Parliamentary scrutiny of international agreements should not be limited to legally binding treaties

Last week, the Constitution Unit published a blogpost which posed five key questions for the Conservative leadership contenders, one of which focused on rebuilding parliament’s scrutiny role. In this post, David Natzler and Charlotte Sayers-Carter argue that such scrutiny should include telling parliament about politically significant international agreements it has made and allowing for oversight and the expression of dissent.

On 11 May Prime Minister Boris Johnson signed bilateral security agreements with Sweden and Finland. At that time both countries were actively considering applying for membership of NATO, which they did together a week later, on 18 May. Once objections by Turkey to their membership had been dealt with, NATO agreed to these applications at its June meeting in Madrid. Now they have been admitted, the necessary amending Protocols to the North Atlantic Treaty will be laid before parliament. Under the terms of Part 2 of the Constitutional Reform and Governance Act 2010 (CRaG), it is usual practice that the government can ratify a Protocol unless there has been a parliamentary objection within 21 sitting days. NATO expanded to include the Baltic states in 2004, Montenegro in 2016 and North Macedonia in 2019. On none of these occasions was positive assent given by parliament; in the absence of dissent within 21 days of their laying, the Protocols were duly ratified. However, viewing the current circumstances as an ‘exceptional case’ to which the 21 day requirement can be disapplied under section 22 of CRaG, the government intends to proceed with ratification before parliament breaks for summer recess.

The 11 May agreements may have looked like stopgap measures, an interim bilateral version of the regime of multilateral mutual protection offered under Article 5 of the NATO treaty, but the Prime Minister explicitly said that they were not, and the leaders of both countries went out of their way to assert that the agreements would make their countries more secure. Although appended to both agreements were confirmations that they did not give rise to legally binding commitments under international law, they have been described as ‘solemn declarations’. While the UK might very well have been expected in any event to have come to the assistance of either country in an emergency if a request had been made, the situation following the signing of these agreements was different, in that there was a real prospect that British armed forces could have been actively engaged in coming to the assistance of these hitherto neutral countries as a fulfilment of these agreements.

International agreements and parliament: from Ponsonby to CRaG

Treaties are made under the powers of the royal prerogative: so are political agreements. Publication of treaties has been the general practice since the 1890s. In 1924 the new Labour government came to power committed in principle to democratic control of foreign policy, an issue heightened in the aftermath of the First World War by the revelation of some of the web of secret treaties and agreements which were blamed for its outbreak. On 1 April 1924 Arthur Ponsonby, the Under Secretary of State at the Foreign Office, in his speech moving the second reading of the Treaty of Peace (Turkey) Bill, set out a new regime. This mandated a 21-day period during which parliament could raise objections to a treaty text prior to any ratification. This regime was not established in statute or by a Resolution of either House, but as an administrative measure under the control of ministers. The absence of approval was to be accepted as sanction for ratification. And so in broad terms it remained, until in 2010 this regime was put into statute in CRaG.

Unlike treaties, non-legally binding agreements are not subject to parliamentary oversight. Section 25 of CraG explicitly excludes non-legally binding agreements from the 21 day mechanism. As a result there is no statutory obligation on the government to inform parliament of such agreements or even publish them informally. On this occasion, they have indeed been published by the Foreign, Commonwealth and Development Office (FCDO); keeping them in any way secret would of course have been self-defeating, as their evident purpose was to deter Russia from an attack on either of these two countries. Unlike the Memorandum of Understanding (MoU) on sending asylum seekers to Rwanda, which is highly controversial and similarly falls outside parliamentary approval regimes, the two agreements seem to command general public support. But the issues are much the same. Should parliament be informed of such agreements and have some role in their approval – or disapproval? Is it right to leave to the government the untrammelled power to come to agreements of such potential significance, without parliamentary oversight? Or should it just be left to ministers to decide whether to keep parliament informed?

It is rare but not unprecedented for the UK to give such guarantees to another country. In March 1939 the security situation in Europe was dire. It had become blindingly obvious that Hitler’s assurances at Munich in 1938 that the Sudetenland represented the limit of Germany’s territorial ambitions were meaningless. Czechoslovakia was dismembered under German rule; Poland and Hungary picked up some of the pieces. In 1939 Germany seized the city and region of Memel from Lithuania. The biggest threat seemed to be to Poland, where German claims to the Free City of Danzig threatened its territorial integrity. In this febrile atmosphere, the British Prime Minister Neville Chamberlain told the House of Commons at the end of business on Friday 31 March 1939 that the Government had given an assurance to the Polish Government that it would feel bound at once to lend them ‘all support in their power’ in the event of any action which clearly threatened their independence. This undertaking fell well short of a treaty and seems to have been intended as an interim agreement while further discussions took place. In August 1939 an Anglo-Polish Agreement along these lines was signed. Similar assurances were given in April 1939 to Greece and Romania. These agreements did not require parliamentary assent: any more than did the ultimatum to Germany on 3 September 1939 and, on its expiry, the subsequent declaration of a state of war. Though the precise boundaries of the war powers convention remain unclear, it is today likely that parliament would at least be given an opportunity to decide on the commitment of forces, yet as in 1939 not on the agreements which lay behind that commitment.

