Posts Tagged ‘UNITED KINGDOM’

Theodore Konstadinides and Lee Marsons: Covid-19 and its impact on the constitutional relationship between Government and Parliament.

The Coronavirus Act 2020, the UK’s most substantial legislative response to the Covid-19 pandemic, received Royal Assent yesterday after a fast-tracked procedure through both Houses. Indisputably, the pandemic falls within the range of situations under which it is constitutionally acceptable for Bills to be fast-tracked. While there is no corollary between an expedited piece of legislation and a bad piece of legislation, fast-tracking the Coronavirus Bill carries important implications for the constitutional relationship between Government and Parliament. Not least, parliamentarians had limited time to scrutinise legislation containing measures that have been described by the Bingham Centre for the Rule of Law as ‘the most sweeping powers ever taken by the UK Government outside of wartime’. But, in this context, the implications for the balance between Government and Parliament extend beyond the immediate passage of the Act. Therefore, while Tierney and King stressed the dilemma between safeguarding public health and the protection of individual liberties vis-a-vis fast-tracked legislation, the purpose of this post is to outline a number of concerns provoked by this pandemic on the Government-Parliament relationship more broadly, while also making some comments on the Act itself.

Since the increased power of the executive in relation to Parliament is an inevitable feature of fast-track legislation, the rule of law mandates effective parliamentary scrutiny in respect of both the way the Government will implement the new powers created under the Coronavirus Act as well as the detail in which Parliament will be updated about the reach of these powers across the UK. Two proposed amendments to the Bill tabled by David Anderson and Sarah Ludford in the House of Lords: one on the provision of meaningful information to Parliament would have gone beyond what is now Section 97 of the Act; and a second requiring that powers were exercised in accordance with the Human Rights Act 1998 and the Equality Act 2020, were both endorsed by positive ministerial statements (though not directly or publicly by a Cabinet Minister). With reference to meaningful information, the Minister, Lord Newby, committed the Government to providing an explanation in two-monthly reports laid before Parliament of the Secretary of State’s reasons for continuing to make use (or otherwise) of the provisions in Part 1 of the Act (as opposed to a mere report in accordance with Section 97 about whether the provision is in force and whether any power under subsection 3(b) has been exercised – the ‘switch on – switch off’ analogy made by David Anderson). With regard to compliance with the Human Rights Act 1998, the House of Lords’ proposed amendment included a new clause to be inserted in the Act entitled ‘Powers within the Act: necessity and proportionality’ While such a clause was not inserted in the final Coronavirus Act 2020, the Minister confirmed that the powers created will be exercised in accordance with the principles of necessity, proportionality and non-discrimination and in full compliance with human rights law. These statements provide some assurance as to the right balance being struck between the powers conferred on the Government and Ministers’ accountability to Parliament which are crucial in attaining the objective of constitutional propriety and legality despite the current emergency.

Despite ministerial promises that nothing in the Act contradicts constitutional principles, outside of the Act all the relevant coronavirus delegated legislation that we are aware of has been passed without recourse to Parliament, whether by using the positive or negative resolution procedure. This includes significant measures such as the Health Protection (Coronavirus) Regulations 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) (No 2) Regulations 2020, and the Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020. In each case, the Minister stated that for reasons of urgency it was not possible to lay the Regulations before Parliament prior to signature. This is despite the fact that some of this delegated legislation – such as s.3 of the Health Protection (Coronavirus) Regulations 2020 – create summary offences and require whole swathes of otherwise lawful economic activity to cease.

In addition, the current situation is unique in that the practical reality of social distancing and self-isolation measures mean that many MPs and peers cannot attend Parliament to scrutinise government in either chamber. Already on 19 March, the Lord Speaker’s statement on the UK Parliament’s response to the spread of COVID-19 was unequivocal:

[…] no-one should consider it is their duty to be here in present circumstances. As Parliamentarians we have a duty to show leadership and heed the clear advice of the public health experts. I would ask that everyone continues to reflect on their own situation in the light of that advice, for their own good and for the broader public interest.

