make a treaty is a very substantial power. That power has been ceded to Governments and Prime Ministers, but we must be very careful that we do not end up with a system where, in effect and by extension, government powers escape the scrutiny of Parliament.

I shall make these my final remarks because I do not want to detain the House on a long day. On 25 April, I think, I was sitting in my place and saw the Minister get up to answer a Parliamentary Question about the memorandum of understanding with Rwanda. I thought to myself, “This is a major political policy development, but this House can exercise no scrutiny other than to ask a few supplementary questions. That is not good enough.” The committee says that

“legislative change may prove the only means to ensure adequate scrutiny of international agreements.”

I do not think we are anywhere near getting that at the moment, but there is a risk that if Governments continue to find ways to evade proper parliamentary scrutiny, we will get into trouble. I hope, of course, that a future Government will make the proper provisions necessary because the committee’s title, “International Agreements”, covers a very wide range of areas and, if we are to be a meaningful democracy, this House must play its full part in it.

Photo of Viscount Waverley Viscount Waverley Crossbench 3:21, 19 Mai 2022

My Lords, I wholeheartedly congratulate the committee and all its members, led by the noble Baroness, Lady Hayter. By coincidence, I had the pleasure to have spoken alongside the impressive UK director-general for trade negotiations in the Department for International Trade, Amanda Brooks, this week at an Institute of Directors dinner, on scrutiny of FTAs and the need to rebalance the relationship between Parliament and the Executive. To say she was a master of her brief would be frankly understated.

My contribution will focus on the narrow remarks regarding governance. Trade today impacts all walks of life. The 2018 document A Trade Model That Works for Everyone set out four principles of best practice: consensus building, transparency, democratic oversight and net benefit for all. These four principles provide the foundations on which to build public trust in the trade system. Credit where credit is due, however: the Government have come a long way since the publishing of that document and have negotiated some good deals—with Singapore and New Zealand to name two. For example, I have been asked to meet Beef + Lamb New Zealand, which, I gather, welcomes the agreement, and it looks forward to the opportunities for British farmers to export, as well as sharing best practice in areas such as marketing products abroad, animal welfare and sustainable farming.

There are various models of treaty scrutiny in other countries, which the UK Parliament could benefit from understanding. These can be divided into models of parliamentary scrutiny, transparency and civil society consultation. The UK’s scrutiny process does not tick all the boxes compared to key partners, with the EU coming out on top, followed by the US a more distant second. Considering the evidence provided, the All-Party Parliamentary Group for Trade and Investment, which I co-chair, offered recommendations to government to build on and improve what is in place and included a broad range of views from business, academia and civil society. I shall say a word on three aspects: transparency, democratic oversight and net benefit for all.

First, on transparency, securing trade deals should take place with stakeholder consultation throughout the process, thus allowing all voices to be better reflected throughout key stages of negotiations. There should be a statutory obligation on government to publish all key documentation relating to international trade and easy digital access to those documents. The use of non-disclosure agreements with members of trade advisory groups has limited the ability of experts to advise properly. The need for use of NDAs needs to be balanced with common sense and trust to allow those advising government, having been vetted, to be properly briefed and the constituencies they represent properly consulted. It is felt that NDAs highlight a deeper problem: a lack of trust in business.

Secondly, there is democratic oversight. Parliamentarians, too, are in the dark until it is too late in the process to make a difference. Parliament should be provided with a statutory right to debate the draft mandate in advance of any proposed negotiation. In line with the approach taken by the EU and US, government should have a statutory duty to provide timely, substantive briefings, draft texts and related documents to all MPs and Peers. Government should publish treaty texts before the treaty is tabled in Parliament, thus allowing for proper scrutiny and examination. Parliament should have the final ratification in a timely manner on trade deals proposed, negotiated and agreed by government.

Thirdly, there is net benefit for all. Government should be under a statutory obligation to publish detailed impact assessments which evaluate the economic, environmental and social impacts of any proposed agreement, including a clear statement of the net benefit of any proposed trade deal.

Based on these principles, 10 recommendations might be considered: first, build a strong mandate underpinned by business engagement; secondly, secure comprehensive buy-in for the negotiations by publishing mandates; thirdly, set up a high-level strategic EU trade advisory group for the EU negotiations; fourthly, establish a series of thematic working groups to tackle cross-cutting issues; fifthly, expand the remit of DIT’s expert trade advisory groups to create a series of sector trade advisory groups to provide detailed technical advice for specific sector negotiations for EU and non-EU trade; sixthly, appoint a new chief business trade envoy to co-ordinate the gathering of business intelligence, ensure coherence of policy and provide businesses with a single point of contact; seventhly, take business delegations to negotiating rounds to strengthen the UK’s presence and give negotiators easy access to technical expertise; eighthly, publish proactively the membership of advisory groups; ninthly, release summaries of negotiating rounds as they are completed; and 10thly and lastly, use non-disclosure agreements only when essential.