International agreements and parliamentary scrutiny after Brexit

Following the UK’s withdrawal from the EU much thought has been given, and academic expertise deployed, as to how the UK Parliament should scrutinise a mass of treaties with foreign countries, predominantly trade treaties, a task which for 45 years had fallen on the European Parliament. The principal outcome has been the creation in the House of Lords of an International Agreements Committee (IAC), since 2021 a free-standing scrutiny committee, chaired by Baroness (Dianne) Hayter of Kentish Town, and including among its members Lord (John) Kerr of Kinlochard, formerly Permanent Secretary at the Foreign Office. It has twin terms of reference: to scrutinise all treaties laid under the terms of Part 2 of CRaG, and to consider the government’s conduct of negotiations with states and other international parties. It does sterling work in wading through a large number of treaties and legal agreements on anything from ballast water management to the Trans-Pacific Partnership.

After engaging in dialogue with the Department for International Trade during the passing of the Trade Act 2021, the IAC has recently been successful in introducing a new framework for parliamentary involvement in the pre-negotiation, negotiation, and post-signature stages of new Free Trade Agreements. But this dialogue has not been productive in respect of non-binding political agreements. The IAC is currently in dispute with the FCDO as to whether CRaG supplanted the entirety of the Ponsonby Rule or whether the government remains obliged by convention to inform parliament of significant non-legally binding arrangements. After setting out the 21 day mechanism for treaties that required ratification, Ponsonby told the House of Commons that the government desired that parliament should also exercise ‘supervision over agreements, commitments and understandings which may in any way bind the nation to specific action in certain circumstances, and which may involve international obligations of a serious character, although no signed and sealed document may exist’ and pledged that during the Labour government’s term of office these would be reported to parliament.

The inclusion of this element of Ponsonby’s statement in the Ponsonby Rule was explicitly rejected in 1957 by Conservative Foreign Secretary Selwyn Lloyd, who stated that ‘the only category of instrument in respect of which Mr Ponsonby’s declaration has ever been translated into practice by any subsequent Government are treaties subject to ratification.’ That is not to say that governments did not and do not voluntarily publish agreements and other instruments not subject to ratification: indeed the UK’s declaration to the International Court of Justice which had been the origin of the dispute in 1957 had been tardily published in August 1957 as a White Paper. But the distinction drawn then has survived within the FCDO, between an accepted obligation to publish treaties and an optional regime of publication of non-binding agreements.

This Foreign Office view was recently restated by FCDO Minister Amanda Milling in a letter to the Chair of the IAC. While acknowledging that the ‘Government and the Committee have different views on the content and status of the Ponsonby Rule’, it denied that ‘there has ever been a constitutional convention in the UK whereby non-legally binding arrangements are routinely published or submitted to parliamentary scrutiny’. It grudgingly accepted that ministers might draw to parliament’s attention non-legally binding arrangements which raised questions of public importance, but asserted that the criteria by which ministers may decide to do so varies according to the agreement in question.

What process should there be for non-binding agreements?

Sensible arguments have been made that there are avoidable negative consequences of a lack of scrutiny in this area and that reform is needed. Giving parliament a formal power to disapprove such agreements would seem unnecessary, so long as an opportunity exists for debate and clear decision on a motion in either House which can express a view on an agreement. Politically, no agreement could survive a hostile vote, whatever the legal niceties. Nor should it be necessary that all of the thousands of agreements made every year should be formally laid before parliament with accompanying memoranda, as is the case for treaties. It would after all be monstrous if ministers were actively concealing from parliament the texts of important non-legally binding agreements, merely because they are not formally required by statute to lay them before parliament. It really should not be necessary to impose detailed criteria for when parliament is informed of matters of such public importance. If there is any doubt, Ponsonby’s definition of the nature of the agreements which should be laid is a good starting point. The sanction is political: if agreements emerge which hindsight suggests should have been laid and were not, there would be a political price to pay. Imagine if the Rwanda asylum seekers’ MoU or the Nordic countries’ security agreements had only come to light subsequently, or if a future workaround of the constraints of the Northern Ireland Protocol were to be buried in some unpublished non-legally binding agreement.

What is now required are Resolutions of both Houses – potentially in the form of Addresses to the Crown, since the prerogative is technically engaged – to the effect that non-legally binding agreements which raise matters of political importance should be formally reported to parliament, and the opportunity given to debate them on a substantive motion where there is demand to do so. That would not make them subject to a statutory process, but would facilitate critical scrutiny. Members of both Houses might be surprised to learn that such documents were not already being laid. It does not really signify whether the government is or is not bound by the historic arrangements introduced almost a century ago, nor whether the statutory codification in 2010 of the main Ponsonby Rule on treaties in some sense overrode a convention on handling of other agreements. The question is quite simply whether the government should now be doing the right thing by telling parliament about politically significant agreements it has made and allowing for oversight and the expression of dissent. The answer is blindingly obvious.

About the authors

Sir David Natzler is a former Clerk of the House of Commons (i.e. the chamber’s chief official) and co-editor of the 25th edition of Erskine May: Parliamentary Practice. He is a Senior Research Associate at the Constitution Unit.

Charlotte Sayers-Carter is an incoming Bachelor of Civil Law candidate at the University of Oxford and research volunteer at the Constitution Unit.

Image credit: Prime Minister Boris Johnson visits Finland, (CC BY-NC-ND 2.0) by UK Prime Minister.