On Wednesday, 15 June, the UK-Australia Free Trade Agreement (FTA) was laid before parliament, earning it the dubious honour of becoming the first major new trade agreement in the post-Brexit era to go through the rather underwhelming new scrutiny process known as CRAG.
The Constitutional Reform and Governance Act covers certain international treaties, including FTAs, and gives the Commons the statutory power to delay the ratification of treaties. But that’s about it as far as scrutiny goes.
Under CRAG, the government must lay a treaty before parliament for 21 days before it can be ratified. During this time, the Commons, but not the Lords, can pass a resolution against ratification which restarts the clock on the 21 days. There is no limit to the number of times this cycle can be repeated. In theory, this gives parliament the ability to indefinitely delay a treaty coming into force.
However, this has never happened.
Parliamentary power has been constrained
If that sounds like a bit of a damp squib, that’s because it is. Parliament’s role in the scrutiny of treaties under CRAG is incredibly limited. It’s often referred to as a simple ‘take it or leave it’ vote but, in reality, it amounts to a feeble ‘take it now or take it later’ option.
Parliamentary approval is not needed for treaties to be ratified, and CRAG provides no guarantee of a debate or a vote on them. It gives parliamentarians no opportunity to amend treaties, trigger withdrawals or have any meaningful say on the decisions made under existing treaties. The 21 day scrutiny period is also far from an adequate time period to conduct a normal committee inquiry process, which typically takes at least three months.
The limitations of this scrutiny were highlighted repeatedly during the Brexit negotiations. In their ‘lessons learned’ report, The Lords EU Committee determined that “the CRAG Act timetable was a significant impediment, precluding meaningful consultation of stakeholders and limiting the opportunity for committee Members to engage in informed consideration and discussion.”
The Lords Constitution Committee reached the same conclusion.
The government is trying to fast track the process
In practice, even the power of parliament to delay ratification under CRAG is severely constrained, because the government has significant control over floor time in the Commons. The government has signalled that it does “not envisage a new FTA proceeding to ratification without a debate first having taken place on it, should one have been requested in a timely fashion…subject to available Parliamentary time.”
That’s quite a big caveat, particularly considering the 21 day period for the Australia deal concludes on the last day before summer recess. It remains to be seen whether the government will honour this commitment, given that it has ignored explicit and repeated requests from the International Trade Committee to allow 15 sitting days for them to review the government’s final report on the deal before triggering CRAG.
At this stage, parliament has little choice but to request time for a debate on the deal as soon as possible, which it has done. Short of this, a debate could also proceed during an opposition day or following a Delegated Legislation Committee debate.
This is part of a worrying trend
The CRAG process is just one example of a worrying trend to disregard parliament’s scrutiny role. Luckily, there are plenty of other models to point to where parliamentary scrutiny of trade deals is guaranteed, including amongst major trading partners.
For example, the US Congress and European Parliament both have a legal right to see negotiating objectives and have a meaningful vote on them. There is a legal guarantee that they will be published for consultation.
This would be a good place to start, but parliamentarians should be guaranteed updates from government and privileged access to negotiating texts, for the relevant select committees to scrutinise deals throughout the process.
After negotiations, both Houses of Parliament should hold a debate and vote on a final deal before ratification. And the impact assessments for the environment, public health, human rights and global development should be published in advance of signing or any ratification vote.
This isn’t just about being a stickler for process or to uphold some woolly principle of the parliamentary prerogative. Trade deals can have significant consequences for people, businesses, the climate and the natural environment. The Australia deal has shown this quite clearly. We need proper parliamentary scrutiny on behalf of all of us, to ensure trade deals have positive impacts and don’t do more harm than good.