As the noble Baroness, Lady Hayter, touched on, devolved Administrations ought to be able to co-determine the negotiating mandate in areas of devolved competency enshrined in law as part of a new constitutional settlement. An interparliamentary mechanism should be created to involve devolved legislatures in treaty scrutiny.

In summary, government should be required to ensure that Parliament is immediately and fully informed at all stages and provided that information in sufficient time to take Parliament’s views into account—a point put most admirably by the noble Baroness, Lady Liddell. Government should disclose negotiating mandates immediately after their adoption and publish final trade agreements texts in advance of the legal revision being completed. To further facilitate this, MPs should be provided with access to restricted documents, including negotiating texts, in a secure reading room with a list published of those being consulted. I note that the WTO, for example, publishes submissions made by member states during negotiations. After the negotiations, Parliament must, of course, approve the deal to ensure that negotiation objectives have been met.

I have one brief final point. I am particularly drawn to the model of the Cotonou agreement between the EU, African and Caribbean countries, which sets out a framework for stakeholder engagement, thus enabling groups to put forward alternative market access schemes that offer better development opportunities.

The United Kingdom has the potential to be the global partner of choice for trade, investment and development, promoting a rules-based trade system, forging investment and advancing partnerships and technology that have potential for both sides. To best achieve this, however, the country would be better served by embracing a closer relationship with Parliament; we are more likely to be able to find solutions to challenges if all parties are around the table.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs) 3:30, 19 Mai 2022

My Lords, as always, it is a pleasure to follow the noble Viscount in these debates. I am a happy member of the all-party group on trade and trade promotion, which he leads with distinction. He made a point specifically about how many of our friendly trading countries and blocs, such as the EU, Japan or the United States, have a more open way of forming their trading policies. This is very important given that now, in an interconnected and more complicated world, trading relationships are deeper and more comprehensive.

As my noble friend Lord Oates indicated, there is a benefit from the Government involving Parliament actively and earlier. Therefore, I am pleased that the Pimpernel nature of the Grimstone rule has finally been ratified, with the agreement of the committee. I am happy about that and note my noble friend’s pint-in-a-quart-pot position. While the rule is in place, I do not want the Government to say that this has been settled and sorted for ever, because of the amendments that the noble Lord, Lord Lansley, referred to on the Trade Bill, which the noble Lord, Lord McNicol, and I worked on very well together. We still believe that there is a better role for Parliament—not only to be involved but to approve. This is a fundamental difference. I therefore hope that the rule will not be considered the final element of this.

The noble Lord, Lord Lansley, had previously moved a Motion for greater parliamentary accountability in the Trade Bill. At that point, he said that that was not the end of this, and I very much agreed with him. In fact, I agreed with everything he said, as the noble Baroness indicated. But the noble Lord knows me well enough to know that my simply agreeing with everything he said does not necessarily shorten the time that I will speak. However, this has been a much livelier and more fun debate than some might have expected. I even had to get my dictionary out for the contribution from the noble Lord, Lord Kerr, and he has settled a niggle in my mind about whether he cut his teeth, as a young official, in Ramsay MacDonald’s Government. There is great reassurance now that he has confirmed that was not the case.

I am on record in previous debates, as I will happily repeat today, for commending this committee and the noble Baroness, Lady Hayter, for bringing this and previous Motions she has brought forward. The committee is vital to Parliament because it shines a light where it is hard for parliamentarians to do so. She spoke at the launch of a co-ordinating group for inclusive trade, which I had the pleasure of attending this week, and the point she made was that this Parliament also has a role to communicate international agreements and trade to the public. Inclusivity is a vital part of that role. Therefore, I hope that, when the Minister responds, the Government will be enthusiastic about engaging proactively and not simply reactively.

I recall that it was the noble Lord, Lord Lansley, who coined the term “Grimstone rule” during the Trade Bill. I also recall the Minister not being enthusiastic about this at first; in fact, he tried to muddy the waters by saying that there is also a Purvis protocol on pedantry. I am glad that one of those has survived and the other has fallen by the wayside.

The significant point that the noble Lord, Lord Lansley, and others have made in this debate is worth reinforcing. During the Trade Bill, I reread Jack Straw’s contributions in 2010 on the Constitutional Reform and Governance Act, and it was explicit that the CRaG Act provided, as he put it, a form of parliamentary veto—not as much as I would like it to be now, but a form of parliamentary veto—over those agreements that are subject to ratification. That was the limit of it, and that is the egregious element of the letter so comprehensively dealt with by the noble Lord, Lord Kerr. It has not been superseded. Elements of the Ponsonby rule were revised in 1998, then established in 2001 specifically about agreements not subject to ratification, and that has been the substance of much of the debate today.

I hope the noble Lord, Lord Kerr, will forgive me. He allowed me to dust off from my inbox a document that I refer to if I am ever in a depressed mood in my parliamentary career. It is the Civil Service guide—a practical handbook on advising, briefing and drafting for Ministers. I thought I would quote it for his benefit because I like him so much. Chapter 4 is entitled “How to draft Minister’s letters” and it states:

“Every Minister’s case, however obscure, infuriating, tiresome or unnecessary a few of them may seem, is in itself an important part of democratic accountability. It requires government to account for its decisions and actions through Parliament to the people. Ministerial correspondence is democratic accountability in action.”

