Scrutiny of international agreements
Under the Constitutional Reform and Governance Act 2010 (CRAG) if the UK enters into a legally binding international agreement (treaty) which is subject to ratification, the Government must lay the treaty before both Houses of Parliament for 21 sitting days before it can be ratified. If, during the 21-day period, either House resolves that the treaty should not be ratified, the treaty cannot be ratified unless the Government lays before Parliament a statement setting out the reason for ratifying despite Parliamentary disapproval. If the House of Lords has resolved not to ratify, the Government may nonetheless ratify the treaty. If the Commons has resolved not to ratify, the laying of a statement triggers a new 21-day period, after which the treaty can be ratified unless the Commons again resolves not to ratify. If the Commons continues to vote not to ratify, this could indefinitely delay ratification. There is also provision in CRAG that in exceptional circumstances a Minister can ratify a treaty without laying it before Parliament.
A Member can indicate their opposition to ratification by tabling a special type of Early Day Motion (known as a ‘prayer’). A prayer submitted by the official Opposition has a greater chance of being debated, but there is no obligation for the Government to provide time for a debate and vote on a prayer within the 21 day period. A prayer can be debated in Opposition time. A prayer tabled by a backbencher is unlikely to be debated unless a large number of other MPs have also signed it. The Government have also previously indicated that if a select committee were to ask for a vote within the 21 day period, it would make time for a debate, but there’s no guarantee of this.
The Government can also reach agreements with other states on non-legally binding instruments, often referred to as ‘memorandums of understanding’. While they make political not legal commitments, these can nonetheless be significant, including financial commitments. There is no requirement for the Government to notify parliament of these instruments and no established route for the House to debate and express a view on such an instrument.
Legislation may be required to bring the UK into line with its international obligations. The consideration of this legislation can provide a partial way for members to consider aspects of a treaty. New legislation will only cover parts of a treaty, where changes to UK law are needed for implementation. Depending on the existing statutory powers, primary or secondary legislation, or a combination may be used to achieve this. In some cases, legislation may need to be in place before a treaty is ratified. It is FCDO practice for legislation to be in place prior to ratification, however this is not always the case.