“Surely Parliament will get the chance to vote on these agreements?” has been a common refrain from those who assume concerns raised about the World Health Organisation’s Pandemic Accords have been over-stated.
Comforting though it would be to imagine a critical mass of parliamentarians with the time, inclination and effective opportunity to apply proper scrutiny to these international agreements of generational significance, the reality, laid bare during Tuesday’s House of Commons debate on the topic, is that Parliamentary scrutiny of the WHO’s new instruments will be — at best — brief and inconsequential.
During that debate, triggered by an urgent question from Danny Kruger MP, Andrew Stephenson, the Junior Minister for Health and Social Care, was asked repeatedly to confirm whether the WHO Pandemic Treaty, if adopted, would be laid before Parliament for a vote. “Will the Minister give us a cast-iron commitment that we will have a vote — dare I say, a meaningful vote — on it in this House before it comes into force?” asked Mark Francois MP, one of a number of MPs concerned to ensure that Parliament be given its chance to provide effective scrutiny.
It was a seemingly straightforward question, to which the Minister was conspicuously and repeatedly unable to give a straightforward answer. Instead he sought refuge in the fact that the international law process under which the instruments will be adopted has not yet been confirmed, in public at least:
The U.K. treaty-making process means that the accord is of course negotiated and agreed by the Government. As he will know, Parliament plays an important part in scrutinising treaties under the CRaG process and determining how international obligations should be reflected domestically. However, it is important to remember that, because the exact form of the accord has not yet been agreed, the parliamentary adoption process will depend on under which article of the WHO constitution the accord is adopted.
Stephenson’s spectacularly non-committal answer references the fact that there are two possible options under the WHO Constitution for adoption of international instruments such as the prospective Pandemic Treaty: the Article 19 method and the Article 21 method.
Article 19 is used for adopting new treaties, and if used in this case would trigger the requirement for a two-thirds member state majority to adopt the Pandemic Treaty at the World Health Assembly in Geneva later this month, followed by ratification processes in all relevant national legislatures.
Article 21 is used for adopting new health regulations, and if used would mean that the Pandemic Agreement (as it would likely then be described) would become binding on all WHO member states if approved for adoption by a simple majority of those member states in Geneva. There would then be no legal requirement for national-level ratification. Instead, any WHO Member State not wishing to be bound by the new agreement would need proactively to opt out by notifying the WHO to that effect within 10 months of the date of adoption. This is the same legal process as will likely apply for the adoption of the parallel package of amendments to the International Health Regulations.
The distinction is technically important because, in the U.K., the Constitutional Reform and Governance Act (CRaG) requires that treaties, but not regulations, be laid before Parliament. So we should assume that the Minister was indicating that if the WHO Pandemic ‘Treaty’ is adopted under Article 21, it will not be a treaty for the purposes of CRaG and so will not need to be laid before Parliament.
At the outset of negotiations for the Pandemic Treaty the WHO’s Intergovernmental Negotiating Body (INB) had assumed that Article 19 was the more appropriate basis for the new accord, but it notably left open the possibility of using Article 21 instead. The Minister’s comments suggest that this remains an unresolved issue even behind the closed doors of the negotiation process. While reliance on procedural uncertainty might have been a valid argument 18 months ago, that this highly consequential matter has apparently still has not been resolved with less than two weeks to go before a vote to adopt the treaty is extraordinary.
Even if the Article 19 method is ultimately used, deficiencies in the CRAG legislation mean there is still no guarantee of effective Parliamentary scrutiny of – let alone a vote on – the final treaty text.
The relevant provisions of the CRaG provide that treaties must be laid before Parliament for 21 sitting days prior to ratification by the Government, with an explanatory memorandum placed alongside them. The House of Commons in principle has the power to delay any ratification, but for that to happen there would need to be a sufficient number of MPs mobilised to provoke a debate and to carry a vote to delay. This seems incredibly unlikely to happen given the dearth of cross-party interest in these proposals (not a single backbench Opposition MP attended the urgent debate earlier this week) and the short 21-day timeframe permitted for Parliament to act.
That this stunningly weak procedure provides only the most meagre facade of democratic scrutiny was the subject of a Report of the Public Administration and Constitutional Affairs Committee (PACAC) earlier this year, whose findings included:
The overwhelming view expressed in our evidence was that this negatively-framed process is wholly unsatisfactory and only pays lip service to parliamentary involvement in the treaty process.
Moreover, there is an ambiguously vague exemption under CRaG pursuant to which, in ‘exceptional cases’, a Minister may ratify a treaty without going through the CRaG procedural process. What is and isn’t ‘exceptional’ is left undefined; as the PACAC Report notes:
There are however no clear criteria set out indicating when and in what circumstances a Minister can [deem a treaty ‘exceptional’]. So, in theory, it could be done for any treaty as long as the Minister is prepared to set out the Government’s reasons in a statement to both Houses.
We are now less than two weeks until the critical meeting of the World Health Assembly at which the Pandemic Treaty and related amendments to the International Health Regulations could be adopted. After 18 months of negotiations, these hugely important texts are still being written, and according to the Minister on Tuesday, “we are still some way off getting to a text that can be agreed. We are hoping for significant changes in the coming days”.
In any reasonable world one might have assumed that this could only now result in a deferment of the Health Assembly’s vote: as Andrew Bridgen MP asked on Tuesday: “Will the Minister join me and many others in calling for a deferment of those votes until this House and others around the world have had a chance to examine these important details?”
“No,” was the Minister’s abruptly negative reply.
Tuesday’s debate has revealed not only that the Government is determined for the Health Assembly’s adoption vote to take place in a fortnight, but also that it will have scant regard for the views of parliamentarians who — on behalf of their many concerned constituents — wish to test the merits of doubling-down on the U.K.’s ties with the World Health Organisation. Parliament, it seems, will not be given a meaningful vote.
This should be a clarion call to all of us concerned by the WHO’s expansionist ambitions.
Molly Kingsley is a founder and Ben Kingsley is the Head of Legal Affairs at children’s rights campaign group UsForThem. Find UsForThem on Substack.
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