It ends:

“Our aim for every reply should be to make its recipient feel better for having received it.”

In this case they should get a gold star, because whoever drafted that made the noble Lord, Lord Kerr, a very happy Peer.

There were serious elements in this with regard to treaties and MoUs. We have been asked to refer to the guidance on the difference between treaties and MoUs, so I read it—it was published not that long ago. Paragraph 5, on how to distinguish an MoU from a treaty, states:

“The key difference between MoUs and treaties is whether or not there is an intention to create legally binding obligations ... There is no hybrid ... an MoU is not legally binding”.

It goes on to the language that should be used when drafting a MoU as opposed to drafting a treaty. In the column “Do Not Use” are “agreement” and “undertaking”.

I then went back to what Ministers have told Parliament on the Rwanda agreement, which is of very significant public policy interest. The Minister in this House, the noble Baroness, Lady Williams, said:

“My Lords, it is an agreement which both parties have agreed to be bound by.”

She then said:

“I will leave it to greater heads to unpick the meaning of that.”—[Official Report, 25/4/22; col. 17.]

We are still trying to unpick the meaning of that, but that is what the Minister said, and I remind the Chamber not to use “agreement” for MoUs. That is very clear in the annexe “Terminology to be used”:

“The word “agree” and its derivatives should be avoided”.

On 19 April the Home Secretary said

“This is a bespoke international agreement reached last week with Rwanda; I came to Parliament as soon as was reasonably practicable following the conclusion of that agreement. The agreement is compatible with all our domestic and international legal obligations”.—[Official Report, Commons, 19/4/22; col. 26.]

She later said:

“The MOU that has been published spells out in full detail … the nature of the agreement”.—[Official Report, Commons, 19/4/22; col. 29.]

When asked later whether the Government could guarantee that people who are going to be relocated to Rwanda will be safe the Home Secretary replied:

“Absolutely—we can—and that was part of our negotiation with the Rwandan Government. It has been made very clear in the legal agreement that we have between us.”—[Official Report, Commons, 19/4/22; col. 47.]

What status does this now have as an MoU? It is clearly a legally binding agreement, so it is right that we ask questions about it—even though, as the noble Lord, Lord Lansley, mentioned, paragraph 1.6 states that it

“will not be binding in International law”.

But, as Ministers have said, it is binding in our law.

Paragraph 3.2 states that requests by the United Kingdom will “require approval by Rwanda” for receiving. What legal basis does that have? Paragraph 5.2.4, on people’s data, talks of the establishment of a data sharing process between the UK and Rwanda. What legal basis will this have? Paragraph 5.4 says:

“Nothing in 5.2 obliges the United Kingdom to disclose information if it would be contrary to domestic laws”.

Which ones? What is the information that would be disclosed? Paragraph 9, on the “Asylum processing arrangement”, gives requirements for Rwanda to ensure that it has these obligations. What legal underpinning is there? There is a whole range of areas within this “agreement”, as the Foreign Secretary would say, or “arrangement”, as the MoU title says. What is it, and how will it be approved?

There is also an element that has been underreported, and which I am certain would be important if we were asked to ratify this agreement. Paragraph 16 says:

“The Participants will make arrangements for the United Kingdom to resettle a portion of Rwanda’s most vulnerable refugees in the United Kingdom, recognising both Participants’ commitment”.

What legal basis does this have? It is utterly confused, which is why this now needs to be corrected dramatically.

My final example—and I will be brief—reinforces the point that there are agreements and arrangements of various significance that we are not being asked to ratify and that are not being sent to the International Agreements Committee or being made public. The noble Lord, Lord Udny-Lister, may know more about this than me, but I have asked a number of questions about the UK and the UAE’s sovereign investment partnership agreement. That agreement is important because the Government have promoted it, and the initial tranche is, according to them, worth more than £10 billion. I am not necessarily saying that it is good or bad—but it exists, apparently, and it will now be used as the basis for further agreements. Its scale far outstrips many other trade agreements.

Last week, Parliament approved the Money Laundering and Terrorist Financing (High-Risk Countries) (Amendment) Regulations, which place the UAE among the UK’s high-risk third countries for fraud, money laundering and the financing of terrorism. This justifies full scrutiny. I asked the Minister for this, and the noble Baroness, Lady Penn, followed up by giving me some information about it, but I cannot find the agreement online. I asked the Library where it is, but it could not find the text of it either—it is very kindly asking the Department for International Trade to provide the text of it. The Library provided me with the Prime Minister’s Office communiqué, the United Arab Emirates communiqué and two press releases—but not the text. These are significant agreements with public policy interest, and we have legislated to allow us to ask questions about them, but we have not seen them in Parliament.