Furthermore, on the 23 March 20220 the Speaker’s Statement on attendance and distancing accepted that while video conferencing could mitigate any inconvenience posed by social distancing and self-isolation measures, the work of Committees will be affected by a combination of the limited facilities available and staff absences:

We recognise the need to improve our video conferencing facilities to enable those working remotely to engage in Committee proceedings. Regarding evidence sessions, these facilities are currently limited, not least because the management of these sessions requires expert operators to produce audio-visual output of a suitable quality for broadcast use and Hansard transcription purposes. The teams who make such arrangements work are currently under—I do stress—significant strain because of staff absences. Further work in this area will be taken forward as a matter of priority over the Easter recess. Once the current situation has settled, I will commission a review to ensure we can develop systems to ensure we are ready and able to be more agile in the future.

The above social distancing and self-isolation measures and the lack of Parliament’s ability to replace in-person interactions with a virtual environment of online proceedings will no doubt have an important effect on the capacity of Parliament to scrutinise major developments, seek expert advice and hold the Government into account in the coming weeks and months.

Admittedly, some welcome developments have occurred. On 25 March 2020, for instance, the Speaker of the Commons provided a statement explaining that he was to permit Prime Minister’s Questions to run for one hour instead of the ordinary half an hour. This was to:

[…] serve as an effective replacement for separate statements on the situation of coronavirus. I will allow the Leader of the Opposition two sets of questions—he will have a total of 12, which I expect to be taken in two sets of six. Similarly, I will allow the leader of the second largest party four questions, in two sets of two. I will also, exceptionally, call a further question from an Opposition Front-Bench spokesperson.

Similarly, a number of parliamentary committees have initiated inquiries into the Government’s response to Covid-19. The Education Committee launched an inquiry on 26 March into the implications of coronavirus policy on education and children’s services, for instance, and the Joint Committee on Human Rights launched an inquiry previously into the human rights implications of the then Coronavirus Bill.

Nevertheless, these successes are made bittersweet now that Parliament has risen for an early Easter recess until 21 April 2020. While parliamentarians can submit written parliamentary questions during a recess (p.11) and committee inquiries can continue (or, at least, in the limited way that they can be continued), optimal scrutiny of Government is less likely to be achieved if parliamentarians cannot utilise all of the parliamentary tools at their disposal. Parliamentarians can no longer ask oral ministerial questions during a recess, for instance. This will carry significant implications for parliamentary scrutiny of executive action with regard to the ability to question Ministers about decision-making and policy development, which is naturally changing daily – perhaps more frequently. To provide an important topical example of this, on 25 March 2020, Jesse Norman MP, the Financial Secretary to the Treasury, was asked by Lloyd Russell-Moyle, Labour MP for Brighton Kemptown, how the Government would be scrutinised by Parliament as to its financial support for the self-employed, to be announced after the recess started. The Minister’s response was:

When such a package is brought forward, there will be ample opportunity to debate and discuss it in the House when it returns. Before that, the Government will be held to account in the public square in the usual way, and Ministers are available for direct interrogation by any Member of Parliament who wishes to contact them.

Nevertheless, Russell-Moyle was not satisfied with this response:

It is a shame that the parliamentary authorities have not managed to get their act together to organise an electronic, online continuation of proceedings. During a recess in normal times, in a crisis, we would be recalled, and this is a crisis, so we should be able to continue our work. For Ministers to ask for our work to continue through correspondence is not satisfactory.

Russell-Moyle was perhaps correct in his pessimistic assessment. On one day – 24 March 2020 – there were 181 references to ‘coronavirus’ in written parliamentary questions asked by MPs to Ministers. Given the limited time and resources available to Ministers and their officials, it does not seem likely that written questions will provide a panacea to other lost parliamentary opportunities – whether committees which cannot continue as usual or oral questions which cannot proceed at all.

