Brexit and improving the scrutiny of international agreements
The Brexit debates in the UK have brought a new assertiveness to both Houses of Parliament in the way that they pro-actively engage in the legislative process, as dissensions within the governing and opposition political parties take their toll.
On 27th June 2019, the House of Lords European Union Committee ("the Committee") published a report on the way in which Parliament scrutinises international agreements, particularly those since January 2019 which are related to Brexit.
Referring to the current scrutiny processes under the Constitutional Reform and Governance Act 2010 (CRAG), the Committee has found those processes to be inadequate, particularly as they only engage Parliament's attention after the international agreement concerned has been negotiated rather than at the outset or during the course of the negotiation. Whether this criticism is valid or not depends upon one's view of the proper role of Parliament and of whether it is helpful to shine a searchlight on the Executive branch as they negotiate international agreements .
The Committee accepts that it should not be Parliament's role to micro-manage the negotiation of international agreements but does conclude in its report that a more effective scrutiny process than the current one would require Parliament to be involved throughout the process of the negotiations concerned , with continued Parliamentary oversight after implementation of the agreement concerned.
One suggestion that the Committee puts forward is that, before any international agreement is ratified, the UK government should provide transposition notes to show how the agreement would be implemented in domestic law and policy.
Another point that the Committee's report highlights is that CRAG apparently only covers international agreements between two or more States or between States and international organisations which are binding in international law. Agreements with non-State entities are apparently not covered and, according to the Committee's report, this could create a "scrutiny gap", which Parliament needs to consider how to address.
As the cohesion of the Executive branch of government comes under increasing challenge, it is interesting to see how Parliament is positioning itself to take a more prominent role in decision-making.
