Summary of a Keep Our NHS Public (KONP) Briefing Paper
November 2020
KONP’s interest in parliamentary process comes from the fact that, despite government assurances, there are serious concerns that the NHS will not be comprehensively excluded from future trade deals. In principle, one way of ensuring that the NHS is fully protected is through Parliament’s scrutiny of trade deals. However, the current Parliamentary process is deeply flawed.
The Minister for International Trade has recently announced new arrangements for the scrutiny and transparency of trade deals, describing these as “a best in class approach”. However, our analysis of Parliament’s involvement in consultation, scrutiny and ratification shows that this is not the case. Our briefing compares the UK process with those of other democracies, and uses the UK-Japan trade deal as a case study to demonstrate that, despite new arrangements, Parliament remains largely toothless.
The Parliamentary process prior to new scrutiny arrangements
Decisions concerning trade agreements fall under the royal prerogative: the government is under no obligation to inform Parliament about proposed deals or negotiations. Historically, MPs have had no right to approve negotiating objectives, read impact assessments or view the texts of agreements. Treaties are subject to a negative resolution procedure: once a treaty is signed, no Parliamentary debate or vote is required before ratification. The Constitutional Reform and Governance Act (CRaG) (2010) allows Parliament to ratify a deal but without a clear procedure to ensure this: it requires someone to ‘make a noise’. Parliament can only request a debate prior to ratification, which may only be granted if parliamentary time can be found: even then, there is little time – 21 sitting days – allowed for scrutiny or debate. Moreover, Parliamentarians have been given scant information on which to base debate, and no way to conclusive vote against a controversial deal. In fact, there has been no debate prior to ratification of trade agreements and no vote since at least 2010.
Critics of the procedure are told that, instead of any role in shaping or approving trade deals, Parliament has the power to block a trade agreement by voting against any primary domestic legislation required to enact it. However, not all trade deals require such legislation and besides, international treaties like trade deals compel changes in domestic law, and not vice versa.
The Parliamentary process following new scrutiny arrangements
The new arrangements announced by the Minister do not change things fundamentally. They include the publication of objectives and a scoping assessment at the start of negotiations, and refer to the need for widespread consultation. The nature of consultation, however, remains limited. For example, expert advisory groups including representatives from trades unions and civil society have been replaced by Trade Advisory Groups representing business interests.
Scrutiny rests largely with the International Trade Committee (ITC) and the International Agreements Sub-Committee (IASC), which so far have held consultations on prospective deals with Japan and the US. Notably, there is no requirement that these committees produce independent reports on an agreement following consultations, and it is unclear whether or how their findings can influence government thinking, or trade negotiations.
The ratification process for the UK-Japan deal has highlighted a range of issues (see Briefing’s Appendix). It was only after the agreement was fully legally scrubbed and signed that it was sent to the ITC on a confidential basis so that the Committee could “fully analyse it”. However, as the UK-Japan deal was immediately laid before Parliament after signing (so starting CRaG’s ratification process), both the ITC and IASC were placed in the invidious position of announcing consultations within the 21 sitting day period. As the ITC’s Chair admitted, the Committee was unable to conduct a comprehensive analysis of the text within this time frame and would rely on the evidence of stakeholders instead. This does not suggest a rigorous approach to scrutiny or the collection of evidence for Parliament’s consideration.
Conclusion
All in all, the new arrangements for the scrutiny of trade deals make little difference to what has been recognised as an anachronistic and inadequate process. Trade deals still fall under the royal prerogative, denying the UK Parliament a meaningful role and a decisive vote.
The current process remains pitiful compared with the role of parliaments in other democracies. As a member of the EU, the UK depended on the other EU member states to scrutinise and if necessary vote against a controversial deal. The UK’s departure from the European Union (EU) means that there is now a greater need than ever for Parliament to have the power to scrutinise and decisively vote on trade deals. Apart from other considerations, the future of our NHS could depend on it.
Recommendations
- Members of Parliament should have a meaningful role, including a vote, in the creation of the original mandate for a trade deal.
- Parliament should be given stronger powers to scrutinise, debate and shape a trade agreement, both during negotiations and pre-ratification. Reform should include
- giving MPs the right to see negotiating papers, initial impact assessments and consultation reports at the earliest opportunity,
- the right to see the agreed text of a deal before signature, and
- the right for Parliament to have a decisive vote on ratification.
- In the absence of reform, MPs (in addition to whatever opportunities they have for scrutiny) should support amendments to relevant draft legislation that aim to prevent adverse consequences of trade deals for public health and public services like the NHS.
- Information and analysis of a proposed deal, whether from committees charged with scrutiny or other sources (such as civil society groups), should be available to MPs well in advance of any debate.
- The explanatory memorandum provided prior to any final Parliamentary debate should be appropriately detailed, and incorporate analysis from a range of experts, not just from commerce.
- The Constitutional Reform and Governance Act (2010) should be reformed to ensure, prior to any decision on ratification, that there is a debate – and greater time for debate – once a treaty has been formally laid before Parliament.
- Ultimately, there needs to be constitutional reform that ends the UK government’s ability to negotiate trade deals under the royal prerogative.