As regards the duration of the Act’s provisions, Section 88 of the Coronavirus Act 2020 allows a Minister to suspend (repeal) or revive (save to provisions set out in subsection 6), more than once, any provision of the legislation by passing a Regulation. This appears to be a wide power encroaching upon Parliament’s legislative authority and sovereignty and it is further amplified by subsection (5) which provides that the Minister can pass Regulations for different purposes, on different days in different areas; and can make technical transitional, transitory and savings provisions. Last but not least, despite the two-year sunset clause in Section 89 of the Act, Section 90(2) provides that a Minister can extend (for up to six months at a time) or terminate any of the respective Regulations beyond two-years. This seems to be necessary in the face of the pandemic but since emergency powers are meant to give the Government a temporary boost, there is no valid reason why Parliament cannot get back in the game and manage the effects of the Covid-19 pandemic when authorities start easing the current lockdown.

All in all, the nature and scale of the Coronavirus Act 2020 is extraordinary. While the current measures may have some effect in enabling the Government to respond to a public health emergency and manage the effects of the pandemic, they are encroaching upon Parliament’s territory and endanger the principle of the separation of powers. While the delegated powers in the Act are broad and the extent and effectiveness of the new powers under the Coronavirus Act 2020 is unclear, the Government is under a duty to provide clarity about their use across the UK as well as the necessity of the relevant compliance measures that it will adopt in the near future.

Theodore Konstadinides is Professor of Law at the University of Essex. Lee Marsons is a Graduate Teaching Assistant in Public Law and a PhD candidate at the University of Essex

(Suggested citation: T Konstadinides and L Marsons, ‘Covid-19 and its impact on the constitutional relationship between Government and Parliament’, U.K. Const. L Blog (26th March 2020)(available at https://ukconstitutionallaw.org).

Stephen Tierney and Jeff King: The Coronavirus Bill

Today the House of Lords Constitution Committee reports to the House on the Coronavirus Bill. This is an emergency measure introduced in the Commons last Thursday. It passed through its Commons stages on Monday and came to the Lords today with a view to its enactment tomorrow.

The context of a global pandemic, now being felt in every household in the United Kingdom, creates a paradox for constitutionalists. On the one hand, the UK and devolved governments must be empowered quickly with the tools they need to protect public safety; on the other, hasty law-making can lead to confusing or ineffective law, and, more consequentially, the undermining of individual liberties. It is with this balance in mind that the Committee addresses the Bill.

The Bill is complex and lengthy, containing 87 clauses and 27 schedules. It has significant potential constitutional and civil liberties implications in relation to powers of detention and quarantine, restrictions on free assembly and the conduct of criminal trials. It also creates extensive delegated powers, including Henry VIII powers, that are subject to limited, and in some cases no, parliamentary scrutiny. It inevitably implicates devolution, according wide powers to the three devolved executives, all to be coordinated through the Civil Contingencies Committee (COBR). The challenges facing parliamentary staff and legal advisers in assessing its implications were considerable.

The Committee is aware of the pressing crisis that has led to this Bill and potential constitutional objections to which it gives rise are viewed through this prism. The Committee endorses the purpose and content of the Bill. Nonetheless, it does identify a number of concerns which it draws to the attention of the House and asks the Government to address.

The Bill is of course a fast-tracked measure. The Committee has been critical of this process and of its increased usage in recent times. However, in noting that this procedure is acceptable “only in exceptional circumstances and with the agreement of the usual channels”, the Committee concludes: “The coronavirus pandemic fulfils these criteria”.

A danger with emergency legislation, particularly when it is fast-tracked and denied adequate parliamentary scrutiny, is that it is then difficult to remove from the books.  The published Bill had a sunset clause of two years, extendable by six months (clause 75). The Government agreed to an amendment, to the effect that its powers expire after six months, any subsequent renewal falling subject to Parliament’s consent. Also, a number of measures in the Bill are subject to more restrictive sunset provisions, while the Bill further provides for the possibility of early repeal. The Committee concludes: “The inclusion of sunset provisions in the Bill is essential. Two years would have been too long for these powers to have operated without re-approval by Parliament and we welcome the cross-party agreement to reduce the period to six months.”

