Contribution
My Lords, I pay tribute to the noble and learned Lord, Lord Goldsmith, for his fair-minded chairmanship, and intellectually able and collegiate steering of our committee. It was particularly welcome to me, as a refugee from the European Affairs Committee.
Others have discussed the report and its conclusions, the most striking being that there is a strong case for reforming, by law, the arrangements for effective parliamentary scrutiny of international treaties under the CRaG Act 2010. Indeed, the report suggests, as other noble Lords have mentioned, that the UK is an outlier from other countries where Parliament has more of a say over treaties that sometimes require legislative consent.
I believe that treaties should remain a royal prerogative power. We need not be swayed by the example of continental states, most of which are relatively new or have emerged from revolution, war or violent struggle. By contrast, the UK’s constitutional arrangements emerged over centuries; they brought stability and the potential for change, and ensured the accountability of the Government and Parliament to the electorate. This was demonstrated at the 2019 general election, when the central issue was whether Parliament should decide the terms of the treaty with the EU or the Government on behalf of the people’s wish expressed in the referendum. Our system allowed the will of the majority to be followed, where a more continental system would have allowed a parliament, out of touch with those wishes, to thwart it.
However, I share the view that effective parliamentary scrutiny of government treaties is necessary—particularly that afforded by Parliament as a whole and by both Chambers, as happened with the vitally important agreements of the 1920s and 1930s. I agree that more time is needed, and I am interested in my noble friend Lord Lilley’s proposal for a pre-negotiation mandate debate. Then, as now, treaties were deeply political, which was something to which the noble and learned Lord, Lord Goldsmith, referred to when he mentioned the Chagos question. But does today’s consensus-centred approach of Select Committees tend to mask this central feature of their political nature? The expectation of an inquiry is that officials must do the lion’s share of the initial drafting: they should draft the papers, the terms of reference and the report; they should prepare the draft questions for members to put to witnesses; and they should take the lead in selecting witnesses.
The aim of consensus deprives the committee of its political adversarial dimension. The assumption is that a scientific inquiry based on evidence is being conducted, which is judged to be neutral because it comes from expert witnesses. But those chosen disproportionately reflect the consensus—the centre-left view of our public service, media, academe and establishment. A worthwhile consensus includes and expresses a diversity of views. The noble and learned Lord, Lord Goldsmith, could not have been more encouraging of a diversity of opinions, but the system weighs against their being expressed fully, as does time. By contrast, a debate in and out of Parliament allows for a diversity of opinion.
Perhaps a straightforward way to improve the system we have would be for greater input by members to encourage and reflect a variety of political views, and for specialist witnesses to be of different political persuasions. Instead of the expectation that hard-working officials initiate the draft terms of an inquiry or report and prepare the questions, members’ views should actively be sought and reflected before and during each stage to frame the terms, select witnesses and highlight important points. Minority reports should be permitted and welcomed. In the end, parliamentary scrutiny would be the winner. The House of Lords Select Committee would be doing what it should to make that scrutiny more effective. It would be scrutiny by Parliament on behalf of the electorate, who would have the final say.