The Government now need to change this. One practical step would be to publish a register of MoUs in a co-ordinated way, rather than just allowing them to be stored behind the scenes. If that is the case, that register should be submitted to the committee to at least allow us to know what is there—otherwise, we will end up like Donald Rumsfeld, not even knowing what the unknowns are.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees 3:44, 19 Mai 2022

My Lords, I start by thanking the International Agreements Committee, and in particular my noble friend Lady Hayter, for the report before us. I appreciate the opportunity to debate it, but probably more important is the catalyst that it provided for the raft of letters and correspondence we have seen over recent days—all of which are very welcome.

As my noble friend Lady Hayter quite rightly set out, rather than just being a debate on the report itself this is, in effect, a debate on Parliament’s ability to hold government and the Executive to account on international agreements that they make. She made the important point that this debate applies not just to trade deals, as was covered by many other noble Lords, but reaches far wider, across treaties, MoUs and most important issues such as immigration, defence, transport and much more. It is a shame that the FCDO does not share that view.

There are few Executive powers in an area of such national importance which do not require the say not just of government but of Parliament. It is worth reiterating the point made by the noble Lord, Lord Lansley, that the committee’s name is the International Agreements Committee, so scrutiny is of the upmost importance, not just on trade agreements but on treaties, MoUs, amendments and, as he rightly said, any other international agreements, even those that do not have a name. Therefore, I am in complete agreement with the report in its broadest sense; namely that Parliament must have a say. Although there has been progress, there is still much more to do.

Devolution and CRaG have been covered in detail by my noble friends Lady Hayter and Lady Donaghy, and my noble and learned friend Lord Morris, so I do not need to deal with that.

The right reverend Prelate the Bishop of St. Albans asked why the Executive do not agree with the report and are nervous about detailed scrutiny, especially given the expertise within your Lordships’ House. I think he answered the question himself, but if he did not, the noble Lord, Lord Kerr, did in his eloquent and analytical analysis of Minister Milling’s letter.

Since the report was published last September there has of course been a response from the Government and a subsequent back and forth, some of which we have already heard about today. As has been noted, there appears to be a fundamental difference between the approach of the DIT and that of the FCDO. I am sure that the Minister in responding can bring some light to those differences and, I hope, some solutions. The findings and recommendations of the report have been discussed over the last nearly two hours now, so I will try to look at where we are now and where I believe further questions still need to be answered by the Government.

The Government’s disagreement in their initial response was disappointing: first, on the need to consolidate commitments into a formal concordat, as my noble friend Lady Donaghy, raised; secondly, they would not commit to advance notification for forthcoming treaties; and thirdly, when we were a member of the European Union, EU trade deals could be rejected by the European Parliament, but they say that that previous convention is no longer relevant today.

My noble friend Lady Hayter, as chair of the committee, was right to challenge these points, not least as previous commitments had been made on trade deals and then watered down. Her leadership in persuading the Government to record their trade agreement commitments in an exchange of letters should be commended. Exchanges of letters are fine but a more rigorous, formalised process would have been preferable. In the most recent correspondence that I am aware of, the Government disappointedly said that they will not accept the committee’s understanding of the Ponsonby rule. The noble Lord, Lord Kerr, has masterfully dealt with that.

I understand that in the next series of letters between my noble friend Lady Hayter and the DIT Minister only today, 11 commitments are agreed that apply to the negotiation of trade deals, but trade deals only. It is a shame that seven of those commitments are post the signing of any trade deal; it would have been good to see more detailed commitment to Parliament both pre and during the negotiations. However, reaching this stage is testament to the leadership of both sides—but more so to that of the committee.

I particularly welcome the commitments to publicly consult ahead of new FTA negotiations, to publish regular updates during negotiations and to seek to facilitate scrutiny of any IAC or ITC reports on new FTAs. While a more solid commitment on the latter would have been welcome, it is encouraging to see the Government also state that they do not envisage ratification without a debate. Perhaps the Minister can elaborate on what is considered “a timely fashion” in that regard. For the Australia, New Zealand and CPTPP agreements, the Government expect a period of no less than three months between publication and agreement under the CRaG Act. Can we expect this to be the consistent approach?

I turn to Minister Amanda Milling MP’s letter of 11 May. I was a bit worried that the noble Lord, Lord Kerr, was going to go through every single paragraph, but fortunately he left one and I would like to raise it. She said:

“The Government has acknowledged that it may be appropriate to draw to Parliament’s attention non-legally binding arrangements which raise questions of public importance.”

In responding, can the noble Lord the Minister outline or give us some examples of what may or may not be appropriate? The noble Lord, Lord Purvis, touched on a few, but it would be interesting for your Lordships’ House to hear the Minister’s analysis of that.

I will finish on two short points. One is my noble friend Lady Liddell’s words: parliamentary scrutiny matters. That sums up the whole of this afternoon’s debate, and I look forward to the Minister’s response.