The Bill is replete with delegated powers. These are broadly framed, include Henry VIII powers, and are often subject to limited or no form of parliamentary scrutiny. The Delegated Powers and Regulatory Reform Committee in its report to the House of Lords stated (at para 28) that “had the country not been in the midst of a developing national emergency, there are powers in this Bill, including far-reaching Henry VIII powers, about which our commentary would have been far more trenchant and our recommendations far more robust.” The Constitution Committee agrees but in doing so emphasises the need for oversight:

The delegated powers in the Bill are very broad and would not be acceptable save for the exceptional circumstances. The sunset clause, robust parliamentary scrutiny of the powers, and adequate provision for administrative and judicial oversight are imperative for the granting of such significant powers to ministers.

The powers given to Government are nonetheless extraordinary and the ensuing risk to civil liberties significant. The Secretary of State has the power to suspend relevant port operations, including airports. This can be done by direction on a subjective basis, where she is satisfied that “there is a real and significant risk” (Schedule 19, paragraph 1) that justifies such a course of action. These directions may only last six hours subject to renewal, but their potential length is indefinite. The Committee is concerned about the lack of oversight in the making of such directions, and accordingly states: “It is essential for the purpose of accountability that the exercise of this power to issue directions is subject to judicial review in the High Court. We would welcome confirmation by the Government of our understanding that this is the case.”

More broadly, the Bill has the potential to affect civil liberties in a number of important areas: the detention or quarantining of individuals, the registration of deaths and the disposal of human remains, the closing of ports, restrictions on free assembly and the conduct of criminal trials. Each of these areas is accompanied by broad powers either on the face of the Bill or in the form of delegated law-making powers. As the Committee notes, the impact of these powers “cannot readily be assessed until they are used.” Therefore, it is “essential that the Government exercises these significant powers in a proportionate and non-discriminatory way.” The Committee draws attention to one particular power, in paragraph 5 of Schedule 7. This power effectively licenses unlimited periods of detention for those within the hospital system; just one of a broad range of powers given to health care staff or the Secretary of State, often based upon considerably reduced levels of medical certification. The Committee states that: “The Government should explain how it intends to use this power, how it will do so proportionately and how lengthy and potentially unjustified instances of detention can be challenged.” This recommendation ought, in our view, to apply more broadly to many of the powers created by the Bill. Further clarification by the Government and a full explanation of how these powers are to be used, and in due course are being used, should be a priority for the Government and for devolved administrations given equivalent authority.

The constitutional implications of all of these measures are potentially exacerbated by the particular circumstances of the Coronavirus pandemic and its practical effects. In relation to any emergency measure such as this, there are two safeguards upon which the constitution ultimate relies: parliamentary oversight and legal accountability. It is a pathology of the current crisis that the health crisis may come to impede both of these avenues of constitutional protection.

One significant risk is that broad Government powers may be exercised without oversight due to the physical restrictions that may come to restrict the operation of Parliament itself. The Delegated Powers Memorandum makes clear that it is envisaged that Parliament may be unable to sit, even as late as two years into the operation of the Bill’s provisions. Similar closures would inevitably also affect the Welsh Assembly, Scottish Parliament, and Northern Ireland Assembly. Even if the legislatures are functioning, the participation of members may be restricted at various periods, and for a long time to come. The Committee notes that the Bill makes no provision for such an eventuality. It concludes therefore that: “We will wish to consider how best to ensure that scrutiny and accountability are maintained in these exceptional circumstances.” This is clearly a challenging proposition but one which Parliament must remain alive to as the crisis deepens.

