A debate about the stable door, the horse having already bolted

‘Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous’.

So wrote Walter Bagheot in 1872. Perhaps he would be pleased to know that parliament will be consulted on the ‘essence’ of the European Union Reform Treaty. Unfortunately that is where its involvement begins and ends.

Democratic Audit and our partners, the Federal and One World trusts, are shortly publishing a report based on our analysis of how parliament engaged in external policy during the 2006-07 session. We have identified key weaknesses in practices of democratic oversight. Prominent amongst them is the inability of parliament to involve itself in the government’s conduct of diplomacy. The handling of the Reform Treaty illustrates this point well.

Regardless of its merits, whether or not it amounts to a constitution, how similar it is to the earlier package upon which Labour promised a referendum and whether one should be held, there is no doubt that the treaty is important, with significant implications for the operation of the European Union. For this reason democratic principles require meaningful parliamentary engagement with it. So what part is there for our elected representatives?

The Queen’s Speech this year promised to bring forward legislation ‘to enable parliament to approve the European Union Reform Treaty’. But while the government plans to give time for exhaustive debate on the contents of the document next year, it will not be possible for parliament to alter the substance of it.

The only amendments that may be tabled will be on such subjects as how the government should report on European Union matters and the inevitable demand for a referendum.

These restrictions are unavoidable since complex and crucial negotiations have already taken place. Individual member states cannot retrospectively ask to redraft the treaty. Consequently the only way in which parliament could have influenced this and similar agreements is through engagement with UK ministers in advance of European-level discussions. But a recent report by the House of Commons European Scrutiny Committee shows that consultations over the European Union Reform Treaty were inadequate.

The committee found the process leading up to the Intergovernmental Conference of July 2007 ‘far from transparent’. Despite the government claim that it welcomed ‘parliamentary contributions to the debate’ the committee struggled to elicit what the official policy was on changes to European institutional arrangements.

On 7 June 2007, the then Foreign Secretary, Margaret Beckett, provided the assurance that there had ‘not really been anything that you could call negotiation and not much that you could really call discussion’.

Yet only 12 days later, an outline of a draft treaty was circulated, 48 hours before the commencement of the European Council. By 23 June, the council had agreed a draft for the Intergovernmental Conference. The speed of this process combined with the refusal to provide the European Scrutiny Committee with any insight into the UK negotiating position rendered the ‘parliamentary contributions to the debate’, supposedly desired by the government, nugatory.

Yet even the minimal degree of oversight to which this treaty is being subjected is greater than that imposed upon most treaties into which the UK enters. At the root of this democratic problem is the device known as the Royal Prerogative. Using this constitutional entitlement, the executive is able to negotiate and ratify international agreements (and do much else at home and abroad) without any formal requirement to consult parliament.

Only if enactment of a measure requires a change to domestic law, as the Reform Treaty does, is the approval of the legislature required. Under the so-called ‘Ponsonby rule’ documents are tabled before the House for a set period of time, but they are rarely debated and never voted on.

Correctly the government has addressed this deficiency as part of its current major constitutional reform programme. On 3 July, Gordon Brown told parliament that he intended ‘to put on a statutory footing parliament’s right to ratify new international treaties.’ But it is now apparent that it is intended merely to enshrine the ‘Ponsonby rule’ in an act of parliament, the effect of which measure could be to harden an unsatisfactory arrangement.

If MPs and Peers are meaningfully to engage with external affairs the government must work to deliver its laudable pledge of ‘a modern, systematic reform of the scope and nature of the prerogative powers’, taking into account the way in which diplomacy is conducted and agreements reached. And this programme must be combined with internal changes to parliamentary oversight mechanisms.

Through this dual approach it would be possible to develop something akin to the process known as ‘soft mandating’, whereby ministers are questioned on their broad bargaining positions in advance of international negotiations. If commitments were not met the subsequent treaty could be referred to the House for a debate and vote.

Parliament would thereby become the genuine source of authority in international policy. The ‘ludicrous’ arrangement referred to by Bagheot would become a little less so.

Dr Andrew Blick, Democratic Audit, University of Essex, is engaged in a joint research programme with One World Trust and Federal Trust into parliamentary oversight of external policy.