The noble Lord, Lord Purvis, rightly mentioned the first Trade Bill, which we debated and got really close to final agreement on in 2018 and through to just before the election of 2019. If the Minister wishes to see any of the improvements in the present Trade Act—amendments laid by the noble Lords, Lord Lansley and Lord Purvis, my noble friend Lord Stevenson and me, which made that better and more relevant to a parliamentary democracy—we are more than happy to share those with him.

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office) 3:53, 19 Mai 2022

My Lords, I thank the noble Baroness, Lady Hayter, for tabling this debate and for the parliamentary report. I am grateful to the members of the International Agreements Committee and all noble Lords for their insightful contributions. I note that kind offer by the noble Lord, Lord McNicol, which I will pass on to the relevant Minister immediately after this debate.

Having left the EU, the UK is now free, for the first time in half a century, to negotiate treaties in a number of policy areas previously reserved to the EU, so it is right and absolutely positive that Parliament is now taking a heightened interest in how the Government conduct their negotiations on treaties.

The Government consider Part 2 of the Constitutional Reform and Governance Act 2010—CRaG—which has been referred throughout this debate, to be fit for purpose. It respects the balance between the need for parliamentary scrutiny and the fundamental right of the Executive to negotiate for the United Kingdom internationally, exercising their powers under the royal prerogative, as noted by the noble Viscount, Lord Stansgate. Our constitutional set-up allows the British Government to speak clearly, with a single voice, on behalf of the UK as a sovereign state under international law.

As noble Lords will understand, negotiating is usually an art. At some stage, compromises must be offered. Acknowledging my noble friend Lord Lansley’s interest in the India free trade negotiations, as he knows and as the Government have been clear, these are a priority for the Government. We agreed, during the PM’s recent visit, to conclude those negotiations by Diwali in October. However, announcing your negotiating positions and possible compromises in advance risks giving your negotiating partner, or partners, an unnecessary advantage. Confidentiality is therefore not always but often key. If we are too prescriptive in the commitments that we make to Parliament, we risk tying our negotiators’ hands and weakening the UK’s approach. However, we fully recognise that for negotiators to represent the national interest to best effect, it is important to understand Parliament’s views and interests.

Any Minister negotiating a treaty should be and is mindful of Parliament’s important role. They know that Parliament can resolve against ratification, and that it may need to pass subsequent implementing legislation. These are ongoing considerations during negotiations and in engaging Parliament. I acknowledge comments by a number of noble Lords, particularly the noble Baroness, Lady Liddell, and the noble Lord, Lord McNicol, and assure them that the Government do not take a high-handed approach to this. We take Parliament’s role and responsibilities seriously and we make no assumptions about views that may be expressed during scrutiny.

What has changed since CRaG was adopted is the level of public interest now that the UK has full control of its treaty policy. The Government acknowledge that increased interest. We accept that this requires full and proper engagement with Parliament and information-sharing within the CRaG framework. We also recognise that the length, breadth, scope and complexity, as well as the impact of free trade agreements, warrants a bespoke approach. We have therefore agreed a number of additional commitments. We accept that engagement and information-sharing will vary according to individual negotiations, and that this could include engagement during the negotiation process before an agreement is formally laid before Parliament under the Act. Equally, we acknowledge that parliamentary scrutiny does not necessarily end with ratification, a point made by my noble friend Lord Lansley.

I am grateful that the committee’s officials are investing their time in discussions with officials at the Foreign, Commonwealth and Development Office and the Department for International Trade. Together, they are exploring how to make these processes more predictable and how to meet the committee’s expectations. However, with the best will in the world, the International Agreements Committee may struggle to apply equal levels of scrutiny to all the agreements that the Government hope to conclude in any one year.

One area where there has been significant recent interest is trade policy. I am pleased to note the positive response to the bespoke approach taken by my colleagues in the Department for International Trade. Their regime of engagement and transparency allows effective scrutiny of trade agreements. My noble friend Lord Lansley referred to the outline approach publications in respect of new free trade agreements. We saw this in the comprehensive outline approach publications before negotiations with Japan, Australia and New Zealand, and more recently with India and Canada. The Department for International Trade will continue to keep Parliament informed of progress through regular updates.

The Government will endeavour to allow sufficient time between finalising a new free trade agreement and laying it before Parliament under CRaG, in order for relevant Select Committees to produce independent reports. Noble Lords will note that the UK-Australia free trade agreement was published before Parliament over five months ago, and the UK-New Zealand free trade agreement more than 10 weeks ago. Neither has yet been laid under CRaG. This open and detailed process will help Parliament and the public more easily to understand agreements and their implications, including on issues around climate change and the environment, as the noble Lord, Lord Oates, highlighted.

It is worth pointing out that, while I certainly do not dispute the points that the noble Lord made about the risks around climate change and the environment from poorly constructed deals, equally, there are huge opportunities, as we have seen from our discussions with New Zealand. It is a reflection of the Government’s commitment to transparency. On the comments by the noble and learned Lord, Lord Morris, the right reverend Prelate the Bishop of St Albans and a number of other speakers, I welcome their having highlighted the trade advisory groups in particular and the important role they play in promoting, among other things and other sectors, the increasingly important agriculture sector.

