Hestermeyer, Holger P.

Horne, Alexander

English

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1/5Why the UK Parliament’s Weak Role in Treaty-MakingNeeds Reformverfassungsblog.de/the-uk-rwanda-agreement-and-the-cptpp/Holger P. HestermeyerAlexander Horne03 May 2024The UK Parliament, the UK-Rwanda Agreement and the CPTPPOn April 1, 2024, the Ponsonby Rule, the constitutional convention that set the standard forParliament’s role in how the UK makes treaties, turned 100. But the procedure forParliament’s involvement in treaty-making (which really only amounts to treaty scrutiny) is nolonger fit for purpose and Parliament is increasingly unhappy with it.Unlike Congress and the European Parliament, the Westminster Parliament does not have aveto power for treaties, nor can it insist on having a debate on them. The statutory rules forscrutiny limit the available time for scrutiny and suffer from a plethora of other weaknesses.The House of Commons Public Administration and Constitutional Affairs Committee calledfor reform in a 2024 report, but the Government has largely rejected the Committee’sproposals. However, the issues remain, as illustrated by the UK’s ratification of a treaty onasylum with Rwanda on April 25 overriding the will of the House of Lords and theGovernment’s refusal to grant the Commons a substantive debate under the ConstitutionalReform and Governance Act 2010 on either the Rwanda treaty, or the UK’s accession to theComprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).We describe the status quo in a report we produced for the Centre for Inclusive Trade Policyand advance proposals for improving treaty scrutiny allowing for greater transparency andlegitimacy. Our main argument is that both the UK-Rwanda and CPTPPP Agreements show,once again, that the UK Parliament’s role in treaty-making must be reformed. In particular,the House of Commons must obtain the power to have a formal vote on internationalagreements before they can become binding on the UK.The Ponsonby rule and the current statutory regime for treatyscrutiny by the Parliament2/5The origins of the UK’s current system on treaty scrutiny go back to 1 April 1924, when thethen Parliamentary Under-Secretary of Foreign Affairs Arthur Ponsonby committed theGovernment to “lay on the table of both Houses of Parliament every treaty, when signed, fora period of 21 days, after which the treaty will be ratified and published and circulated in theTreaty Series”.In 2010 this rule was codified and progressively developed in Part 2 of the ConstitutionalReform and Governance Act 2010 (CRAG). Under the statutory scheme the Governmenthas to lay international agreements subject to ratification before Parliament for 21 sittingdays before it can ratify the agreement. Alongside the treaty, it has to provide an explanatorymemorandum.Under section 20 of CRAG, both Houses of Parliament can resolve against ratification of theTreaty, but CRAG does not provide either of them with a veto power. The Commons has atheoretical power to delay ratification (which has never been used in practice). The Lords isdenied even this limited capability. Section 21 of CRAG provides the Government with theability to waive the scrutiny procedure altogether.While Parliament does not have a vote on treaties, it may have to pass implementinglegislation if relevant powers do not exist in domestic legislation. To ensure that the UK is incompliance with a new treaty when it enters into effect, convention demands the necessaryimplementing legislation to be passed before the ratification of the treaty.Why does the current procedure fall short?At its core, the statutory system for treaty scrutiny still harks back to the old Ponsonby rule,conceived 100 years ago. International law has changed substantively since then. Thenumber of treaties has multiplied. So have the topics that states consider appropriate forconcluding treaties: today, hardly any area of national law is untouched by internationalobligations ranging from trade to human rights, from the environment to air services. With theenlarged scope of treaties, their very nature has changed as well: modern treaties enterdeeply into the substance of regulatory matters. And modern treaties are living instruments.Many of them set up treaty bodies with the power to either develop or interpret the treaty tomake sure it can fulfill its functions even as facts on the ground evolve. One may lament thisfact – and looking at the news, some commentators certainly do. But reality has passed themby. From the International Maritime Organization to the World Health Organization, from theCodex alimentarius to the International Telecommunication Union numerous documents thataffect our lives are drafted in a process of international cooperation.The changed international landscape challenges the treaty scrutiny system in two ways.First, it urgently raises questions of legitimacy. If treaties affect our lives, they require a votein Parliament to democratically legitimize them. Many jurisdictions provide for an up-or-downvote in Parliament. The UK does not. The argument that the UK is a dualist system and3/5accordingly it is the implementing laws, not the treaty that affect our lives falls flat in a worldof living treaties. Decisions and even interpretations by treaty bodies often requireimplementing legislation years after the treaty came into effect. But even where that is notthe case and the UK already has the necessary legislation in place, treaties make adifference: a treaty can lock in the regulation already in place. If Parliament changes it, theGovernment will either have to achieve a change in the treaty commitment – or it puts the UKin violation of the treaty.The second challenge to the existing system is one of complexity. Free trade agreements areemblematic in that effect: they contain rules on topics ranging from tariffs to food standards.There is no way to meaningfully scrutinize a complex modern free trade agreement in 21sitting days.Why have we only noticed this now? What has been done about it(and has the issue been resolved)?The problems with the treaty scrutiny system have only become apparent in the last fiveyears, following Brexit. The reason is a counterintuitive one. When the UK was a member ofthe EU, the most complex modern international agreements, free trade agreements, werehandled by the European Union under its exclusive competences. And for EU acts, theWestminster Parliament had developed a stronger scrutiny