The Committee also observes that: “The constitutional propriety of these measures depends upon the continued effective operation of standard processes of administrative and judicial oversight. Parliament must ensure that such review procedures continue to function properly and make this a central consideration in its periodic reviews of the powers.” However, the issue that affects the physical sitting of Parliament is now also affecting the courts. The Bill provides powers to extend the use of audio and video technology in the running of magistrates courts (clauses 51-55). This does not extend however to the High Court. It is of course the case that judicial review proceedings operate increasingly on the basis of electronic submissions and paper-based decision-making. Nonetheless, it is imperative that, if the powers in the Bill are to be properly regulated, a properly-functioning court system remains in place with adequate resources available to citizens to challenge the excessive use of executive power. The Committee states that, since the High Court is likely to be affected by closures during the Coronavirus epidemic: “The Government and Her Majesty’s Courts and Tribunal Service should set out how it plans to ensure that all legal proceedings, including judicial review, will continue to be facilitated, even by video-link, during such disruption.” The Committee makes two further sets of recommendations. The first relates to access to the High Court, which includes possibly providing by way of regulations that there is relatively uninhibited access to the High Court and that the normal rules on adverse cost orders are relaxed. The second relates to making administrative adjustments to how legal aid is operated in relation to challenges to the exercise of powers under the Bill’s provisions.  It recommends that legal aid applications in respect of such challenges be given priority and that evidentiary hurdles in connection with such applications be relaxed. On the whole, the Committee concludes: “We recommend the Government considers how the role of the High Court and the process of judicial review can be strengthened and supported in the exceptional circumstances of the coronavirus epidemic.”

The Committee recognises that the Bill is an essential measure and that it enjoys cross-party support, as does the fast-tracking process required to expedite its passage. The crisis facing citizens today is more immediate and real than the abstraction of constitutional propriety. But constitutionality is in the end the shield that guarantees liberty as well as life. It was incumbent upon the Committee, as it is upon Parliament and the courts going forward, to ensure that the response of those who govern, while of vital importance to the country’s wellbeing during the Coronavirus pandemic, remains proportionate in its reach. 

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh. Jeff King is Professor of Law at University College London. They both serve as Legal Advisers to the House of Lords Constitution Committee. They have written this post in purely personal capacities.

(Suggested citation: S. Tierney and J King, ‘The Coronavirus Bill’, U.K. Const. L. Blog (24th March 2020) (available at https://ukconstitutionallaw.org/))

British supermarkets impose limits as panic buying spreads

Britain's biggest supermarkets, Tesco, Sainsbury's and Asda, imposed limits on purchases of pasta, toilet roll and long life milk on Wednesday (18 March) after alarmed shoppers stripped shelves bare to hoard for possible isolation in the coronavirus outbreak.

Treaty scrutiny -A brave new frontier for Parliament

On Tuesday 17 March, the  House of Lords endorsed a report by the Procedure Committee which has the effect of establishing a new Committee tasked with scrutinising international agreements, or treaties, that are negotiated and signed by the UK in 2020.

Treaty scrutiny has long been a challenge for the UK Parliament, but it is a crucial and developing area as competencies return to the UK post-Brexit. This short post assesses how Parliament has come to play a more significant role in the scrutiny of international agreements and looks ahead at some of the future challenges that may arise.

The treaty-making power of the Crown is a prerogative power, traditionally exercised by the Foreign Secretary. Parliament need not consent to the Crown entering into a treaty. Under the ‘Ponsonby Rule’ – introduced in 1924 – a treaty subject to ratification, or analogous procedure, was notified to Parliament alongside a short explanatory memorandum. Although it could be debated, Parliament had no power of veto.

That element of the Ponsonby Rule was codified into statute under the Constitutional Reform and Governance Act 2010 (“the CRAG Act”) – described by former Foreign Office Deputy Legal Adviser Anthony Aust as an “unnecessary” and “much more cumbersome” procedure (Modern Treaty Law and Practice (3rd Edition, CUP, 2013), p168).