I would like to address some specific issues that were raised in the committee’s report and highlighted by a number of noble Lords in this debate. The Government are committed to an exchange of letters regarding current commitments on the scrutiny of free trade agreements and, as has been noted, that took place this morning. I am pleased that the noble Baroness, Lady Hayter, considered this exchange a significant step forward; that is good to hear, and I hope it also reassures the noble Baroness, Lady Donaghy, and a number of other speakers who raised the issue. We will continue to review our practices as we and indeed Parliament learn valuable lessons from the passage of new free trade agreements, and our processes will undoubtedly continue to evolve accordingly. Going beyond the exchange of letters at this stage would remove this flexibility to implement lessons learned.

The Review of Intergovernmental Relations, published in January 2022, revised the structures and ways of working between the UK Government and each of the devolved Administrations, including structures of engagement on international policy areas. We will continue to apply and practise many of the agreed principles and engagement approaches originally set out in the concordat on international relations, one of the supplementary agreements supporting the 2013 memorandum of understanding between the UK Government and the devolved Administrations. I hope that that reassures my noble friend Lord Udny-Lister and the noble and learned Lord, Lord Morris. These cover areas such as public diplomacy, the organisation of supported visits and representation overseas, and are based on the principles of good communication, consultation and co-operation.

On Explanatory Memoranda, an issue raised by a number of noble Lords, we welcome the committee’s acknowledgement that the Government’s updates to the Explanatory Memorandum template and guidance have improved matters. We are open to further improvements, and I welcome the collaboration between our officials in supporting this process. Minister Amanda Milling will shortly write to Whitehall colleagues asking them to pay close attention to the FCDO’s Treaties and MOUs: Guidance on Practice and Procedures, and to use the Explanatory Memorandum template contained within them, all of which is published on GOV.UK.

On treaty amendments, the Government have previously indicated their intention that the majority of important amendments should be subject to ratification and submitted to Parliament for scrutiny. However, the terms of the treaty, including those on ratification, are subject to negotiation on a case-by-case basis with treaty partners. It is therefore not possible for the UK to take a unilateral position on this issue by way of domestic guidance. The Government do not agree with the committee’s assessment that they have failed in their commitment to publish treaty amendments, including those made by joint committees. We provide a complete, up-to-date and easily accessible record of the treaties to which the UK is a party.

All amendments to the EU-UK withdrawal agreement and to our new free trade agreements are published in the treaty series. In addition, we publish all joint committee decisions on the same GOV.UK page as the relevant parent treaty. Our monthly treaty action bulletins, also published online, provide a summary of the UK treaty actions and command papers, as well as information on treaties for which the UK is the depository. Treaties are distinct from instruments, as has been pointed out, and arrangements that are not intended to be binding under international law, such as those containing political commitments or administrative arrangements.

In response to a question from the noble Lord, Lord Oates, the recent declarations with Finland and Sweden fall within the category of non-legally binding political commitments. Although the committee refers to those non-binding arrangements as agreements in its report, that terminology is more appropriate to describe a legally binding instrument such as a treaty. Considerable care is taken to make sure that non-legally binding arrangements are drafted appropriately, and guidance on this is set out in the FCDO’s Treaties and MOUs: Guidance on Practice and Procedures, as I mentioned before.

As reiterated by the noble Baroness, Lady Hayter, there has never been a convention in the UK whereby non-legally binding arrangements—I am going to put a helmet on for this moment—are routinely submitted to parliamentary scrutiny. In fact, regarding the so called third limb of Ponsonby, referred to today by the noble Lord, Lord Kerr, and a number of other speakers, the Government do not dispute the statement made by Lord Ponsonby in 1924. However, the Government do not accept that it formed part of the Ponsonby rule as it existed and was practised prior to CRaG.

I recognise that the speech by the noble Lord, Lord Kerr, was delivered almost on the basis that he has read much of the speech that has been carefully handed to me. Nevertheless, this is the position of the Government. While non-legally binding arrangements are themselves not routinely published, when they raise issues of public importance it may be appropriate to draw Parliament’s attention to them, for example through a Written Ministerial Statement.

Photo of Lord Oates Lord Oates Democratiaid Rhyddfrydol

The Minister stated that the agreements or declarations made with Finland and Sweden are not legally binding. First, does he think that the Finnish and Swedish Governments are aware of that? Secondly, does he think that they are of sufficient public significance that they will be scrutinised by this Parliament?

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

I would be amazed if they were not aware of the non-legally binding nature of those agreements or declarations. My view is that Parliament has a hugely important role to play in scrutinising these arrangements. I cannot provide that answer with any certainty because it is not in the remit of my department or portfolio, but I imagine that that scrutiny will be applied. I am afraid I cannot go into any more detail than that.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

I hope the Minister does not feel that I am being unnecessarily irked if I question the utility of him referring us to the Treaties and Memoranda of Understanding: Guidance on Practice and Procedures from March 2022. I was referring to it quite extensively in my contribution because I have it in front of me. My point was that the Home Secretary recently—just a few weeks ago—was in direct contradiction of this guidance by calling the agreement with Rwanda binding when the guidance is saying that it should not be. I am sure the Minister will say that I have to take the Home Secretary and the noble Baroness, Lady Williams, at their word. If these are legally binding agreements, how have they been approved by Parliament and what is their legal underpinning?

