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.

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The Queen’s speech, the Johnson government, and the constitution – lessons from the 2021-22 session

As a new session of parliament commences, Lisa James discusses what constitutional lessons can be learned from its predecessor. She argues that the government’s legislation and its approach to parliamentary scrutiny in the 2021-22 session suggest that a disregard for checks and balances, a tendency to evade parliamentary scrutiny, and a willingness to bend constitutional norms are fundamental traits of the Johnson premiership.

A new parliamentary session began last week, with a Queen’s speech that laid out a highly ambitious volume of new bills. Many of these are likely to prove controversial – including planned constitutional measures.

To assess how the government might proceed, and how this might play out in parliament, it is useful to look back at the 2021-22 session. This was the first of Boris Johnson’s premiership not wholly dominated by Brexit or the COVID-19 pandemic – offering insight into both the government’s constitutional agenda, and its broader legislative approach. Since becoming Prime Minister, Johnson has been accused of a disregard for checks and balances, a tendency to evade parliamentary scrutiny, and a willingness to bend constitutional norms. In earlier sessions, his supporters could blame the exigencies of Brexit and the pandemic – citing the need for rapid action in the face of fast-moving situations. But the government’s legislation and its approach to parliamentary scrutiny in the 2021-22 session suggest that these are more fundamental traits of the Johnson premiership. And whilst Johnson has thus far been successful in passing his constitutional legislation, his rocky relationships with both MPs and peers mean that he may face greater difficulties in the future.

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18 months of COVID-19 legislation in England: a rule of law analysis

Eighteen months after the first COVID-19 lockdown began, the Bingham Centre for the Rule of Law has produced a report analysing the extent to which the government’s pandemic response has changed over the last year so as to address rule of law concerns that were brought to the government’s attention in the early stages of the pandemic. Katie Lines, author of the report, argues that the government has failed to enable proper parliamentary scrutiny, made it hard for public and politicians alike to know what the law actually is, and that its response to rule of law concerns has been lacking.

The initial crisis stage of the pandemic has now passed, and many are asking what lessons can be learnt from the government’s response. Last month the‘lessons learnt’inquiry held jointly by the Health and Social Care Committee and Science and Technology Committee published its first report, and an independent public inquiry into the pandemic is due to launch in spring 2022.

A central question is how far the existing legal framework and institutional arrangements for responding to public health emergencies adequately protect the rule of law. The rule of law is a foundational principle of any constitutional democracy, and should not be set aside during a national emergency: sustained compliance can actively assist an effective pandemic response by promoting transparency, equality, and accountability, among other principles. 

Our main rule of law concerns with the UK’s legislative response to the pandemic can be grouped into two categories:

1. Parliamentary scrutiny; and

2. The accessibility and clarity of coronavirus legislation.

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The length of modern legislation means that the effectiveness of parliamentary scrutiny is often compromised

In a new report published by the Centre for Policy Studies Daniel Greenberg identifies a number of trends that he argues are reducing the effectiveness of parliamentary scrutiny of legislation. In particular, he suggests that the length of modern legislation is becoming so great that significant parts of bills often receive no detailed scrutiny at all. Here, he summarises his report and suggests action that might be taken to help remedy the situation.

Recent parliamentary practice discloses a number of dangerous legislative trends that threaten the effective protection of the rule of law, by diluting parliament’s power and influence, and concentrating power in the hands of the executive in general and the civil service in particular.

The length of new bills and the number of clauses that they include has become ever greater over recent decades, and the result of portmanteau bills in particular is that even if parliament wanted to scrutinise them effectively it would be unable to do so.  Over the past 50 years, the number of acts passed by governments has stayed approximately the same. However, the average number of clauses included within them has doubled.

It is still common to describe the committee stage of the examination of bills in both Houses as a ‘line-by-line’ scrutiny process; and parliamentarians on all sides of each House commonly refer to it in that way, and often congratulate themselves on scrutinising and refining bills at great length.  The reality, however, is that the committee stage in particular has become diluted to such a degree that it can no longer be described as taking place in a consistent way.

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Constitution Unit gives evidence to Justice Committee scrutinising FOIA

Robert Hazell and Ben Worthy both appeared before the House of Commons Justice Committee today. They gave expert evidence as part of the post-legislative scrutiny of the Freedom of Information Act (2000).

The Constitution Unit has led a number of groundbreaking research projects on the impact of the FOI Act on central and local government, and conducted surveys into the requester and provider experience.

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