In fact, while Part 2 of the CRAG Act places some, modest, burdens on the Government, these can hardly be described as onerous. Under the CRAG Act, the Government must lay the agreement for 21 sitting days and provide an explanatory memorandum “explaining the provisions of the treaty, the reasons for Her Majesty’s Government seeking ratification of the treaty, and such other matters as the Minister considers appropriate.”

But Parliament has no power to preclude the ratification of a treaty if it does not agree that the new agreement would be in the public interest. And while the CRAG Act provides the House of Commons with a theoretical power to delay the ratification of an agreement, this has never been used, and can be sidestepped entirely in “exceptional cases.” Moreover, the obligations on the Government only arise once an agreement has been signed – which is far too late in the process to influence the outcome.

Under its dualist system, then, the only real influence that Parliament currently has is to refuse to enact the legislation, whether primary or secondary, necessary to implement an agreement in domestic law prior to ratification. However, not all agreements will require legislation, and Parliament’s scrutiny of secondary legislation is subject to sufficiently extensive criticisms that it is not necessary to rehearse the arguments here.

The new challenge for Parliament

The deficiencies in Parliament’s scrutiny of international agreements have not gone unobserved. In 1998, Professor Robert Blackburn stated that Westminster was the “only parliament in the European Union that lacks a formal mechanism for securing parliamentary scrutiny and approval of treaties.” He noted a Labour Party policy paper as far back as 1993, entitled “A New Agenda for Democracy”, which argued for extending Parliament’s control over treaties (The Law and Parliament (Butterworths 1998), p188-9). Little changed after the passage of the CRAG Act, and in 2016, Arabella Lang noted that it did “nothing new to help Parliament scrutinise treaties effectively” (Parliament: Legislation and Accountability (Hart 2016)).

But, post-Brexit, the UK finds itself in a wholly new position. As an EU Member State, much of the work negotiating agreements was done on our behalf. Agreements were scrutinised in detail by the European Parliament, including UK MEPs, and the European Parliament had veto powers in respect of certain agreements under Article 218 of the Treaty on the Functioning of the European Union. On the domestic front, the European Committees of both Houses (the European Union Committee and the European Scrutiny Committee) scrutinised the decisions made by UK Ministers at the main EU decision making body – the Council. These mechanisms have now come to an end following our exit from the European Union on 31 January 2020.

In a paper published by Policy Exchange in 2020, taking account of Brexit, the former First Parliamentary Counsel, Sir Stephen Laws, noted arguments in favour of parliamentary scrutiny of treaty negotiations and suggested the creation of a “supervisory committee … on the model of the Intelligence and Security Committee” which could “provide private challenge to the Government’s negotiating strategy” while providing “reassurance to Parliament” (p.16).

Domestic Parliamentary scrutiny by Committees is currently very limited. Until 2019, the only systematic scrutiny of treaties was conducted by the House of Lords Secondary Legislation Scrutiny Committee (SLSC), which began to scrutinise treaties in the 2014-15 Parliamentary session. In written evidence to the Lords Constitution Committee, in 2019, the SLSC indicated that it had considered 69 treaties since 2014-15, had reported 18 of them for information and had not drawn any of them to the special attention of the House.

Since 2019, the Lords EU Committee has scrutinised all ‘Brexit-related’ treaties. It has produced 22 reports looking at more than 50 agreements, many of them seeking to replicate, or ‘roll over’ trade agreements the EU had with third countries. 2019 also saw the first debate following a motion under the CRAG Act. However, a blog in 2019 by Holger Hestermeyer notes that there “is no equivalent systematic scrutiny [mechanism] in the Commons” for the Government to engage with.