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

My Lords, the UK- Rwanda migration and economic development partnership, to which the noble Lord refers, addresses the shared international challenge of illegal migration. That issue has been discussed in this House; I have answered a couple of Questions on it myself, as have Ministers from other departments. The purpose is to break the business model of people-smuggling gangs. It is an innovative measure within the Government’s New Plan for Immigration to fix what I think everyone accepts is a broken asylum system and ensure that we welcome people through safe and legal—[Interruption.] I am coming to the context of the question.

The partnership captured in a Memorandum of Understanding builds upon the wider collaboration with Rwanda across a wide agenda, from combating climate change to more effective aid delivery. Everything put in place is compliant with our legal obligations, including under international law. All claims for asylum are considered in accordance with international human rights obligations. A non-legally binding arrangement in the form of an MoU is, the Government believe, the most effective vehicle as it allows the partnership to change and the technical details to be adjusted quickly if required, and with the agreement of both partners. An MoU on—

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

I am grateful to the Minister for giving way. What are the mechanisms for the Home Secretary and the Minister in this House to correct the record? They have actively misled Parliament by saying that these are binding obligations and agreements, because the Minister at the Dispatch Box—and this is serious—has now absolutely contradicted what Priti Patel told the House of Commons and what the noble Baroness, Lady Williams, told this Chamber. Both cannot be correct.

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

The truth is that I am not familiar with the wording used by the Home Secretary. I am not going to answer on her behalf, but I can tell, the noble Lord—

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

I am afraid, as I said, that I am not familiar with the words she used. I am sure that if an error was made, that error will be corrected, but I am not aware that an error has been made. MoUs on international migration are not uncommon. For example, there is a memorandum of understanding in place between the UN High Commissioner for Refugees, the African Union and Rwanda on the relocation of migrants at risk in the conflict zones of Libya.

On implementing legislation, the United Kingdom’s dualist system means that treaties do not automatically become part of our law, a point made by a number of noble Lords today. In accordance with parliamentary supremacy, entering into international obligations under the royal prerogative cannot change UK law; that can happen only through legislation. Having said that, not every treaty requires implementing legislation. The Government are always mindful of the potential need for domestic legislation to implement the UK’s international obligations when negotiating a treaty. Where such legislation is required, it is beneficial, and sometimes essential, to have the flexibility to pass it before, during or after CRaG scrutiny of a treaty. This flexibility should, we believe, be preserved.

In several continuity agreements the Government ensured that the relevant secondary legislation was in place prior to beginning CRaG and published the details of the legislation in the accompanying Explanatory Memorandum. We consider CRaG an appropriate legislative framework, providing sufficient flexibility to enable Parliament to undertake effective scrutiny prior to ratification of a treaty. We do not agree with the three proposals for reform of the statutory framework made by the committee in paragraph 94 of its report. These proposals are not suited, we believe, to the UK’s constitutional settlement as a dualist state where treaties are negotiated under the royal prerogative. This may not reassure the noble Lord, Lord Hendy, but I hope it at least answers his question.

I welcome the experience of the EU system that the noble Baroness, Lady Ludford, conveyed to us in her speech. The Government agree that the UK’s treaty scrutiny system is broadly comparable to other dualist, Westminster-style systems; in particular, those of Canada and Australia. Indeed, in some respects, particularly with regard to free trade agreements, the Government’s commitments to Parliament go beyond what is provided for in other systems. I underscore the point that we consider CRaG fit for purpose, allowing the Executive to negotiate for the UK and Parliament to conduct the necessary scrutiny. Indeed, the Constitution Committee agreed with the Government’s position in its report of 30 April 2019, noting that existing parliamentary mechanisms, supported by the work of the designated treaties committee, should be sufficient to provide effective scrutiny.

That committee also noted that mandates for treaties should not be subject to parliamentary approval. In fact, a number of the issues raised by the committee in its 2019 report were discussed at length by Parliament during the passage of the Trade Act 2021. In particular, amendments regarding Parliament’s role in the objectives and mandate-setting process and pre-signature scrutiny were explicitly considered on a number of occasions and rejected by considerable majorities in the House of Commons.

There have been multiple exchanges between the Government and the International Agreements Committee in the last two years on matters of transparency and predictability. We have listened to the Committee’s views and adapted our processes. These exchanges are clearly working, they are certainly valued and I have no doubt that they will continue. We welcome the committee’s scrutiny and I thank the noble Baroness, Lady Hayter, once again for tabling this debate and all noble Lords for their contributions.