mechanism than it has now thatthe Government is exercising those competences.But Parliament has not been entirely idle. In 2020, Parliament established a formal treatyscrutiny mechanism in the House of Lords EU Committee. The task was split off from the EUCommittee and became the responsibility of the International Agreements Committee (IAC)as a stand-alone select committee in January 2021. Things were more difficult in theCommons, where committees tend to mirror Government departments – and no dedicatedscrutiny mechanism has developed. With regard to agricultural aspects of free tradeagreements, statute law requires a report by the independent Trade and AgricultureCommission that is laid before parliament along with a response by the Secretary of State.These steps have not resolved the issue. Treaty scrutiny is still operating under thetraditional framework. The Government has made some commitments that would provide forsome improvement, but they are not the gamechanger that is needed to bring treaty scrutinyinto the 21st century.What happened regarding the UK-Rwanda Agreement and CPTPPP?Some of the weaknesses of the system were highlighted recently by the Government’s pushto ratify the UK-Rwanda Agreement on asylum and the CPTPP. The former agreement wasdrafted after the Supreme Court had found the Government’s policy “that certain people4/5claiming asylum in the United Kingdom should not have their claims considered here, butshould instead be sent to Rwanda in order to claim asylum there” unlawful.Instead of abandoning the policy, the Government doubled down, proposing legislation thatdeclares Rwanda safe; prohibiting courts from considering evidence to the contrary; andnegotiating the UK-Rwanda agreement that is meant to create mechanisms and guaranteesfor appropriate treatment of asylum seekers.While the bill made its way through the legislative process, on January 22, 2024, the Houseof Lords resolved against the treaty. It was the first time either House considered a motionunder section 20 of CRAG – and the chair of the IAC, Lord Goldsmith KC, used theopportunity to point out that the scrutiny mechanism was wanting. With regard to the treaty,the Lords correctly pointed out that they were asked to declare Rwanda safe in the Bill whilethe mechanisms that were meant to ensure that safety in the treaty were not even in place.Accordingly, the Lords passed a motion that the Government should not ratify the treaty “untilthe protections it provides have been fully implemented, since Parliament is being asked tomake a judgement, based on the Agreement, about whether Rwanda is safe”. TheGovernment has overridden the vote. The Commons was denied a vote on the ratification ofthe treaty, despite a request from the cross-party Home Affairs Select Committee. TheRwanda Bill has now been passed by Parliament and the treaty was ratified on April 25.The problem raised by the CPTPP is of a somewhat different nature. The UK agreed itsterms of accession to the CPTPP in July 2023. It is a pre-existing free trade agreementbetween more than 10 partners in the Indo-Pacific region, including e.g. Australia, Canadaand Japan. As a pre-existing agreement much of its content was pre-determined, simplifyingscrutiny and enabling Parliament to meaningfully look at the agreement early on in theprocess.Parliament showed keen interest: While the economic benefits of the agreement are limited(the UK already has FTAs with all members but Brunei and Malaysia), it is of both strategicand symbolic significance. Accordingly, the IAC scrutinized the Government’s negotiatingobjectives in 2021.The International Trade Committee of the House of Commons (which was subsequentlyabolished when the Department for International Trade was axed) published an interim reporton accession in April 2023. The Accession Protocol to the CPTPP was finally laid beforeParliament on 19 February 2024 and both the IAC and the Commons Business and TradeCommittee published reports on the terms of accession in February 2024.Both Houses requested a debate on CPTPP within the CRAG period, but while such adebate was held in the House of Lords, it was not in the Commons. The Leader of the Housepointed out that holding debates on FTAs was subject to parliamentary time and that theimplementing legislation would pass Report stage on 19 March 2024 within the CRAG5/5period. It received royal assent as the Trade (Comprehensive and Progressive Agreementfor Trans-Pacific Partnership) Act 2024 on 20 March. But the implementing legislation issubstantially different from the agreement itself. On that, no debate was held during theCRAG period, unnecessarily tarnishing the legitimacy of the agreement.How can the treaty scrutiny procedure be reformed?What can be done to improve treaty scrutiny and remedy the obvious defects it currentlyhas?The PACAC Committee’s first proposal, with which our own report wholeheartedly agrees, isthat CRAG must be changed to ensure that the House of Commons must indicate its explicitconsent to international agreements before they can become binding on the UK. Thisconstitutes a paradigm change empowering Parliament and reflecting the core principle ofthe UK system: parliamentary sovereignty. Three additional changes are required, althoughin our opinion, these could be easily facilitated if the most significant change were agreed:Namely (i) the establishment of a systematic scrutiny system for treaties in both Houses ofParliament including a sifting mechanism in both Houses to identify treaties requiringthorough parliamentary engagement; (ii) the early involvement of Parliament in treaty-makingstarting with the negotiation mandate, and (iii) finally broadening the types of documentssubject to scrutiny, including e.g. certain Memoranda of Understanding and all treatyamendments.LICENSED UNDER CC BY-SA 4.0EXPORT METADATASUGGESTED CITATION  Hestermeyer, Holger P.; Horne, Alexander: The UK Parliament,the UK-Rwanda Agreement and the CPTPP: Why the UK Parliament’s Weak Role in Treaty-Making Needs Reform, VerfBlog, 2024/5/03, https://verfassungsblog.de/the-uk-rwanda-agreement-and-the-cptpp/, DOI: 10.59704/9d5e38f3f5ce6876.Explore posts related to this: Other posts about this region: Vereinigtes KönigreichLICENSED UNDER CC BY-SA 4.0

The UK Parliament, the UK-Rwanda Agreement and the CPTPP

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The UK Parliament, the UK-Rwanda Agreement and the CPTPP

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