Both the EU Committee and the Constitution Committee have recently produced reports on parliamentary scrutiny of treaties more generally, agreeing that there was more that could be done. In its report, Scrutiny of International Agreements: Lessons Learned, the EU Committee concluded that the CRAG Act is “poorly designed to facilitate parliamentary scrutiny” and that the timetable of 21 sitting days for scrutiny “is too short to allow for proper consultation or engagement by committees.” Such consultation and engagement will be vital to inform scrutiny of agreements that will affect every sector of the UK’s economy.

In its report, Parliamentary Scrutiny of Treaties, the Constitution Committee endorsed the creation of a new treaty scrutiny select committee which could “sift all treaties, to identify which required further scrutiny and draw them to the attention of the Houses”, with the power to “secure a debate on treaties it deems significant.” (Mark Elliott and Stephen Tierney have provided an analysis of that report here on this blog previously.)

Parliamentary scrutiny is important because treaties increasingly have a direct effect on daily life in the UK. Over the next year, we expect the Government to negotiate important trade agreements with the United States, Japan and other major economies. These agreements may affect jobs, and the price and availability of goods in the shops.

New agreements can also affect the role of Parliament by requiring legislation to be passed by Parliament, or by preventing a future Parliament from passing legislation which would place the UK in breach of its international law obligations.

The Department for International Trade (DIT) has already acknowledged the importance of engaging with Parliament at an earlier stage when it negotiates agreements. Proposals for closer engagement have featured in a series of papers published in February and July 2019 and most recently in March 2020. In a debate in the House of Lords on 16 March 2020, these commitments were noted in an amendment moved by Baroness Hayter of Kentish Town (eventually withdrawn). Although the context of that debate was the UK-EU negotiations, the commitments made by DIT, and the expectations of the House about Parliament’s involvement, will be important in respect of all future agreements.

In its paper ‘UK-US Free Trade Agreement’, DIT republished an earlier, helpful, suggestion that it would publish an outline approach “which will include our negotiating objectives.” It also said that it would provide specialist committees of Parliament with access to “sensitive information” and “private briefings from negotiating teams” to ensure that parliamentarians can follow negotiations and take a comprehensive and informed position on any final agreement.

But it must be stressed that treaty scrutiny is not only about trade. Agreements can encompass security, the environment and many other issues of public interest. Going forward, it will be essential that the UK Parliament is well informed about all new international agreements. It is also important that the Government engages with the devolved administrations and legislatures, which will have a legitimate interest in the agreements that are struck on their behalf – particularly where they engage with competencies that have been devolved to Scotland, Wales and Northern Ireland.

Conclusion

The new International Agreements Committee will work under the umbrella of the House of Lords EU Committee in 2020, taking on the remaining ‘roll over’ agreements post-Brexit as well as the new international agreements on which the UK Government has now begun work. It will have a vital role in ensuring that these new agreements get the scrutiny they deserve. It will need to establish good working relationships with both the Foreign Office and DIT; will need to devise information sharing protocols so that Parliament’s role is not reduced to a rubber-stamp after an agreement has been signed; and develop ways to engage with stakeholders who will be affected by the new agreements that are being negotiated. Although the Lords will still not have the power to delay ratification substantially, in the Lords the IAC will have a better chance of securing the necessary time for debates on significant treaties, meeting one of the Constitution Committee’s key recommendations. This new committee provides an opportunity, then, but the difficult precedent of agreeing a Withdrawal Agreement with the European Union demonstrates that we should not underestimate the challenges ahead.

The authors would like to thank Dr Holger Hestermeyer of King’s College London for his helpful comments on a draft of this post.

Alexander Horne is a barrister (Lincoln’s Inn) and is the Legal Adviser to the European Union Committee and the new International Agreements Committee.

Dr Dominique Gracia is the Clerk to the International Agreements Committee.

Both authors write in their personal capacities.

(Suggested citation: A. Horne and D. Gracia, ‘Treaty Scrutiny – A Brave New Frontier for Parliament’ U.K. Const. L. Blog (18th March 2020) (available at: https://ukconstitutionallaw.org/blog/))

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