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

On April 1, 2024, the Ponsonby Rule, the constitutional convention that set the standard for Parliament’s role in how the UK makes treaties, turned 100. But the procedure for Parliament’s involvement in treaty-making (which really only amounts to treaty scrutiny) is no longer fit for purpose and Parliament is increasingly unhappy with it.

Unlike Congress and the European Parliament, the Westminster Parliament does not have a veto power for treaties, nor can it insist on having a debate on them. The statutory rules for scrutiny limit the available time for scrutiny and suffer from a plethora of other weaknesses. The House of Commons Public Administration and Constitutional Affairs Committee called for reform in a 2024 report, but the Government has largely rejected the Committee’s proposals. However, the issues remain, as illustrated by the UK’s ratification of a treaty on asylum with Rwanda on April 25 overriding the will of the House of Lords and the Government’s refusal to grant the Commons a substantive debate under the Constitutional Reform and Governance Act 2010 on either the Rwanda treaty, or the UK’s accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

We describe the status quo in a report we produced for the Centre for Inclusive Trade Policy and advance proposals for improving treaty scrutiny allowing for greater transparency and legitimacy. 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 international agreements before they can become binding on the UK.

The Ponsonby rule and the current statutory regime for treaty scrutiny by the Parliament

The origins of the UK’s current system on treaty scrutiny go back to 1 April 1924, when the then Parliamentary Under-Secretary of Foreign Affairs Arthur Ponsonby committed the Government to “lay on the table of both Houses of Parliament every treaty, when signed, for a period of 21 days, after which the treaty will be ratified and published and circulated in the Treaty Series”.

In 2010 this rule was codified and progressively developed in Part 2 of the Constitutional Reform and Governance Act 2010 (CRAG). Under the statutory scheme the Government has to lay international agreements subject to ratification before Parliament for 21 sitting days before it can ratify the agreement. Alongside the treaty, it has to provide an explanatory memorandum.

Under section 20 of CRAG, both Houses of Parliament can resolve against ratification of the Treaty, but CRAG does not provide either of them with a veto power. The Commons has a theoretical power to delay ratification (which has never been used in practice). The Lords is denied even this limited capability. Section 21 of CRAG provides the Government with the ability to waive the scrutiny procedure altogether.

While Parliament does not have a vote on treaties, it may have to pass implementing legislation if relevant powers do not exist in domestic legislation. To ensure that the UK is in compliance with a new treaty when it enters into effect, convention demands the necessary implementing 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. The number of treaties has multiplied. So have the topics that states consider appropriate for concluding treaties: today, hardly any area of national law is untouched by international obligations ranging from trade to human rights, from the environment to air services. With the enlarged scope of treaties, their very nature has changed as well: modern treaties enter deeply 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 to make sure it can fulfill its functions even as facts on the ground evolve. One may lament this fact – and looking at the news, some commentators certainly do. But reality has passed them by. From the International Maritime Organization to the World Health Organization, from the Codex alimentarius to the International Telecommunication Union numerous documents that affect 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 vote in Parliament to democratically legitimize them. Many jurisdictions provide for an up-or-down vote in Parliament. The UK does not. The argument that the UK is a dualist system and accordingly it is the implementing laws, not the treaty that affect our lives falls flat in a world of living treaties. Decisions and even interpretations by treaty bodies often require implementing legislation years after the treaty came into effect. But even where that is not the case and the UK already has the necessary legislation in place, treaties make a difference: a treaty can lock in the regulation already in place. If Parliament changes it, the Government will either have to achieve a change in the treaty commitment – or it puts the UK in violation of the treaty.

The second challenge to the existing system is one of complexity. Free trade agreements are emblematic 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 21 sitting 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 five years, following Brexit. The reason is a counterintuitive one. When the UK was a member of the EU, the most complex modern international agreements, free trade agreements, were handled by the European Union under its exclusive competences. And for EU acts, the Westminster Parliament had developed a stronger scrutiny mechanism than it has now that the Government is exercising those competences.

But Parliament has not been entirely idle. In 2020, Parliament established a formal treaty scrutiny mechanism in the House of Lords EU Committee. The task was split off from the EU Committee and became the responsibility of the International Agreements Committee (IAC) as a stand-alone select committee in January 2021. Things were more difficult in the Commons, where committees tend to mirror Government departments – and no dedicated scrutiny mechanism has developed. With regard to agricultural aspects of free trade agreements, statute law requires a report by the independent Trade and Agriculture Commission 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 the traditional framework. The Government has made some commitments that would provide for some improvement, but they are not the gamechanger that is needed to bring treaty scrutiny into 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 push to ratify the UK-Rwanda Agreement on asylum and the CPTPP. The former agreement was drafted after the Supreme Court had found the Government’s policy “that certain people claiming asylum in the United Kingdom should not have their claims considered here, but should instead be sent to Rwanda in order to claim asylum there” unlawful.

Instead of abandoning the policy, the Government doubled down, proposing legislation that declares Rwanda safe; prohibiting courts from considering evidence to the contrary; and negotiating the UK-Rwanda agreement that is meant to create mechanisms and guarantees for appropriate treatment of asylum seekers.

While the bill made its way through the legislative process, on January 22, 2024, the House of Lords resolved against the treaty. It was the first time either House considered a motion under section 20 of CRAG – and the chair of the IAC, Lord Goldsmith KC, used the opportunity 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 while the 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 “until the protections it provides have been fully implemented, since Parliament is being asked to make a judgement, based on the Agreement, about whether Rwanda is safe”. The Government has overridden the vote. The Commons was denied a vote on the ratification of the treaty, despite a request from the cross-party Home Affairs Select Committee. The Rwanda 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 its terms of accession to the CPTPP in July 2023. It is a pre-existing free trade agreement between more than 10 partners in the Indo-Pacific region, including e.g. Australia, Canada and Japan. As a pre-existing agreement much of its content was pre-determined, simplifying scrutiny and enabling Parliament to meaningfully look at the agreement early on in the process.

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 strategic and symbolic significance. Accordingly, the IAC scrutinized the Government’s negotiating objectives in 2021.

The International Trade Committee of the House of Commons (which was subsequently abolished when the Department for International Trade was axed) published an interim report on accession in April 2023. The Accession Protocol to the CPTPP was finally laid before Parliament on 19 February 2024 and both the IAC and the Commons Business and Trade Committee published reports on the terms of accession in February 2024.

Both Houses requested a debate on CPTPP within the CRAG period, but while such a debate was held in the House of Lords, it was not in the Commons. The Leader of the House pointed out that holding debates on FTAs was subject to parliamentary time and that the implementing legislation would pass Report stage on 19 March 2024 within the CRAG period. It received royal assent as the Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Act 2024 on 20 March. But the implementing legislation is substantially different from the agreement itself. On that, no debate was held during the CRAG 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 currently has?

The PACAC Committee’s first proposal, with which our own report wholeheartedly agrees, is that CRAG must be changed to ensure that the House of Commons must indicate its explicit consent to international agreements before they can become binding on the UK. This constitutes a paradigm change empowering Parliament and reflecting the core principle of the UK system: parliamentary sovereignty. Three additional changes are required, although in 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 of Parliament including a sifting mechanism in both Houses to identify treaties requiring thorough parliamentary engagement; (ii) the early involvement of Parliament in treaty-making starting with the negotiation mandate, and (iii) finally broadening the types of documents subject to scrutiny, including e.g. certain Memoranda of Understanding and all treaty amendments.