Photo of Viscount Waverley Viscount Waverley Crossbench

My Lords, the Minister might wish to consider speaking to the Rwandan high commissioner here, who is an august Minister for Justice and will, I am sure, be looking at his overall remarks most closely. He gave us a full briefing about various matters relating to the agreement and understanding. It would be appropriate, if there is to be a strong relationship with that country, that the situation be explained to him.

Noble Lords:

No, not really.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Chair, International Agreements Committee

Oh, go on—be generous. I shall comment on the Minister’s response so I hope the other speakers will forgive me for not going through everything they said, although I thank everyone who has contributed, particularly the members of the committee, whose expertise has been witnessed today.

Clearly, important statements were made about our negotiating objectives, and the need for us to discuss those, by the noble Lord, Lord Oates, my noble friends Lord Hendy and Lord McNicol and the noble Viscount, Lord Waverley. As well as my noble and learned friend Lord Morris, I know that the noble Baroness, Lady Ludford, the noble Lord, Lord Udny-Lister, and the noble Viscount, Lord Waverley also mentioned the devolved Administrations. As well as involving them, there is a clear need to get other stakeholders involved in this, which the right reverend Prelate the Bishop of St Albans mentioned, particularly in relation to TAGs. Personally, I was rather disappointed that Which?, the only independent spokesperson for consumers, was excluded by the Government from the domestic advisory group, or DAG—albeit on the Europe issue, rather than on what we deal with. This suggests that the Government do not really want to listen to other voices.

Today’s main point, to which we must return—I am sorry not to touch on the others—is about where control over all this happens. Most of this debate, as my noble friend Lord McNicol said, is about the role of Parliament in scrutinising what the Government are doing. I do not think that the noble Baroness, Lady Ludford, used the phrase “bring back control”. However, she and my noble friend Lady Liddell were essentially asking what the point was of having brought things back here, away from the hands of foreigners, if only to give them to an even smaller number of Ministers. The Minister has just used the phrase “with a big majority in the House of Commons”, as if to tell us in the House of Lords where to go. That was not point of bringing things back to Parliament—that they should just be done. As the noble Viscount, Lord Waverley, and the noble Lord, Lord Purvis, said, other Parliaments manage this. I have just come back from Washington DC, where the Committee on Ways and Means interferes far more with deals than we do—so we are not asking for anything ludicrous.

I must spend a moment on the MoU, given the debate we have just had. Sweden and Finland probably think that what we promised them was binding. Hearing now from the Minister that it is not may concern them just a bit, particularly if Turkey is going to hold them out of NATO for a while. So the Minister has now told us that the only security they have been given is not worth the paper it was written on. This is something of a surprise.

The noble Lord, Lord Lansley, warned that MoUs should not be used as a substitute for scrutiny, and my noble friend Lord Stansgate, I think, used the expression “should not evade it”.

I must now come to the noble Lord, Lord Kerr, who asked us to consider his TICs—taken into considerations. The only thing taken into consideration is that, sometimes, he is quite outrageous—even though he is a maestro. He at least honoured Ponsonby when he was at the Foreign Office. The idea that CRaG got rid of Ponsonby is a really big legal issue that we will have to discuss. There will no doubt be very experienced lawyers, even now, offering to give their opinions on it.

I am grateful to the Minister for attempting to respond to this debate. I felt a bit sorry for him—but not very. I am really worried about his view that CRaG, passed when we were in the European Union, is still fit for purpose. Despite trumpeting the view that we have now taken the ability to negotiate our own trade deals, he somehow considers an Act passed to deal with trade deals when we were not dealing with them as fit for purpose. He needs to go back to his department and look at that. He says that there is big difference because the public are now more aware; I think that the bigger difference is that we are not in the European Union and we are doing our own deals.

The House will have to come back to Ponsonby. In addition to our disagreement on the view, the Foreign Secretary sent the most bizarre letter I have ever received on 11 May, saying that she should not meet us as a committee, given the positions held—that is, that we differ from each other. I thought that you met when you had a disagreement to reach consensus. That is what happened with the noble Lord, Lord Grimstone. It is true that we had some private discussions in the bar, but we also had discussions in our committee and we reached the agreement.

That agreement is not a concordat, as the right reverend Prelate wanted, but we suggested an exchange of letters instead. We said that would do, if the Government did not want to call it a concordat. We got there; we reached a compromise, because we sat down as a committee and agreed it there. So the idea that a Foreign Office Minister will not meet us because we disagree seems quite extraordinary.

We need to move forward on this. Our committee will meet next week, when I am sure we will discuss how to take it further. As I say, our discussions with the Department for International Trade have shown that we can move forward. I very much hope that the Minister will take back to the Foreign Office that we are willing to reach a compromise and we need to move forward in a better way, with Parliament being able to scrutinise the decisions the Government take under Crown privilege or any other way. I undertake to the House that our committee will continue to scrutinise treaties and other agreements and less than agreements and undertakings, and will report to the House accordingly.

While I agree with my noble friend Lord Stansgate that the Government should take note of our report, my position is to formally move that this report is noted by this House.

Motion agreed.