If You Think Parliament Will Get Any Opportunity to Scrutinise the WHO Pandemic Treaty, Think Again

Earlier this year the Director General of the WHO Dr. Tedros Ghebreyesus complained that the WHO pandemic agreement negotiations risked falling apart due to “a torrent of fake news, lies and conspiracy theories”.

This news was likely well received by the thousands of U.K. citizens that have successfully petitioned Parliament, triggering two debates thus far, regarding the treaty and the proposed IHR amendments. As stated by MP Danny Kruger at the most recent of these debates, “this is a fringe issue in Parliament, as demonstrated by the empty benches, but significant numbers of the public have a real interest in this topic.”

Although poorly attended, the debates did allow concerns to be formalised and placed on record, concerns which Dr. Ghebreyesus appears to hold in contempt. One presumes that these issues are part of the “torrent” that Tedros is referring to. More recently at the World Governments Summit Tedros added:

Countries set themselves a deadline to complete the agreement in time for adoption at the World Health Assembly in May of this year. That’s now just 15 weeks away. However, there are currently two major obstacles to meeting that deadline.

The first is a group of issues on which countries have not yet reached consensus. They’re making progress, but there are still areas of difference that need further negotiation between countries.

None of them are insurmountable. If countries listen to each other’s concerns, I am confident they can find common ground and a common approach.

The second major barrier is the litany of lies and conspiracy theories about the agreement:

That it’s a power grab by the World Health Organisation;

That it will cede sovereignty to WHO;

That it will give WHO power to impose lockdowns or vaccine mandates on countries;

That it’s an ‘attack on freedom’;

That WHO will not allow people to travel;

And that WHO wants to control people’s lives.

These are some of the lies that are being spread.

If they weren’t so dangerous, these lies would be funny. But they put the health of the world’s people at risk. And that is no laughing matter.

These claims are utterly, completely, categorically false. The pandemic agreement will not give WHO any power over any state or any individual, for that matter.

But can we take Tedros’s comments at face value?

What exactly are the countries at loggerheads about? We can imagine Tedros being happy to give the impression that perhaps countries are struggling to safeguard the democratic rights of their respective populations. Or that they are grappling with the dilemma that in pursuance of promoting the integrity of their health policies, they plan to work in cahoots with media platforms to censor the speech of the entire globe – a violation of Article 10 of the Human Rights Act.

But in fact it is nothing of the sort, of course. The only meaningful evidence we have points to pecuniary interests being at the heart of the delay, namely “intellectual property rights, sharing information around pathogens and technology transfer”, with the U.S., EU, U.K., Canada, Switzerland and United Arab Emirates all indicating that they aren’t happy with the entire article on the access and benefit mechanism. (This mechanism monetarily rewards lower income countries for sharing pathogen samples and genetic sequence data, allowing them to offset the cost of purchasing pharmaceuticals, for example.)

Perhaps it serves the interests of the WHO to let people assume the negotiation delay is evidence that public concerns are being addressed, with Tedros seeking to placate opposition.

However, his second claim that the negotiating parties have somehow succumbed to conspiracy theories is rather odd and most unlikely.

Tedros may claim that the treaty is not a “power grab” by the WHO, but what is certain is it that this treaty will facilitate a sizable shift in power to the corporate entities (stakeholders) that the WHO brings to the pandemic preparedness table. Historically the WHO’s alliance with the pharmaceutical industry has resulted in a huge waste of public money, as experts with financial ties to companies profiting from WHO policies were considered authoritative. There is nothing in the latest version of the proposal that prevents this conflict of interest from re-emerging. With the legally binding agreement stipulating that member states are to allocate 5% of their health budgets to pandemic preparedness, along with an as yet undetermined percentage of their GDP, the size of the pandemic preparedness industry will become staggeringly large. Five percent of U.K. NHS spending amounts to over £9 billion pounds. There are 193 other members states of the WHO. Feel free to do the maths.

The U.K. Government has also reassured us that the treaty will not act to cede sovereignty to the WHO, but this reassurance is not corroborated in detail. What cannot be denied is that the treaty creates a new policymaking centre that is distinct from Westminster and can influence Parliament. One would expect an advanced democracy such as the U.K. would be well placed to safeguard Parliament’s role from the impact of any such agreement, but this is not the case. Indeed, it may be surprising to most that current U.K. legislation provides no opportunity for Parliament to express its explicit approval or disapproval of an international treaty or agreement.

So when Tedros reassures us that this treaty will be ratified in line with our sovereignty, in the case of the U.K. this is not particular heartening as Parliament’s role in treaty ratification is essentially passive. To understand how a treaty may come into effect in the U.K. one needs to briefly examine the historical context of prerogative power and how these powers are exercised today.

As outlined by the Public Administration and Constitutional Affairs Committee (PACAC):

The royal prerogative provides the legal basis for the Crown (executive) to enter a treaty negotiation; originally this was enacted as the divine right of kings, over time this evolved to the idea that the King acts as a delegate and sovereign representative of the people, to the King acting in council with ministers, to the view that the powers must be exercised by ministers on behalf of the sovereign. The current view is that the authority for the Government to exercise the royal prerogative is derived from having the confidence of the elected House of Commons.

What this amounts to is that the Government may enter an international agreement or treaty negotiation with no Parliamentary debate or explicit expression of will by the elected house, as was the case with the WHO pandemic treaty.

We have to accept that residues of historic conventions that are less than perfect will manifest within our current Parliamentary system and a modern democracy has to do its best to reinterpret these into constitutionally acceptable practice. In the context of the pandemic treaty, as the opposition has expressed support for a treaty, it can be argued that the consent of the elected house is given and the Government has exercised its prerogative power in accordance with current understanding. What is of greater concern is how treaties are handled from here in. If opponents of the WHO agreement are under the illusion that Parliamentary process will spur into action to repel or revise this treaty, then the findings of the 2019 Select Committee on the Constitution report, should make for sober reading:

Parliament’s scrutiny of treaties is based on the Ponsonby rule, established nearly 100 years ago and subsequently set out in the Constitutional Reform and Governance Act 2010 (CRAG). These provisions limit Parliament’s scrutiny to a 21 sitting day period after the Government lays a completed, signed treaty before both Houses. No systematic scrutiny of treaties currently takes place prior to signature.

Treaties are subject to a negative resolution procedure, meaning that no debate or vote is required before they are ratified. During that period, the House of Commons has the power to delay ratification for a further 21 days — repeatedly, if desired — but only if the Government makes time for debates and votes to take place. The House of Lords may vote against a treaty’s ratification, however the Government can nonetheless ratify the treaty by making a statement setting out why the treaty should still be ratified. This is the limit of Parliament’s involvement in, and scrutiny of, treaties. Since the passage of the 2010 Act, no debates have taken place in the House of Commons under its provisions. While we accept that treaty-making is a function of the Government under the Royal Prerogative, the powers available to Parliament to scrutinise ministers’ actions are anachronistic and inadequate.

So as it stands Parliament is limited to acting only once a signed treaty is laid before it and there is currently no procedure for a certain number of MPs to trigger a debate and a vote. Parliament has no powers to revise or reject a treaty and if it chooses to continually delay ratification the Government can still proceed by providing a written statement to both houses outlining its reasons. There are no criteria in place for when the Government can and cannot bypass Parliament in this manner – the accession of Sweden and Finland to NATO being a recent example of the Government using this device.

There has been suggestion that the dualist nature of U.K. law provides some safeguard from those international treaties that are incompatible with our values, as it would be inconceivable that Parliament would willingly incorporate them through new domestic legislation. However, this still does not provide an adequate safeguard as if primary legislation is required, this will often only be for particular parts of an agreement. Thus the scope of any debate on implementing legislation may only apply to a small aspect of a wide-ranging agreement.

Further to this, incorporation into domestic law need not require a new Act of Parliament as it may be incorporated via secondary legislation powers set out in an existing Act of Parliament, or even through non-statutory mechanisms such as updates to guidance or rules. It is not particularly difficult for one to imagine the creation of mechanisms that maintain Parliamentary sovereignty, in any legal sense of the term, whilst assimilating policies that emanate from the WHO.

The second report: ‘Parliamentary Scrutiny of International Agreements in the 21st century‘ was published January 23rd 2024 by the PACAC. The Government has two months from publication to respond. The report summarises CRAIG as follows:

CRAG created the façade of additional democratic legitimacy for the assumption of treaty obligations, while it enshrined a model in which Parliamentary inaction regarding treaties so laid, the standard practice, effectively gives the Government free rein. The fact that the Commons can in theory prevent the Government ratifying a treaty laid under CRAG, which has never occurred nor to my knowledge has there been a vote on such a motion, did not incentivise Parliamentary scrutiny much less effective Parliamentary scrutiny. …

We have found these arrangements to be wanting in terms of the opportunities provided for scrutiny and in the unfettered exercise of the international relations prerogative power, and as a consequence consider the status quo to be constitutionally inappropriate in the 21st century.

In December 2022 a group of us wrote to relevant Lords and Commons Select Committees outlining our concerns with the WHO pandemic treaty and placing these within the context of the oral evidence and in-depth reports that these committees produced. We argued that the definitions and scope of the WHO treaty will create an agreement with no discernable boundaries affecting every sector in the U.K. and this ought to be the catalyst for adopting the essential reforms that these committees endorse.

Sadly we did not receive a response. It should be noted that the Government is on record stating: “If a request for a debate on the floor of the House on a treaty was made by a Select Committee and supported by the Liaison Committee, then the Government would normally accept the request.” Currently this appears to be the only avenue to ensure some form of Parliamentary scrutiny is achieved at a stage early enough for it to be meaningful. Disappointingly, there is no public record of any Select Committee currently investigating the impact of this treaty. It would be advantageous if MPs and other influential parties were to create pressure in this regard and to raise the profile of the crucial and painstaking work these committees have undertaken.

Shiraz Akram is a member of the Thinking Coalition, a pro-liberty group, highlighting and questioning Government overreach.